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Muir v. Guardian Heating and Cooling Services, Inc.

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

March 13, 2017

MICHAEL MUIR and BRADLEY STOCK, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,


          Harry D. Leinenweber, Judge United States District Court

         Before the Court are Plaintiffs' Motion for Conditional Class Certification, Disclosure of Potential Opt-In Plaintiffs' Contact Information, and Court-Approved Notice [ECF No. 10] (the “Motion”).

         For the reasons stated herein, the Motion is granted in part. Office-staff employees of Guardian are excluded from the collective because Plaintiffs have not made a modest factual showing that they were victims of the challenged policies. The Court directs Defendants to provide Plaintiffs, by no later than March 27, 2017, the names and the last known addresses, phone numbers, email addresses, and dates of employment for all potential opt-ins. The Court authorizes Plaintiffs to transmit the notice and consent form to all potential members of the collective by U.S. mail, email, and a posting in an employee-only area of Guardian's facility where notices are typically displayed. The Court denies Plaintiffs' request for notice via website and text message. The opt-in period shall be sixty (60) days from the date notice is mailed and posted.

         I. BACKGROUND

         Plaintiffs Michael Muir and Bradley Stock are former hourly employees of Guardian Heating and Cooling Services, Inc. (“Guardian”). Guardian is a provider, installer, and servicer of heating equipment and air conditioners in the Chicago, Illinois area. Since January 1, 2008, Defendant Robert Lange has been Guardian's sole shareholder, officer, and director. (ECF No. 13 (“Defs.' Mem.”) at 2.) His wife, Andrea, is Guardian's office manager. (Defs.' Mem., Ex. 10 ¶ 3.) Guardian employs approximately 10 to 15 full-time and part-time employees across three job categories: office staff, installers, and service representatives. (Id.; ECF No. 1 (“Compl.”) ¶ 42.) Office staff and installers commence their workdays at the Guardian facility, located at 3916 North Central Park Avenue in Chicago. Installers then typically depart the Guardian facility in a company service vehicle to make service calls and visit job sites. So too service representatives, although they may elect instead to drive a company vehicle from their place of residence to their first job of the day. (Defs.' Mem. at 2, 9.) All Guardian employees operate on the honor system when turning in their time. (Id. at 2.) Both Muir and Stock are former Guardian service representatives.

         To remedy practices that allegedly undercompensate employees for overtime work, Plaintiffs filed an Individual and Collective Action Complaint against Guardian, Robert Lange, and Andrea Lange under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.; the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1, et seq.; and the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. 115/1, et seq. (Muir also asserts an individual retaliation claim based on his raising FLSA wage claims with Defendant Robert Lange.)

         Plaintiffs ask the Court to certify conditionally this class as a collective action under the FLSA, and require Defendants to produce the names of all potential opt-ins and accommodate Court-supervised notice. Plaintiffs define the putative collective as follows:

All employees of Defendant failed to pay overtime wages based on the following circumstances[:] 1) Employees who[] worked through lunch; 2) Employees not paid for overtime work time at the end of the work day[;] 3) Employees not paid for overtime work time for time spent on the phone conducting phone consultations off-hours[;] 4) Employees not paid for overtime work time for time spent commuting to job sites.

(Pls.' Mem. at 2.) The proposed collective includes within its ambit all persons employed by Guardian at any time from October 15, 2013 through the date on which final judgment is entered in this action and who timely file (or have already filed) a written consent under 29 U.S.C. § 216(b). (See, id.)


         Under the FLSA, plaintiffs may bring a collective action on behalf of themselves “and other employees similarly situated” to recover unpaid overtime compensation. 29 U.S.C. § 216(b). To participate, an individual “must affirmatively opt-in to the suit by filing a written consent with the court.” Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010). This opt-in requirement replaces the procedure for ordinary class actions, which falls under Fed.R.Civ.P. 23. See, Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 553 (N.D. Ill. 2008).

         Because neither Congress nor the Seventh Circuit has established a detailed framework governing conditional certification or notice, “district courts have wide discretion to manage collective actions.” Sylvester v. Wintrust Fin. Corp., No. 12 C 1899, 2013 WL 5433593, at *2 (N.D. Ill. Sept. 30, 2013) (internal quotation marks omitted). As such, courts in this district have fashioned a two-step process for evaluating conditional certification. At the first stage, plaintiffs must show that there are similarly situated employees who are potential claimants. Russell v. Ill. Bell Tel. Co., 575 F.Supp.2d 930, 933 (N.D. Ill. 2008); see, Petersen v. Marsh USA, Inc., No. 10 C 1506, 2010 WL 5423734, at *2 (N.D. Ill.Dec. 23, 2010). To meet this burden, plaintiffs 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.” Terry v. TMX Fin. LLC, No. 13 C 6156, 2014 WL2066713, at *2 (N.D. Ill. May 19, 2014) (citing Russell, 575 F.Supp.2d at 933). “Plaintiffs need not provide conclusive support, but they must provide an affidavit, declaration, or other support beyond allegations in order to make a minimal showing of other similarly situated employees subjected to a common policy.” Molina v. First Line Sol'ns LLC, 566 F.Supp.2d 770, 786 (N.D. Ill. 2007). The Court “evaluates the record before it, including the defendant's oppositional affidavits.” Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D. Ill. 2010). (The second stage, in which the court evaluates whether “sufficient similarity [exists] between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis, ” occurs after discovery and completion of the opt-in process. Russell, 575 F.Supp.2d at 933; see, Sylvester, 2013 WL 5433593 at *3.)

