United States District Court, M.D. Florida, Orlando Division
E. MENDOZA UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Plaintiff's Motion to
Conditionally Certify Collective Action and Facilitate Notice
to Members of the FLSA Collective (“Motion, ”
Doc. 60), to which Defendants filed a Response in Opposition
(Doc. 69) and Plaintiffs filed a Reply in Support (Doc. 80).
United States Magistrate Judge Gregory J. Kelly issued a
Report and Recommendation (“R&R, ” Doc. 83),
recommending that the Court grant the Motion in part and
conditionally certify a national class of employees, except
for employees in California. (Id. at 14-15).
Plaintiff and Defendants both filed Objections to the R&R
(Doc. Nos. 84, 85) and Responses to each other's
Objections (Doc. Nos. 86, 87).
seeks certification pursuant to 29 U.S.C. § 216(b) of
the Fair Labor Standards Act (“FLSA”) for his
overtime wage dispute. Defendants provide freight unloading
and other services to customers at distribution centers,
warehouse, and industrial sites throughout the United States.
(Doc. 1 ¶¶ 37-38). Plaintiff alleges that he and
others similarly situated were employed by Defendants to
unload goods from trucks and break down pallets as
“Unloaders, ” also titled as “Freight
Handlers” or “Lumpers.” (Id.
¶¶ 39, 41). Plaintiff further alleges: (1)
“Defendants required Plaintiff and similarly situated
employees to work prior to their regularly scheduled shifts
and before they were clocked in;” (2)
“Defendants' managers were instructed to
‘clock out' Plaintiff and similarly situated
employees for approximately 1 hour each day while they
continued to work;” and (3) “Defendants required
Plaintiff and similarly situated employees to clock out at
the end of the day and remain onsite performing unpaid
work.” (Id. ¶¶ 3, 46-48). Plaintiff
states that all Freight Handlers were compensated on a
production basis determined by the number and type of trucks
unloaded. (Id. ¶ 42). Also, Plaintiff alleges
that he and those similarly situated were not paid overtime
because managers were incentivized by receiving bonuses to
perform the illegal actions listed above to keep labor costs
down. (Id. ¶¶ 44-49).
Motion seeks an Order certifying the following class:
“all ‘Freight Handlers' (a/k/a
‘Lumpers' and/or ‘Unloaders' and other
employees performing similar duties, however variously
titled) employed by Defendants . . . within the last [three]
years.” (Doc. 60 at 1). Plaintiff also seeks his Notice
and Consent forms to be approved by the Court; the ability to
send notice via email, U.S. Mail, and text message;
permission to send reminder notices halfway through a 90-day
opt-in period; permission for potential opt-in plaintiffs to
electronically sign and return consents; and for the
Defendants to identify all members of the class.
(Id. at 1-2).
FLSA Class Certification Standard
is a two-step procedure for determining whether an FLSA
collective should be certified: (1) the notice stages; and
(2) the decertification stage. Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). The
Motion currently before the Court is at the notice stage,
which is when “a district court determines whether
other similarly situated employees should be notified.”
Morgan, 551 F.3d at 1260. At this stage, Plaintiff
“has the burden of showing a ‘reasonable
basis' for his claim that there are other similarly
situated employees.” Id. citing Anderson
v. Cagle's, Inc., 488 F.3d 945, 952 (11th Cir.
2007). This standard is “not particularly stringent,
” but is “fairly lenient” and
“flexible.” Id. at 1261 (quoting
Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th
Cir. 1996)). 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 [ ]employer who desire to ‘opt-in' . . .
.” Dybach v. State of Fla. Dept. of Corr., 942
F.2d 1562, 1567-68 (11th Cir. 1991).
