United States District Court, N.D. Illinois, Eastern Division
SATURNINO Z. VAZQUEZ, Plaintiff,
FERRARA CANDY COMPANY and THOMAS P. POLKE individually, Defendants.
MEMORANDUM OPINION AND ORDER
MARIA VALDEZ UNITED STATES MAGISTRATE JUDGE
the Court are Plaintiff’s Motion for Conditional
Certification [Doc. No. 35.], as well as his Supplemental
Class Allegations to his Motion for Conditional Certification
and Judicial Notice, [Doc. No. 48], which is taken as a
Motion to certify a class under Federal Rule of Civil
Procedure 23. The Motions have been fully briefed. For the
reasons stated below, Plaintiff’s Motion for
conditional certification under the Fair Labor Standards Act
[Doc. No. 35] and his Motion for class certification of his
state-law claims [Doc. No. 48] are denied.
“combined” action, Plaintiff has moved both for
certification of a collective action under the Fair Labor
Standards Act (FLSA), see 29 U.S.C. § 216(b),
as well as for certification of a class action according to
Rule 23 of the Federal Rules of Civil Procedure for his
claims under the Illinois Minimum Wage Law (IMWL), 820 ILCS
§ 105/1 et seq., and the Illinois Wage Payment and
Collection Act (IWPCA), 820 ILCS § 115/1 et seq. See
Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 973 (7th
Cir. 2011) (concluding that “there is no categorical
rule against certifying a Rule 23(b)(3) state-law class
action in a proceeding that also includes a collective action
brought under the FLSA”).
Saturnino Vazquez has worked for Defendant Ferrara Candy
Company for many years. For the time period relevant to this
action, Mr. Vazquez has been a janitor at a facility in
Forest Park, Illinois operated by Ferrara. [Doc. No. 43-3 at
6.] In addition to the Forest Park facility, Ferrara also
operates facilities in in Bolingbrook and Bellwood, Illinois.
[Doc. No. 43-1 at 16-17.] The Forest Park facility employs
approximately 585 employees who are paid on an hourly basis,
285 full-time and 300 temporary employees. Id. at 6.
The facility contains packaging, panning, starch, quality
control and assurance, color and flavoring, shipping, and
warehouse and maintenance divisions. Id. at 52.
sanitary purposes, Ferrara requires personnel at the Forest
Park plant to wear certain items of clothing and protective
equipment during their shift. Id. at 15. The
requirements for janitorial employees such as Mr. Vazquez
consist of a shirt, pant, work shoes, hair net, earplugs, and
beard guard (if applicable). [Doc. No. 43-1 at 15.] The shirt
is a short- or long-sleeve shirt, provided clean by Ferrara,
which has snaps on it. Id. at 30. The pants, also
provided clean by Ferrara, are cotton with a zipper and a
snap. [Doc. No. 35-4 at 8.] While an employee’s work
shoes must be closed-toed and rubber soled, there are no
further restrictions and the shoes are not provided by the
company. [Doc. No. 43-1 at 16, Doc. No. 35-4 at 13.] The
panning, starch, color and flavor, shipping, maintenance, and
warehousing departments at Forest Park are required to wear
the same equipment as the janitorial
department.[Doc. No. 43-1 at 15-16.] In the packaging
department, the only variation from these requirements is
that women are permitted to wear a dress as opposed to pants
and a shirt. Id. at 15. In the quality control and
quality assurance departments, employees have the option of
wearing the pants and shirt or a frock-a long jacketlike
garment made of paper which is worn over street clothes.
Id. at 16, 30. At Forest Park, there are three
locker rooms in which employees are permitted to change
clothes: separate locker rooms designated to men and women
were located on the first floor and estimated to be a
“a minute or two” from the entrance, id.
at 18-19, and a third men-only locker room is located on the
Bellwood facility employs approximately between 350 and 400
employees paid on an hourly basis, 150 full-time employees as
well as 200 to 250 temporary employees. Id. at 6.
Bellwood is another manufacturing facility, which houses
packaging, starch, quality control and assurance, and
maintenance and janitorial operations. Id. at 15.
The employees at Bellwood wear the same kinds of uniforms as
those worn at Forest Park. Id. at 18. The Bolingbrook
plant employs approximately 150 employees paid on an hourly
basis, 50 full-time employees and 100 temporary employees.
Id. at 6, 16-17. Bolingbrook is a packaging center,
where there are no manufacturing operations. Id. at
17. At Bolingbrook, the maintenance and janitorial personnel
wear the same uniform as their counterparts at Forest Park
and Bellwood. Id. Employees in the packaging
department-the only other department at Bolingbrook-wear the
paper frock. Id. at 18.
to Ferrara’s policies, employees must “punch
in” to the time clock upon arrival for work.
