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.
S. MOODY. JR. UNITED STATES DISTRICT JUDGE
CAUSE came on for consideration on the Report and
Recommendation submitted by Magistrate Judge Philip R.
Lammens (Doc. 134). Lloyd Brown objected to the Report and
Recommendation (Doc. 138), and Ansafone Contact Centers, LLC
responded (Doc. 141). Having reviewed the Report and
Recommendation, the party's filings (Docs. 120-130), the
transcript of the evidentiary hearing (Doc. 131), the
objections, and response, the Court concludes the Magistrate
Judge's Report and Recommendation should be adopted,
confirmed, and approved in all respects.
operates a call center in Ocala, Florida. Brown worked in the
call center as a customer service representative
(“CSR”). Brown alleges that Ansafone violated the
Fair Labor Standards Act (“FLSA”) by not
compensating him and other CSRs for all the time they worked.
So Brown filed this collective action against Ansafone.
December 2018, this Court conditionally certified the
collective action and directed that a Notice be mailed to the
class members. (Docs. 32 and 39). The approved Notice was
mailed on January 9, 2019, and the sixty-day opt-in period
for the class members closed on March 10, 2019. In all, 62
class members opted into the lawsuit.
21, 2019, Brown filed the instant motion (Doc. 120) to stay
discovery and reopen the notice period based on meetings that
Ansafone held with currently employed class members shortly
before the Notice was sent. Brown alleges the CSRs were
threatened to not opt into the lawsuit during these meetings,
based on the testimony of two former Ansafone employees who
attended at least one of the meetings. But Ansafone denies
that any such statements were made and provides declarations
of about 20 CSRs who deny that threats were made. (Doc. 121).
Ansafone also provided declarations from its Human Resources
Manager Dawn Johnson and Director of Operations Lynda Owens,
the two who conducted the meetings, denying that they made
any threats and, in fact, explicitly told the CSRs that it
was unlawful for Ansafone to retaliate against anyone who
Court referred Brown's motion to the Magistrate Judge to
conduct an evidentiary hearing and provide a Report and
Recommendation. After the hearing, the Magistrate Judge
issued his Report and Recommendation (Doc. 134) setting forth
the law and his factual findings. The Magistrate Judge
As a 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).
(Doc. 134, p. 5). The Magistrate Judge then concluded that
the testimony of Brown's two witnesses failed to show
that Ansafone's “meetings were misleading,
coercive, or otherwise abusive.” (Doc. 134, p. 5). The
Magistrate Judge also noted, “In sharp contrast,
[Ansafone] presented credible and convincing testimony by Ms.
Owens and Ms. Johnson regarding the content of the meetings
… and 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.” (Doc.
134, p. 9). Finally, the Magistrate Judge concluded that
Owens and Johnson's testimony “was further
corroborated by 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.” (Doc. 134, p. 9).
October 3, 2019, Brown filed an untimely objection to the
Magistrate Judge's Report and Recommendation. While the
precise objection is unclear, Brown appears to argue that the
testimony of his witnesses shows that Ansafone had improper
communications with class members who refrained from opting
into the lawsuit for fear of reprisal. Stated another way,
Brown argues that the Magistrate Judge's factual findings
are wrong. And if the Magistrate Judge had made the correct
factual findings, then the law would be on Brown's side.
The Court concludes the objection lacks merit.
threshold matter, the Court concludes that the standard of
review is immaterial because the result would be the same
regardless of what standard is applied. (Doc. 138, pp. 3-4,
arguing the Court's review of factual determinations is
de novo); (Doc. 141, pp, 2-4, arguing that clear
error standard applies because no specific and timely
objections were filed). The Court notes, though, that
district courts generally must make “a de novo
determination” of proposed factual findings from a
magistrate judge if there are specific objections. 28 U.S.C.
§ 636(b). But as the Supreme Court explained, “the
statute calls for a de novo determination, not a
de novo hearing.” United States v.
Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 2411, 65
L.Ed.2d 424 (1980).
reviewing the Magistrate Judge's Report and
Recommendation, hearing transcript, and the parties'
declarations, the Court concludes the Magistrate Judge did
not err when weighing the conflicting testimony. The
Magistrate Judge articulated reasons for finding Brown's
witnesses unpersuasive, including their inability to
specifically state what threats were communicated and how.
The Magistrate Judge also found that testimony of Owens and
Johnson was credible and supported by the numerous
declarations that Ansafone provided. The Court finds no error in
Court also finds no error in the Magistrate Judge's
application of the factual findings to the law. Based on the
factual findings, Ansafone held informative meetings with the
employed class members to let them know that they should be
claiming all time worked, that the approved Notice would be
forthcoming, and that Ansafone would not retaliate if they
opted into the lawsuit. Because these communications were not
“misleading, coercive, or ...