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Rodkey v. Harry & David, LLC

United States District Court, S.D. Ohio, Western Division

June 7, 2017

PAMELA RODKEY and CHERIE CUMMINGS, on behalf of themselves and all other similarly situated employees nationwide, and on behalf of the Ohio and Oregon Classes, Plaintiffs,



         This case is before the Court on the Motion for Conditional Certification and Court-Supervised Notice (Doc. 34) filed by Plaintiffs Pamela Rodkey and Cherie Cummings. Rodkey is a former employee of Defendant 1-800-Flowers Service Support Center, Inc. ("Service Support Center") and Cummings is a former employee of Defendant Harry and David, LLC ("Harry and David"). Both Service Support Center and Harry and David are subsidiaries of, Inc. Plaintiffs allege that they were denied compensation that they were entitled to under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216, et seq., due to Defendants' policy and practice of excluding incentive pay, commissions, and bonuses in calculating nonexempt employees' overtime compensation. Plaintiffs assert class and collective claims against Service Support Center, Harry and David, and several as-yet-identified Defendants (Does 1-20) for violations of the FLSA and Ohio and Oregon law.

         Plaintiffs request an order conditionally certifying a collective action under the FLSA and authorizing notice to:

All nonexempt employees who were employed by Defendants and paid overtime and incentive pay, commissions and/or other bonuses, within the past three years preceding the Complaint filing date.

(Doc. 34 at 1.) Fourteen individuals have already filed notices of their intent to opt-in to this action, if the Court certifies the proposed class. (Docs. 11-14, 16, 20, 29-30, 33, 35-36, 38, 41.) Defendants argue that conditional certification should be denied because the class is overbroad; Plaintiffs are not similarly situated to all class members; and Plaintiffs have not shown that Defendants shared an unlawful "common policy or plan." (Doc. 39 at 1.) For the reasons below, Plaintiffs have made the showing required to obtain conditional certification at this stage of the litigation. Accordingly, the Court GRANTS the Motion for Conditional Certification and Court-Supervised Notice (Doc. 34).


          Congress enacted the FLSA "to aid the unprotected, unorganized and lowest paid of the nation's working population; that is, those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage." Moron v. AlBasit LLC, 788 F.3d 201, 204 (6th Cir. 2015) (quoting Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 n. 18 (1945)). The FLSA establishes not only a minimum wage, but also requires employers to pay their employees "at a rate not less than one and one-half times the regular rate" for work exceeding forty hours per week. 29 U.S.C. § 207(a)(1). In this case, Plaintiffs allege that Defendants did not calculate their overtime rate properly under the FLSA.

         Section 216(b) of the FLSA allows employees to bring a collective action on behalf of themselves and other similarly situated employees to recover compensation from their employer. 29 U.S.C. § 216(b). A principal difference between a collective action and a class action certified under Fed.R.Civ.P. 23 is that class members in a collective action must "opt-in" to the litigation, whereas Rule 23 requires class members to "opt-out" if they do not want to be included.

         The certification of a collective action is a two-step process: the first step, conditional certification, occurs at the beginning of discovery and the second step occurs "after all class plaintiffs have decided whether to opt-in and discovery has concluded." White v. Baptist Mem 7 Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012) (citing Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.2006)). To obtain conditional certification, the plaintiff must "make a modest factual showing" that the employees in the proposed class are "similarly situated." Comer, 454 F.3d at 546-47 (citing 29 U.S.C. § 216(b)). This is a "fairly lenient standard" that "typically results in conditional certification of a representative class." Id. at 547. The district court typically should "refrain from resolving factual disputes and deciding matters going to the merits" at this stage. Dinkelv. MedStar Health, Inc., 880 F.Supp.2d 49, 53 (D.D.C. 2012).

         At the second stage, courts apply a "stricter standard" and more closely examine "the question of whether particular members of the class are, in fact, similarly situated." Id. at 547. "[P]laintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs." O'Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir. 2009). If the court determines at the second step that the plaintiffs are not similarly situated, it may decertify the class. At both the first and second step, the lead plaintiffs bear the burden of showing that they are similarly situated to the opt-in plaintiffs. White, 699 F.3d at 877.

          II. ANALYSIS

          The Court's inquiry at this stage is limited to whether Plaintiffs have made a modest factual showing that they and the proposed class members are similarly situated. Defendants argue that conditional certification is not appropriate because the class definition is overbroad and Plaintiffs have not shown that they are similarly situated to the class or that Defendants subjected class members to a common policy or plan in violation of the FLSA. The Court addresses Defendants' overbreadth argument before turning to whether Plaintiffs have carried their burden to obtain conditional certification.

         A. Whether the Proposed Class Is Overbroad

         Defendants argue that the proposed class is fatally overbroad because it includes "an untold number of individuals who did not suffer any injury." (Doc. 39 at 8.) According to Defendants, the only way for the Court to determine who is in the class would be to conduct numerous individual inquiries into the details of each class member's employment. (Doc. 39 at 8-10 (citing Perez v. Metabolife Int'l, Inc.,218 F.R.D. 262 (S.D. Fla. 2003); Dinkel v. Medstar Health, Inc.,880 F.Supp.2d 49 (D.D.C. 2012); Beauperthuy v. 24 Hour ...

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