United States District Court, M.D. Florida, Ocala Division
LLOYD BROWN, on behalf of himself and all others similarly situated Plaintiff,
ANSAFONE CONTACT CENTERS, LLC Defendant.
REPORT AND RECOMMENDATION
R. LAMMENS UNITED STATES MAGISTRATE JUDGE
filed this action against his former employer, Ansafone
Contact Centers, LLC, on behalf of himself and similarly
situated Ansafone employees for unpaid overtime in violation
of the Fair Labor Standards Act (“FLSA”). On
December 7, 2018, the Court conditionally certified a class
of Ocala-based hourly paid customer service representatives
who were employed on or after January 9, 2016. (Doc. 32). The
Notice approved by the Court (Doc. 39) was mailed out on
January 9, 2019 and the sixty-day opt-in period closed on
approximately March 10, 2019. During that period, sixty-two
people (including Plaintiff) joined the action. (Docs. 3-7,
18-23, 48, 51-109).
before the approved notice was sent to prospective
plaintiffs, Defendant conducted meetings with employees in
its two Ocala locations regarding this FLSA action.
Plaintiffs claim that these meetings were improper and
prevented putative class members from joining the instant
lawsuit. Accordingly, Plaintiffs have filed the current
motion asking the Court to stay discovery, reopen the notice
period, and issue a corrective notice. Because the parties
offered conflicting declaration evidence regarding what
happened at the meetings, the Court conducted an evidentiary
hearing on August 23, 2019, the transcript of which is filed
on the docket. (Doc. 131). Based on the evidence adduced at
the hearing, as well as the papers filed by the parties, I
submit that Plaintiffs' motion (Doc. 120) should be
the Court conditionally certified a class, but before Notice
was sent to putative class members, Defendant conducted a
total of four staff meetings with all then-employed customer
service representatives at Ansafone's two Ocala locations
in groups of between 15-25 employees. The meetings were led
by Lynda Owens, Operation Manager, and Dawn Johnson, HR
Manager. The parties disagree about what happened at the
claim that during the meetings, the customer service
representatives were discouraged from joining the lawsuit and
told that they would suffer consequences if they did. In
support, Plaintiffs submitted declarations and elicited
testimony at the hearing, from two former employees who
attended the meetings - Angel Maldonado (a supervisor) and
Julie Moman (a customer service representative) - each of
whom stated that the customer service representatives were
threatened with retaliation, and that as a result of the
meeting, they (and others), did not join the lawsuit.
hearing, Mr. Maldonado, who attended both meetings at the
34th Avenue location, testified that Ms. Owens
discussed the lawsuit and advised the attendees that they
would be receiving a notice in the mail. According to him,
Ms. Owens “basically was speaking to us in a very
aggressive manner and tone” and “strongly
discouraged that any of us get involved, as there could be
consequences, basically insinuating that we could lose our
jobs.” (Transcript at 14, 15). He testified that a few
CSR's in attendance asked questions about the lawsuit and
Ms. Owens said, “Don't participate.”
(Transcript at 13, 16). On cross-examination, he testified
that Ms. Owens said: “The company basically strongly
discourages that anyone get involved, as there could be-as
there-basically would be consequences.” (Transcript at
27). When asked by the Court to state “what words were
used that made it clear to you that there would be
consequences for joining the lawsuit, ” Mr. Maldonado
testified: “[b]asically, when she had said that the
company discourages that anyone get involved in the lawsuit
and that should you get involved there would be
consequences.” (Transcript at 57-58). According to Mr.
Maldonado, Ms. Johnson did not address the group.
Maldonado also testified that following the meeting, he
briefly spoke with Ms. Owens about the lawsuit and she
“was letting [him] know that - not to get involved,
” and that when he “basically” asked her,
“Am I going to lose my job over this?”, she
“looked at me and said, you know -- inferred that,
yeah, I would lose my job.” (Transcript at 18, 27-28).
Mr. Maldonado did not mention this conversation in his
declaration; to the contrary, he stated, “I did not
speak further with Ms. Owens or Dawn about the meetings or
Mr. Brown's lawsuit against Defendant on the date of the
meetings” or since then. (Doc. 120-1, Maldonado
Declaration at ¶38).
