United States District Court, D. Maryland
JEFFRY BUTLER, ET AL.
DIRECTSAT USA, LLC, ET AL
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Jeffry Butler, Individually, and on Behalf of All Others Similarly Situated, Derrick Green, Opt-In Plaintiff, Plaintiffs: Daniel Adlai Katz, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Jac A Cotiguala, PRO HAC VICE, Jac A Cotiguala and Associates, Chicago, IL; James B Zouras, Ryan F Stephan, PRO HAC VICE, Stephan Zouras LLP, Chicago, IL.
For Charles N. Dorsey, Individually, and on Behalf of All Others Similarly Situated, Plaintiff: Daniel Adlai Katz, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Ryan F Stephan, Stephan Zouras LLP, Chicago, IL.
For Directsat USA, LLC, Unitek USA, LLC, Unitek Global Services, Inc., Defendants: Colin D Dougherty, Jonathan David Christman, PRO HAC VICE, Fox Rothschild LLP, Blue Bell, PA; Dirk Densford Haire, Nicholas T Solosky, Fox Rothschild LLP, Washington, DC; John Augustine Bourgeois, Katrina J Dennis, Kramon and Graham PA, Baltimore, MD.
For Armand Tanoh, Romulus Albu, Herman Altson, Ronald Cromer, Grayson Leslie Stone, Ralph Roosevelt Jones, Derrick A. Bryant, Eric Eugene Leftwood, Ellsworth Patrick Newman, Kevin Anthony Rogers, Mark Robert Monroe, Claimants: Daniel Adlai Katz, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Jac A Cotiguala, PRO HAC VICE, Jac A Cotiguala and Associates, Chicago, IL; James B Zouras, Ryan F Stephan, PRO HAC VICE, Stephan Zouras LLP, Chicago, IL.
For Dwayne Anthony Grainger, Moses A. Nicholls, Shaka Harrington, Lionel Murray, William Earl Kilson, III, Allen Gilbert Leith, Spencer Lee Shaffer, Robert C. Nash, Ebrima Gi8keneh, Steven Andre Poindexter, Christopher Thomas Adams, Claimants: Daniel Adlai Katz, LEAD ATTORNEY, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Jac A Cotiguala, LEAD ATTORNEY, PRO HAC VICE, Jac A Cotiguala and Associates, Chicago, IL; James B Zouras, Ryan F Stephan, LEAD ATTORNEYS, PRO HAC VICE, Stephan Zouras LLP, Chicago, IL.
For Mayhew Rupert Murphy, Claimant: Daniel Adlai Katz, LEAD ATTORNEY, Law Office of Gary M Gilbert and Associates PC, Silver Spring, MD; Jac A Cotiguala, PRO HAC VICE, Jac A Cotiguala and Associates, Chicago, IL; James B Zouras, Ryan F Stephan, PRO HAC VICE, Stephan Zouras LLP, Chicago, IL.
DEBORAH K. CHASANOW, United States District Judge.
Presently pending and ready for resolution in this Fair Labor Standards Act collective action case is a motion to decertify the conditionally certified collective action (ECF No. 202), filed by Defendants DirectSAT USA, LLC (" DirectSAT" ), UniTek USA, LLC (" UniTek" ), and UniTek Global Services, Inc (" UGS" ). Also pending are motions to seal filed by Defendants and Plaintiffs. (ECF Nos. 247 and 253). The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants' motion to decertify, and motion to seal will be granted in part and denied in part. Plaintiffs' motion to seal will be denied.
Defendant DirectSAT, a subsidiary of UniTek and UGS, provides satellite installation services to DirecTV customers throughout the country. Plaintiff is a technician who previously installed, upgraded, and serviced DirecTV equipment at customer locations in Maryland, Virginia, and the District of Columbia. Defendants classified Plaintiff's position as non-exempt under federal and state wage and hour laws. Plaintiff began working for Defendants as a technician in October 2007 and held this position until July 20, 2008, when he was promoted to warehouse manager. He typically worked six or seven
days per week. Although initially based out of DirectSAT's warehouse in Capitol Heights, Maryland, Plaintiff transferred to the warehouse in Waldorf, Maryland (" D.C. South" ), after the Capitol Heights (" D.C. North" ) warehouse closed.
Technicians were paid pursuant to a " job rate" or " piece rate" system. Technicians would be given assignments at the beginning of the day, go out into the field and complete those assignments, report back as to the work performed, and be paid based on credits that accounted for quantity and type of work, as opposed to an hourly wage. Technicians were instructed to clock-in when they arrived at their first job-site and clock-out when they left their last job-site of the day. Plaintiff alleges that he regularly worked more than forty hours per week without proper overtime compensation and, furthermore, was encouraged by Defendants to begin work before the start of his route and continue working after completing his last work order, thereby performing work without being paid. This sort of work included receiving work orders at home, mapping out his route, preparing satellite dishes, and loading and unloading equipment from his company vehicle. Plaintiff alleges that Defendants had a uniform policy and practice to encourage unpaid work and deny earned overtime.