Id. at 8. Employees are permitted to punch in no
more than thirty minutes prior to their shift’s
scheduled start, and must “punch out” after its
scheduled completion. Id. at 8-9. Employees must be
ready to begin work at the scheduled start of their shift:
for employees in certain departments such as the panning,
packing, and color and flavor lab departments, this means
that the employee must be present on the assembly line at the
scheduled start of the shift to relieve the employee from the
prior shift. Id. at 29-30. For the maintenance,
shipping, and janitorial departments-which are not line work
positions-the employee must simply be ready to start his or
her work, at locations which can vary. Id. at 30.
Therefore, employees at Ferrara’s facilities must have
put on their required uniform prior to the time at which they
begin their shifts, or else they face the potential of
disciplinary action. Id. at 19, 22-24. In this system,
Ferrara’s time cards are used more to monitor
attendance rather than to regulate pay: employees are not
paid based on the punch times on their time cards, but rather
based on the scheduled start and end times for their shift.
[Doc. No. 43-1 at 10, 20.] Employees who believe that they
are working hours which are outside of the recorded shift
times may bring requests for additional compensation to their
supervisors, who in turn can have upper-level management
approve a pay adjustment. Id. at 9-10. Although the
employees have a shift lasting eight hours, Ferrara releases
employees fifteen minutes prior to the scheduled end of their
shift. Id. at 21-22. This fifteen minute block of
time-for which employees are not working, but for which they
are paid-is intended to compensate the employees for the time
spent changing into and out of (“donning” and
“doffing”) their required uniforms. Id.
These policies are consistent at the Forest Park, Bellwood,
and Bolingbrook facilities. Id. at 24, 30.
time period at issue in this case, Plaintiff was a janitor at
Defendants’ Forest Park facility. [Doc. No. 48-1 at 2.]
According to Plaintiff, his shift was scheduled to begin at
6:00 a.m., but he would usually arrive at 5:30 a.m.
Id. When he arrived at the facility, Plaintiff would
“clock in” to the time system, and would go to
the cafeteria to drop off his lunch. [Doc. No. 43-3 at 9.] He
would pick up his shirt and pants on the first floor, then
proceed to the second floor locker room to change.
Id. After changing, he would retrieve a bucket and
mop from the basement in order to be ready for the 6:00 a.m.
start of his shift. Id. at 12.
addition to his testimony and affidavit, Plaintiff has
produced-in his combined briefing- the time records for six
other Ferrara employees, Velma Kindred, [Doc. No. 35-6 at
8-10; [Doc. No. 48-1 at 35-40], Gregorio Renteria, [Doc. No.
35-6 at 11-14], Leobardo Zariana, [Doc. No. 35-6 at 15-18],
Maria Arcos. [Doc. No. 48-1 at 16-17], Antonio De La Paz,
[Doc. No. 48-1 at 21-25], Jose Morales [Doc. No. 48-1 at
27-33]. Each time record submitted to the Court-which covers
a period of about three months for each employee-shows an
official punch-in and punch-out time that corresponds with
the worker’s shift, and for which the employee was
paid. However, below each official punch-in and punch-out
time are recorded the actual times which the employee had
punched in and out; nearly every day, each employee’s
actual punch-in time was earlier than the official shift
start time; the majority of punch-out times, however, were
before the shift’s scheduled end-time. The records for
Kindred, Arcos, De La Paz, and Morales are also accompanied
by pay stubs which demonstrate that they were paid according
to the scheduled shift time, and not the actual punch times.
No other information for these or other putative class
members was submitted.
seeks to have the Court to conditionally certify a collective
action for his claims under the Fair Labor Standards Act and
seeks a class action under Federal Rule of Civil Procedure 23
for his claims under Illinois law. These Motions raise a
number of issues which the Court will address in order below.
CERTIFICATION OF A COLLECTIVE ACTION UNDER THE FAIR LABOR
the FLSA, employees are entitled to overtime pay
(i.e., one and one-half times the regular rate) for
any hours worked in excess of forty hours per week, unless
they come within one of the various exemptions set forth in
the Act.” Schaefer-LaRose v. Eli Lilly &
Co., 679 F.3d 560, 572 (7th Cir. 2012) (citing 29 U.S.C.
§§ 207, 213)). Many years ago, the Supreme Court
held that the time employees spent donning and doffing
uniforms or other specialized work clothes was compensable
under the FLSA. See Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 692-93 (1946). Congress subsequently
amended the FLSA with the Portal-to-Portal Act, 29 U.S.C.
