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Randolph v. PowerComm Constr., Inc.

United States District Court, D. Maryland, Southern Division

August 29, 2014

RANDOLPH, et al., Plaintiffs,
v.
POWERCOMM CONSTRUCTION, INC., et al., Defendants

Page 462

For Gregory Randolph, on his own behalf and on behalf of all others similarly situated, Plaintiff: Robert Scott Oswald, LEAD ATTORNEY, Nicholas Wyckoff Woodfield, The Employment Law Group PC, Washington, DC.

For Dana Brown, Plaintiff: Nicholas Wyckoff Woodfield, LEAD ATTORNEY, The Employment Law Group PC, Washington, DC.

For Powercomm Construction, Inc., David Kwasnik, Sr., Defendants: Geoffrey Martin Bohn, LEAD ATTORNEY, Bohn and Kouretas PLC, Arlington, VA.

Page 463

MEMORANDUM OPINION AND ORDER

GEORGE J. HAZEL, UNITED STATES DISTRICT JUDGE.

This Memorandum Opinion and Order addresses Plaintiffs' Motion for Preliminary Injunction, Invalidation of " Opt-Out" Forms, and Request for Sanctions (ECF No. 89). An evidentiary hearing was held on August 12, 2014. See Loc. R. 105.6. During the hearing, Plaintiff also requested a protective order. For the reasons stated on the record, the Motion for Preliminary Injunction is DENIED; the Request for Sanctions is DENIED, and the Motion for Protective Order is GRANTED. This memorandum further explains and supplements the Court's grant of the protective order. The Court also finds that the Motion to Invalidate Opt-Out Forms is GRANTED for the reasons stated below.

I. BACKGROUND

Defendant PowerComm is an electrical utility construction company. (ECF No. 21, Ex. 1). Defendant David Kwasnik, Sr. is the President and CEO of PowerComm. Id. Opt-in Plaintiffs are individuals who work or have worked for PowerComm as " flaggers" or traffic controllers. (ECF No. 50 at 22).

Plaintiffs filed their Complaint on June 12, 2013, alleging violations of the Fair Labor Standards Act (" FLSA" ) and the Maryland Wage and Hour Law (" MWHL" ) for failure to pay proper overtime wages. (ECF No. 1). On March 26, 2014, the Court conditionally certified a FLSA collective action. (ECF No. 50). Plaintiffs were then permitted to send notice to potential plaintiffs and Defendants were required to post the notice at the PowerComm facility. (ECF No. 51). Between March and July 2014, over sixty employees or former employees opted-in to the action. ( See ECF No. 81).

On August 1, 2014, Defendants filed twenty-three opt-out notices with the Court and filed an additional notice on August 4th. (ECF Nos. 87 & 88). In Response, on August 5, 2014, Plaintiff filed a " Motion for Preliminary Injunction, Invalidation of " Opt-Out" Forms, and Request for Sanctions." (ECF No. 89). Per Court Order, Defendant responded to this motion on August 11th. (ECF No. 97). Plaintiffs replied the same day (ECF No. 98), and an evidentiary hearing was held on August 12th.

The parties disagree sharply on the facts prompting the opt-out notices. Plaintiffs describe a coercive scheme to eliminate the opt-in plaintiffs one by one. In support. Plaintiffs attached declarations from at least ten opt-in plaintiffs who signed opt-out forms. In summary, the declarants state, respectively, that they were approached with settlement offers while in the hospital on intravenous painkillers (see declaration of George Miles at ECF No. 89, Ex. 1); signed opt-out forms only upon learning that PowerComm intended to terminate employees who did not opt-out ( see declaration of Lamar Young at ECF No. 89, Ex. 2: declaration of Rodney Brooks at ECF No. 89, Ex. 3; declaration of Shanina Washington at ECF No. 89, Ex. 4); were tricked into signing forms when they did not understand their significance ( see declaration of Samuel Hegwood at ECF No. 89, Ex.5; declaration of Robin Melton at ECF No. 89, Ex. 6; declaration of Antonio Wall at ECF No. 96, Ex. 2); were told that the company was seeking to have Plaintiffs' counsel disbarred (see declaration of Lamar Young at ECF No. 89, Ex. 2; declaration of Shanina Washington at ECF No. 94, Ex. 2); or were promised payments or jobs for opting-out that were never received ( see declaration of Ezra Calloway at ECF No. 94, Ex. 1).

Page 464

Defendants paint quite a different picture. Defendants describe a series of settlement negotiations initiated by the individual opt-in plaintiffs. In addition to submitting competing declarations, defendants called four live witnesses at the evidentiary hearing: Arsim Salihi, who was the supervisor of some of the opt-in plaintiffs; Rodney Brooks, one of the employees who opted-out; Laura Kwasnik, vice president of PowerComm; and Defendant David Kwasnik. With the exception of Mr. Brooks, each generally testified consistently with their declarations. Ms. Kwasnik testified that after reading the Court filings related to plaintiff Shanina Washington, she asked Ms. Washington about the factual allegations contained in the documents. Ms. Washington stated that the facts as contained in the court filings were not accurate and, ultimately, Ms. Washington agreed to sign an opt-out letter and settlement agreement. Ms. Kwasnik similarly attested to negotiations with ...


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