Opinion
3:20-cv-01155-AC
09-15-2021
DAVID PEER, individually and on behalf of all others similarly situated, Plaintiff, v. RICK'S CUSTOM FENCING AND DECKING, INC., a domestic business corporation and RICHARD LEE STANLEY, an individual, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, MAGISTRATE JUDGE
Introduction
Plaintiff David Peer, individually and on behalf of others similarly situated ("Peer"), brings this collective action lawsuit against defendants Rick's Custom Fencing and Decking, Inc. ("RCFD") and Richard Lee Stanley (collectively "Defendants") under the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (2018) ("FLSA") and Oregon law. Peer alleges Defendants wrongfully required him to pay back minimum wage payments from future commissions and failed to include all earned commissions into his rate of pay when calculating overtime.
Peer filed a Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members and Incorporated Memorandum of Law ("Motion"). The court finds Peer has met the lenient preliminary standard for conditional certification and recommends the court grant the Motion as to conditional certification, notice, and equitable tolling.
Background
RCFD's crews build custom fences and decks for customers in Oregon and Washington. (Pl's Mot. to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members and Incorporated Mem. of Law, ECF No. 24 ("Pl's Mot."), at 4.) Peer worked for RCFD as both a crew apprentice and a crew leader from approximately May of 2016 until he was terminated in December of 2019. (Pl's Mot. at 4; First Am. Compl, ECF No. 23 ("First Am. Compl."), 13, 28.)
RCFD entered into a commission agreement contract with Peer and putative collective class members which specified employees would receive a percentage of the amount paid by customers for the construction projects on which they worked. (Pl's Mot. at 5.) The commission agreement is outlined in the RCFD Fence Manual ("Manual"). (Nicolas Marshall Dep. ("Marshall Dep."), 111:2-112:4.) The Manual specifies jobs are completed by "Primary Crews" and "Secondary Crews." (Guerriero Decl. dated February 5, 2021, ECF No. 25 ("Guerriero Decl."), Ex. C, at 22.)
The parties have offered two editions of the Manual, but the court relies on the 2015 edition because it is the edition in effect during Peer's employment at RCFD. This 2015 edition is attached as Exhibit C to the Guerriero Decl., ECF No. 25-3. Revision dates of the Manual are included in the email attached as Exhibit J to the Guerriero DecL, ECF No. 25-10.
Exceipts from the deposition transcript of Nicolas Marshall, taken January 7, 2021, are attached as Exhibit A to the Guerriero Decl., ECF No. 25-1.
Primary Crews are paid commission, Secondary Crews are not. (Id. at 22.) The commission amount is determined through a series of calculations. When a crew completes a job, the total amount of the invoice is comprised of two costs: materials and the "labor basis." (Id. at 21.) The labor basis is divided among the Primary Crew based on predetermined percentages depending on season and role: during winter, from November 1 through February 29, the crew receives 21% of the total labor basis ("Crew Commission"); during summer, from March 1 through October 21, the Crew Commission is 17.85% of the labor basis. (Id. at 21-22.) Crew Managers receive a 3% commission during winter and a 2.55% commission during summer. (Guerriero Decl. Ex C, at 21.) RCFD then divides the Crew Commission among the Primary Crew based on the makeup of the team: if the Primary Crew consists of a Crew Leader and Crew Helper, the Crew Leader receives 60% of the reduced labor basis and the Crew Helper receives 40% of the reduced labor basis; if comprised of a Crew Leader and Crew Apprentice, the Crew Leader receives 55% of the reduced labor basis and the Crew Apprentice receives 45% of the reduced labor basis. (Id. at 21.)
Secondary Crews are paid set hourly rates based on the season and the role a crew member is assigned at the beginning of the job. (Guerriero Decl. Ex. C, at 23.) To be a member of the Primary Crew, a Leader, Helper, or Apprentice "must work at least 70% of the hours of the Primary Leader who put the most time into the job, with the exception of crew managers and whatever crew helper or apprentice has the most hours on the job," (Id. at22.) Atthe close of a pay period, crew members' pay includes earnings from all closed invoices, adjusted for the "Old Draw Wage," and a Draw Wage on all pending invoices. (Id.)
Further calculations are conducted when Primary Crews do not have equal hours, but for purposes of the Motion, such detail is not necessary. (Guerriero Decl., Ex. C, at 21-22.)
