McElroy v. Fresh Mark, Inc.

• Court: U.S. District Court — Northern District of Ohio
• Writing for the Court: HONORABLE SARA LIOI UNITED STATES DISTRICT COURT CHIEF JUDGE.
• Docket Number: 5:22-cv-287
• Decision Date: 01 August 2023
• Citation: McElroy v. Fresh Mark, Inc., 5:22-cv-287 (N.D. Ohio Aug 01, 2023)
• Parties: ANTOINE MCELROY, on behalf of himself and all others similarly situated, PLAINTIFFS, v. FRESH MARK, INC., DEFENDANT.

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ANTOINE MCELROY, on behalf of himself and all others similarly situated, PLAINTIFFS, v. FRESH MARK, INC., DEFENDANT.

No. 5:22-cv-287

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

August 1, 2023

MEMORANDUM OPINION AND ORDER

HONORABLE SARA LIOI UNITED STATES DISTRICT COURT CHIEF JUDGE.

This matter is before the Court on the parties' briefs requested by the Court, addressing the impact of Clark v A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023). (See Doc. No. 40, Plaintiffs' Brief; Doc. No. 39, Defendant's Brief; Doc. No. 42 Defendant's Response to Plaintiffs' Brief; and Doc. No. 43, Plaintiffs' Response to Defendant's Brief.) The Court has considered the parties' respective positions in light of Clark and now issues this order regarding next steps in this case.

I. Procedural Background^[1]

On February 22, 2022, plaintiff Antoine McElroy (“McElroy” or “plaintiff”) filed this action under the Fair Labor Standards Act against Fresh Mark, Inc. (“Fresh Mark” or “defendant”) on behalf of himself and others similarly situated.^[2] At that same time, eight other people filed consents to join the litigation (see Doc. Nos. 4-1 through 4-6; 4-8 through 4-9); a ninth person joined on April 12, 2022 (see Doc. No. 12).

The complaint alleges that Fresh Mark is a nationwide supplier of various meat items and operates food processing, production, and distribution facilities in Ohio. (Doc. No. 1, Complaint ¶ 13.) McElroy was employed by Fresh Mark from May 2006 to July 2021 as a machine operator at defendant's Canton, Ohio facility; he was paid on an hourly basis. (Id. ¶¶ 14, 18.) McElroy alleges in relevant part as follows:

26. Plaintiff and other similarly situated production employees were not paid for time spent a) changing into and out of their personal protective equipment, including, but not limited to, a smock, gloves, boots, safety glasses, earplugs, and/or a hairnet; b) washing their hands; c) performing temperature checks; d) walking to and from their assigned areas of the production floor; and e) performing their production work prior to their scheduled shift start times. The preshift work activities are principal activities that starts [sic] the continuous workday of Plaintiff and similarly situated production employees.

27. Plaintiff and other similarly situated production employees were also required to change out of and back into their personal protective equipment during their 30-minute meal periods, which reduced their meal periods to 10 or 15 minutes per shift.

(Id. ¶¶ 26, 27.) As of the filing of the complaint, McElroy wanted to send “opt-in” notices to the following persons:

All former and current non-exempt production employees of Fresh Mark, Inc. between February 22, 2019 and the present.

(Id. ¶ 33.)

On March 23, 2022, Fresh Mark filed its answer to the complaint, which included several affirmative defenses. (Doc. No. 6, Answer.)

On May 24, 2022, the Court conducted the Case Management Conference and, upon the parties' joint request, set an expedited schedule for filing and briefing McElroy's motion for conditional certification; formal discovery was also stayed at that time. On June 17, 2022, McElroy timely filed his motion for conditional certification, expedited opt-in discovery, and court-supervised notice to potential plaintiffs. (Doc. No. 16.) Fresh Mark filed its opposition on July 18, 2022 (Doc. No. 17), and McElroy filed a reply on August 1, 2022 (Doc. No. 18).

On August 29, 2022, the parties filed a joint motion to stay all proceedings and for a referral to mediation. (Doc. No. 19.) In connection with their motion, the parties entered into an agreement to toll the statute of limitations for potential plaintiffs.^[3] (See Doc. No. 19-1.) The motion to stay was granted on September 1, 2022, “pending completion of mediation,” with directions that mediation be completed by December 30, 2022; the pending motion for conditional certification was terminated without prejudice. (Doc. No. 20.)