         Upon a showing that other putative opt-ins are similarly situated, the Court will conditionally certify the action and may allow notice of the case to the similarly situated employees. Hudgins v. Total Quality Logistics, LLC, No. 16 C 7331, 2016 WL 7426135, at *3 (N.D. Ill.Dec. 23, 2016) (citation omitted). Whether a proposed form of notice is adequate and appropriate depends on potential opt-ins “receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).


         Plaintiffs argue that all putative notice recipients were subjected to the policies and procedures indicated in the proposed collective definition and described in more detail in Plaintiffs' Complaint and Plaintiff Muir's affidavits. The Complaint, for example, alleges that “Defendants[‘] agents . . . was [sic] informed that sometimes employees in the field cannot take lunch, thus the time had to be paid.” (ECF No. 1 (“Compl.”) ¶ 24.) In his first affidavit, Muir asserts that many of Guardian's 10 to 15 employees “are similarly situated to me as they worked through lunch without pay, were not paid for call times on off-hours, not paid for all travel time.” (Pl.'s Mem., Ex. 1, ¶ 6.) Muir avers that this unpaid work time was overtime work, that all similarly situated employees of Guardian “were paid on an hourly basis, just like me, ” and that he is aware of no installer or service employee who is paid a salary. (Id. ¶¶ 7-8.) He specifically names the following Guardian employees as similarly situated: Javier Lopez, Adam Haynes, and “Kevin” (whose last name he does not know). (Id. ¶ 21.)

         Defendants, on the other hand, argue against certification on a number of grounds. First, Defendants contend that the members of Plaintiffs' proposed collective are not similarly situated because Guardian installers, office staff, and service representatives were subjected to different sets of policies. (Defs.' Mem. at 8-9.) Second, Defendants claim that the uses of company vehicles at issue here fall within the Portal-to-Portal Act (see, Id. at 9-10), which exempts certain activities from the pay mandates of the FLSA, including those “which are preliminary to or postliminary to” principal activities and occur “either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity.” 29 U.S.C. § 254(a)(2). Third, Defendants claim that Guardian sufficiently compensates an “on call” employee for off-hours time spent on the phone by paying her an additional $50 per week. (Defs.' Mem. at 10-11.) Last, they stress that Muir was a “rogue employee” who “violated every company rule.” (Id. at 6.)

         Defendants submitted a series of affidavits from several current (and one former) Guardian employees as well as from Defendants Robert and Andrea Lange. As relevant, these affidavits variously state that Guardian has paid each employee's overtime and describe a lunch policy whereby 30 minutes of daily time is deducted for lunch (unless an employee receives prior approval and indicates on her time chart that no lunch was taken). In particular, former service representative Javier Lopez, one of the three individuals whom Muir names as similarly situated, avers that Guardian instructed employees to take a lunch break, that employees were to indicate the same on their time cards, and that he was paid for all the days and hours that he worked (including proper overtime pay). (Defs.' Mem., Ex. 4, ¶¶ 4-6.) Elizabeth Rzymowski, a current Guardian office employee in charge of payroll, states that Muir was paid all the overtime indicated on his time cards and that Muir was deducted one-half hour for lunch when he did not receive company approval to work through lunch or when his claims of working through lunch were “not verifiable.” (Id., Ex. 3, ¶¶ 7-8.) In addition, Defendant Andrea Lange submits in her affidavit that, based on review of company vehicle GPS records, Muir used a Guardian company vehicle for personal matters, did not properly account for his time on several occasions, and may have taken at least partial lunch breaks on days when he indicated “No Lunch” on his time card. (See, generally, id., Ex. 10.) With respect to Plaintiff Stock, Defendants claim that he was paid for time or overtime whenever he would work through a lunch period. (Id. at 4-5.)

         A. Similarly Situated

         Whether certification of the requested collective is appropriate turns on the extent to which all putative opt-in claimants were similarly situated victims of common policies alleged to be unlawful. Courts find plaintiffs to be similarly situated “despite some variations in their job duties” when it is clear that they have the “same essential responsibilit[ies].” Jirak v. Abbot Labs., 566 F.Supp.2d 845, 848 (N.D. Ill. 2008). What is more, plaintiffs can be similarly situated for purposes of the FLSA even though there are distinctions in their job titles, functions, or pay. See, Id. at 849 (citation omitted). Concerns regarding a lack of common facts among potential class members and the need for individualized inquiries should be raised at step two, not step one. See, e.g., Lukas v. Advocate Health Care Network & Subsidiaries, No. 14 C 2740, 2014 WL 4783028, at *3 (N.D. Ill. Sept. 24, 2014) (citations omitted). Defendants ...

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