According to Peer, RCFD then deducts the employee's draws and negative commission totals to arrive at the employee's "Job Site Commission." (Pl's Mot. at 5-6.) The Job Site Commission is subsequently compared with the amount the employee would earn if paid hourly minimum wage, including overtime based on time-and-a-half. (Id. at 6.) If the Job Site Commission is less than the minimum wage total, Defendants add the difference as a "Minimum Wage Supplement" to the employee's Job Site Commission. (Id. at 6.) This Minimum Wage Supplement is deducted from the employee's future paychecks. (Id. at 6; Marshall Dep. 143:25-144:14.)
To calculate overtime, RCFD uses "a percentage. [Overtime] is paid on regular earning, draw wage, and job site wages." (Id. at 24.) During deposition, Nicolas Marshall, one of the corporate representatives and the General Manager of RCFD ("Marshall"), explained class members are entitled to time-and-a-half ninety-nine percent of the time. (Marshall Dep. 87:2-12.)
Peer seeks to certify as a class "all of [RCFD]'s non-exempt employees, whether current or former, with a commission or bonus structure, including the Crew Managers, Crew Leaders, Crew Helpers, and Crew Apprentices, who performed services in Oregon during any time period between July 14, 2014 to date." (Pl's Mot. at 3.) Peer and Defendants disagree regarding the evidentiary requirement for Tier I of conditional certification. Pointing to a recent District of Oregon case, Hunter v. Legacy Health, Case No. 3:18-cv-02219-AC, 2021 WL 24553 (D. Or. Jan. 4, 2021), Defendants argue the first tier requires plaintiffs to submit affidavits or other evidence showing potential class members' desire to opt in. Peer points to Hunter as well, and other cases, and argues the low evidentiary bar for the first tier does not require affidavits or declarations from putative class members.
Legal Standard
Under FLSA, an employee may file a lawsuit against an employer for violations of FLSA on their own behalf and on behalf of other "similarly situated" employees. 29 U.S.C. § 216(b). FLSA does not define "similarly situated." See 29 U.S.C. § 216(b); Campbell v. City of LA., 903 F.3d 1090, 1100 (9th Cir. 2018). Instead, a two-step certification process evolved through case law and has recently been endorsed by the Ninth Circuit. Campbell, 903 F.3d at 1100 ("It is now the near-universal practice to evaluate the propriety of the collective mechanism - in particular, plaintiffs' satisfaction of the 'similarly situated' requirement - by way of a two-step 'certification process.'") For the first step, "plaintiffs will, at some point, around the pleading stage, move for 'preliminary certification' of the collective action, contending that they have at least facially satisfied the'similarly situated requirement.'" Id. (quoting 1 McLaughlin on Class Actions §2:16 (14th ed. 2017). At this stage, plaintiffs must show only '"substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'" McElmurry v. U.S. Bank Nat'l Ass'n, No. CV 04-642-HU, 2006 WL 3908536, at *3 (D. Or. Dec. 8, 2006) (quoting Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 682 (D. Kan. Aug. 23, 2004)). The claims and positions of the employees need not be identical. Ballaris v. Wacker Silttronic Corp., No. 00-1627-KI, 2001 WL 1335809, at *2 (D. Or. Aug. 24, 2001). This step "results in 'conditional certification' of a representative class that allows members of the putative class to opt. in.'" Id. (citing Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)). The action then proceeds as a collective action throughout discovery.
As discussed in this court's unpublished Opinion and Order in Hunter v. Legacy Health, Case No. 3:18-cv-02219-AC, (D. Or. April 13, 2021), the Fifth Circuit adopted a truncated, single-step test in Swales v. KLLM Transport Services, 985 F.3d 430 (5th Cir. 2021). Hunter v. Legacy Health, Case No. 3:18-cv-02219-AC, Opinion and Order, ECF No. 133 (D. Or. April 13, 2021) (unpublished). However, the Ninth Circuit "has clearly spoken on the point and essentially endorsed the two-tier analysis in Campbell.'" Id., at *23 (referencing Campbell v. City of LA., 903 F.3d 1090, 1110 (9th Cir. 2018).
The district court has discretion to determine whether a collective action is appropriate. Hargrove v. Skyes Enters., No. CIV. 99-110-HA, 1999 WL 1279651, at *3 (D. Or. June 30, 1999); see also Adams v. Inter~Con Sec. Sys., Inc., 242 F.R.D. 530, 535 (N.D. Cal. 2007) ("The court's determination of whether a collective action is appropriate is discretionary.") When deciding whether to conditionally certify a collective action, the court uses a fairly lenient standard. McElmurry, 2006 WL 3908536, at *3.
