Williams v. Angie's List, Inc., CAUSE NO. 1:16-cv-878-WTL-MJD

• Decision Date: 27 April 2017
• Docket Number: CAUSE NO. 1:16-cv-878-WTL-MJD
• Parties: NICK WILLIAMS, et al., individually and on behalf of others similarly situated, Plaintiffs, v. ANGIE'S LIST, INC., Defendant.
• Court: U.S. District Court — Southern District of Indiana

NICK WILLIAMS, et al., individuallyand on behalf of others similarly situated, Plaintiffs, v. ANGIE'S LIST, INC., Defendant.

CAUSE NO. 1:16-cv-878-WTL-MJD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

April 27, 2017

ENTRY ON PLAINTIFFS' RENEWED MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION

This cause is before the Court on the Plaintiffs' Renewed Motion for Conditional Certification of Collective Action and Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act ("FLSA") (Dkt. No. 75). This motion is fully briefed, and the Court, being duly advised, DENIES the motion for the reasons, and to the extent, set forth below.

I. BACKGROUND

The Plaintiffs previously sought conditional certification for a collective action of current and former Angie's List, Inc. ("Angie's List") employees working under a number of different job titles in various departments. See Dkt. No. 15. The Plaintiffs did not provide sufficient support for conditional certification, and certification was denied. See Dkt. No. 69. The Court, however, allowed the Plaintiffs the opportunity to file another motion for conditional certification, which they now present to the Court.

The Plaintiffs now seek conditional certification for a collective action of a number of current and former employees, including individuals who were Advertising Sales Consultants¹ in the Sales Origination Department from three years prior to the date of this Entry to October 1, 2015, and employees in the following positions in the Sales Origination Department from October 1, 2015, to the present: Discovery Representative, Eligibility Representative, and Senior Solutions Consultant. Dkt. No. 75 at 3. The Plaintiffs also seek to include in the collective action current and former employees who work or worked as Big Deal Representatives or E-Commerce Representatives in the Big Deal Department or in the E-Commerce Department from three years prior to the date of this Entry to the present. Id. This time around, the Plaintiffs also appear to seek, in the alternative, conditional certification for six possible collective sub-classes - one for current and former employees in each of the respective job titles above. See Dkt. No. 84 at 2 ("If the Court finds that conditional certification is not warranted for one or more positions held by [the] Plaintiffs, conditional certification should still be granted for Advertising Sales Consultants and other subclasses."). The Plaintiffs, however, have not submitted an updated proposed notice that reflects what notice they would provide to potential opt-in plaintiffs other than one that includes individuals in all six of the job titles. They "reiterate their request that the Court approve [docket number 46-3] for dissemination to the collective."² Dkt. No. 76 at 15.For ease of reference, the Court refers to current and former employees in the six job titles as "Putative Class Members."

Angie's List again objects to the appropriateness of the FLSA collective action and maintains that, in a number of ways, the Plaintiffs fail to show that they are similarly situated to the Putative Class Members or each other. Angie's List also contends that the Plaintiffs have not offered any new substantive evidence to support their position and that they continue to fail to show a common policy or plan that would have required the Putative Class Members to underreport or not report overtime hours.

II. FLSA COLLECTIVE ACTION

The Court now reiterates the standard it presented in its first Entry on Plaintiffs' Motion for Conditional Certification of Collective Action (Dkt. No. 69).

The FLSA provides that an action for unpaid overtime may be brought "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). When an employee brings an FLSA claim on behalf of other similarly situated employees, it is termed a "collective action." An individual can join the collective action only by consenting to become a participant. See 29 U.S.C. § 216(b) ("No 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."); see also Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771-72 (7th Cir. 2013) (comparing requirement that FLSA collective action plaintiffs must opt in to action with procedure of opting out of class actions governed by Fed. R. Civ. P. 23); Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 973 (7th Cir. 2011) (same).

Because the FLSA does not specify how collective actions are to proceed, the management of these actions has been left to the discretion of the district courts. See Hoffmann-La Roche v. Sperling, 493 U.S. 165, 171-72 (1989). In this circuit, district courts generally follow a two-step inquiry when certifying collective actions.³ In the first step, the Court must determine whether to conditionally certify an action as a collective action. "The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013) (internal citations omitted).

