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Fitzpatrick v. Cuyahoga County

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

November 8, 2017

GARY C. FITZPATRICK, SR., et al., Plaintiffs




         Currently pending before the court in the above-captioned case is Plaintiff Gary C. Fitzpatrick, Sr.'s (“Plaintiff”) Motions for Conditional Certification and Court-Authorized Notice (ECF No. 31) and Equitable Tolling of the statute of limitations for the putative class (ECF No. 30.) For the reasons set forth below, Plaintiff's Motion for Conditional Certification is granted. Plaintiff's Motion for Equitable Tolling of the statute of limitations is denied.


         On June 13, 2017, Plaintiff commenced this collective action against Cuyahoga County, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. (Compl., ECF No. 1.) This action was filed on behalf of “all former and current hourly non-exempt employees of Cuyahoga County who, at any time during the last three years, received longevity payments and who worked overtime during any period in which said payment was earned.” (Id. at 3.) Since the commencement of this action, 107 individuals, including the Named Plaintiff, have filed consent forms to join in the collective action. (See Docket.)

         This is not the first time Defendant has faced allegations related to longevity payments. On November 19, 2014, other current and former Cuyahoga County employees commenced an action against Defendant, alleging violations substantially similar to the ones in the present suit. (Mulloy v. Cuyahoga County, Case No. 1:14-CV-02546 (N.D. Ohio Nov. 19, 2014) (Nugent, J.).) In Mulloy, the parties stipulated to conditional certification and that notice be sent to three subsets of putative class members from the Cuyahoga County Sheriff's Department, including “those who received longevity pay and worked over 40 hours in any work week.” (Mulloy Joint Stipulation Ex. B, ECF No. 32-2.) Pursuant to that court's order approving conditional certification, notice was sent to 1253 former and current non-exempt employees of the Sheriff's Department on or after November 19, 2012 (“Mulloy notice”). The Named Plaintiff and all of the Opt-in Plaintiffs in this suit were sent the Mulloy notice. (Aff. Laura Eaton Ex. G, ECF No. 32-7.) Ultimately, 411 individuals filed consent forms and opted into Mulloy. (Allocation of Settlement of all Mulloy Opt-Ins Ex. F, ECF No. 32-6.) Of the 107 individuals who have filed consent forms in this suit, at least thirty-six individuals filed consent forms in Mulloy and participated in the subsequent settlement, which was approved on May 17, 2016 (“Mulloy settlement”). (Opp'n Mot. Equitable Tolling 3-4.) On September 22, 2017, Plaintiff filed its Motion for Conditional Certification of the putative class in this suit. Plaintiff also filed a Motion to toll the statute of limitations for the putative class members.

         Given the prior certification and settlement of the class in Mulloy, there are two classes of putative plaintiffs relevant to the court's conditional certification and equitable tolling inquiries: (1) all current and former employees of the Cuyahoga County Sheriff's Department, who at any time during the last three years received longevity payments and worked overtime during that same period (“Sheriff Department subclass”); and (2) all current and former employees of Cuyahoga County, excluding the Sheriff's Department, who received longevity payments and worked overtime during that same period (“ Cuyahoga County subclass”). The court will address each of Plaintiff's Motions in turn.


         A. Conditional Certification

         Under 29 U.S.C. § 216(b) of FLSA (“Section 216(b)”), an employee may bring an action on behalf of himself and others “similarly situated.” See 29 U.S.C. § 216(b) (indicating that a FLSA suit may be maintained by “any one or more employees for and in behalf of himself or themselves and other employees similarly situated”). Each employee wishing to join the collective action must affirmatively “opt-in” by filing written consent. Id. District courts have discretion to facilitate notice to potential plaintiffs. Douglas v. J&K Subway, Case No. 4:14-CV-2621, 2015 WL 770388, at *1 (N.D. Ohio Feb. 23, 2015) (quoting Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). Before facilitating notice, courts must determine whether the potential class members are similarly situated under Section 216(b) of the FLSA. Id.

         The Sixth Circuit expressed approval for the two-phase test developed by the district courts in the Circuit. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006). The first phase takes place at the beginning of discovery when the court has minimal evidence. Id. at 546. In the first phase, courts may grant conditional class certification upon a modest factual showing sufficient to demonstrate that the putative class members were the victims of a single decision, policy, or plan. Id. at 547. A plaintiff's position must be “similar, not identical, to the positions held by the putative class members.” Id. at 546-47 (emphasis added). This can be demonstrated by the existence of a “factual nexus” between the plaintiff and the potential class members. Harrison v. McDonald's Corp., 411 F.Supp.2d 862, 868 (S.D. Ohio 2005).

         The second phase occurs once “all of the opt-in forms have been received and discovery has concluded.” Comer, 454 F.3d at 546. During the second phase, courts have discretion to make a more thorough finding regarding the “similarly situated” requirement. Id. at 547. Should the court determine “claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.” Douglas v. GE Energy Reuter Stokes, Case No. 07-077, 2007 WL 1341779, *4 (N.D. Ohio Apr. 30, 2007).

         The evidentiary burden for meeting the “similarly situated” requirement at the conditional certification stage is a lenient one. See Comer, 454 F.3d at 547. This is in part due to the fact that, given the early stage of the proceedings, a plaintiff typically has little evidence to support his or her claims. Further, because a defendant has the opportunity to file for decertification at a later stage, conditional certification is “by no means final.” Id. Thus, the standard for allowing class certification is significantly lower than the one used in class actions-it only requires that a plaintiff put forth “minimal evidence, ” and a court's determination will “typically result[] in conditional certification.” Id. Class members' claims need only be unified by “common theories”; a class can be conditionally certified “even if proof is individualized and distinct.” Douglas, 2014 WL 770388 at *3 (quoting O'Brien v. Ed Donnelly Enter., 575 F.3d 567, 584 (6th Cir. 2009)).

         Importantly, at the conditional certification stage, the court does not typically “consider the merits of the plaintiff's claims, resolve factual disputes, make credibility determinations, or decide substantive issues.” Lawrence v. Maxim Healthcare Servs., Case No. 1:12-CV-2600, 2013 WL 5566668, at *3 (N.D. Ohio Oct. 9, 2013); see also Struck, 2013 WL 571849, at * 3. Nor does the court consider arguments on possible exemptions under the FLSA. Lawrence, 2013 WL 5566668, at *3. Persuasive authority suggests that a court will generally grant conditional certification where the plaintiff has: (1) identified potential plaintiffs; (2) submitted affidavits of potential plaintiffs which attest to the conditions of their compensation and ...

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