"Significantly, as long as the proposed collective's 'factual or legal similarities are material to the resolution of their case, dissimilarities in other respects should not defeat collective treatment." Senne v. Kan. City Royals Baseball Corp., 934 F.3d 918, 948 (9th Cir. 2019) (quoting Campbell, 903 F.3d at 1117). "This court considers the term 'similarly situated' in light of the purposes and goals of a collective action." Sheffield v. Orius Corp., 211 F.R.D. 411, 413 (D. Or. Nov. 8, 2002) (internal citations omitted).
The second step, known as the "decertification stage," is made "after discovery is largely complete and the matter is ready for trial." McElmurry, 2006 WL 3908536, at *3 (citing Hipp, 252 F.3d at 1218). At this step, usually precipitated by a defendant's motion for decertification, the court determines whether the possible class members are similarly situated to the named representative. If so, the representative action may proceed to trial, but if not, the court will decertify the class and dismiss the opt-in plaintiffs without prejudice and only the original plaintiffs will proceed to trial on their individual claims. Id. "Although the plaintiffs burden at this final stage is [stricter] than at the notice stage, the plaintiff need not show that opt-in plaintiffs are identically situated," and "need not prove the merits of their claim." Nance v. May Trucking Co., No. 03:12-cv-01655-HZ, 2013 WL 10229756, *3 (D. Or. June 10, 2013) (citing Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp.2d 870, 892-93 (N.D. Iowa 2008)).
Discussion
I. First Tier Analysis Applies and Notice Should be Granted
Peer alleges Defendants violated FLSA's minimum wage and overtime laws under 29 U.S.C. §§ 206-07 by withholding minimum wage and overtime compensation from Peer and similarly situated employees. Peer seeks conditional certification of a class of Defendant's "non-exempt employees, current or former, with a commission agreement or bonus structure, including Crew Managers, Crew Leaders, Crew Helpers, and Crew Apprentices, who performed services in Oregon during any time period between July 14, 2014 and to date." The parties agree the first-tier analysis is appropriate here. (Pl's Mot. at 4) ("As the first stage of conditional certification, Plaintiff moves this Court for certification of the collective class and facilitating Court-authorized notice"); (Def.'s RCFD and Stanley's Mem. P. & A. Opp'n to Certify Collective Action and Facilitate Notice to Potential Class Members, ECF No. 29 ("Defs.' Opp'n Mem."), at 5) ("At this stage, courts focus on a review of the pleadings with limited supplementation from declarations or other evidence" (citing Campbell, 903 F.3d at 1109)).
In the Ninth Circuit, the similarly situated analysis focuses not on dissimilarities, but on whether the plaintiffs "share a similar issue of law or fact material to the disposition of their FLSA claims." Senne, 934 F.3d at 948 (citing Campbell, 903 F.3d at 1117, 1114). "After a court conditionally certifies a collective, potential collective action members should receive 'accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions as to whether to participate.'" Hunter, 2021 WL 24553, at *7 (citing Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 170 (1989)).
Peer has made substantial allegations the putative class members were together the victims of two policies: the first policy "wrongfully required Similarly Situated Employees to pay back minimum wage payments from future commissions," and the second policy "failed to include all earned commissions into Similarly Situated Employees' regular rate of pay for the purposes of calculating overtime." (Motion at 2.) RCFD presents three arguments against conditional certification. Each is addressed below.
A. Peer's Showing of RCFD's Calculations and Proposed Class Definition is Permissible
First, Defendants argue Peer failed to show he and putative class members are similarly situated. (Defs.' Opp'n Mem. at 5-9.) As part of this argument, Defendants contend Peer's focus on wage and overtime calculations improperly addresses the merits of the case. (Id., at 5-6.) In response, Peer contends the calculations support the Motion because they show the common practices and policies for wages and overtime. (Pl's Reply 6.) The court agrees.