At the first step, the Court considers "whether the representative plaintiff has shown that she is similarly situated to the potential class plaintiffs." Austin v. CUNA Mut. Ins. Soc'y, 232 F.R.D. 601, 605 (W.D. Wis. 2006). The FLSA does not define the term "similarly situated" or instruct judges when to exercise their discretion and authorize notice to potential plaintiffs. District courts in this circuit typically apply the following analysis: To be similarly situated at the first step, the Plaintiffs need make only a modest factual showing that they and potential plaintiffs were victims of a common policy or plan that violated the law. See, e.g., Bradley v. Arc of N.W. Ind., Inc., No. 2:14-cv-204, 2015 WL 2189284, at *2 (N.D. Ind. May 11, 2015) (citing Allen v. The Payday Loan Store of Ind., Inc., No. 2:13-cv-262, 2013 WL 6237852, at *1 (N.D. Ind. Dec. 3, 2013)); see also Camilotes v. Resurrection Health Care Corp., 286 F.R.D.339, 345 (N.D. Ill. 2012). The Court analyzes the pleadings and any affidavits to determine whether that modest showing is made. Knox v. Jones Group, 208 F. Supp. 3d 954, 958 (S.D. Ind. 2016).

If the Court conditionally certifies a collective action and authorizes notice to potential participants, it proceeds to the second step in the certification process at the close of discovery and after the opt-in process is completed. Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 848 (N.D. Ill. 2008); Austin, 232 F.R.D. at 605. In that step, because discovery is completed and the Court has more information on which to base its decision, a defendant can request that the Court reevaluate whether the opt-in plaintiffs are similarly situated to the named representative plaintiffs. Jirak, 566 F.Supp.2d at 848 (citing Heckler v. DK Funding, 502 F. Supp. 2d 777, 779 (N.D. Ill. 2007)).

III. DISCUSSION

Again, this case is at the first step in the collective action certification inquiry. To meet their burden, the Plaintiffs "need not provide conclusive support, but they must provide an affidavit, declaration, or other support beyond allegations in order to make a minimal showing of other similarly situated employees subjected to a common policy." Molina v. First Line Solutions LLC, 566 F. Supp. 2d 770, 786 (N.D. Ill. 2007). This "modest factual showing [] is not a mere formality." Adair v. Wis. Bell, Inc., No. 08-C-280, 2008 WL 4224360, at *3 (E.D. Wis. Sept. 11, 2008) (internal quotation omitted). "Once proffered, an affidavit is still subject to scrutiny." Allen v. Payday Loan Store of Ind., Inc., No. 2:13-cv-262, 2013 WL 6237852, at *3 (N.D. Ind. Dec. 3, 2013). As the Court previously noted, it would be improper to accept Angie's List's evidence over conflicting evidence from the Plaintiffs because the Court is not permitted to make credibility determinations at this time. It resolves conflicts and reasonable inferences inthe Plaintiffs' favor. However, where evidence contradicting the Plaintiffs' claims does not require the Court to make credibility determinations, it "'will not stick its head in the sand and ignore that evidence.'" Id. (quoting Hawkins v. Alorica, 287 F.R.D. 431, 441 (S.D. Ind. 2012)) (internal quotations omitted). "[I]t would be a waste of the Court's and the litigants' time and resources to notify a large and diverse class only to later determine that the matter should not proceed as a class action because the class members are not similarly situated." Id.

Here, the Plaintiffs incorporate by reference the evidence supporting their prior motion for collective action.⁴ Dkt. No. 76 at 5 n.1. That evidence includes two deposition excerpts and five affidavits. With its current motion, the Plaintiffs submit an additional six affidavits, as well as additional deposition excerpts, one Plaintiff's answers to interrogatories, and other documents. Various deposition excerpts support the Plaintiffs' allegation that Angie's List was required to pay overtime to employees holding particular job titles and explain how job titles changed over time. The affidavits, some deposition testimony, and interrogatory responses provide evidence to support the Plaintiffs' argument that Angie's List instructed employees with various job titles to underreport hours worked.

For example, two former Big Deal Representatives stated that, when working in the Big Deal Department, they were told by their respective supervisors to report on their time records nomore than 40 hours per week, no matter how many hours they worked.⁵ Dkt. Nos. 76-6 at 2; 76-7 at 2. In addition, Plaintiff James Bryan Grant stated that, as an Advertising Sales Training...