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Brown v. Trinity Property Management, LLC

United States District Court, E.D. Arkansas, Central Division

December 13, 2019

DAVID BROWN, TARA CROW, MARIO FOY, DENISE SCOTT, DON HARRIS, ASHLEY MOORE and TIMOTHY GREEN, Each Individually and on Behalf of All Others Similarly Situated PLAINTIFFS
v.
TRINITY PROPERTY MANAGEMENT, LLC, TRI 5 JACKSONVILLE, LLC, and ANDMARK CHAPEL RIDGE OF CONWAY, LLC DEFENDANTS

          AMENDED ORDER

          LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiffs' Motion For Conditional Certification, For Disclosure of Contact Information, and To Send Notices.[1] I have significant concerns about whether collective treatment is legally warranted on the record of this case. But, for the several reasons explained below, I will grant the motion in part.

         I. BACKGROUND

         Plaintiffs bring this suit on behalf of themselves and all former and current hourly employees of Defendants.[2] Plaintiffs' collective action claims primarily concern the alleged failure of Defendants to properly calculate and pay minimum and overtime wages.[3] Plaintiffs claim Defendants' conduct violated the Fair Labor Standards Act (“FLSA”).[4] Plaintiffs estimate that potential members of the FLSA collective(s) exceed thirty (30) persons.[5] Plaintiffs moved for conditional certification, [6] alleging that Defendants' hourly employees are “similarly situated” because Defendants “have a uniform policy and practice of improperly paying their hourly employees in violation of [the FLSA].”[7] Attached to the Motion were declarations from five (5) Plaintiffs reiterating several (but not all of the) allegations made in the Amended Complaint.[8]

         II. LEGAL STANDARD

         Both Plaintiffs and Defendants appear to accept the two-step inquiry that a substantial majority of district courts (both inside and outside the Eighth Circuit) have adopted to determine whether a collective action may proceed.[9] Specifically, both parties appear to accept that, for purposes of conditional certification at the notice stage, Plaintiffs only need to make a “modest factual showing”[10] in their pleadings and affidavits that they were victims of a single decision, policy, or plan. For the purposes of this case, the Court will assume that the lenient standard applies at the conditional certification stage.[11]

         III. DISCUSSION

         A. The Modest Factual Showing

         While it is a very close call in my view, Plaintiffs[12] appear to have just chinned the low bar needed to make a modest factual showing that they were victims of a single decision, policy, or plan that affected themselves and other employees in similar ways. In declarations, five (5) Plaintiffs state that they, and the other unnamed employees they knew, generally worked over forty (40) hours per week.[13] The importance of this is that if Plaintiffs and other employees were working over forty (40) hours in a week, any improperly omitted time during that week will trigger overtime pay violations.

         These five (5) Plaintiffs state that Defendants automatically deducted lunch period hours even though these Plaintiffs usually worked during that period.[14] They also state that they spoke to other employees that “it happened to.”[15] Though the alleged automated deduction for a lunch period may be a uniform policy that unlawfully affects Plaintiffs and other employees in similar ways, the unlawfulness of this alleged policy depends on whether Defendants were aware that their employees were working through lunch. As Defendants note, the declarations do not allege that “any company policy, or any supervisor instructed them not to take a lunch break.”[16] Plaintiffs never state that Defendants knew that Plaintiffs or other employees worked during the lunch period. And what Defendants knew about specific Plaintiffs' lunch period habits may differ significantly across the potential collective(s). Were the declarations about lunch deductions the only relevant factual showing, I would likely deny conditional certification. They are not, however, the only factual showings, as Plaintiffs also raise allegations concerning routine subtractions by Defendants from employees' recorded hours.