On January 9, 2023, having heard nothing further from the parties regarding the outcome of their mediation, the Court directed the parties to file a joint status report. (Doc. No. 30.) In response to that order, the Court's law clerk received an email from the mediator, which prompted the Court to extend the deadline for completion of the mediation to February 28, 2023. (Doc. No. 31.) On February 8, 2023, the parties jointly requested a further continuance of the mediation deadline, which was granted, with the mediation report to be filed by March 10, 2023. Another Case Management Conference to set the remaining case management dates was set for June 6, 2023. (Doc. Nos. 32, 33.) No mediation report was filed by the March 10, 2023 deadline or, for that matter, at any time.

On March 23, 2023, McElroy refiled his motion for conditional certification. (Doc. No. 34.) Fresh Mark, on its motion, was granted until May 22, 2023, to oppose plaintiff's motion. On April 7, 2023, Fresh Mark moved to stay briefing on conditional certification because of the Sixth Circuit's recently issued Clark decision. The Court granted that motion, canceled the June 6, 2023 Case Management Conference, and ordered the parties to brief Clark's impact on this case. (See Non-document Order, dated May 20, 2023.) The parties have completed their briefing.

McElroy argues that Clark will impact this case in three ways: (1) there must be application of the new “strong likelihood” standard for Court-facilitated notice to potential plaintiffs; (2) expedited discovery must be permitted to determine who is “similarly situated” for purposes of court-facilitated notice; and (3) equitable tolling of the statute of limitations must be applied. (Doc. No. 40, at 1; see also Doc. No. 43, passim.)

Fresh Mark does not disagree regarding this threefold impact of Clark; but it does challenge McElroy's application of each of the three matters. (Doc. No. 42, passim; see also Doc. No. 39.) Notably, defendant argues that plaintiff miscites (and thereby reduces) the new standard announced by Clark. (Doc. No. 42, at 1.)

The Court agrees that the parties have identified three aspects of litigation under the Fair Labor Standards Act that are affected by the decision in Clark and it will address each aspect below.^[4]

II. The New Legal Standard Under Clark

“Under the Fair Labor Standards Act of 1938 (FLSA), plaintiffs may litigate federal minimum-wage and overtime claims on behalf of other ‘similarly situated' employees.” Clark, 68 F.4th at 1007 (citing 29 U.S.C. § 216(b)).

But “[n]o 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). In other words, other employees may become parties to FLSA litigation brought by the original plaintiff(s) “only if they affirmatively choose to do so[,]” Clark, 68 F.4th at 1007, and are “similarly situated.” Id.

In Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989),^[5] the Court held that “district courts have discretion, in appropriate cases, to implement [Section 216(b)] . . . by facilitating notice to potential plaintiffs.” Id. at 169. Previously, courts in this circuit and elsewhere adopted a two-step process under which, at the first step (referred to as “conditional certification”), a district court could “facilitate notice of an FLSA suit to other employees upon a ‘modest factual showing' that they are ‘similarly situated' to the original plaintiffs.” Clark, 68 F.4th at 1008 (citation omitted). The standard was uniformly characterized as “fairly lenient” and usually resulted in conditional certification for notice purposes. Id. (citation omitted).^[6] After completion of merits discovery, if the case had not settled or otherwise been resolved,^[7] the district court would undertake the second step of taking “a closer look at whether those ‘other employees' are, in fact, similarly situated to the original plaintiffs.” Id. (citation omitted). If so, the court would grant “final certification” and the case would “proceed to decision as a collective action.” Id. (citation omitted).

In Clark, the court of appeals “changed the approach courts in the Sixth Circuit must now take in managing . . . actions under the Fair Labor Standards Act (FLSA).” Stewart v. First Student, Inc., No. 1:22-cv-2009, 2023 WL 4414165, at *1 (N.D. Ohio July 7, 2023).^[8] After Clark, the Sixth Circuit no longer recognizes the concept of “conditional certification” of a “collective” whereby court-facilitated notice is given to potential plaintiffs “upon merely a ‘modest showing' or under a ‘lenient standard' of similarity.” Clark, 68 F.4th at 1010. In Clark, the court reasoned that the decision to facilitate notice “is analogous to a court's decision whether to grant a preliminary injunction.” Id. Although acknowledging that three of the four prongs of that standard “are inapposite[,]” the court stated:

What the notice determination undisputedly shares in common with a preliminaryinjunction decision . . . is the requirement that the movant demonstrate to a certain degree of probability that she will prevail on the underlying issue when the court renders its final decision.

Id. at 1011. The court “adopt[ed] that part of the preliminary-injunction standard[,]” holding that “for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a ‘strong likelihood' that those employees are similarly situated to the plaintiffs themselves.” Id. (citation omitted). “That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a...