Gardner v. G.D. Barri & Associates Incorporated ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Aaron Gardner, No. CV-20-01518-PHX-ROS 10 Plaintiff, ORDER 11 v. 12 G.D. Barri & Associates Incorporated, 13 Defendant. 14 15 Plaintiff Aaron Gardner worked as a construction manager for Defendant G.D. Barri 16 & Associates, Inc. (“GD Barri”). Gardner filed this suit against GD Barri pursuant to the 17 Fair Labor Standards Act (“FLSA”), alleging he was not paid overtime wages owed to him. 18 Gardner now seeks conditional certification of an FLSA collective. GD Barri opposes 19 conditional certification, claiming Gardner has not identified a group of sufficiently similar 20 individuals to merit collective treatment. Because Gardner has met the low threshold for 21 conditional certification, his motion will be granted. 22 BACKGROUND 23 As alleged in the complaint, “GD Barri provides contract labor solutions to the 24 power and utilities industries.” (Doc. 1 at 4). To provide those services, GD Barri hires 25 employees and those employees then work on-site at power companies. For example, 26 Gardner worked for GD Barri as a construction manager from September 2018 until March 27 2019. During his employment, Gardner “was staffed by GD Barri to a power plant operated 28 by the Arizona Public Service Company.” (Doc. 1 at 4). While he was working for GD 1 Barri, Gardner was paid $75 per hour for each hour worked. Thus, if Gardner worked less 2 than 40 hours in a week, he was paid $75 for each hour worked and if he worked more than 3 40 hours, he was still paid $75 for each hour. Gardner alleges he often worked more than 4 40 hours per week. Because he was paid only $75 per hour even when he worked more 5 than 40 hours in a week, Gardner describes GD Barri’s compensation scheme as “straight 6 time for overtime.” (Doc. 50 at 2). 7 In July 2020, Gardner filed this suit alleging GD Barri’s compensation scheme 8 violated the FLSA’s requirement regarding overtime. GD Barri answered the complaint 9 and the parties commenced discovery. Gardner then filed his “Motion for Conditional 10 Certification and Notice.” (Doc. 50). That motion seeks conditional certification of an 11 FLSA collective covering GD Barri employees who worked on-site at power plants and 12 were not paid overtime. GD Barri opposes the motion, claiming Gardner’s proposed 13 definition for the collective is not administrable. 14 ANALYSIS 15 I. Conditional Certification is Appropriate 16 The Ninth Circuit has approved the two-step “procedure for determining whether 17 the collective mechanism [under the FLSA] is appropriate.” Campbell v. City of Los 18 Angeles, 903 F.3d 1090, 1108–09 (9th Cir. 2018). The first step requires “a preliminary 19 determination” whether the proposed collective is a group of “similarly situated” 20 employees. Id. at 1109. If so, the collective is conditionally certified which “results in the 21 dissemination of a court-approved notice to the putative collective action members, 22 advising them that they must affirmatively opt in to participate in the litigation.” Id. The 23 second step comes usually “at or after the close of relevant discovery” and involves an 24 employer seeking “‘decertification’ of the collective action for failure to satisfy the 25 ‘similarly situated’ requirement in light of the evidence produced to that point.” Id. 26 At the first step, “[t]he level of consideration is lenient . . . loosely akin to a 27 plausibility standard.” Id. Thus, the first step requires only plausible allegations “that the 28 putative [collective] members were together the victims of a single decision, policy, or 1 plan.” Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 926 (D. Ariz. 2010). In other words, 2 conditional certification is appropriate when there is a “factual nexus which binds the 3 named plaintiffs and the potential [collective] members together as victims of a particular 4 alleged policy or practice.” Id. 5 Gardner seeks conditional certification of an FLSA collective defined as: 6 All employees of GD Barri & Associates (GD Barri) who were paid straight time for overtime and staffed to power plants or 7 similar facilities in the last three (3) years. 