Moman also testified that Ms. Owens told the attendees that
they would be “getting some documentation in the mail,
and to just, you know - you know, don't mind it, just
don't pay attention to it.” (Transcript at 66). And
that if the attendees joined the lawsuit, “there could
be consequences, ” which she took to mean that they
could lose their job. (Transcript at 66-67, 94). She
testified that Ms. Owens' demeanor was “kind of
like firm-not really loud . . . kind of like a warning type
of tone.” (Transcript at 67).
contrast, Defendant contends that the information shared in
the meetings mirrored the information in the Notice and that
there were no threats of retaliation. Lynda Owens, the
Director of Operations, welcomed employees and introduced
Dawn Johnson, who was the new Human Resources Manager.
Together, they covered the following points:
• A lawsuit had been filed by a former employee, Lloyd
Brown, against Ansafone alleging that Ansafone failed to pay
him and other employees like him overtime in violation of the
Fair Labor Standards Act.
• Ansafone denies the allegations and maintains that its
policies comply with the law.
• Employees were reminded that they are not permitted to
work off the clock and if they have difficulty clocking in
they can and should see their supervisors to get their time
• Ansafone provided CSR's contact information so
they could receive a Notice in the mail about the lawsuit
which would contain more information --they should read it
carefully and make their own decisions.
• Ansafone has a strict no retaliation policy. If
employees choose to join the lawsuit there will be no
negative consequence to their jobs.
• The Notice will have the contact information for Mr.
Brown's lawyers and Ansafone's lawyers. Employees can
(Doc. 121-2, Declaration of Randy Harmat at ¶10; Doc.
121-3, Declaration of Lynda Owens at ¶8; Doc. 121-4,
Declaration of Dawn Johnson at ¶¶9-12; Transcript
hearing, Ms. Owens and Ms. Johnson both confirmed that they
discussed only the above information and said nothing to
contradict the Notice (which they had reviewed prior to the
meetings). (Tr. 99-100, 125-28, 135-36). Ms. Owens and Ms.
Johnson specifically denied delivering any threats of
retaliation against the customer service representatives,
discouraging them from joining the lawsuit, or telling them
that there would be consequences for joining the lawsuit.
(Tr. 102-04, 136-37). Ms. Owens testified that no one,
including Mr. Maldonado, asked her any questions after the
meetings. (Tr. 103).
also offered declarations from twenty-two customer service
representatives, all of whom attended the meetings and
averred that they were not threatened with loss of job,
demotion, loss or hours or a schedule change, or any other
threats of any kind to their jobs. (Docs. 121-7, 121-8).
starting point, there is no bright-line rule barring a
defendant from speaking with putative class members. See
Bobryk v. Durand Glass Mfg. Co., Inc., No. 12-cv-5360
(NLH/JS), 2013 WL 5574504, at *3 (D.N.J. Oct. 9, 2013);
Longcrier v. HL-A Co., Inc., 595 F.Supp.2d 1218,
1225 (S.D. Ala. 2008) (noting “it is quite clear that a
defendant in a § 216(b) action is not categorically
forbidden from communicating with prospective opt-in
plaintiffs.”). However, federal courts have exercised
their discretion to correct the effects of communications
with potential FLSA collective action members after
misleading, coercive, or improper communications are made.
See Billingsley v. Citi Trends, Inc., 560 Fed.Appx.
914, 922 (11th Cir. 2014).
Plaintiffs failed to offer compelling and credible evidence
that the meetings were misleading, coercive, or otherwise
abusive. As discussed above, the only evidence offered by
Plaintiffs were the declarations and testimony of Mr.
Maldonado and Ms. Moman, both of whom came forward after they
were terminated from their employment with
Ansafone. I have no trouble finding that their vague
testimony was not persuasive. Mr. Maldonado testified that
Ms. Owens “basically” told the customer service
representatives not to participate and that if they did there
“basically” would be consequences. By qualifying
much of his ...