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Pizano v. Big Top Party Rentals, LLC

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

May 14, 2018

JOSE PIZANO, Plaintiff,


          Robert M. Dow, Jr. United States District Judge.

         Before the Court is Plaintiff's motion [56] for an order to authorize notice to similarly situated persons pursuant to 29 U.S.C. § 216(b). For the reasons set forth below, the motion [56] is granted in part and denied in part. Defendants are ordered to submit the names and addresses of all employees who between December 11, 2012 and present have been subjected to Defendants' policy of classifying any or all hours worked in excess of 40 hours as “ride time.” Defendants are ordered to provide this information to Plaintiff by June 11, 2018. This case is set for further status hearing on June 21, 2018 at 9 a.m.

         I. Background

         Defendant Big Top & Party Rentals, LLC, and its owner, Defendant Marlene Leonard, “provide[] tents, tables, chairs, lighting, staging, dance floors, and other equipment to clients for events such as weddings and festivals” in Illinois, Wisconsin, and Indiana. [42, at 2; 47, at 2.]. Plaintiff Jose Pizano was one of Defendants' regular seasonal employees, working from May to October each year from 2012 through 2015. [47, at 2.] According to Plaintiff, he and other employees would “go to Defendants' worksite each day, load Defendants' trucks with the necessary tents, and other supplies for the day, and travel to the clients' sites to install the tents as well as any other requested equipment.” [42, at 2.]

         Plaintiff alleges that he regularly worked in excess of forty hours a week, but was not paid overtime compensation for all of this time. [1, ¶¶ 10-11.] Specifically, he was not compensated for work that includes “time loading trucks at the beginning of the day, unloading trucks and the end of the day, and traveling from job to job and installing tents.” [42, at 2.] He alleges that he and other workers would “punch in each day before beginning to load Defendant's trucks and punched out at the end of each day after unloading the truck and cleaning off tools.” Id. at 2-3.

         Defendants dispute these facts (and, obviously, any liability). They argue that Defendants had three crews, two of which travel to various sites in Illinois, Wisconsin, and Indiana, while the third remains at Defendants' warehouse. [47, at 3.] According to Defendants, the third crew has exclusive responsibility for loading and unloading the trucks. Id. The other two crews are given a “ride” to the first morning job site in a fully loaded company truck, and they start their work day only upon arrival at the job site. Id. During their truck ride, “almost all of the crew” make personal phone calls, sleep, or snack. Id. at 4. “The employees perform no work whatsoever prior to and after their ‘ride' to and from the first and last job site.” Id. Nevertheless, Defendants pay these workers at their regular rate for this “ride time.” Id. at 1, 3.

         On April 12, 2017, the Court ruled that, as a matter of law, ride time could be compensable under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., as amended (“FLSA”), and the Illinois Minimum Wage Law, 820 ILSC 105/1, et seq. (“IMWL”). [50.] On October 22, 2017, Plaintiff filed a motion [56] to authorize notice to similarly persons pursuant to 29 U.S.C. § 216(b), which is currently pending before the Court.

         II. Legal Standard

         Pursuant to 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). Section 216(b) of 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 Chi., 605 F.3d 445, 448 (7th Cir. 2010) (citing 29 U.S.C. § 216(b) (2006)); see Schaefer v. Walker Bros. Enterprises, 829 F.3d 551, 553 (7th Cir. 2016) (“Suits under the Fair Labor Standards Act cannot proceed as class actions. Instead they are opt-in representative actions.”). District courts have broad discretion in managing collective actions under the FLSA. Alvarez, 605 F.3d at 449.

         “The conditional approval process is a mechanism used by district courts to establish whether potential plaintiffs in the FLSA collective action should be sent a notice of their eligibility to participate and given the opportunity to opt in to the collective action.” Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 974 (7th Cir. 2011). “Neither Congress nor the Seventh Circuit has specified the procedure courts should use to decide FLSA certification and notice issues, but collective FLSA actions in this district generally proceed under a two-step process.” Grosscup v. KPW Mgmt., Inc., 2017 WL 2461538, at *1 (N.D. Ill. June 7, 2017) (citations and quotations omitted).