8 (Doc. 50 at 2). GD Barri argues this proposed definition is flawed in two ways. First, it 9 allegedly does not describe any individuals because no GD Barri employee was paid 10 “straight time” if he was entitled to overtime. In GD Barri’s view, it pays overtime to any 11 employee eligible for overtime. Thus, the collective “as currently defined would be 12 empty.” (Doc. 53 at 5). Second, GD Barri argues that assuming the definition is attempting 13 to cover individuals who Gardner believes were paid incorrectly, it is still too broad 14 because it would include “all G.D. Barri employees who are currently classified as 15 exempt.” (Doc. 53 at 5). The problem with both of GD Barri’s arguments is the parties 16 have already agreed upon the exact group of individuals subject to Gardner’s definition. 17 During discovery, Gardner sent an interrogatory asking for GD Barri to “[i]dentify 18 each Class Member by name, position(s), job title(s), dates and location(s) of employment” 19 as well as the individuals’ contact information. (Doc. 50-11 at 5). GD Barri responded by 20 producing a list of 188 individuals. While neither party explicitly states as much, those 21 188 individuals appear to be the only individuals GD Barri subjected to the same 22 compensation scheme as Gardner and also assigned to work at power plants. Accordingly, 23 both parties have already identified the exact employees to be covered by the proposed 24 collective definition. Accordingly, GD Barri’s arguments aimed at the proposed definition 25 being uncertain are not convincing. 26 GD Barri may have significant arguments why the 188 individuals were not 27 “similarly situated” under the FLSA. For example, perhaps the 188 individuals performed 28 such a diverse range of tasks that it will not be possible to avoid an individual-by-individual 1 analysis regarding entitlement to overtime wages. GD Barri does not, however, make 2 focused arguments on this front. Instead, GD Barri argues that under a broader definition 3 than what is proposed by Gardner, conditional certification would be inappropriate. But 4 as Gardner pointed out in his reply, the list of workers GD Barri references in opposing 5 conditional certification includes “every position and every kind of worker” and “Gardner 6 isn’t seeking to bring all such workers into his [collective].” (Doc. 57 at 3). On the exact 7 workers Gardner is trying to bring into his collective, GD Barri provides almost no 8 meaningful explanation how they do not qualify as “similarly situated.” 9 Similarly, GD Barri may have plausible defenses to defeat eventual recovery by 10 members of the collective and GD Barri makes a variety of merits arguments. Now is not 11 the time to delve into the merits of Gardner’s claim. Overall, Gardner’s proposed collective 12 definition covers an identifiable group of GD Barri employees who were all placed at 13 power plants and were subject to the same compensation structure. Conditional 14 certification is appropriate. 15 II. Form of Notice 16 GD Barri has objected to Gardner’s proposed notice to the collective. GD Barri first 17 objects to the proposed notice including the phrase “‘COURT AUTHORIZED’ above a 18 formal District Court caption.” (Doc. 53 at 12). GD Barri concedes the notice will, in fact, 19 be “court authorized,” and also concedes the formal caption provides the same information 20 as found “in the body of the notice.” But GD Barri believes the current formatting is an 21 attempt “to imbue [the notice] with judicial imprimatur, which should not be permitted.” 22 It is appropriate to identify the notice as “Court Authorized” now that the collective has 23 been conditionally certified. However, there is no need to include a formal case caption. 24 Therefore, Gardner will be required to remove the case caption. 25 Next, GD Barri objects to the proposed definition in the notice because it allegedly 26 does not describe “a group of employees that actually exists.” (Doc. 53 at 13). As 27 explained above, the parties have already agreed on the 188 individuals the proposed 28 definition covers. Therefore, the notice will only be sent to individuals covered by the 1 definition and those individuals are unlikely to be confused by the definition. 