         The Amended Complaint states that “Defendants maintained a policy wherein employees who exceeded forty (40) hours per week had their hours changed to bring them back down to forty (40) hours a week, on a regular basis.”[17] The five (5) Plaintiffs that submitted declarations also state that they personally witnessed management shave hours from their own and other unnamed employees' time.[18]

         Although not repeated in a declaration, the Amended Complaint specifically alleges that one Plaintiff (Ms. Tara Crow) “refused to make these changes and regional manager for Defendants, Lance Nelson, edited employee hours.”[19] The allegation in the Amended Complaint on its own would not have convinced me to conditionally certify. Without any explanation of whether this was an isolated or repeated occurrence, how many employees it affected, and how many locations it took place in, it is of miniscule value in determining whether there was a policy, practice, or plan in place.

         However, the allegation concerning Ms. Crow, in conjunction with five (5) other plaintiffs declaring similar (even if less detailed) occurrences across multiple apartment complexes, is just enough to make the necessary modest factual showing. In coming to this conclusion, I emphasize again that, under the majority approach adopted for purposes of this case, [20] this Court is applying the “lenient standard” that courts in this Circuit have used at the first stage of the two stage certification process.[21] Defendants' frustration with what are basically cookie-cutter declarations[22]notwithstanding, the Plaintiffs have signed and sworn to them. At this stage, those statements regarding what the Plaintiffs personally witnessed are evidence that must be given weight.[23]

         The five (5) Plaintiffs who submitted declarations also state that they were generally not paid for their “on-call” time.[24] And three (3) plaintiffs state that they received credit for their on-premises rent in lieu of some part of hourly wages, but this credit was not considered part of their base pay for overtime calculations as required by 29 C.F.R. § 778.208.[25]

         The allegations suggest (at least for the purposes of this conditional certification stage) that there were uniform policies at several apartment complexes that potentially violated the FLSA and had similar (though not necessarily identical) effects on Plaintiffs and other employees. For now, that is enough to conditionally certify the collective action.[26] In reaching this conclusion, I emphasize that the Court is precluded from making determinations about the merits of the parties' claims and defenses at this stage, [27] and that “[t]he sole consequence of conditional certification is the sending of court-approved written notice to employees . . . .”[28]

         B. The Scope of the Collectives

         Plaintiffs' motion as it pertains to the scope of the collectives is granted in part and denied in part. In their Motion For Conditional Certification, Plaintiffs asked the Court to certify the following collective: “All hourly-paid employees since September 4, 2016.”[29] Previously, in their Amended Complaint, Plaintiffs had suggested certification of two collectives: (1) “All maintenance personnel employed during the three years preceding the filing of the Complaint” and (2) “All office personnel employed during the three years preceding the filing of the Complaint.”[30]The Court believes that conditionally certifying two collectives-one for hourly office personnel and one for hourly maintenance personnel-is the most appropriate course of action at this stage. But those two collectives are still vastly overbroad in geography and time. Even under the very lenient standard for conditional certification, there is no basis anywhere in the evidence to suggest that the extensive and widespread groups of individuals covered by these purported collectives are similarly situated to the named Plaintiffs.[31]

         As to geography, according to an “incomplete list” provided by Plaintiffs, Defendant Trinity Property Management, LLC owns and/or operates at least one hundred and seventy-one (171) apartment complexes in at least twelve (12) states.[32] In Arkansas alone, Defendant Trinity Property Management owns and/or operates at least eighty-three (83) apartment complexes dispersed around the State. But even taking the Amended Complaint and the five (5) Plaintiffs' declarations together, Plaintiffs only have factual support to allege problematic pay policies or practices at eight (8) specific apartment complexes-all clustered in or around the greater Little Rock metro area.[33] Indeed, of those eight (8) apartment complexes, only four (4) have more than one Plaintiff currently complaining of allegedly illegal overtime pay policies.[34] There is no evidence that the practices or policies that Plaintiffs object to are used in any of Defendants' other apartment complexes or affect workers similarly at those other complexes. Notice should thus be limited to employees who have worked at the eight (8) apartments where Plaintiffs have worked.[35]

         As to time, the earliest that one of the Plaintiffs began working for Defendants was December of 2017.[36] Prior to that date, there is no evidence to suggest that Defendants had implemented the offending policies or that any such offending policies affected employees in a similar way. Notice should be limited to employees who worked for Defendants during or after December of 2017.[37]

         The two conditionally certified collectives, therefore, must be narrowed to all hourly office personnel and hourly maintenance personnel employed between December of 2017 and the filing of the Complaint at Westbridge apartments in Little Rock, Legacy Pointe apartments in Little Rock, Spanish Rock apartments in Little Rock, Terra Vista apartments in Little Rock, Arrowhead Estates apartments in North Little Rock, Chapel Ridge apartments in Conway, The Village apartments in Conway, and TRI 5 Jacksonville apartments in Jacksonville.

