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Vazquez v. Ferrara Candy Co.

United States District Court, N.D. Illinois, Eastern Division

August 19, 2016

FERRARA CANDY COMPANY and THOMAS P. POLKE individually, Defendants.



         Before 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.


         In this “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”).

         Plaintiff 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.

         For 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.[1][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 second floor.

         Ferrara’s 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.[2] 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.

         According 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.[3] 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.

         For the 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.

         In 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.


         Plaintiff 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.


         “Under 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 (1989)).

         While 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).

         In “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).[4] “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).

         A. Conditional Certification is Inappropriate at this Late Stage of the Litigation.

         The 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.

         This 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 ...

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