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Regan v. City of Charleston

United States District Court, D. South Carolina, Charleston Division

July 16, 2014

James Regan, Jesse Faircloth, Michael Pack, Thomas Haffey, Jacob Stafford, and Kyle Watkins, Each on Behalf of Himself and All Others Similarly Situated, Plaintiff,
City of Charleston, South Carolina, Defendant.



This matter is before the Court on Plaintiffs James Regan, Jesse Faircloth, Michael Pack, Thomas Haffey, Jacob Stafford, and Kyle Watkins's ("Plaintiffs") Motion for Conditional Class Certification ("Motion"). Plaintiffs seek, inter alia, conditional certification of a putative class pursuant to the collective action provision of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). For the reasons set forth herein, Plaintiffs' Motion is granted in part and denied in part.


On November 7, 2013, Plaintiffs commenced this action on behalf of themselves and others similarly situated, seeking unpaid overtime compensation pursuant to the FLSA. The above-named Plaintiffs, as well as those who have subsequently given notice of their consent to join this action, are current or former employees of Defendant City of Charleston ("Defendant" or "the City") and the City's Fire Department ("Fire Department"). More specifically, Plaintiffs are firefighters[1] who are or were paid pursuant to the City's fluctuating workweek method or pay plan.

Plaintiffs' Complaint primarily alleges that the City's utilization of the fluctuating workweek pay plan-in particular its incentive-pay provisions-violates the statutory and regulatory requirements pertaining to such pay plans. Plaintiffs' Complaint also asserts claims relating to the method by which the City previously compensated firefighter recruit trainees. Moreover, Plaintiffs' Complaint alleges that certain named Plaintiffs, as well as others similarly situated, have not been properly compensated for training hours that they contend constitute compensable time under the FLSA. Finally, Plaintiffs claim that the City's alleged violations of the FLSA are or were willful and knowing. In response to these allegations, the City admits that it utilizes the fluctuating workweek method but contends that its pay plan is lawful and in compliance with the FLSA and all applicable laws and regulations. Accordingly, the City denies the asserted claims and any resulting liability.

Plaintiffs now seek to conditionally certify this matter as a collective action under the FLSA. On February 7, 2014, Plaintiffs filed the instant Motion requesting conditional certification of a primary class and several subclasses, as well as seeking permission to send notices to potential class members. The City responded to Plaintiffs' Motion on February 26, 2014, conceding that Plaintiffs have met the modest burden with regard to parts of their request for conditional certification. Nevertheless, the City's Response also noted a number of specific objections to the proposed class and subclasses, as well as to some of the requested notice provisions and procedures. Plaintiffs filed their Reply on March 10, 2014, addressing two of the issues raised by the City in its Response. On June 30, 2014, the Court held a status conference to discuss the Motion and to clarify certain issues raised by the Parties' briefs. Plaintiffs' Motion is now ripe for consideration.


Under the FLSA, plaintiffs may institute a collective action against their employer on behalf of themselves and similarly situated employees. The FLSA's collective action provision states that:

[a]n action to recover [unpaid overtime compensation] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). The mechanism outlined in § 216(b) is designed to facilitate the efficient adjudication of similar claims by "similarly situated" employees, permitting the consolidation of individual claims and the pooling of resources in prosecuting such actions against their employers. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); LaFleur v. Dollar Tree Stores, Inc., 2:12-CV-00363, 2014 WL 934379, at *2 (E.D. Va. Mar. 7, 2014), reconsideration denied, 2014 WL 2121563 (E.D. Va. May 20, 2014), and motion to certify appeal denied, 2014 WL 2121721 (E.D. Va. May 20, 2014); Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 367 (S.D.N.Y. 2007). In deciding whether the named plaintiffs in a FLSA action are "similarly situated" to other potential plaintiffs, courts generally employ a two-stage approach.[2] Purdham v. Fairfax Cnty. Pub. Sch., 629 F.Supp.2d 544, 547 (E.D. Va. 2009) (quoting Parker v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1164 (D. Minn. 2007)); see also Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364, 367 (D.S.C. 2012); Simons v. Pryor's, Inc., No. 3:11-cv-0792-CMC, 2011 WL 6012484, at *1 (D.S.C. Nov. 30, 2011); MacGregor v. Farmers Ins. Exch., No. 2:10-cv-03088-DCN, 2011 WL 2981466, at *2 (D.S.C. July 22, 2011).

The first step in this process, which is the subject of the instant Motion, is the "notice, " or "conditional certification, " stage. Purdham, 629 F.Supp.2d at 547. Here, "a plaintiff seeks conditional certification by the district court in order to provide notice to similarly situated plaintiffs" that they can "opt-in" to the collective action. Pelczynski, 284 F.R.D. at 367-68. With regard to this notice phase, "[t]he Supreme Court has held that, in order to expedite the manner in which collective actions under the FLSA are assembled, district courts have discretion[, ] in appropriate cases[, ] to implement... § 216(b)... by facilitating notice to potential plaintiffs.'" Purdham, 629 F.Supp.2d at 547 (quoting Hoffman-La Roche, Inc., 493 U.S. at 169). At this stage, the court reviews the pleadings and affidavits to determine whether the plaintiff has carried his burden of showing that he is similarly situated to the other putative class members. Pelczynski, 284 F.R.D. at 368; Purdham, 629 F.Supp.2d at 547-48. "Because the court has minimal evidence, this determination is made using a fairly lenient standard, " Steinberg v. TQ Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL 1335191, at *1 (D.S.C. Apr. 7, 2011), requiring plaintiffs to make a "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, " Purdham, 629 F.Supp.2d at 548. If the court determines that the proposed class members are similarly situated, the court conditionally certifies the class. Steinberg, 2011 WL 1335191, at *1. The putative class members are then notified and afforded the opportunity to "opt-in, " and the case proceeds as a representative action throughout discovery. Id. (citing Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)); see Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1530 (2013) (citation omitted) ("[C]onditional certification' does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." (citing § 216(b))).