§ 254, to exclude from compensation “activities
which are preliminary to or postliminary to [an
employee’s] principal activity or activities.” 29
U.S.C. § 254(a)(2). However, an employer must still
compensate an employee for activities that are “an
integral and indispensable part of the principal activities
for which covered workmen are employed and are not
specifically excluded by” the FLSA. Steiner v.
Mitchell, 350 U.S. 247, 256 (1956); see also 29
C.F.R. § 790.8(c). The FLSA “gives employees the
right to bring their FLSA claims through a ‘collective
action’ on behalf of themselves and other
‘similarly situated’ employees, ”
Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th
Cir. 2010) (citing 29 U.S.C. § 216(b) (2006)), and
“[a] district court has wide discretion to manage
collective actions.” Id. (citing
Hoffmann-La Roche v. Sperling, 493 U.S. 165, 171
FLSA claims may be pursued as a collective action when the
proposed plaintiffs are “similarly situated, ”
the Act does provide a definition for when that is the case.
See Russell v. Illinois Bell Tel. Co., 721 F.Supp.2d
804, 811 (N.D. Ill. 2010). However, “the majority of
courts . . . have adopted a two-step process for determining
whether an FLSA lawsuit should proceed as a collective
action.” Camilotes v. Resurrection Health Care
Corp., 286 F.R.D. 339, 345 (N.D. Ill. 2012) (citation
and internal quotation marks omitted) (omission in original).
“Step one involves a conditional certification, and
step two, a final certification. Plaintiffs’ burden
increases with each, directly proportional to discovery
progress.” Briggs v. PNC Fin. Servs. Grp.,
Inc., No. 15-CV-10447, 2016 WL 1043429, at *1 (N.D. Ill.
Mar. 16, 2016).
“conditional certification, ” a plaintiff
“can show that the potential claimants are similarly
situated by making 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.” Camilotes, 286 F.R.D. at 345 (quoting
Franks v. MKM Oil, Inc., No. 10 CV 00013, 2012 WL
3903782, *9 (N.D.Ill. Sept. 7, 2012)). “[T]he purpose
of conditional certification is to determine the size and
contour of the group of employees who may become collective
members and whether these potential members are
‘similarly situated.’ ” Briggs,
2016 WL 401701, at *2 (citing 7B Charles A. Wright et al.,
Federal Practice & Procedure § 1807). Accordingly,
at the conditional certification phase, a court requires only
a “modest factual showing” that the potential
plaintiffs are similarly situated, given that minimal
discovery has taken place. See, e.g., id.
(citing cases); see also Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1214 (5th Cir. 1995). “After
discovery, the court conducts the second, more stringent step
of the inquiry.” Rottman v. Old Second Bancorp,
Inc., 735 F.Supp.2d 988, 990 (N.D. Ill. 2010). At the
second step of the collective action certification analysis,
“[t]he Court must consider: (1) whether the plaintiffs
share similar or disparate factual and employment settings;
(2) whether the various affirmative defenses available to the
defendant would have to be individually applied to each
plaintiff; and (3) fairness and procedural concerns.”
Smith v. Family Video Movie Club, Inc., No.
11 C 1773, 2015 WL 1542649, at *3 (N.D. Ill. Mar. 31,
2015). “These factors help a court
determine whether it can manage the case and bring about a
fair and reasonably expeditious resolution of the collective
action.” Id. (quoting Russell, 721
F.Supp.2d at 811).
Conditional Certification is Inappropriate at this Late
Stage of the Litigation.
parties dispute the legal standard applicable to
Plaintiff’s motion to certify a collective action.
Plaintiff contends that this case is appropriately analyzed
at the conditional certification step, while Defendants argue
that the case should be evaluated at the more stringent
second step. Examining the history of the case, the Court
finds that conditional certification is inappropriate for
both procedural and substantive reasons.
case was originally filed in June of 2014. [Doc. No. 1]
Shortly thereafter, Plaintiff filed a short placeholder
motion for full class certification, [Doc. No. 8], which was
entered and continued generally by the district judge. [Doc.
No. 11.] In their initial joint status report, filed shortly
thereafter, the parties anticipated a fact discovery
completion date of December 31, 2014. [Doc. No. 10 at 2.]
There was no indication in the joint status report that the
Plaintiff would seek minimal discovery and then file a motion
for conditional certification prior to completing fuller
discovery later (in the initial status report, an anticipated
deadline for dispositive motions was January 30, 2015).
Id. The parties then consented to proceed before a