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Howard v. Securitas Security Services USA

January 20, 2009

CRYSTAL HOWARD, PAUL GALLOWAY, ROBERT NEWSON, ALVAN YOUNG, AND JOHN HUEBNER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
SECURITAS SECURITY SERVICES, USA INC., DEFENDANT.



The opinion of the court was delivered by: Joan B. Gottschall United States District Judge

Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Before the court is the plaintiffs' Motion to Conditionally Certify the Class and Issue Notice.*fn1 For the reasons stated below, the motion is granted in part and denied in part.

I.BACKGROUND*fn2

The defendant, Securitas Security Services USA, Inc. ("Securitas"), provides security services to hundreds of businesses throughout the state of Illinois. It has eleven Illinois branches. The plaintiffs all worked, at various times, for Securitas as hourly non-exempt uniformed security guards. Plaintiffs Crystal Howard ("Howard"), Paul Galloway ("Galloway"), Robert Newson ("Newson"), and Alvan Young ("Young") worked as canine unit security guards at the Securitas branch located at 500 N. Pulaski Road, Chicago, Illinois, providing security services for the Chicago Transit Authority. Plaintiff John Huebner ("Huebner") worked at the Rockford, Illinois branch, providing security services at the Exel Distribution Center in Elgin, Illinois.

The plaintiffs filed suit against Securitas alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.(the "FLSA"). Specifically, the plaintiffs allege that Securitas required them to complete extensive training without compensation, to work before and after their shifts without overtime payment, and to maintain their uniforms without compensation for the time spent. Am. Comp. ¶¶ 14-18.

II.ANALYSIS

The plaintiffs ask the court to designate this case as a collective action under § 216(b) of the FLSA, to order Securitas to produce a list of potential opt-in class members, and to authorize notice to be sent to all putative class members. Securitas argues that conditional certification and its resulting notice would be inappropriate because the plaintiffs are not similarly situated to the more than 10,000 past and current employees they seek to represent.*fn3

A. Legal Standard: Motion to Conditionally Certify the Class*fn4

Section 216(b) of the FLSA specifically authorizes collective actions by representative plaintiffs. 29 U.S.C. § 216(b). The statute provides that "[a]n action to recover . . . may be maintained . . . by any one or more employees for and in [sic] behalf of himself or themselves and other employees similarly situated." Id.; see Vanskike v. Peters, 974 F.2d 806, 812 (7th Cir. 1992) (noting that the FLSA allows class actions). Unfortunately, neither the FLSA nor its implementing regulations define or provide guidance on the meaning of the term "similarly situated." Courts have generally taken one of three approaches: (1) an ad hoc case-by-case approach, where the court employs a two stage approach to certification; (2) an approach that mirrors the requirements of Rule 23 class certification; and (3) an approach that incorporates the requirements of the pre-1966 Rule 23 for "spurious" class actions. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001).

The Seventh Circuit has yet to provide guidance on which of the three approaches should be followed; however, at least two Courts of Appeal have explicitly endorsed the two-stage, ad hoc approach. See Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 n.2 (11th Cir. 2003) (explicitly adopting a two-stage procedure where the court, using a "fairly lenient standard," determines whether the evidence favors conditional certification of the class); Thiessen, 267 F.3d at 1105 (concluding that the ad hoc approach effectuates Congress's goals for the FLSA, but observing that "there is little difference in the various approaches"). This court now joins with the majority of district courts to have considered the issue and adopts the two-stage ad hoc approach. See, e.g., Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 847 (N.D. Ill. 2008) (collecting cases that have adopted the two-stage approach).

Under the ad hoc approach, "a court typically makes an initial 'notice stage' determination of whether plaintiffs are 'similarly situated.'" Thiessen, 267 F.3d at 1102 (citing Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). The determination requires only "'substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'" Id. (quoting Vaszlavik, 175 F.R.D. at 678). At the notice stage, the burden of proof is not heavy; nevertheless, the plaintiffs must demonstrate, through the pleadings and affidavits, a factual nexus between the plaintiff and the proposed class or a common policy that affects all the collective members.

After notice has been issued and discovery concluded, "the court then makes a second determination, utilizing a stricter standard of 'similarly situated.'" Id. at 1102-03 (citing Vaszlavik, 175 F.R.D. at 678). The Thiessen court noted that "[d]uring this 'second stage' analysis, a court reviews several factors, including '(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the filings required by the [FLSA] before instituting suit.'" Id. at 1103 (citing Vaszlavik, 175 F.R.D. at 678).

Although the court agrees with the general two-stage, ad hoc approach of the Tenth Circuit, it rejects the language in Thiessen that suggests that certain factors should be considered only at the second stage. See United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994) (explaining that a district court "owes no more than respectful consideration to the views of other circuits" and is bound "only within a vertical hierarchy"). As Judge Hart has explained, "The primary difference between the two stages of the litigation is the level of proof required," not the evidence that may be considered. Molina v. First Line Solutions, LLC, 566 F. Supp. 2d 770, 788 n.18 (N.D. Ill. 2007); see also Ruehl v. Viacom, Inc., 500 F.3d 375, 389 n.17 (3d Cir. 2007) (approving a "balancing of factors" approach to the first step in the certification process that evaluates similarity of location, claims, relief sought, salaries and circumstances of employment). Thus, in conducting the notice stage determination at issue in this motion, the court will weigh the evidence in the record without any artificial bifurcation, giving due regard to the lenient burden of proof to which the plaintiffs are subject at this preliminary stage, to determine whether the factors favor a finding that the plaintiffs are "similarly situated."

B. Motion to Strike

Before the court reaches the merits of the motion to certify the class, it must consider Securitas's motion to strike certain statements in supplemental declarations filed by former Securitas employees Hugh Meloche ("Meloche"), Robert Sanchez ("Sanchez"), Robert Creed ("Creed"), and John Huebner ("Huebner"). As detailed below, the motion is granted in part and denied in part.

Securitas argues that, pursuant to Federal Rule of Evidence 602, a court may consider only admissible evidence on a ยง 216(b) motion and that the plaintiffs' statements include inadmissible conjecture and conclusions and are not based on personal knowledge. The plaintiffs point out, correctly, that courts are split on whether it is appropriate to consider inadmissible evidence, such as hearsay, at this stage. See Adair v. Wis. Bell, Inc., No. 08 C 280, 2008 WL 4224360, at *8 (E.D. Wis. Sept. 11, 2008) ("The courts, including those in [the Seventh C]ircuit, are split as to whether a plaintiff may rely on inadmissible evidence to make the requisite factual showing for conditional certification."). Compare Molina, 566 F. Supp. 2d at 788 ("Even if this testimony is hearsay that could not be considered at trial, it may be considered in deciding whether to permit a collective action."), with Acevedo v. Ace ...


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