On October 4, 2010, Plaintiff brought suit against Defendants alleging violations of the Fair Labor Standards Act (" FLSA" ) (Count I), the Maryland Wage and Hour Law (" MWHL" ) (Count II), the Maryland Wage Payment and Collection Law (" MWPCL" ) (Count III), and the District of Columbia Minimum Wage Law (" DCMWL" ) (Count IV). (ECF No. 1). As to the FLSA claim, Plaintiff sought to represent a collective of all technicians employed by Defendants in Virginia, Maryland, and the District of Columbia during the applicable statute of limitations period for unpaid overtime. Plaintiff alleges that the collective is similarly situated in that they all had similar duties, performed similar tasks, were subjected to the same requirements under the FLSA to be paid overtime wages unless specifically exempted thereunder, were subjected to similar pay plans, were required to work and did work more than forty hours per week, and were not paid one and one-half times their regular rate for overtime worked. As to the Maryland and D.C. law claims, Plaintiff sought to represent a class comprised of all technicians employed by Defendants during the applicable statute of limitations period in Maryland and D.C., respectively. Defendants filed a motion to dismiss and the court, through Memorandum Opinion and Order dated July 6, 2011, granted in part Defendants' motion, dismissing Plaintiff's MWPCL claim (Count III). (ECF Nos. 28 and 29). Plaintiff has seemingly abandoned representing a class on his state law claims as he failed to move for conditional certification by the October 1, 2012 deadline. (ECF No. 79).
On November 1, 2011, Plaintiff moved for conditional certification of an FLSA collective action and to facilitate notice pursuant to 29 U.S.C. § 216(b). (ECF No. 41). On April 10, 2012, Plaintiff's motion was granted and a collective consisting of all technicians based out of Defendants' Waldorf and Beltsville warehouses during the past three years was conditionally certified and notices were disseminated. (ECF No. 65 and 66). At one point, fifty-two (52) technicians declared their desire to be opt-in Plaintiffs, but many opt-in Plaintiffs have been dismissed for a variety of reasons, leaving Mr. Butler as the named Plaintiff and twenty-five (25) opt-in Plaintiffs remaining (collectively " Plaintiffs" ).
On February 3, 2014, Defendants filed a motion to decertify the conditionally certified collective action. (ECF No. 202). Defendants also filed an unopposed motion to seal certain exhibits attached to their decertification motion (ECF No. 247). Plaintiffs filed an opposition on March 28, 2014 (ECF No. 251), to which Defendants replied on April 11, 2014 (ECF No. 255). Similar to Defendants, Plaintiffs filed a motion to seal certain exhibits to his opposition (ECF No. 253), which sits unopposed.
II. Motion for Decertification
A. Standard of Review
Under the FLSA, a collective action for unpaid minimum or overtime wages may be maintained " 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) (emphasis added). " In deciding whether to certify a collective action under the FLSA, courts generally follow a two-stage process." Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D.Md. 2010). In the first stage, commonly referred to as the " notice stage," the court makes a " threshold determination of 'whether the plaintiffs have demonstrated that potential class members are 'similarly situated,' such that court-facilitated notice to putative class members would be appropriate." Id. ( quoting Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D.Md. 2000)). The court granted conditional certification in this case on April 10, 2012. See Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560 (D.Md. 2012).
In the second stage, following the close of discovery, the " court engages in a more stringent inquiry to determine whether the plaintiff class is [in fact] 'similarly situated' in accordance with the requirements of [Section] 216, and renders a final decision regarding the propriety of proceeding as a collective action." Dorsey v. TGT Consulting, LLC, 888 F.Supp.2d 670, 686 (D.Md. 2012) ( quoting Syrja, 756 F.Supp.2d at 686) (first alteration in original). Generally, " plaintiffs bear the burden of showing that their claims are 'similarly situated,'" and " district courts have broad discretion to determine whether a collective action is an appropriate means for prosecuting an FLSA cause of action." Gionfriddo v. Jason Zink, LLC, 769 F.Supp.2d 880, 886 (D.Md. 2011) (citation omitted). " In considering a motion to decertify alleging dissimilarity of the plaintiff class, courts have considered three factors: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D.Md. 2007). " Similarly situated" does not mean " identical," however. Gionfriddo, 769 F.Supp.2d at 886 ( citing Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001)).
1. Plaintiffs' Factual and Employment Settings
" The first factor of the decertification analysis involves an assessment of whether Plaintiffs have provided evidence of a company-wide policy which may violate the FLSA, as well as an assessment of Plaintiffs' job duties, geographic location, supervision, and salary." Dorsey, 888 F.Supp.2d at 687 ( quoting Rawls, 244 F.R.D. at 300). Defendants submit that the individual and variable nature of the technicians' claims renders them unfit for collective adjudication. They point to what they contend are numerous complications. First, technicians worked varying hours: one technician would work twenty hours in a week while another technician would work more than forty hours that same week. Additionally, because they worked on a piece-rate system, the same technician's weekly hours could fluctuate depending on the amount and types of assignments he received. Defendants maintain that the piecerate system provides the second complication: because technicians differ in their effort and efficiency, the hourly wage paid to a technician varied from job to job and worker to worker. As an example, they point to testimony from Mr. Adams, who testified that his hours worked, production rate, and compensation rate changed weekly. (ECF No. 202-22, at 11, Trans. 33:6-12). Similarly, Mr. Alston testified that every day on the job was different. (ECF No. 202-24, at 9, Trans. 14:17-19). Third, Defendants allege that under-reporting of time worked may be due to a host of different reasons, some benign and some representing potentially unlawful conduct. For example, they state that Mr. Bovell testified that his general feeling was that he had to look efficient on his time sheets to keep his job. (ECF No. 202-25, at 10, Trans. 31:7-17). Similarly, Mr. Grainger said that he was advised that appearing more productive would better position him for a promotion. (ECF No. 202-30, at 26, Trans. 44:12-19; see also No. 202-34, at 20, Trans. 46:22-24 (Kilson Dep.) (same)). Mr. Stone testified that he falsified hours worked to keep his " score" high which would help him keep his job. (ECF No. 202-46, at 16, Trans. 29:10-18). Defendants point to Mr. Tanoh to show contrast; Mr. Tanoh testified that he underreported his time so that he would get assigned more jobs. He was never told by anyone to underreport his time so as to appear more efficient. (ECF No. 202-47, at 31, Trans. ...