United States District Court, N.D. Ohio, Eastern Division
GARY C. FITZPATRICK, SR., et al., Plaintiffs
CUYAHOGA COUNTY, Defendant
SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE.
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.
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.)
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
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.
LAW AND ANALYSIS
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
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).
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).
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)).
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 ...