In support of the first argument, Defendants point to a truncated version of the class definition, which omits the qualifier "non-exempt" and emphasizes the job titles of those included in the class. (Compare Defs.' Opp. Mot. at 3, with First Am. Compl. at 5:8.) Defendants argue Crew Managers are exempt from overtime and are thus paid according to a different policy than those employees given the other titles listed, which correspond to non-exempt positions. (Id. at 7-8.) This emphasis is misplaced. Job titles are not in and of themselves material when wages are at issue. Rather, material are the duties performed by the employees and other factors, and based on those factors, the law dictates whether the employees carrying out those duties are exempt or non-exempt. Therefore, the inclusion of the salaried "Crew Managers" in the class does not necessarily defeat the similarly situated requirement. In addition, there are two case-specific reasons the inclusion of Crew Managers may be appropriate: (1) some Crew Managers at RCFD are paid a commission and hourly wage and therefore may be similarly situated; and (2) if a Primary Crew Member is promoted to Crew Manager in the middle of a job, they would be paid according to the role they held at the beginning of the job, regardless of their new title as Crew Manager. (Tom Marshall Dep. 77:9-78:15; Guerriero Decl., Ex. C, at23.) At this phase, Peer's proposed class definition does not defeat the similarly situated requirement.
Excerpts from the deposition transcript of Tom Marshall, taken January 11, 2021, are attached as Exhibit B to the Babbit Decl., ECF No. 30-2.
B. Tier One Does Not Require Affidavits or Declarations
Second, Defendant argues Peer failed to show other putative class members wish to opt in because Peer has not filed declarations or affidavits by potential class members. (Defs.' Opp'n Mot. at 9-11.) RCFD cites Hunter, Wilson, and Carol Ferguson v. Maria Smith, Case No. 3:18-cv-00372-SB, 2020 WL 5731821 (D. Or. Aug 12, 2020), to support this requirement. In response, Peer presents portions of Hunter not addressed by Defendants and distinguishes this case from those cited by Defendants. (Pl's Reply 11-12.)
Regarding Hunter, as addressed supra note 4, a demonstration of opt-in interest is required at the second step of the certification process, the "decertification stage," but not at the first step. Hunter explained, "At the preliminary certification stage, 'the district court's analysis is typically focused on a review of the pleadings but may sometimes be supplemented by declarations or limited other evidence.'" Hunter, 2021 WL 24553, at *6; see also Id. at *7 ("At the initial stage, courts typically do not focus on whether the plaintiff has produced enough evidence of co-worker interest because the key inquiry is whether potential plaintiffs are similarly situated."). As for Wilson, the supporting text merely states, "At the first tier, this showing is based on the pleadings and affidavits submitted by the parties[;]" "only the limited showing of a common policy or plan" is required. Wilson v. Decibels of Or., Inc., Case No. 1:16-cv-00855-CL, 2017 WL 3671360, at *4 (D. Or. July 12, 2017) (internal quotations and citations omitted).
The parties' disagreement mirrors a circuit split. See generally Carl Engstrom, Note, What Have I Opted Myself Into? Resolving the Uncertain Status of Opt-In Plaintiffs Prior to Conditional Certification in Fair Labor Standards Act Litigation, 96 Minn. L. Rev. 1544 (2012). In the Eleventh Circuit and a handful of district courts, evidence of opt-in interest is required prior to conditional certification. See, e.g., Dybach v. Fla. Dep't of Com, 942 F.2d 1562, 1567-68 (11th Cir. 1997) ("the district court should satisfy itself that there are other employees . . . who desire to 'opt-in' and who are 'similarly situated'"); Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (1 lth Cir.) cert, denied, 519 U.S. 982, 1097 (1996) ("The plaintiffs may meet [their] burden, which is not heavy, by making substantial allegations of class-wide discrimination, that is, detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary."); Parker v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1164-65 (D. Minn. 2007) ("Before a conditional-certification motion may be granted, a named plaintiff (or plaintiffs) must proffer some evidence that other similarly situated individuals desire to opt in to the litigation."). Elsewhere, the role of collective certification is to establish a cognizable class exists to gain the court's approval for notice which paves the way for gathering such evidence. See e.g., Hoffman v. Securitas Sec. Servs., No. CV07-502-S-EJL, 2008 WL 5054684, at *5-7 (D. Idaho Aug. 27, 2008) (rejecting argument plaintiffs must demonstrate others seek to join the suit, while noting several practical arguments against the imposition of such a requirement); McCaffrey v. Mortg. Sources, Corp., No. 08-2660-KHV, 2009 WL 2778085, at *4 (D. Kan. Aug. 27, 2009) ("Only the Eleventh Circuit and some district courts have imposed [the] additional requirement" of showing "other putative class members exist" "and at least two district courts in the Tenth Circuit have expressly rejected it."); Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 629 (D. Colo. 2002) (rejecting the Dybach language about a showing of putative plaintiffs' desire to opt in as dicta and granting conditional certification for notice purposes based on satisfaction of the similarly situated requirement). Though Defendants cite cases from this district and circuit to support the asserted requirement, each cited case relies on the Eleventh Circuit cases Dybach or Grayson, or a portion of a case from this district that relies on those cases. (Defs.' Opp'n Mem. 9-11.)
