Smallwood v. Ill. Bell Tel. Co.

• Decision Date: 06 May 2010
• Docket Number: Case No. 09 C 4072
• Parties: Kenton SMALLWOOD, Catherine Christenson, Rahsaan Renford and Berthil Ivarson, individually and on behalf of the Class, and others similarly situated, Plaintiffs, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

710 F.Supp.2d 746

Kenton SMALLWOOD, Catherine Christenson, Rahsaan Renford and Berthil Ivarson, individually and on behalf of the Class, and others similarly situated, Plaintiffs,

v.ILLINOIS BELL TELEPHONE COMPANY, Defendant.

Case No. 09 C 4072.

United States District Court,

N.D. Illinois,

Eastern Division.

May 6, 2010.

Matt H. Morgan, Paul J. Lukas, E. Michelle Drake, Matthew H. Morgan, Tim C. Selander, Nichols Kaster, PLLP, Minneapolis, MN, Douglas M. Werman, Werman Law Office, P.C., Chicago, IL, for Plaintiffs.

Kenneth W. Gage, Paul, Hastings, Jonofsky & Walker, Stephen Boyd Mead, AT & T Services, Inc., Chicago, IL, Stacey A. Bentley, Paul, Hastings, Janofsky & Walker LLP, Atlanta, GA, for Defendant.

MEMORANDUM OPINION AND ORDER

MORTON DENLOW, United States Magistrate Judge.

Plaintiffs Kenton Smallwood ("Smallwood"), Catherine Christenson ("Christenson"), Rahsaan Renford ("Renford"), and Berthil Ivarson ("Iverson") (collectively "Plaintiffs") filed this lawsuit on behalf of themselves and all other similarly situated persons against Defendant Illinois Bell Telephone Company ("Defendant" or "Illinois Bell") alleging that Defendant misclassified Outside Plant Engineers as exempt from overtime pay in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. and the Illinois MinimumWage Law ("IMWL"), 820 ILCS 105/1 et seq. Plaintiffs now move this Court to grant conditional class certification and authorize notice to similarly situated current and former employees pursuant to Section 216(b) of the FLSA.

Plaintiffs also seek this Court's approval of a proposed 90-day opt-in period for putative claimants, as well as the form and content of their proposed judicial notice and two reminder notices. Finally, Plaintiffs move this Court to compel Defendant to produce a list of the putative collective class within 7 days of the Court's order, including each individual's name, address, employee identification number, and dates of employment as an Outside Plant Engineer.

An oral argument was held on April 27, 2010, at which time the Court delivered an oral ruling. This opinion provides further explanation. For the reasons given on April 27 and in this opinion, Plaintiffs' motion for conditional certification and judicial notice pursuant to Section 216(b) is granted. The Court finds the suggested letter of notice provided by the Plaintiffs to be suitable, but finds that a 60-day opt-in period is more appropriate. The Court also holds that Plaintiffs may not send out any reminder notices. Finally, Defendant shall produce the necessary contact information on or before May 11, 2010.

I. BACKGROUND

A. Factual Background

Plaintiffs bring claims against Illinois Bell stemming from their employment as Outside Plant Engineers ("OSP Engineers").¹ Dkt. 56, at 1.² They are all currently employed by Defendant, and continue to work for Defendant under the general job description of "Manager OSP Planning and Eng Design," in offices located in Elgin and Des Plaines, Illinois. Dkt. 68, Ex. A. They are joined by sixty-nine other "opt-in" Plaintiffs ("opt-in Plaintiffs"), who have joined the case by filing written consent forms with the Court. These opt-in Plaintiffs also work, or have worked, under the same job description as the named plaintiffs in a number of Illinois locations.³

The Manager OSP Planning and Eng Design-2008 job description states in relevant part:

Job Description

Responsible for the planning, design and analysis of the outside plant facilities/network. This position supervises the detailed design and the preparation of engineering job orders and associated work prints which conform to approved long-range plans to meet the growth, modernization and replacement demands of the outside plant network. Conducts job costing activities. Requiresfull understanding for outside plant installation and maintenance technician activities. May include Loop Electronics Engineering/Coordination and Transmission Equipment Engineering. May be responsible for preparing construction budget and project management activities. May be responsible for right-of-way functions including investigating and acquiring easement interests in real property.

Dkt. 68, Ex. A.

