Pietrzycki v. Heights Tower Serv., Inc.

• Decision Date: 11 July 2016
• Docket Number: No. 14-cv-6546,14-cv-6546
• Citation: 197 F.Supp.3d 1007
• Parties: Jason PIETRZYCKI, on behalf of himself and all other plaintiffs similarly situated, Plaintiff, v. HEIGHTS TOWER SERVICE, INC., and Mark Motter, Defendants.
• Court: U.S. District Court — Northern District of Illinois

197 F.Supp.3d 1007

Jason PIETRZYCKI, on behalf of himself and all other plaintiffs similarly situated, Plaintiff,

v.HEIGHTS TOWER SERVICE, INC., and Mark Motter, Defendants.

No. 14-cv-6546

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

Signed July 11, 2016

Kimberly A. Hilton, Sarmistha Banerjee, David J. Fish, The Fish Law Firm, P.C., Naperville, IL, for Plaintiff.

Douglas P. Holthus, Mazanec, Raskin & Ryder Co., LPA, Columbus, OH, Mary Christine O'Connor, Quintairos, Prieto, Wood & Boyer, Michael H. McColl, Foran, Glennon, Palandech Ponzi & Rudloff PC, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Jeffrey T. Gilbert, United States Magistrate Judge

Plaintiff Jason Pietrzycki ("Pietrzycki") has sued Defendants Heights Tower Service, Inc. ("HTS") and Mark Motter ("Motter"), alleging violations of the Illinois Minimum Wage Law ("IMWL"), 820 ILL. COMP. STAT. § 105/1 et seq., and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. [ECF No. 74.] Early last year, the Court, at the joint request of the parties, conditionally certified an FLSA collective action. [ECF Nos. 30, 34.] Pietrzycki has now moved to certify a class of Illinois workers for the IMWL claim pursuant to Federal Rule of Civil Procedure 23. [ECF No. 86.] Defendants oppose certification of a Rule 23 class and move to decertify the FLSA collective action. [ECF No. 93.] For the reasons stated below, Pietrzycki's Amended Motion for Class Certification [ECF No. 86] is granted, and Defendants' Motion for FLSA Decertification [ECF No. 93] is denied.

I. BACKGROUND

Motter owns and is the president of HTS, a company that services and upgrades cellular towers ("towers"). Rule 30(b)(6) Deposition of Matthew Overholt (HTS's Controller) ("Overholt Dep."), ECF No. 94-1, at 6:5-8, 121:8-14. At one point, HTS had about seventy-seven employees. Id. at 7:8-10. Twenty-three of those employees performed office jobs. Id. at 7:11-15. The other fifty-four worked in the field servicing the towers. Id. at 7:11-21. Although the number of workers employed by HTS fluctuated over time, these totals are representative of the size of HTS's workforce throughout the relevant period. Regardless, HTS called the employees who serviced the towers "operations employees." Id. Of those, some were "foremen" and the others were "tower technicians." Id. Tower technicians serviced the cell towers: they installed antennas, ran cables, and so on. Id. at 8:5-16, 10:4-7. Foremen also climbed and serviced the towers. But they had many additional responsibilities. Id. at 9:17-10:3-19. Foremen told tower technicians what to do, supervised them as they did it, and completed daily activity reports tracking what was done. Id.

To service a tower, HTS usually sent a four-person crew. Id. at 7:16-21. Each crew typically consisted of one foreman and three tower technicians. Id. But a crew's membership was not set, meaning each crew for each project could be composed of different employees. Often, a crew might include a foreman and tower technicians who did not live close to each other or to the day's jobsite. While some of the operations employees resided in the two states where HTS had warehouses, Illinois and Ohio, others resided in Michigan and Wisconsin. Primarily, HTS serviced towers in Wisconsin, Ohio, and Illinois, with these three states accounting for roughly 97% of HTS's business in 2014. Id. at 27:21-24, 28:10-29:13. But HTS also serviced towers in other states, including Kentucky, Pennsylvania, Georgia and South Dakota, See id. at 27:17-20; Deposition of Jason Pietrzycki ("Pietrzycki Dep."), ECF No. 94-2, at 53:10-11, 101:19-23; Deposition of Tevin Gomez ("Gomez Dep."), ECF No. 94-5, at 24:16-17.¹

To get to the jobsites in all of these states, crew members had to drive. This lawsuit revolves around whether the compensation HTS paid to foremen and tower technicians properly reflected how much time they spent traveling in vehicles to jobsites.

II. LEGAL STANDARD

"Under Section 216(b) of the FLSA, employees may bring a collective action on behalf of themselves and other ‘similarly situated’ employees against employers who violate the Act's minimum wage or overtime provisions." Smallwood v. Illinois Bell Tel . Co., 710 F.Supp.2d 746, 750 (N.D.Ill.2010). A collective action proceeds in two steps. Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D.Ill.2010). At step one, the court decides whether to conditionally certify a collective action. Smith v. Family Video Movie Club, Inc., 2015 WL 1542649, at *2 (N.D.Ill. Mar. 31, 2015). Then, at step two, the court more stringently evaluates whether certification is appropriate. Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 848 (N.D.Ill.2008). "At this stage, the court reviews several factors including the employment settings of the individual plaintiffs, defenses available to the defendant that may be individual to each plaintiff, and fairness and procedural considerations." Madden v. Corinthian Colleges, Inc., 2009 WL 4757269, at *2 (N.D.Ill. Dec. 8, 2009).