Report and Recommendation Findings
R&R, Judge Kelly concludes that a nationwide class is
appropriate with the exception of California because
Plaintiff sufficiently demonstrated that there are other
people who are or were Freight Handlers across the country
that may wish to opt-in to the FLSA action. As such, Judge
Kelly recommends conditionally certifying the following
class: All Employees of Freight Handlers, Inc. and FHI, LLC
who: (1) are or were employed as “Freight
Handlers” (also known as “Unloaders” or
“Lumpers” or other employees performing similar
duties however variously titled) during the three years
preceding the filing of this suit; and (2) worked more than
forty hours in a work week without being paid proper overtime
compensation or worked forty hours in a work week without
being paid minimum wage. (Doc. 83 at 14).
Kelly also recommends several revisions to the proposed
Notice and Consent: the language in the section
“Effects of Joining Suit” should be
modified to states “If Defendants prevail, then you
will be responsible for their costs in this matter. While the
suit is pending, you may be required to provide information
or sit for depositions and testify in court in the Orlando
Division of the Middle District of Florida.”
(Id. at 12). And, he recommends that the
“final sentence should be amended to reflect that the
potential class member will not be responsible to pay
Plaintiff's counsel's attorney's fees directly.
The Notice should state that the potential class members have
the right to retain their own counsel.” (Id.).
Finally, Judge Kelly recommends that Plaintiffs not be
allowed to post notice at Defendants location or via text
message, that no reminder notices be sent, and that
electronic signatures should be allowed.
object to Judge Kelly's factual and legal findings and
argue that the Court should consider their affidavits, which
they contend undermine Plaintiff's assertions of
similarity. Defendants cite Jones v. RS & H,
Inc., for the proposition that at this stage,
Defendants' affidavits and other evidence can be
considered. 18-13068, 2019 WL 2323783, at *3 (11th Cir. May
31, 2019) (“The plaintiffs may meet this 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.”). However, Plaintiff has
provided sufficient allegations and evidence to engage
Defendants' affidavits to the contrary. As Judge Kelly
notes, there are twelve people who have already filed
consents to join this litigation and they all state their
primary job descriptions and method of payment method
consistently. (Doc. 83 at 5- 8). And, there are twenty-six
declarations of current Freight Handlers provided by
Defendants that also express similar descriptions of
work as well as payment method. (Id. at 6-8). Though
there are small differences as the Freight Handlers work
different shifts, have different break times, work in
different departments, and are paid different amounts based
on the type of truck being unloaded, (Doc. 69 at 8, 12-15;
Doc. 84 at 4-6); similar does not mean identical. Hipp v.
Liberty Nat. Life Ins., 252 F.3d 1208, 1217 (11th Cir.
2001) (citing Grayson, 79 F.3d at 1097). And, at
this stage, Defendants' “mass of evidence in
opposition, ” including evidence of variation in
projects and hours, “goes far beyond the scope of this
Court's review at the first stage of the certification
process.” Gonzalez v. TZ Ins. Sols., LLC,
8:13-CV-2098-T-33EAJ, 2014 WL 1248154, at *5 (M.D. Fla. Mar.
26, 2014) (quoting Simpkins v. Pulte Home Corp., No.
6:08-cv-130-Orl-19DAB, 2008 U.S. Dist. LEXIS 64270, at *14-15
(M.D. Fla. Aug. 21, 2008)). At this stage in the proceeding,
“the Court declines to engage in a credibility
analysis” between the evidence presented by Plaintiff
and Defendants which conflicts. Id. at *12.
Accordingly, Plaintiff has met his burden to show the named
Plaintiffs' positions are similarly situated to the
positions held by the putative class members as well as that
there are other people that are or were Freight Handlers
nationwide that may wish to opt-in to this action.
make similar objections to argue that Plaintiff has not shown
a common policy. However, for the reasons stated above, the
Court declines to consider Defendants evidentiary arguments.
At this stage Plaintiff has provided enough evidence to the
contrary, and these arguments also exceed the Court's
limited inquiry at this stage.
also object to the class definition proposed by Judge Kelly
as impermissible because it assumes liability by Defendants.
Defendants proposed alternative language for the class
definition, (Doc. 84 at 9), and Plaintiff agrees to the
modification, (Doc. ...