When a similar argument was made in this district previously, the court rejected the argument. See Nance v. May Trucking Co, No. 03:12-cv-01655-HZ, 2013 WL 10229756 (D. Or. June 10, 2013). The defendant relied upon Sheffield, but the court explained, "In Sheffield, the motion to certify was denied because plaintiffs did not show that they were similarly situated to potential class members who had submitted supporting declarations. Sheffield does not require a plaintiff to provide declarations from potential class members." Nance, 2013 WL 10229756, at *5 (emphasis in original) (internal citation omitted).
Regardless, Peer filed thirteen Notices of Filing of Consent to join Collective Action after the parties' briefings, but before oral argument and the filing of this Findings and Recommendation. (ECF 41-53.) Therefore, even if such evidence were required, Peer has provided ample evidence of interested parties.
C. Conditional Certification Would Not Deny Defendants Due Process
Third, Defendants argue conditional certification of a class including exempt employees would deny Defendants due process by precluding Defendants "from asserting certain defenses and resolving the litigation on a collective basis." (Defs.' Opp'n Mem. at 11-12.) This argument is based on the inclusion of exempt employees in the class, but as discussed above, Peer's class definition resolves this issue.
Peer has alleged plausible legal theories based on a common scheme: non-exempt employees were required to pay back portions of their minimum wage and commission payments did not correctly factor into overtime or regular hourly payments. Therefore, Peer has established a common policy or plan in violation of FLSA sufficient to satisfy the lenient standard for a motion to conditionally certify a collective action, and the court should facilitate notice to the class specified by Peer.
II. Equitable Tolling is Justified
Peer requests the court toll the statute of limitations for opt-in plaintiffs to July 17, 2020, the date the Complaint was filed, until the deadline for plaintiffs to opt in because Peer has diligently pursued his rights under FLSA and is not at fault for the delay. (Motion at 2-3.) Alternatively, Peer requests the court toll the statute of limitations beginning the filing date of the Motion, February 5, 2021. (Motion at 3.)
Typically, a potential plaintiff must submit consent to become a party plaintiff within two years of an alleged FLSA violation. 29 U.S.C. § 255(a). However, "a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 129 (1988) (citing 29 U.S.C. § 255(a)).
In general, "[e]quitable tolling applies when the plaintiff is prevented from asserting a claim by wrongful conduct on the part of the defendant or when extraordinary circumstances beyond a plaintiffs control made it impossible to file a claim on time." Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999). The focus of the equitable tolling inquiry is "on fairness to both parties." Serine v. Kan. City Royals Baseball Corp., Case No. 14-cv-00608-JCS, 2015 WL 6152476, at *16 (N.D. Cal. Oct. 20, 2015) (citing Adams, 242 F.R.D. at 543).
Procedural delays typically do not justify equitable tolling. See Cranney v. Carriage Servs., 559 F.Supp.2d 1106, 1109 (D.Nev. Mar. 20, 2008). Specifically, FLSA "does not require [defendants to provide contact information for potential plaintiffs until after the court certifies the collective action." Prentice v. Fund for Pub. Int. Rsch., No. C-06-77676 SC, 2007 WL 2729187, at *3 (N.D. Cal. Sept. 18, 2007) (emphasis omitted); Shaia v. Harvest Mgmt. Sub LLC, No. C 14-4495 PJH, 2015 WL 1744341, at *3 (N.D. Cal. Apr. 15, 2015).
