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Perez v. Owl, Inc.

United States District Court, M.D. Florida, Orlando Division

February 20, 2018

JOSE PEREZ, ALFREDO SANTOS, and DOUGLAS RICHEY, on behalf of themselves and others similarly situated, Plaintiffs,
v.
OWL, INC., Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE

         This cause came on for consideration, without oral argument, on the following motions:

MOTION: PLAINTIFFS' MOTION FOR ISSUANCE OF NOTICE PURSUANT TO § 216(b) OF THE FLSA (Doc. No. 29)
FILED: August 17, 2017 THEREON it is RECOMMENDED that the motion be DENIED.
MOTION: PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (Doc. No. 48)
FILED: September 27, 2017 THEREON it is RECOMMENDED that the motion be GRANTED.

         I. BACKGROUND.

         On June 15, 2017, Plaintiffs Jose Perez, Alfredo Santos, and Douglas Richey (collectively, “Plaintiffs”) filed a Class and Collective Action Complaint (the “Complaint”). Doc. No. 1. Plaintiffs allege that they worked as drivers for Defendant Owl, Inc., and that they routinely worked more than forty hours a week, but were not paid overtime in violation of the Fair Labor Standards Act (“FLSA”). Id. at ¶ 1. They also allege that Defendant “breached its contracts with Plaintiffs and other drivers by failing to pay them at the applicable prevailing wage rate for all hours worked.” Id. at ¶ 3. Plaintiffs assert Count I under the FLSA and label it a “Collective Action, ” and Count II as Breach of Contract and label it a “Rule 23 Class Action.” Id. at 9-11. Plaintiffs bring their claims on behalf of themselves and other “similarly situated individuals, namely, all other persons who have worked for [Defendant] as drivers transporting patients.” Id. at ¶ 11.

         Defendant is a transportation company whose largest client is the United States Department of Veterans Affairs (the “VA”). Doc. No. 40-1 at ¶¶ 3, 6. Defendant provides transportation services to specific VA hospitals and facilities, including locations in Orlando, Daytona Beach, Viera Beach, Florida; Atlanta, Georgia; Raleigh and Durham, North Carolina; Kansas City, Missouri; and Richmond, Norfolk, and Hampton, Virginia. Id. at ¶ 7; Doc. No. 29-4 at ¶¶ 2, 12, 15; Doc. No. 29-6 at ¶ 3. According to the declaration of Defendant's Chief Executive Officer and founder, Laster Walker, each location is covered by a separate contract with the VA, and the contracts are governed by the Service Contract Act (the “SCA”), along with state and federal laws. Doc. No. 40-1 at ¶ 7. The contracts “incorporate the U.S. Department of Labor's [(the “DOL”)] wage determinations unique to each city or region.” Id. Walker avers that on the rare occasions when hourly-paid drivers work over forty hours in one week, they are paid one-and-a-half times their regular rate for those hours. Id. at ¶ 12. He also states, “While supervisors may work more than forty (40) hours in a workweek, they would then work a reduced schedule the following week. It is not accurate to say that supervisors work more than forty (40) hours per week, every week.” Id. at ¶ 14.

         Plaintiffs are and were drivers transporting patients for Defendant. Doc. No. 29-1 at ¶ 2; Doc. No. 29-2 at ¶ 2. Defendant's employees go through a ninety-day probationary period. Doc. No. 40-1 at ¶ 10. After the probationary period, “they may remain hourly drivers or [are] promoted to a salaried, supervisory position.” Id. In Florida, Defendant serves a large geographic area where most patients prefer morning appointments, leaving a gap between morning and afternoon “rushes.” Id. at ¶ 13. Walker asserts that the salaried “road supervisor” position was created “to give more senior employees flexibility in dealing with these surges and predictability in their weekly earnings.” Id. Walker states that thirty to forty percent of the Florida employees are “supervisors, ” while “most other locations around the country have no more than 3 to 5 supervisors total.” Id. at ¶ 15.