A collective action under the FLSA is different from a class action certified under Federal Rule of Civil Procedure 23. Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1044 (N.D.Ill.2003). But "the case law has largely merged the standards ...." Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772 (7th Cir.2013). Therefore, when a court is deciding whether to certify a collective action and a class action in one lawsuit, the court treats them as "a single class action" and applies "the Rule 23 standards." Sanchez v. Roka Akor Chicago LLC, 2016 WL 74668, at *5 (N.D.Ill. Jan. 7, 2016) ; Elder v. Comcast Corp., 2015 WL 3475968, at *5 (N.D.Ill. June 1, 2015) ; Dailey v. Groupon, Inc., 2014 WL 4379232, at *4 (N.D.Ill. Aug. 27, 2014).²

The party seeking class certification bears the burden of proving by a preponderance of the evidence that he is entitled to it. Starr v. Chicago Cut Steakhouse, LLC, 75 F.Supp.3d 859, 871 (N.D.Ill.2014) ; Pennsylvania Chiropractic Ass'n v. Blue Cross Blue Shield Ass'n, 286 F.R.D. 355, 363 (N.D.Ill.2012). He must prove that the proposed class meets the four requirements of Rule 23(a) and at least one of the three alternatives provided in Rule 23(b). Costello v. BeavEx, Inc., 810 F.3d 1045, 1059 (7th Cir.2016). Rule 23(a) requires numerosity, typicality, commonality, and adequacy of representation. Messner v. Northshore Univ. HealthSystem , 669 F.3d 802, 811 (7th Cir.2012). Only two of Rule 23(b)'s alternatives are relevant to this case. Under Rule 23(b)(2), certification is proper "when the plaintiffs' primary goal is not monetary relief, but rather to require the defendant to do or not do something that would benefit the whole class." Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426, 441 (7th Cir.2015). Under Rule 23(b)(3), certification is proper when questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members, and a class action is superior to other methods of resolving the controversy. Messner, 669 F.3d at 811.

III. DISCUSSION

A. HTS's General Compensation Structure

All of HTS's foremen and tower technicians are nonexempt employees. Overholt Dep., at 100:18-20. HTS paid all of them hourly wages. Id. at 13:2-5, 16:3-10. HTS paid all of them overtime. Id. at 13:6-8, 16:11-18. Specifically, HTS paid foremen and tower technicians one-and-one-half times their hourly rates of pay for each hour of overtime. Id. at 16:11-21. It was HTS's "uniform practice" to compensate foremen and tower technicians in this manner. Id. at 17:22-18:13. At one point in time, HTS paid its foremen and tower technicians the same wage for the time they spent working and the time they spent traveling in vehicles to jobsites. Pietrzycki Dep., at 32:23-33:7. But that changed, seemingly around 2011 to 2012. Id. ; Deposition of Tab Petersen, Jr. ("Petersen Dep."), ECF No. 94-3, at 38:5-22.

After this change, HTS paid each foreman and tower technician different hourly wages, depending on what he or she was doing. Each of these employees earned a higher hourly wage (which the Court will refer to as a "regular wage") when performing certain activities, such as working at a jobsite. Overholt Dep., at 18:17-20:5. Each also earned a lower hourly wage of $10 ("drive time wage" for short) for what HTS called "Drive Time." Id. It was HTS's "practice" not to include drive time wages when determining a foreman or tower technician's regular rate of pay, as defined in the FLSA. Id. at 101:11-24, 131:18-21. It also was HTS's "standard practice" not to include drive time when calculating the number of overtime hours worked in a given week. Id. at 131:5-12.

HTS maintained a system for tracking how foremen and tower technicians spent their time. Every day, each crew's foreman filled out a Daily Activity Report ("DAR") on his or her laptop. Id. at 59:21-60:6, 60:20-23, 62:22-23, 84:15-19. A DAR reported in very general terms what the crew completed during the day, without necessarily specifying which crew member performed a certain task. Id. at 90:12-19; Pietrzycki Dep., at 106:3-8; Petersen Dep., at 9:8-10:15. Importantly, the DARs listed for each crew member: (1) the total number of hours for which he or she should be paid his or her regular wage, and (2) the total number of hours for which he or she should be paid the drive time wage. Overholt Dep., at 63:4-64:5; 67:15-24; see also Deposition of Allen Robinson ("Robinson Dep."), ECF No. 94-4, at 15:7-19.

HTS did not maintain any records other than the DARs that tracked how much time foremen and tower technicians spent working. Overholt Dep., at 62:1-5; see also Petersen Dep., at 22:10-13. HTS trusted its foremen to accurately record the total time for which crew members earned either wage. Overholt Dep., at 67:6-14, 68:6-12. HTS does not appear to have had written guidelines instructing foremen how to fill out DARs. See Pet...