De Leon-Granados v. Eller and Sons Trees, Inc.

• Decision Date: 31 August 2007
• Docket Number: No. 06-15876.,06-15876.
• Citation: 497 F.3d 1214
• Parties: Escolastico DE LEON-GRANADOS, Rene Villatoro-De Leon, et al., Plaintiffs-Appellees, v. ELLER AND SONS TREES, INC., Jerry Eller, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

497 F.3d 1214

Escolastico DE LEON-GRANADOS, Rene Villatoro-De Leon, et al., Plaintiffs-Appellees, v. ELLER AND SONS TREES, INC., Jerry Eller, Defendants-Appellants.

No. 06-15876.

United States Court of Appeals, Eleventh Circuit.

August 31, 2007.

James L. Stine, Elizabeth K. Dorminey, Wimberly, Lawson, Steckel, Nelson & Schneider, P.C., Atlanta, GA, for Defendants-Appellants.

James M. Knoepp, Legal Justice Ctr., Charlottesville, VA, Andrew Hess Turner, Mary C. Bauer, Southern Poverty Law Ctr., Montgomery, AL, George Brian Spears, Law Office of Brian Spears, Atlanta, GA, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before DUBINA and BLACK, Circuit Judges, and RESTANI,^* Judge.

BLACK, Circuit Judge:

This is an interlocutory appeal from the district court's grant of class certification. The Appellees, migrant workers, claim Eller & Sons Trees, Inc. (Eller & Sons) and Jerry Eller (collectively, the Appellants) violated their rights under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-1872 (AWPA) and the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (FLSA), during their employment at Eller & Sons at various times from June 1999 through June 2005. On appeal, the Appellants contend the district court abused its discretion in certifying, under Fed.R.Civ.P. 23(b)(3), the Appellees' proposed class consisting of over 1,500 migrant workers admitted to the United States under the H-2B temporary foreign worker visa program to work at Eller & Sons, see 8 U.S.C. § 1101(a)(15)(H)(ii)(b), and sub-class consisting of those workers who pledged collateral with Eller & Sons' agents in order to obtain employment. We hold the district court did not abuse its discretion in certifying the Rule 23(b)(3) class and sub-class. Accordingly, we affirm the district court's certification order and remand for further proceedings.

I. BACKGROUND

Eller & Sons is a small business in Franklin, Georgia, that provides reforestation and forestry services. Most of Eller & Sons' employees plant trees in the southern United States during December, January, and February. Employees are recruited from Guatemala, Honduras, and Mexico and hired under the H2-B non-immigrant visa program, which permits employers to hire foreign workers to come to the United States and perform temporary non-agricultural services on a one-time, seasonal, peakload or intermittent basis when qualified U.S. workers are not available. 8 U.S.C. § 1101(a)(15)(H)(ii)(b). Employers of H-2B guestworkers are required to pay them an hourly prevailing wage rate, which is determined by the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The workers allege the average wage rate at which Eller & Sons was certified to pay the H-2B workers was $8.32/hour, well above the $5.15/ hour federal minimum wage rate.

The appellee-migrant workers were employed by Eller & Sons at various times from June 1999 through June 2005. On June 6, 2005, the workers filed suit on behalf of themselves and all others similarly situated against Eller & Sons and Jerry Eller, asserting claims under the AWPA and FLSA. They filed an Amended Complaint (Complaint) on February 7, 2006. In Count I of the Complaint, the workers alleged Eller & Sons violated the AWPA by (1) failing to reimburse travel, recruitment and visa processing expenses, (2) maintaining and providing false and inaccurate records of hours worked, (3) failing to pay them the applicable prevailing wage rate and overtime wages, (4) failing to provide them with promised full-time employment, (5) knowingly providing them with false and misleading information regarding the terms and existence of employment, and (6) requiring a sub-class of workers to post collateral in the form of the deeds to their property to obtain employment. In Count II of their Complaint, the workers alleged Eller & Sons violated the FLSA by failing to pay them the applicable minimum wage of $5.15/hour and overtime wages for hours worked.

