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Kraft v. Freight Handlers, Inc.

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

July 31, 2019

JAMES KRAFT, Plaintiff,



         THIS 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).

         I. Background

         Plaintiff 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).

         Plaintiff's 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).

         II. FLSA Class Certification Standard

         There 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).

         III. Report and Recommendation Findings

         In his 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).

         Judge 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.

         IV. Defendants' Objections

         Defendants 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.

         Defendants 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.

         Defendants 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. ...

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