138 F. Supp.2d 212 (2001) | Cited 0 times | D. Massachusetts | April 4, 2001


Plaintiff, Robert Kane ("Kane"), brings this action againstdefendants, Gage Merchandising Services, Inc. ("Gage"), AHLServices, Inc. ("AHL"), and Argenbright, Inc. ("Argenbright")(collectively, "the Defendants"), on behalf of himself and allother persons similarly situated to recover overtimecompensation pursuant to the Fair Labor Standards Act ("FLSA"),29 U.S.C. § 201 et seq. Pending before this Court isplaintiffs motion seeking 1) an order directing the Defendantsto provide plaintiff with the names and last known mailing ande-mail addresses of all persons employed by the Defendants asCrew Coordinators between October 18, 1997 and the present, and2) authorization to advise each member of the putative class ofthe pendency of the instant action and their opportunity to"opt-in" (Docket No. 9).

I. Background

Kane has been employed as a Crew Coordinator by Gage and itspredecessor, Professional Inventory Management and MerchandisingSystems ("PIMMS"), since March of 1991. Gage is a division ofArgenbright and AHL is the parent corporation of Argenbright.Kane has been on a worker's compensation leave of absence sinceSeptember 22, 2000, and is not actively employed by theDefendants as a Crew Coordinator.

Gage is engaged in the business, among others, of performinginterior store "resets" (refurbishing the interiors ofcommercial retail stores) nationwide. Between October 17, 1997and the present, Gage has transacted business in Massachusettsunder both its current name and as PIMMS. Crew Coordinatorssupervise all of the employees working on a particular job siteand have complete on-site responsibility for implementing thestore reset plan. On Tuesday, January 16, 2001, Gage notifiedall of its employees that it was shutting down operations in itsstore reset business due to the unprofitability of thatdivision.

II. Analysis

The FLSA requires that employees be compensated for hoursworked in excess of 40 hours per week at a minimum rate ofone-and-one-half times their regular rate of pay,29 U.S.C. § 207(a), although certain employees are exempt from thatrequirement. 29 U.S.C. § 213. Gage divides its Crew Coordinatorsinto two categories for payroll purposes. Some Crew Coordinatorsare considered exempt employees and are paid a salary, whileothers are considered non-exempt and are paid on an hourlybasis, including overtime as required. Kane alleges that, sinceOctober 18, 1997, Gage has failed to pay overtime to its CrewCoordinators in violation of 29 U.S.C. § 207.

The FLSA provides a representative right of action to recoverunpaid overtime compensation:

An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). This provision establishes an "opt-in"scheme whereby potential plaintiffs must affirmatively notifythe court of their intention to be a party to the class actionin order to be bound by and benefit from it. As stated in §216(b), only potential plaintiffs "similarly situated" to thenamed plaintiff may join the representative action. The UnitedStates Supreme Court has held that district courts havediscretion, in appropriate cases, to implement § 216(b) byfacilitating notice to potential plaintiffs. Hoffmann-La RocheInc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d480 (1989).

Although the First Circuit Court of Appeals has not yetaddressed the issue, district courts, both inside and outside ofthis circuit, have developed two methods for determining whetherpotential plaintiffs are "similarly situated" for purposes ofclass certification under § 216(b): 1) a "two-step" approachinvolving notification to potential class members of therepresentative action followed by a final "similarly situated"determination after discovery is complete, and 2) an approachcoextensive with the requirements of class certification underFed.R.Civ.P. 23 (i.e. numerosity, commonality, typicality andadequacy of representation). Mooney v. Aramco Services Co.,54 F.3d 1207, 1213-14 (5th Cir. 1995). This Court is cognizant thatboth approaches have been followed within the First Circuit.See Reeves v. Alliant Techsystems, Inc., 77 F. Supp.2d 242,246-47 (R.I. 1999) (following the "two-step" approach); Dionnev. The Ground Round, Inc., No. 93-11083, slip op. at 5 (Mass.July 6, 1994) (adopting the Rule 23 approach "insofar as it isconsistent with 29 U.S.C. § 216(b)"). However, because thisCourt is persuaded by the argument that the requirements ofRule 23 are for the most part inapplicable to § 216(b) representativeactions and/or are subsumed in the "similarly situated" inquiry,it will apply the "two-step" method. See, e.g., Church v.Consolidated Freightways, Inc., 137 F.R.D. 294, 306-07 (N.D.Ca.1991); Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 399(N.J. 1988).