         C. Notice

         The U.S. Supreme Court has held that, in overseeing the notice process, “courts must be scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid even the appearance of judicial endorsement of the merits of the action.”[38] I take that mandate for scrupulousness and fairness very seriously, as do other district courts in this State and in this Circuit.[39] In order to “avoid redundant notice and any conduct that could be interpreted as an endorsement of the lawsuit[, ]”[40] Plaintiffs' request to provide the Notice of Right to Join Lawsuit (“Notice”), the Consent to Join form, and a follow-up reminder postcard via traditional U.S. Mail[41]is conditionally granted, with the condition being that Plaintiffs make the following revisions:[42]

         1. to the Notice of Right to Join Lawsuit (Doc. 13-1):

a. do not use bold font in the sentences beginning with “To:” and “Re:” on page 1;
b. change the statement in the footer on all pages to read: “IF YOU WANT TO JOIN THIS LAWSUIT, CONSENT MUST BE RETURNED BY [insert date that is 60 days after the date that the notice revisions are approved by the Court]”;
c. change the first sentence in section (3) on page 2 to read as follows: “DESCRIPTION OF THE LAWSUIT: Plaintiffs in this case allege that they are current and former hourly-paid employees of Trinity Property Management, LLC, Tri 5 Jacksonville, LLC, and/or Andmark Chapel Ridge of Conway, LLC (“Defendants”).”;
d. delete the sentence in section (3) on page 2 stating: “The Court has not ruled on or decided any of the issues, including the merits of the claims or defenses.”;
e. change section (4) on page 2 to read as follows: “COMPOSITION OF THE CLASS: Plaintiffs seek to sue on behalf of themselves and on behalf of all hourly paid office and maintenance personnel who allege that they worked for Defendants between December of 2017 and September 4, 2019 at Westbridge apartments in Little Rock, Legacy Pointe apartments in Little Rock, Spanish Rock apartments in Little Rock, Terra Vista apartments in Little Rock, Arrowhead Estates apartments in North Little Rock, Chapel Ridge apartments in Conway, The Village apartments in Conway, and/or TRI 5 Jacksonville apartments in Jacksonville.”;
f. delete the paragraph in section (5) on page 2 stating: “Additional Consent to Join forms and information regarding the specific filing requirements are available from Plaintiffs' attorney, Josh Sanford, Sanford Law Firm, PLLC, One Financial Center, 650 South Shackleford Road, Suite 411, Little Rock, Arkansas 72211, (501) 221-0088, josh@sanfordlawfirm.com.”;
g. after section (5), insert a new section stating as follows: “JUDICIAL DISCLAIMER: The Court does not encourage or discourage participation in this case.”;[43]
h. delete the sentence in section (6) on page 2 stating: “You will not be required to pay attorney's fees directly.”;
i. delete the paragraph in section (6) on page 2 stating: “It is important to understand that you may be entitled to recovery just because you worked for Defendants as an hourly-paid employee at some time since September 4, 2016. The Court will make a final decision about whether you are entitled to recover, and for what time period, if any, that you are entitled to recover. The Court has not made those decisions yet.”;
j. change section (8) on page 3 to read as follows: “COUNSEL FOR PLAINTIFFS AND COLLECTIVE: If you choose to join this suit, you may choose to be represented either by the named Plaintiffs' attorney, by your own attorney, or by yourself. The attorney for the named Plaintiffs is Mr. Josh Sanford.” and delete the following:
“Mr. Josh Sanford
Sanford Law Firm, PLLC
One Financial Center
650 South Shackleford Road, ...

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