The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge.
TO: THE HONORABLE RUBEN CASTILLO UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
This case has been referred to this Court for a Report and Recommendation on Laidlaw Transit's objections to the opt-in plaintiff's in this action. Laidlaw Transit ("Laidlaw") has objected to the opt-in plaintiffs on several grounds: 1) entries are duplicative, 2) Laidlaw has not received the opt-in forms, 3) opt-in forms are untimely, 4) opt-in plaintiffs were not on notice list, 5) the opt-in form was not stamped by the Clerk of the Court and is therefore untimely, 6) opt-in plaintiff withdrew his opt-in, and 7) opt-in plaintiff was not a school bus driver. For the reasons stated below, Laidlaw's objections are sustained in part and overruled in part.*fn1
David Mielke, Barbara Boyer, Astella Goad, Mary Ann Schmieder, Karen Harnew, Mildred Jensen, Michelle Trahan, and Gesualda Densford (collectively "Mielke" or "Plaintiffs") filed a complaint on February 2, 2000 on behalf of themselves and other similarly situated employees pursuant to 29 U.S.C. § 201 et seq., the Fair Labor Standards Act ("FLSA") to recover unpaid over-time wages against Laidlaw. Plaintiffs were employed as school bus drivers for Laidlaw in its Schaumburg, Illinois office.
Plaintiffs allege that while employed at Laidlaw, they were compensated at an hourly rate, as defined in the FLSA. In addition, the Plaintiffs often worked in excess of forty hours per week, while not being paid overtime wages (one and one-half times the regular rate) as required by the FLSA, 29 U.S.C. § 207 (a)(1), until Laidlaw changed its policy in July 1999.
The suit included a class allegation under 29 U.S.C. § 216 (b). The potential class was identified as "any and all employees who, at any time within three (3) years preceding February 1, 2000: (a) were employed at any Laidlaw Transit, Inc. facility as a school bus driver; and (b) actually worked more that forty (40) hours in a workweek; and (c) received a rate of pay less than time and one-half of their regular rate of pay for hours worked in excess of forty (40) in a workweek[.]" Defendant's Ex. J (opt-in notice sent to potential plaintiffs). In March of 2002, the district court found that Plaintiffs identified "potentially similarly situated school bus drivers" and ordered notice to be immediately issued to more than 6,000 school bus drivers employed by Laidlaw at 160 branches. Order of Judge Castillo, March 15, 2002. The court ordered that Laidlaw's proposed notice (not Plaintiffs') be used and noted that the order in no way guaranteed that the class would be certified. Id.
According to Plaintiffs, within forty-five days of the court's decision on March 15, 2002, they issued the first set of notice mailings. Plaintiffs further explain that Laidlaw's electronic payroll records and its electronic name and address records lacked a common identifier data field. Plaintiffs employed a consultant to match the names of the 6,000 potential claimants with Laidlaw's list of 70,000 current and former school bus drivers. By mid-April, Plaintiffs had completed two-thirds of this task and provided that list to its mailing facility. Plaintiffs could not identify valid addresses for the remaining one-third of the potential claimants and asked Laidlaw to supply a last known address for each one. This took some time for Laidlaw to complete, and the notice was not mailed to these potential claimants until June 13, 2002 in some cases.
All notices, regardless of the mailing date, contained a return deadline of June 30, 2002. The notices were to be returned to the Clerk of the Court of the Northern District of Illinois and were to be stamped by the Clerk with the date of receipt. Unfortunately, the Clerk did not consistently stamp the notices when they were received. Some were stamped on the envelope, some on the back of the consent form, some on the front, and some not at all. After the forms were received they were periodically delivered to Judge Castillo's chambers where Plaintiffs retrieved them. Most of the consent forms were received by the deadline; however, a good many of them were stamped as received after the June 30, 2002 deadline. In addition, consent forms were received from people who were not on the original list of 6,000 potential class members identified by Plaintiffs.
At a proceeding before Judge Castillo on September 26, 2002, Plaintiffs indicated that the deadline on the opt-in forms of June 30, 2002 was indicated primarily for the purpose of encouraging the potential class members to respond quickly. Defendant's Ex. A (Transcript of proceedings before Judge Castillo, September 26, 2002) at 3. Judge Castillo responded and Plaintiffs' counsel agreed that there was a firm opt-in date of June 30. Id. at 3-4. Judge Castillo then stated: "Whoever makes it, makes it. Whoever doesn't, doesn't. That's a firm date." Id. at 4.
Judge Castillo then referred the case to this Court on September 27, 2002 to resolve the issues regarding the opt-in participants in this case. This Court will discuss each of Laidlaw's objections in turn.
In its First Amended Objections to Plaintiff's Final List of All Opt-In Participants, Laidlaw identifies seven objections to particular opt-in Plaintiffs, each of which will be discussed in turn. Laidlaw objects to seven groups of potential opt-in plaintiffs for the following reasons: 1) Plaintiff's entries are duplicative, 2) Laidlaw has not received the opt-in forms, 3) opt-in forms are untimely, 4) opt-in plaintiff was not on notice list, 5) the opt-in form was not stamped by the Clerk of the Court and is therefore untimely, 6) opt-in plaintiff withdrew his consent, and 7) opt-in plaintiff was not a school bus driver. This ...