Second, after the court has conditionally certified the class, the potential class members have been identified and notified, and discovery has been completed, "a defendant may then move to decertify the collective action, pointing to a more developed record to support its contention that the plaintiffs are not similarly situated to the extent that a collective action would be the appropriate vehicle for relief." Pelczynski, 284 F.R.D. at 368. At this optional "decertification stage, " the court applies a heightened fact-specific standard to the "similarly situated" analysis. Steinberg, 2011 WL 1335191, at *2; see Pelczynski, 284 F.R.D. at 368. "Courts have identified a number of factors to consider at this stage, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants that appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Curtis, 2013 WL 1874848, at *3 (internal quotation marks omitted). If the court determines that the plaintiffs are not, in fact, similarly situated, it may decertify the class, dismiss without prejudice the opt-in plaintiffs' claims, and permit the named plaintiffs to proceed on their individual claims. Id.


Plaintiffs specifically request that this Court enter an Order: (1) conditionally certifying a single putative class of individual firefighters ("Proposed Primary Class"), as detailed further herein; (2) authorizing and conditionally certifying three proposed subclasses, as detailed further herein; (3) requiring the City to produce the names, addresses, telephone numbers, and email addresses of all members belonging to the Proposed Primary Class and the subclasses within ten days of conditional certification; (4) authorizing Plaintiffs' counsel to send a proposed notice to members of the Proposed Primary Class via both U.S. Mail and email; (5) authorizing Plaintiffs' counsel to send a "follow-up, " or reminder, notice thirty days after sending the initial notice; and (6) requiring the City to post the Court-authorized notice in a conspicuous location in each of the Fire Department's fire stations where members of the Proposed Primary Class work. The Court will address Plaintiffs' requested relief, as well as the City's objections thereto, seriatim.

I. Conditional Certification

A. Proposed Primary Class

At the outset, Plaintiffs move to conditionally certify the following Proposed Primary Class:

All persons employed by the City of Charleston, South Carolina at any time from November 7, 2010 to the present who served, or trained to serve, as a uniformed suppression member of the City of Charleston Fire Department.

Pls.' Mot. for Conditional Class Certification 2, ECF No. 43. Although a plaintiff's burden of proof and the court's standard of review at the notice stage are fairly lenient, "courts should not exercise their discretion to facilitate notice unless [t]he facts and the circumstances of the case illustrate' that a class of similarly situated' aggrieved employees exists." Purdham, 629 F.Supp.2d at 547-48 (alteration in original) (quoting Hoffmann-La Roche, Inc., 493 U.S. at 170). Here, the City concedes that Plaintiffs have seemingly made the requisite showing for conditional certification with regard to the Proposed Primary Class and consents in part to Plaintiffs' requests. See Def.'s Resp. 5, ECF No. 49. However, the City seeks to have the Proposed Primary Class more narrowly defined, in terms of both the firefighters that Plaintiffs claim are "similarly situated" and the applicable limitations period. Accordingly, the Court will address only the City's objections to Plaintiffs' Proposed Primary Class.

First, the City contends that the proffered parameters of the Proposed Primary Class are too broadly defined because they include individuals who even Plaintiffs do not claim are "similarly situated" to the named Plaintiffs. In particular, the City asserts that the Proposed Primary Class is not limited to persons employed in a non-exempt capacity. For instance, the City maintains that under the language Plaintiffs ask this Court to approve, the fire chief, as well as individuals employed as assistant chiefs, battalion chiefs, and in other positions undisputedly exempt from the FLSA's requirements, would be included in the Proposed Primary Class. Moreover, the City notes that the definition of the Proposed Primary Class does not limit potential class members to sworn employees of the Fire Department who are paid pursuant to the fluctuating workweek method or pay plan Plaintiffs presently challenge. The City claims that without further limitation, sworn personnel employed as training officers, who are paid based on a forty-hour work week under an entirely separate plan, could be inappropriately included in the Proposed Primary Class. In response, and to narrow the scope of the Proposed Primary Class, the City seeks to amend Plaintiffs' definition of the Proposed Primary Class to limit it to firefighters employed "in a non-exempt capacity" and "who were paid pursuant to the [C]ity's Fluctuating Workweek pay plan." Id. at 7. Plaintiffs do not address this objection in their Reply.

The Court agrees with the City and recognizes the need to define the putative class with greater particularity. While the Court finds that the City's proposed clarification-specifically, the limitation to firefighters employed "in a non-exempt capacity"-may lead to more confusion than clarity, because Plaintiffs have failed either to address or object to this requested change or to propose an alternate phrasing, the definition of the Proposed Primary Class shall be amended accordingly.

Second, the City objects to Plaintiffs' reference to, and attempted utilization of, a three-year statute of limitations in their definition of the Proposed Primary Class. As detailed above, Plaintiffs' proffered definition of the Proposed Primary Class includes firefighters employed "at any time from November 7, 2010 to the present." Pls.' Mot. for Conditional Class Certification 2. FLSA claims are generally subject to a two-year statute of limitations, but this period is extended to three years for "cause[s] of action arising out of a willful violation." 29 U.S.C. § ...

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