         This case is at step one, the conditional certification stage. “The 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.'” Nicks v. Koch Meat Co., 265 F.Supp.3d 841, 848 (N.D. Ill. 2017) (citing 7B Charles A. Wright et al., Federal Prac. & Proc. § 1807); see also Gomez v. PNC Bank, Nat'l Assoc., 306 F.R.D. 156, 173 (N.D. Ill. 2014); Ervin, 632 F.3d at 974 (“The conditional approval process is [ ] used by district courts to establish whether potential plaintiffs * * * should be sent a notice of their eligibility to participate and given the opportunity to opt in to the collective action.”).

         “At this first stage, the plaintiffs have the burden of showing that other 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.'” Nicks, 265 F.Supp.3d at 849 (citations omitted). “Courts use a ‘lenient interpretation' of the term ‘similarly situated' in deciding whether plaintiffs meet this burden.” Grosscup, 2017 WL 2461538, at *1 (quoting Salmans v. Byron Udell & Assocs., Inc., 2013 WL 707992, at *2 (N.D. Ill. Feb. 26, 2013)). To satisfy the modest factual showing for issuing notice pursuant to § 216(b), a plaintiff “must provide some evidence in the form of affidavits, declarations, deposition testimony, or other documents to support the allegations that other similarly situated employees were subjected to a common policy that violated the law.” Pieksma v. Bridgeview Bank Mortg. Co., LLC, 2016 WL 7409909, at *1 (N.D. Ill.Dec. 22, 2016) (internal quotations omitted). However, conditional certification is not automatic and to proceed as a collective action, a plaintiff must “demonstrate similarity among the situations of each plaintiff beyond simply claiming that the FLSA has been violated; an identifiable factual nexus that binds the plaintiffs together as victims of a particular violation of the overtime laws generally must be present.” Briggs v. PNC Fin. Servs. Grp., Inc., 2016 WL 1043429, at *2 (N.D. Ill. Mar. 16, 2016) (citations omitted). If a plaintiff is able to show that other potential plaintiffs are similarly situated, courts may conditionally certify the case as a collective action and allow the plaintiff to send notice of the case to similarly situated employees who may then opt in as plaintiffs. Grosscup, 2017 WL 2461538, at *1; Salmans, 2013 WL 707992, at *2.

         At this initial stage, “[t]he court does not make merits determinations, weigh evidence, determine credibility, or specifically consider opposing evidence presented by a defendant.” Bergman, 949 F.Supp.2d at 855-56 (citation omitted); see also Larsen v. Clearchoice Mobility, Inc., 2011 WL 3047484, at *1 (N.D. Ill. July 25, 2011) (“[T]he court does not resolve factual disputes or decide substantive issues going to the merits.”); Nehmelman v. Penn Nat'l Gaming, Inc., 822 F.Supp.2d 745, 751 (N.D. Ill. 2011) (“[T]he court does not consider the merits of a plaintiff's claims, or witness credibility”).

         The second step, which is not at issue here, is more stringent and occurs after the opt-in and discovery process has been completed. Nicks, 265 F.Supp.3d at 849. “Once the court has determined which employees will be part of the collective action, the court must reevaluate 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 on a collective basis. If the court finds insufficient similarities during the second step, it may revoke conditional certification or divide the class into subclasses.” Id. (quotations and citations omitted).

         III. Analysis

         A. Conditional Certification

         Defendants contend that the Court should not allow for any notice to be issued. Defendants recognize that “Plaintiff need only make a reasonable factual showing that members of the proposed collective action are similarly situated, ” but argue that the Court should deny Plaintiff's request to issue a notice in this case because the requisite factual showing is typically supported by discovery but discovery has not taken place in this case “due to the de minimus [sic] value of Plaintiff's claim[.]” [61, at 7.] This contention is puzzling, as the Court has not limited discovery in this case due to the claimed de minimus value of Plaintiff's claim. In fact, some discovery has taken place. Defendants have produced payroll records indicating that Defendants categorized any time that Plaintiff worked over 80 hours, but under 100 hours, as “ride time, ” which was paid at the regular rate. [65-1;65-2.] Defendants also produced redacted payroll records of other employees indicating that other employees were subject to the same method of categorizing hours. [65-3.] Indeed, Defendants have indicated that nine other employees were compensated for “ride time” in a similar manner as Plaintiff was compensated. [61, at 5.] ...

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