         After periods as hourly employees, Plaintiffs Santos and Richey were switched to the road supervisor position and given an annual salary of $26, 400. Doc. No. 29-1 at ¶¶ 3, 4; Doc. No. 29-2 at ¶¶ 3, 4. They state that their duties were the same before and after being changed to road supervisors. Doc. No. 29-1 at ¶ 5; Doc. No. 29-2 at ¶ 5. Those duties consisted of transporting VA patients in a van modified to accommodate a stretcher or wheelchair. Doc. No. 29-1 at ¶¶ 7, 8; Doc. No. 29-2 at ¶¶ 7, 8. If the patients require it, Santos and Richey lift them “out of bed and onto a stretcher, tie down the wheelchair or stretcher, and secure the patient's oxygen tank or other medical equipment.” Doc. No. 29-1 at ¶ 9; Doc. No. 29-2 at ¶ 9. Santos and Richey are “required to clean out the van if a patient vomits or goes to the bathroom in it.” Doc. No. 29-1 at ¶ 10; Doc. No. 29-2 at ¶ 10. Defendant required Santos and Richey “to be trained in CPR and how to transport the patients.” Doc. No. 29-1 at ¶ 11; Doc. No. 29-2 at ¶ 11.

         Santos states that he worked as a dispatcher for a period of time for Defendant, and one of his duties was to log the drivers' hours. Doc. No. 29-1 at ¶¶ 12-13. Due to this work, he learned the hours and duties of Defendant's other drivers in Orlando. Id. at ¶ 13. The Orlando facility staffed about fifteen drivers each day, and before August 2016, they were all road supervisors. Id. He states that currently eight out of the fifteen drivers are road supervisors. Id.

         Santos and Richey aver that they were required to work more than forty hours a week, but were not paid overtime. Id. at ¶¶ 5, 6; Doc. No. 29-2 at ¶¶ 5, 6. Santos also states that the hourly drivers do not work overtime. Doc. No. 29-1 at ¶ 13.

         Over thirty of Defendant's drivers have filed notices of opting in to this lawsuit. Doc. No. 11; Doc. No. 26; Doc. No. 28; Doc. No. 30; Doc. No. 33; Doc. No. 42; Doc. No. 59; Doc. No. 75. They include drivers who worked in the Florida, North Carolina, and Kansas City facilities. Doc. No. 29-3 at ¶ 3; Doc. No. 29-4 at ¶ 2; Doc. No. 29-6 at ¶ 3. Opt-in Plaintiff Seaira Bright originally worked out of the Durham, North Carolina facility.[1] Doc. No. 29-4 at ¶ 2. After five months, she was labeled a road supervisor and received a salary of $550 per week. Id. at ¶¶ 4, 6. Although she performed some office work, the other road supervisors did not. Id. at ¶ 11. Through this office work, she learned that Defendant labels many of its Virginia drivers as road supervisors and pays them a $26, 400 salary with no overtime. Id. at ¶ 16.

         Opt-in Plaintiff Jerel Bazemore also worked out of the Durham facility.[2] Doc. No. 29-5 at ¶ 3. During his probationary period, he was paid hourly. Id. at ¶ 3. Defendant then labeled him a road supervisor and paid him a salary of $26, 400. Id. at ¶ 4. He was switched back to an hourly employee for about eight months, during which he states that he worked overtime but was not paid for it. Id. at ¶ 6. He was then switched again to the salaried road supervisor position. Id. at ¶ 7.

         Opt-in Plaintiff Jean Wick worked out of the Kansas City facility. Doc. No. 29-6 at ¶ 3. She was paid hourly and states that she was not paid overtime. Id. at ¶¶ 3, 5. She states, “There were approximately 18 other drivers working for [Defendant] in Kansas City who were paid on an hourly basis and they worked more than 40 hours . . . per week without overtime pay.” Id. at ¶ 6.

         Opt-in Plaintiff Hans Giesler worked out of Defendant's Kansas City, Missouri facility, also. Doc. No. 52-6 at ¶ 3. Like Bazemore, Santos, and Richey, Giesler was paid hourly during his probationary period, and then switched to a salaried road supervisor position, being paid $26, 400 annually. Id. at ¶¶ 3, 4. He states that most of the drivers in the Kansas City facility were paid per hour, worked overtime, and “were only paid a flat rate.” Id. at ¶ 8.

