Rutledge v. Claypool Elec., Inc., Civil Action 2:12-CV-159

• Decision Date: 17 December 2012
• Docket Number: Civil Action 2:12-CV-159
• Parties: DONALD RUTLEDGE, et al., Plaintiffs, v. CLAYPOOL ELECTRIC, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

DONALD RUTLEDGE, et al., Plaintiffs,

v.CLAYPOOL ELECTRIC, INC., et al., Defendants.

Civil Action 2:12-CV-159

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

December 17, 2012

Judge Smith

Magistrate Judge King

REPORT AND RECOMMENDATION

This matter is now before the Court on plaintiffs' Motion to Conditionally Certify the Case as a Collective Action, Doc. No. 8 ("Motion to Conditionally Certify") and on Defendants' Motion to Strike Certain Paragraphs of Plaintiffs' Affidavits, Doc. No. 13 ("Defendants' Motion to Strike"), which were referred to the undersigned for consideration and a Report and Recommendation. Order, Doc. No. 21. Because it is recommended that the Motion to Conditionally Certify be denied, it is also recommended that plaintiffs' Motion for an Order Equitably Tolling the FLSA Statute of Limitations for Potential Opt-In Plaintiffs, Doc. No. 25, be denied as moot.

I. PLAINTIFFS' ALLEGATIONS AND CLAIMS

Defendant Claypool Electric, Inc. ("Claypool Electric"), an Ohio corporation, has an annual volume of business exceeding $500,000. Collective Action Complaint, Doc. No. 1, ¶¶ 12-13 ("Complaint"). During all relevant times, Claypool Electric employed individuals who performed construction and clerical work, including orderingconstruction materials by mail, phone or fax; accepting payment for services from customers; and performing work on federally funded construction products. Id. at ¶ 13.

Defendant Charles C. Claypool ["defendant Claypool"] was, at all times relevant to the Complaint, the CEO of Claypool Electric and maintained a significant ownership interest in Claypool Electric. Id. at ¶ 16. Defendant Claypool¹ controlled day-to-day business functions such as setting salaries and pay scales of Claypool Electric's employees, which included plaintiffs Donald Rutledge, Lee Whitlatch and Charles Cox. Id. at ¶¶ 3, 6, 9, 16. Plaintiff Rutledge worked initially for defendants as an apprentice electrician and later as a journeyman electrician construction worker. Id. at ¶ 3. Plaintiff Whitlatch first worked for defendants as a journeyman electrician construction worker and later as a foreman construction worker. Id. at ¶ 6. Plaintiff Cox worked as an apprentice construction worker. Id. at ¶ 9.

On February 21, 2012, plaintiffs filed this collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") on behalf of themselves and all other similarly situated individuals against defendants for unpaid wages and overtime pay. Plaintiffs also assert a claim under O.R.C. § 4113.15 against Claypool Electric. Complaint, ¶¶ 59-62. Plaintiffs define the three collective classes that they seek to represent as follows:

a. All current and former Claypool Electric, Inc. employees employed in the foreman or similar classifications who worked in excess of 40 hours perweek and were not compensated for each and every hour worked in excess of 40 hours per week at one and one-half times his regular rate of pay; and

b. All current and former Claypool Electric, Inc. employees that were paid in "comp time," i.e., received paid time off, in lieu of being compensated for each and every hour worked in excess of 40 hours per workweek at one and one-half times his regular rate of pay; and

c. All current and former Claypool Electric, Inc. employees whose overtime rate of pay was not calculated by using the weighted average of all hourly rates paid in one workweek.

Id. at ¶ 20.

II. MOTION TO CONDITIONALLY CERTIFY AND DEFENDANTS' MOTION TO STRIKE

A. Standard for Conditional Certification

Plaintiffs move to conditionally certify this case under 29 U.S.C. § 216(b), which permits employees, under some circumstances, to collectively sue an employer for unpaid overtime pay. See, e.g., Harrison v. McDonald's Corp., 411 F. Supp.2d 862, 864-65 (S.D. Ohio 2005). Section 216(b) specifically provides:

Any employer who violates [the minimum wage or maximum hours provisions of this title] shall be liable to the employee or employees affected in the amount of their unpaid wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . An action to recover [this] liability . . . 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.

29 U.S.C. § 216(b). The United States Court of Appeals for the Sixth Circuit has construed Section 216(b) as establishing two requirements for a representative action:

1) the plaintiffs must actually be "similarly situated," and 2) all plaintiffs must signal in writing their affirmative consent to participate in the action. 29 U.S.C. § 216(b); Hoffmann-La Roche, Inc., v. Sperling, 493 U.S. 165, 167-68,110 S. Ct. 482, 107 L. Ed. 2d 480 (1989). Similarly situated persons are permitted to "opt into" the suit. This type of suit is called "collective action." It is distinguished from the opt-out approach utilized in class actions under Fed. R. Civ. P. 23.

Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). Certification in FLSA collective actions often follows two steps: conditional and final certification. Harrison, 411 F. Supp.2d at 864-65. See also Frye v. Baptist Mem. Hosp., Inc., No. 11-5648, 2012 U.S. App. LEXIS 17791, at *6 (6th Cir. Aug. 21, 2012). The first stage, conditional certification, occurs at the beginning of the discovery process and the second stage, final certification, occurs after all class plaintiffs have decided whether to opt-in and after all or most discovery has concluded. Comer, 454 F.3d at 546; White v. Baptist Mem'l Health Care Corp., No. 11-5717, 2012 U.S. App. LEXIS 2275, at *18 (6th Cir. Nov. 6, 2012) (citing Comer, 454 F.3d at 546).

"District courts use a 'fairly lenient standard' that 'typically results in conditional certification of a representative class' when determining whether plaintiffs are similarly situated during the first stage of the class certification process." White, 2012 U.S. App. LEXIS 2275, at *18 (citing Comer, 454 F.3d at 547). If conditional certification is granted, the putative class members are given notice and an opportunity to opt in to the action. See, e.g. , Heaps v. Safelite Solutions, LLC, No. 2:10-cv-729, 2011 U.S. Dist. LEXIS 150313, at *4-5 (S.D. Ohio Dec. 22, 2011). However, certification at this stage "is conditional and by no means final." Comer, 454 F.3d at 546 (internal quotation marks and citations omitted).

The second stage, or final certification, imposes a "stricter standard[,]" id. at 547, "because it occurs near the end ofdiscovery." Frye, 2012 U.S. App. LEXIS 17791, at *7. At this stage, "trial courts examine more closely the question of whether particular members of the class are, in fact, similarly situated." Comer, 454 F.3d at 547. "Plaintiffs generally must produce 'more than just allegations and affidavits' demonstrating similarity in order to achieve final certification." Frye, 2012 U.S. App. LEXIS 17791, at *6. In addition, at this stage, a defendant may, if appropriate, file a motion to decertify. Swigart v. Fifth Third Bank, 276 F.R.D. 210, 213 (S.D. Ohio 2011).

B. Defendants' Motion to Strike

In support of their Motion to Conditionally Certify, plaintiffs offer the Affidavit of Lee Whitlatch ("Whitlatch Affidavit"), the Affidavit of Charles Cox ("Cox Affidavit") and the Affidavit of Donald Rutedge [sic] ("Rutledge Affidavit"), attached as Exhibits 1, 2 and 3, respectively, to the Motion to Conditionally Certify. Defendants seek to strike certain paragraphs from each of these affidavits, which the Court will address in turn.

1. The Whitlatch Affidavit

a. Hearsay

Defendants move to strike Paragraphs 5 and 6 from the Whitlatch Affidavit, arguing that these statements are based on impermissible hearsay. Defendants' Motion to Strike, pp. 1-3; Defendants' Reply in Support of Its Motion to Strike Certain Paragraphs of Plaintiffs' Affidavits, Doc. No. 17, pp. 1-4 ("Reply in Support of Motion to Strike"). Defendants note that this Court has previously determined that it may consider only admissible evidence in connection with a §216(b) motion. Defendants' Motion to Strike, pp. 2-3 (citing, inter alia, Harrison v. McDonald's Corp., 411 F. Supp.2d 862; Landsberg v. Acton Enters., No. C2-05-500, 2006 U.S. Dist. LEXIS 90716 (S.D. Ohio Dec. 15, 2006)). Plaintiffs oppose Defendants' Motion to Strike, arguing that none of the statements in any of the affidavits constitute inadmissible hearsay. Plaintiffs' Opposition to Motion to Strike Certain Paragraphs of Plaintiffs' Affidavits, Doc. No. 16 ("Opposition to Motion to Strike").²

Hearsay is a statement that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). Defendants are correct that this Court has previously held that "hearsay statements cannot be considered in connection with a Plaintiff's § 216(b) motion for determining whether other employees are similarly situated." Harrison, 411 F. Supp.2d at 866. See also id. ("Courts . . . have repeatedly held that only admissible evidence may be considered in connection with a § 216(b) motion."); Landsberg, 2006 U.S. Dist. LEXIS 90716, at *12-14 (affirming recommendation that, inter alia, excluded inadmissible hearsay evidence at conditional certification stage). Accordingly, this Court will not consider hearsay evidence indetermining whether plaintiffs are similarly situated to putative class members.

In reaching this decision, this Court is mindful of plaintiffs' argument that some courts do consider hearsay evidence at the conditional certification stage. Opposition to Motion to Strike, pp. 4-5 (citing Salomon v. Adderley Indus. , 847 F. Supp. 2d 561, 565 (S.D. N.Y. 2012); Winfiend v. Citibank, N.A., No. 10 Civ....