Defendant is an Illinois corporation with its principal place of business located in Chicago, Illinois. It is wholly owned by AT & T Teleholdings, Inc., which in turn is wholly owned by AT & T, Inc. Defendant assigned one job key title to all of its OSP Engineers: Manager, Outside Plant Planning and Engineering Design. This job key, however, contains four different positions: Planner, Design Engineer, Right of Way Engineer ("ROW Engineer"), and Loop Electronics Engineer. Each of the four named Plaintiffs is currently a Design Engineer, and did not work under any of the other job titles during the relevant time period. Some of the opt-in Plaintiffs work, or have worked, under the job title of Design Engineer, while others work, or have worked, under the job titles of Planner, ROW Engineer, or Loop Electronics Engineer, within the broader job description.

Prior to approximately May 16, 2009, Defendant classified all OSP Engineers-including Planners, Design Engineers, ROW Engineers, and Loop Electronics Engineers-as exempt from the overtime requirements of the FLSA. On or about May 16, 2009, Defendant uniformly reclassified all OSP Engineers-including Planners, Design Engineers, ROW Engineers, and Loop Electronics Engineers-as non-exempt employees, thereby making them eligible for overtime payments. Prior to this reclassification, some or all of the named Plaintiffs and opt-in Plaintiffs routinely worked more than forty (40) hours per week and did not receive overtime pay.

B. Procedural History

Plaintiffs filed this action against Illinois Bell on June 9, 2009 in the Circuit Court of Cook County, Illinois. (Dkt. 1). Defendant removed this action to this Court on July 7, 2009. Id. Plaintiffs allege Illinois Bell violated both the FLSA's and IMWL's overtime wage provisions by improperly classifying them as exempt from federal and state overtime laws and failing to compensate them for hours worked for Defendant in excess of forty (40) hours per week. On February 16, 2010, Plaintiffs filed the current motion, requesting this Court to (1) conditionally certify this action as a collective action for purposes of notice and discovery pursuant to § 216(b) of the FLSA, (2) authorize Plaintiffs' counsel to mail judicial notice to all putative plaintiffs, (3) approve the form and content of Plaintiffs' proposed judicial notices and reminder notices, (4) order Defendant to produce to Plaintiffs' counsel the contact information for each putative plaintiff, and (5) authorize a 90-day notice period for putative plaintiffs to join this action. The parties entered a limited consent pursuant to 28 U.S.C. § 636(c)(1) with respect to this motion. Dkt. 59.

C. Plaintiffs' Proposed Class for Conditional Certification and Notice

In connection with Plaintiffs' FLSA claims, Plaintiffs propose that the Court conditionally certify and authorize judicial notice to the following class: "All persons who are or have been employed by Illinois Bell Telephone Company as Outside Plant Engineers, or otherwise held the job title 'Manager, Outside Plant Planning and Engineering Design' from [three years back from the date the Court orders conditional certification] to May 16, 2009." Dkt. 56, at5. Plaintiffs submit a proposed notice of pendency of lawsuit and two proposed reminder notices. Dkt. 56, PX 5 and 6.

II. LEGAL STANDARDS

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. 29 U.S.C. § 216(b). District courts use their discretion in managing collective actions because the FLSA does not detail the specific procedures for granting collective action notices. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170-74, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). While the Seventh Circuit has yet to address how a district court should manage collective actions, "the majority of courts ... have adopted a two-step process for determining whether an FLSA lawsuit should proceed as a collective action." Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 847 (N.D.Ill.2008) (collecting cases).

First, a court issues a "conditional certification" of the collective action if the plaintiffs show there are similarly situated employees who are potential claimants. Russell v. Ill. Bell Tel. Co., 575 F.Supp.2d 930, 933 (N.D.Ill.2008). In order to be conditionally certified, plaintiffs need only make "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." Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1045 (N.D.Ill.2003). Second, after the parties have engaged in discovery and the opt-in process is completed, the court reexamines the conditional certification "to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Jirak, 566 F.Supp.2d at 848. Thus, "it is not until potential plaintiffs have been given a chance to 'opt-in' to the collective action and discovery is complete that the court more rigorously reviews whether the representative plaintiff and the putative claimants are in fact similarly situated so that the lawsuit may proceed as a collective action." Persin v. CareerBuilder, LLC, 2005 WL 3159684 at *1 (N.D.Ill. Nov. 23, 2005).

III. DISCUSSION

A. Conditional Certification is Appropriate

Plaintiffs' motion seeks solely to obtain conditional certification for the purpose of sending notice to potential class members. As such, this Court is only concerned with the first step of the previously stated legal standard; that is, whether the Plaintiffs are "similarly situated."...