         Richey, Bright, Bazemore, and Giesler also state that Defendant “has a company-wide practice of depriving its hourly drivers of overtime pay by carrying over overtime hours from one week or pay period to next week or pay period.” Doc. No. 52 at 2; Doc. No. 52-1 at ¶ 6; Doc. No. 52-4 at ¶ 4; Doc. No. 52-5 at ¶ 4; Doc. No. 52-6 at ¶ 16. “[I]f a driver worked overtime during a week, instead of paying the driver overtime, [Defendant] carried those overtime hours over to the next week or pay period. . . . Occasionally, the driver was not paid for those carryover hours at all.” Doc. No. 52-1 at ¶ 6.

         On August 17, 2017, Plaintiffs filed their “Motion for Issuance of Notice Pursuant to § 216(b) of the FLSA” (the “Motion for Issuance of Notice”). Doc. No. 29. They ask the Court to “authorize notice to be issued to all similarly situated employees so that they may opt in to join this lawsuit.” Id. at 2. They seek this relief under Count I, their claim for violations of the FLSA. Id. On September 13, 2017, Defendant filed its “Brief in Opposition to Plaintiffs' Motion for Issuance of Notice Under 29 U.S.C. §216(b).” Doc. No. 40. On October 4, 2017, with the Court's authorization, Plaintiffs filed their reply to Defendant's response. Doc. No. 47; Doc. No. 52.

         On September 27, 2017, Plaintiffs filed their “Motion for Class Certification.” Doc. No. 48. They seek class certification as to Count II of their Complaint for breach of contract.[3] Id. at 2. On October 11, 2017, Defendant filed its “Opposition to Plaintiffs' Motion for Rule 23 Class Certification.” Doc. No. 54. Once again pursuant to Court authorization, on October 20, 2017, Plaintiffs filed their “Reply in Support of Motion for Class Certification.” Doc. No. 56; Doc. No. 60.

         On November 3, 2017, Plaintiff filed a “Supplement in Support of Plaintiffs' Motion for Issuance of Notice Pursuant to § 216(B) of the FLSA.” Doc. No. 61. The Court denied Defendant's motion to strike the Supplement, but permitted Defendant to file a response to it. Doc. No. 63; Doc. No. 67. On December 5, 2017, Defendant filed its “Response to Plaintiffs' Supplemental Brief.” Doc. No. 68.

         The Motion for Issuance of Notice and the Motion for Class Certification are now ready for review. Plaintiffs ask for oral argument on their Motion for Issuance of Notice. Doc. No. 29 at 18. Oral argument would not assist the Court in its determination of the issues; therefore, the request is denied.

         II. MOTION FOR ISSUANCE OF NOTICE.

         In the Motion for Issuance of Notice, Plaintiffs seek relief under 29 U.S.C. § 216(b) of the FLSA and ask the Court to do the following:

[O]rder that notice of this case be issued to all individuals who were employed as drivers by [Defendant] who did not receive overtime pay despite working more than 40 hours a week, including drivers [Defendant] labeled as “road supervisors, ” since June 15, 2014. Furthermore, Plaintiffs request that the Court approve the proposed Notice and Opt-in forms . . . attached hereto as Exhibits G and H; order that notice be issued by regular and electronic mail; set an opt-in deadline of 90 days after the notices are issued; allow for a reminder notice to be sent out 45 days into the opt-in period; and enter the Proposed Order attached as Ex. M.

Doc. No. 29 at 17-18.

         A. Legal Standard

         There is a two-step procedure for whether a FLSA collective action should be certified: 1) the notice stage; and 2) the decertification stage. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). The Motion for Issuance of Notice falls under the notice stage. The notice stage is when “a district court determines whether other similarly situated employees should be notified.” Id.

         At the notice stage, “[a] plaintiff has the burden of showing a ‘reasonable basis' for his claim that there are other similarly situated employees.” Id. (quoting Anderson v. Cagle's, Inc., 488 F.3d 945, 952 (11th Cir. 2007)). The standard for determining similarity at the notice stage is fairly lenient, not particularly stringent, and not heavy. Id. at 1261.

         In addition to determining whether there are similarly situated employees to the plaintiff, the court must also “satisfy itself that there are other employees of the department-employer who desire to ‘opt-in' . . . .” Dybach v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991).

         B. Other employees ...


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