The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Kelly Brooks ("Ms. Brooks") sues her former employer Safety-Kleen Systems, Inc. ("Safety-Kleen"), alleging that Safety-Kleen failed to pay her and other similarly situated employees overtime wages in violation of the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201, et seq. Brooks asks the court to conditionally certify a collective action and send notice to the prospective members of the plaintiff class.
Safety-Kleen develops and markets chemicals, cleaning materials, and environmental solutions for customers across the country. Ms. Brooks worked at Safety-Kleen's Dolton, Illinois facility. According to Ms. Brooks, she and other employees at Safety-Kleen's Dolton facility were regularly required to work more than forty hours per week without proper overtime compensation because Safety-Kleen required them to perform tasks both before and after their scheduled shifts.
Ms. Brooks alleges that she and other employees were required to don Personal Protective Equipment ("PPE") including work boots, protective shirts, protective pants, chemical resistant coveralls, helmets, protective eye wear, gloves, and breathing devices in an employee locker room prior to signing in for their shifts. Moreover, Ms. Brooks claims, Safety-Kleen then required employees to walk several hundred yards from the locker room to the work-site where the time clock was located. At the end of the day, Safety-Kleen required its employees to first sign out, then return to the locker room from the worksite, doff the PPE, and finally shower. Although Safety-Kleen allowed employees to clock out fifteen minutes before the end of their shift to compensate them for the time spent showering, Ms. Brooks alleges that the time allotted was insufficient to walk to the locker room, doff the protective clothing required by Safety-Kleen, and shower. Finally, in addition to the uncompensated time spent by the employees donning and doffing their PPE and showering at the end of their shifts, Ms. Brooks claims that Safety-Kleen prohibited employees from signing in more than seven minutes early, rounded to the start of the shift if an employee signed in less than seven minutes early, and encouraged employees to perform tasks during the seven minutes before the start of any scheduled shift, which collectively resulted in additional uncompensated time.
In support of her motion, Ms. Brooks points to her complaint, an affidavit that details her experience at Safety-Kleen and its policies related to PPE, and summary judgment materials in a related case, Smith v. Safety-Kleen Sys., Inc., No. 10-CV-6574 (N.D. Ill. 2010).
The FLSA allows "any one or more employees for and in behalf of himself or themselves and other employees similarly situated" to sue an employer through a collective action to recover unpaid overtime or minimum wages. 29 U.S.C. § 216(b). The FLSA does not specify how collective actions are to proceed, and district courts have discretion to manage the joinder of additional parties "to assure that the task is accomplished in an efficient and proper way." Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 171, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). While the Seventh Circuit has yet to address how district courts should manage collective actions, courts in this district have commonly applied a two-part test to determine whether an FLSA claim may proceed as a collective action. Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 847 (N.D. Ill. 2008).
In the first stage, a court issues a "conditional certification" of the collective action if the plaintiffs show there are similarly situated employees who are potential claimants. Id.; Russell v. Ill. Bell Tel. Co., 575 F. Supp. 2d 930, 933 (N.D. Ill. 2008). At this stage, a plaintiff must make a "modest factual showing" sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law. Smallwood v. Ill. Bell Tel. Co., 710 F. Supp. 2d 746, 750 (N.D. Ill. 2010); Jirak, 566 F. Supp. 2d at 847. A modest factual showing requires "'nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'" Jones v. Furniture Bargains, LLC, No. 09 CV 1070, 2009 WL 3260004, at *2 (N.D. Ill. Oct. 9, 2009) (quoting Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). However, the modest factual showing cannot be founded solely on allegations in the complaint. Molina v. First Line Solutions LLC, 566 F. Supp. 2d 770, 786 (N.D. Ill. 2007). Instead, plaintiffs must provide some factual support in the form of affidavits, declarations, deposition testimony or other documents for the allegations that other similarly situated employees were subjected to a common policy. Id. In the second stage, after the parties have engaged in discovery and the opt-in process is complete, the court reexamines the conditional certification to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial as a collective action. Jirak, 566 F. Supp. 2d at 848.
In this case, there is a twist. In 2010, another employee at Safety-Kleen's Dolton facility alleged that Safety-Kleen's donning and doffing practices violated the FLSA and sought certification of a collective action. See Smith v. Safety-Kleen Sys., Inc., No. 10-CV-6574 (N.D. Ill. 2010). In that case, the court initially certified a collective action, noting that the plaintiff had presented a common question as to whether Safety-Kleen's policies and practices of requiring its operations specialists to don and doff protective clothing while they were not on the clock violated the FLSA. Smith v. Safety-Kleen Sys., Inc., No. 10-CV-6574, 2011 WL 1429203, at *4-5 (N.D. Ill. Apr. 14, 2011). After discovery, however, the court concluded that the plaintiffs had not shown that the members of the collective action had the same job responsibilities. The court reasoned that the question as to whether the plaintiffs' principal activities necessitated changing clothes and showering therefore depended on individualized inquiries, making class treatment inappropriate. Smith v. Safety-Kleen Sys., Inc., No 10-CV-6574, 2012 WL 162206, *8 (N.D. Ill. Jan. 18, 2012). Ms. Brooks was not a party to that suit or a member of the conditionally certified class. In addition, the proposed class in that class included employees who were operations specialists, while Ms. Brooks proposes a class of employees with different job titles.
Safety-Kleen argues that the court's decision in Smith should dictate the outcome in this case because "the issue of whether a segment of hourly employees at the Dolton Recycle Center can be properly certified as a class has already been litigated and decided." Safety-Kleen, in essence, implies that Brooks should be collaterally estopped from seeking to proceed in a collective action. The Seventh Circuit has unequivocally rejected an argument that a prior denial of class certification bars the certification of the same or similar class in a suit brought by a different plaintiff. Smentek v. Dart, 683 F.3d 373, 377 (7th Cir. 2012) (citing Smith v. Bayer Corp., --- U.S. ---, 131 S.Ct 2368, 180 L.Ed.2d 341 (2011)).
Perhaps recognizing this precedent, Safety-Kleen argues that the court should give "respectful attention" to the decision in Smith pursuant to the notion of comity.Safety-Kleen points out that Ms. Brooks is represented by the same counsel as the plaintiff in Smith, and therefore has access to all the discovery generated in that case. In addition, Safety-Kleen notes that the class proposed by Ms. Brooks includes employees with numerous job titles and the class in Smith included employees with a single title. Safety-Kleen reasons that because the court in Smith found after discovery that the plaintiff had not demonstrated that the prospective members of the collective action were similarly situated, Ms. Brooks, who proposes to represent a broader class, could not possibly demonstrate that the potential members of the collective action she proposes are similarly situated. Consequently, Safety-Kleen suggests the court should discard the traditional two-step inquiry in collective actions and immediately hold Ms. Brooks to a higher standard by proceeding directly to the second step of the traditional FLSA collective action inquiry.
The court is reluctant to discard the traditional two-step inquiry. As Safety-Kleen observes, the proposed class here is different from that in Smith. Thus, the two actions are not "materially identical" and the court is "on [its] own" to determine whether class treatment is appropriate. Smentek, 683 F.3d at 377 (noting that unless two class actions are "materially identical," the principal of comity would not apply). First, although Ms. Brooks proposes a broad class, encompassing all employees at Safety-Kleen who were required to use PPE, discovery may reveal that some subsets of these employees who hold different positions than the plaintiff in Smith are similarly situated. Second, Ms. Brooks was not a member of the class in the conditionally certified collective action and might seek different materials to prove that the employees in her proposed class are ...