The workers initially moved for class certification of their AWPA claims on June 29, 2005. On July 27, 2005, they filed a motion for preliminary certification of a collective action for their claims under the FLSA. On October 18, 2005, the district court issued an order denying the motion for class certification of the AWPA claims without prejudice and instructing the parties to conduct additional discovery on issues pertaining to class certification. In the same order, the court granted preliminary certification of a collective action under 29 U.S.C. § 216(b) for the FLSA claims. According to the Appellants, opt-in notices for the FLSA collective action were sent to approximately 1,800 current and former employees of Eller & Sons. Only 30 of the potential class members, in addition to the 5 named plaintiffs, completed and returned their opt-in forms before the time period closed.

On January 31, 2006, the workers filed a renewed motion for class certification under Fed. R. Civ P. 23(b)(3) for the AWPA claims, seeking to represent a class consisting of "all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in [Eller & Sons'] forestry operations from June 1999 until the present." They also proposed a sub-class of "all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed in [Eller & Sons'] forestry operations from January 1, 2003 until the present, who pledged collateral with [Eller & Sons'] agents in order to obtain employment with the [Eller & Sons]."

On September 28, 2006, the district court granted the motion to certify under Fed. R. Civ P. 23(b)(3). The court rejected the Appellants' argument that a 29 U.S.C. § 216(b) collective action would be a superior method of adjudicating the workers' AWPA claims, finding that a § 216(b) collective action would not adequately address the workers' AWPA claims. The district court also found the workers satisfied their burden to establish the existence of the Rule 23 prerequisites. The Appellants filed a timely appeal, asking us to determine whether the district court abused its discretion in granting class certification.¹

II. STANDARD OF REVIEW

"Questions concerning class certification are left to the sound discretion of the district court." Cooper v. Southern Co., 390 F.3d 695, 711 (11th Cir.2004). Accordingly, we review a district court's class certification order for abuse of discretion. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir. 2006).

III. DISCUSSION

On appeal, the Appellants argue the district court abused its discretion in granting class certification. The Appellants claim this action is based on the FLSA and must therefore be adjudicated as an opt-in collective action under 29 U.S.C. § 216(b) instead of an opt-out Rule 23(b)(3) class action. Alternatively, the Appellants argue that even if a Rule 23 class action is not precluded by 29 U.S.C. § 216(b), the district court abused its discretion in certifying the class because the workers failed to prove the necessary prerequisites under Rule 23. We address the Appellants' arguments in Sections A. and B., respectively.

A. Impact of 29 U.S.C. § 216(b)

The Appellants maintain that the bulk of the purported AWPA claims are derived from alleged FLSA violations and must therefore be brought in a collective action. Section 216(b) of the FLSA provides that "[n]o employee shall be a party plaintiff to any action [for unpaid wages] 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."² Thus, in an FLSA action, a party-plaintiff must opt into an action, whereas in a Rule 23(b)(3) class action, all qualifying class members become party-plaintiffs unless they opt out of the action. See Rule 23(c)(2)(B) (explaining that "the court will exclude from the class any member who requests exclusion"). The Appellants contend this distinction is crucial because only 35 of 1,800 potential FLSA collective action plaintiffs opted into the action. The Appellants claim that if we allow the AWPA claims to proceed as a Rule 23(b)(3) class action, the class could potentially consist of 6,000 plus workers.³

We must first examine whether the workers' AWPA claims are truly FLSA claims in disguise, as the Appellants allege. The FLSA creates a private right of action for aggrieved employees to recover unpaid minimum wages and unpaid overtime wages. 29 U.S.C. § 216(b). A review of Count I of the Complaint shows that the workers asserted six AWPA claims, of which only two seek unpaid wages. Those claims assert that the Appellants violated the AWPA by (1) failing to pay them the proper prevailing wage rate and overtime wages for all work performed and (2) failing to reimburse them for expenses they incurred which were primarily for Eller & Sons' benefit, including travel and visa processing expenses. The workers separately pled FLSA claims under Count II of the Complaint. Those claims assert that the Appellants violated the FLSA by failing to pay them the applicable minimum wage rate of $5.15/hour and overtimes wages for all hours worked.

Although both the AWPA claims and FLSA claims seek unpaid wages, they are not identical. The workers are entitled to recover the prevailing wage rate under the AWPA and only the minimum wage rate under the FLSA. Thus, the workers' AWPA wage claims are not FLSA claims in disguise and may properly be brought in a Rule 23(b)(3) class action. Likewise, the workers' AWPA claims that do not seek unpaid wages—including claims based on the failure to make, keep and provide accurate work records, the failure to provide workers with promised full-time employment, knowingly providing them with false and misleading information regarding the terms and...