2 Finally, GD Barri presents an argument not to the form of notice but counsel’s 3 conduct. GD Barri argues that once formal notice is sent, Gardner’s counsel should be 4 ordered to “cease advertising.” (Doc. 53 at 13). GD Barri cites what appears to be an 5 online advertisement from the law firm representing Gardner as the type of behavior the 6 Court should prohibit. The advertisement contains a picture of a worker wearing a hardhat 7 and states “Were you paid straight time for overtime at GD Barri? Find out if you may be 8 owed unpaid wages.” (Doc. 53-2 at 2). GD Barri wishes to preclude counsel from posting 9 this content online or conducting any other similar activities in an attempt to reach 10 members of the collective. 11 The authority provided by GD Barri for limiting “advertisement” is a decision by 12 the Northern District of New York. Ruggles v. WellPoint, Inc., 591 F. Supp. 2d 150, 164 13 (N.D.N.Y. 2008). That court concluded there was a “potential for abuse and confusion” if 14 plaintiff’s counsel were allowed to continue to advertise after a collective was conditionally 15 certified. Id. Thus, the Ruggles court ordered counsel “to cease in its advertisements to 16 the putative [collective] members and remove from its website any notice of this litigation 17 that does not comport with the court-approved notice.” Id. The reasoning appears to have 18 been based on the belief that once a court-authorized notice is given in an FLSA lawsuit, 19 the court has “tak[en] the reins of the notice process and [it] will set all of the parameters 20 of that process.” Id. That reasoning appears correct as far as it goes. But it does not go 21 very far. 22 There is no dispute the formal notice authorized by the Court is subject solely to the 23 Court’s control and counsel cannot alter it. It does not follow, however, that once there is 24 a Court-authorized notice, the Court is empowered to police all of counsel’s advertising 25 activities. The authority cited in Ruggles allegedly granting such power is Gulf Oil Co. v. 26 Bernard, 452 U.S. 89 (1981). In that case the Supreme Court recognized courts may limit 27 communications between counsel and putative class members. But the Supreme Court 28 cautioned “an order limiting communications between parties and potential class members 1 should be based on a clear record and specific findings that reflect a weighing of the need 2 for a limitation and the potential interference with the rights of the parties.” Gulf Oil, 452 3 U.S. at 101. Most importantly, the Supreme Court noted “the mere possibility of abuses 4 does not justify routine adoption of a communications ban that interferes with the formation 5 of a class or the prosecution of a class action.” Id. at 104. Despite citing Gulf Oil, the 6 Ruggles court did not make specific findings regarding past abuses nor did it make findings 7 regarding the likelihood of future abuses. Thus, the conclusion in Ruggles that strict 8 restrictions on counsel’s communications were appropriate is difficult to reconcile with the 9 actual rule in Gulf Oil. 10 In the present case, there is no evidence of inappropriate behavior by Gardner’s 11 counsel nor is there evidence establishing a likelihood of future inappropriate behavior. 12 Thus, there is no basis for a general restriction regarding counsel’s advertising activities. 13 The only appropriate limitation involves counsel’s use of the contact information that will 14 be provided because of conditional certification. To prevent misuse of that information, 15 counsel should not initiate direct contact (e.g., emails, letters, text messages, telephone 16 calls) with members of the collective beyond the authorized notice. Counsel may continue 17 to make general advertisements and may respond to inquiries from collective members. 18 Accordingly, 19 IT IS ORDERED the Motion for Conditional Certification (Doc. 50) is 20 GRANTED. The Court conditionally certifies the following collective: 21 All employees of GD Barri who were paid straight time for overtime and staffed to power plants or similar facilities in the 22 last three years. 23 IT IS FURTHER ORDERED Plaintiffs’ counsel shall remove the formal caption 24 from the proposed notice and distribute the revised notice to the 188 individuals the parties 25 have identified as covered by the collective definition. 26 … 27 … 28 … 1 IT IS FURTHER ORDERED the parties shall comply with the schedule outlined || in Plaintiffs’ proposed order at Doc. 50-13 at 2. 3 Dated this 16th day of June, 2021. 4 fo _ 5 — . 7 Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-