Peer contends equitable tolling is warranted because Defendants' wrongful conduct prevented Peer or similarly situated employees from asserting timely claims. (Motion at 16.) Peer's support for this assertion is fourfold. First, Peer contends Defendants withheld "all of the figures that are required to calculate commissions and overtime and failed to provide information in response to [Peer's repeated requests for his personnel file, including his time and pay records." (Id.) Second, Peer alleges Defendants "failed for months past the discovery deadline to provide the reports (much less in a usable format) that actually provide necessary numbers related to minimum wage and overtime calculations." (Pl's Mot. at 17.) Third, Peer contends Defendants under prepared for the corporate representative deposition, pointing to Marshall's responses to inquiries about his preparation: "[he] read the first two exhibits and ... at least skimmed through the rest of them," and did not spend time seeking out answers to questions in the deposition notice he might not be able to answer, including questions about how RCFD ensures employees are paid minimum wage. (Pl's Mot. at 17) (citing Guerriero Decl. 3:8-21). Fourth, Peer alleges he attempted to receive clarification about lost wages during his employment at RCFD, but Defendants refused to answer his questions and used intimidation tactics. (Pl's Mot. at 19.)
In response, Defendants contend Peer failed to establish wrongful conduct or extraordinary circumstances sufficient to warrant tolling of the statute of limitations. Defendant asserts extensive discovery has been produced, "in excess of 12, 000 pages," delays and discovery disputes are to be anticipated in this type of litigation, and procedural delays do not justify equitable tolling. (Defs.' Opp'n Mot. at 13) (citing Cranney, 559 F.Supp.2d at 1109). At oral argument, Defendant further explained at length that the antiquated nature of its data system greatly complicated its efforts to provide fully responsive information in a timely manner. In addition, Defendant contends Peer offers no evidence of attempts to obscure the commission systems or pay structure and "'complicated' is not evidence of a 'deliberate attempt to obscure.'" (Def.'s Opp'n Mot. at 13-14.) As support for this point, Defendant explains Peer "extensively cross-examined Defendant's General Manager" regarding the computer-based commission and wage calculations. (Id.)
Peer counters with examples of Defendants' allegedly wrongful conduct which "intentionally obscured" relevant information. (Pl's Reply 12.) First, Peer contends Defendants withheld "the basic description of the commission system" until after the coiporate representative deposition on January 7, 2021, despite nine months of repeated requests for that description. (Id.) Second, Peer points again to Marshall's lack of responses, and adds Marshall testified it was Ted Olson, who handles Information Technology and payroll for RCFD, who had the relevant knowledge regarding the calculations - not Marshall. (Id. at 12-13.)
Defendant's actions during discovery do not amount to wrongful conduct that would warrant equitable tolling. The court finds Peer's first example unpersuasive. An explanation from RCFD representatives of the commission system is not needed to file a well-pleaded complaint. Instead, data concerning employees, hours, and wages is necessary. Relatedly, with respect to Peer's allegations of delays in production of such data, Defendants explained during oral argument that the delays are due to the extensive process required by RCFD's legacy systems and the limited number of personnel at RCFD who can successfully retrieve that data. Regarding Peer's second example, "it is settled law that a party need not produce the organizational representative with the greatest knowledge about a subject; instead, it need only produce a person with knowledge whose testimony will be binding on the party." Rodriguez v. Pataki, 293 F.Supp.2d 305 (S.D.N.Y. 2003); see also Rihjwcmi v. Wells Fargo Home Mortgage, Inc., No. C 13-05881 LB, 2015 WL 848554, *3 (N.D. Cal. Jan. 28, 2015) (finding that Wells Fargo was not required to designate the person with the most knowledge about the deposition topics, only a deponent who could fully testify about those topics). RCFD's corporate representative meets the standard articulated in Rodriguez. Further, during oral argument, Defendants expressed that Peer has examined Ted Olson. Therefore, Marshall's responses during the deposition do not appear to be evidence Defendants intentionally obscured information or acted in an "egregious" or wrongful manner, as alleged by Peer.
Though Defendant's conduct does not warrant equitable tolling, the court finds the above-described circumstances warrant tolling at an appropriate point. During oral argument, the parties discussed a new timeline for discovery with the time required to obtain the relevant data from RCFD's legacy software in mind. The circumstances of the lengthy discovery process required here are beyond the control of either party and make it impossible for all putative plaintiffs to file a claim on time. Accordingly, the court concludes Peer is entitled to equitable tolling as of February 5, 2021, the date he filed the Motion.
Conclusion
Peer has satisfied FLSA's lenient preliminary certification standard. Accordingly, the court recommends Peer's Motion (ECF No. 24) be GRANTED, as set forth above, and that an equitable tolling date of February 5, 2021, be established.
Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Obj ections, if any, are due within seventeen (17) days. If no obj ections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.