Under the two-tiered approach, the trial court must firstdecide whether the potential class should receive notice of theaction. Reeves, 77 F. Supp.2d at 246. At this initial "noticestage", the court usually relies "only on the pleadings and anyaffidavits which have been submitted. . . ." Mooney, 54 F.3dat 1214. "Because the court has minimal evidence, thisdetermination is made using a fairly lenient standard, andtypically results in `conditional certification' of arepresentative class." Id. Indeed, some courts have held that,at the "notice" stage, plaintiffs need only make substantialallegations that the putative class members were subject to asingle decision, policy, or plan that violated the law. Id. at1214 n. 8.

After discovery is complete, the party opposing theconditional class may file a motion for decertification.Reeves, 77 F. Supp.2d at 247. If the district court concludesthat the putative class members are not "similarly situated", it"may decertify the class, and dismiss the opt-in plaintiffswithout prejudice." Id. If, on the other hand, the court findsthat the putative class members are "similarly situated", itpermits the case to go to trial as a class action. Id.

Applying the more lenient standard for class notificationbecause it appears to be in keeping with the purpose of §216(b), this Court concludes that notice in this case isappropriate.

Kane believes that there may be over 100 persons who have beenemployed as Crew Coordinators by the Defendants since October18, 1997. He has submitted a list of 51 Crew Coordinators(including himself) whom he contends were not adequately paidfor overtime hours worked in connection with the Defendants'contract with CVS. Kane claims that an area manager for theDefendants, Peter Zaniewski, told him that those CrewCoordinators were not paid overtime because CVS refused tocompensate the Defendants for overtime hours worked by its CrewCoordinators. See Affidavit of Robert Kane in Reply toDefendant's Opposition, at ¶ 3. Kane's attorney also contendsthat counsel for the Defendants told him that

there were approximately 50 persons, including the plaintiff, who defendants had employed as Crew Coordinators and had treated as exempt employees to whom they were not required to pay overtime compensation.

See Affidavit of Thomas V. Urmy, Jr., at ¶ 4. Moreover, theSenior Vice President of Operations for Gage has admitted thatsome of the Defendants' Crew Coordinators were considered exemptemployees and were paid a salary. See Affidavit of GaryRussell, at ¶ 5.

The record thus suggests that the Defendants had a policy oftreating at least some of a discrete class of employees (i.e.Crew Coordinators) as exempt from the FLSA overtimerequirements. That showing is sufficient for this Court todetermine that a "similarly situated" group of potentialplaintiffs exists given the adopted lenient standard forcourt-facilitated notice. See, e.g., Sperling, 118 F.R.D. at407 (courts generally require only "substantial allegations thatthe putative class members were together the victim of a singledecision, policy, or plan infected by discrimination.");Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)(requiring only "a modest factual showing sufficient todemonstrate that [plaintiffs] and potential plaintiffs togetherwere the victims of a common policy or plan that violated thelaw"). The conditional class will be limited to CrewCoordinators employed by the Defendants between October 18, 1997and the present who were treated by the Defendants as exemptfrom the overtime requirements of the FLSA.1

By virtue of this conditional certification, this Courtrenders no opinion on the merits of Kane's claims. SeeHoffmann-La Roche, 493 U.S. at 174, 110 S.Ct. 482 ("[i]nexercising the discretionary authority to oversee thenotice-giving process, courts must be scrupulous to respectjudicial neutrality."). Furthermore, the Defendants will be freeto challenge the scope of the class, if appropriate, by filing amotion for decertification after limited discovery.


For the reasons set forth in the Memorandum above, plaintiffsmotion for an order directing the defendants to provideplaintiff with the names and addresses of all putative classmembers and authorizing notice to such class members (Docket No.9) is ALLOWED.

Within ten (10) days of the date of this order, defendantswill provide plaintiff with the names and last known mailing ande-mail addresses of each person employed by any defendant as aCrew Coordinator at any time between October 18, 1997 and thepresent who was treated as exempt from the overtime requirementsof the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

Plaintiff is authorized to send each class member a noticeinforming them of the pendency of this lawsuit and their rightswith respect thereto. Counsel for defendant shall, within ten(10) days of the date of this order, submit to this Court anyobjections it has to plaintiffs proposed notice letter andconsent form (by which class members may join this lawsuit), or,in the alternative, submit its own proposed notice letter andconsent form.

So ordered.

1. It is unclear from the record whether Kane was treated asexempt by the Defendants. Kane originally claimed to have been anonsalaried employee (i.e. paid by the hour and therefore notexempt), see Affidavit of Robert Kane in Support of EmergencyMotion to Compel, at ¶ 3, while Defendants maintain that he wasan exempt employee. See Affidavit of Gary Russell, at ¶ 6. Inrecent direct correspondence to the Court (which is not to berepealed in the future by either party under any circumstances)Kane suggests, however, that the Defendants treated him asexempt and this Court will therefore assume as much. SeeLetter of Thomas V. Urmy, Jr. (April 3, 2001).

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