United States District Court, D. Maryland
Mark Coulson United States Magistrate Judge.
case is brought under the Fair Labor Standards Act (FLSA) for
unpaid wages and overtime by Plaintiffs Willie Samuel, Dinah
Reeder, Terrence Gatling, Eric Williams, Tuesday Wiggins,
Lashay Heard, Rickie Jacobs, Jr., Chardae Robinson, and Joyce
Lee Elder against their employer, Defendant Athelas
Institute, Inc. The matter has been referred to me by Judge
Russell for all proceedings, (ECF No. 16), and the parties
have consented to proceed before a magistrate judge pursuant
to 28 U.S.C. § 636(c) and Local Rule 301.4. (ECF Nos. 19
and 23). Before this Court is Plaintiffs' Motion for
Conditional Certification and to Facilitate Identification
and Notice to Similarly-Situated Employees, (ECF No. 21),
Defendant's Response, (ECF No. 22), and Plaintiffs'
Reply. (ECF No. 24). The Court has reviewed all the filings
and finds that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2018). For the reasons below, Plaintiffs'
motion is GRANTED in part and DENIED in part.
FLSA permits plaintiffs to “maintain a collective
action against their employer for violations under the act
pursuant to 29 U.S.C. § 216, ” Quinteros v.
Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 771 (D. Md.
2008), which provides in pertinent part:
An action...may be maintained against any employer...by any
one or more employees for and in behalf of himself or
themselves and other employees similarly situated. 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
29 U.S.C. § 216(b). Section 216(b) establishes an
“opt-in” scheme, “whereby potential
plaintiffs must affirmatively notify the Court of their
intentions to be a party to the suit.”
Quinteros, 532 F.Supp.2d at 771 (citing Camper
v. Home Quality Management, Inc., 200 F.R.D. 516, 519
(D. Md. 2000)). The FLSA certification process typically
occurs in two stages. First, at 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 is appropriate.”
Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 566
(D. Md. 2012) (citations and internal quotations omitted).
Second, at the “decertification stage, ” once
discovery is closed, the court conducts a more stringent
inquiry to determine whether the plaintiffs are in fact
“similarly situated” as required by section
216(b) and to make a final determination regarding whether
the case should proceed as a collective action. Rawls v.
Augustine Home Health Care, Inc., 244 F.R.D.
298, 300 (D. Md. 2007) (citations omitted).
seek first stage conditional certification and provide a
thorough narrative to meet the modest threshold required.
While generally denying the allegations and reserving all
defenses and arguments, Atheleas does not oppose conditional
certification. (ECF No. 22 at 1). Accordingly,
Plaintiffs' Motion for Conditional Certification is
GRANTED as to having demonstrated that the potential class
members are similarly situated and prompt the issuance of
does oppose the information Plaintiffs seek for giving
notice, the proposed methods of notification, and the
proposed reminder notice. (ECF No. 22). Specifically,
Plaintiffs request that Defendant produces a list of all
persons employed as a House Manager at any time during the
last three years including “each House Manager's
name, job title, last known address and telephone number,
last known personal email address, dates of employment and
location(s) of employment.” (ECF No. 21-1 at 11).
Defendant argues that the information sought is too broad for
purposes of giving notice and that notice by email and
telephone are inappropriate. Defendant further argues that
notice by mail, email, telephone, and a reminder is
Court's broad discretion over opt-in notices is guided by
an overarching goal to “provide accurate and timely
notice concerning the pendency of the collective action, so
that potential plaintiffs can make informed decisions about
whether to participate.” Butler, 876 F.Supp.2d
at 575 (quotations and citations omitted). Nevertheless, this
Court “will not order more extensive notification than
is necessary, to reach potential class members [, ]”
unless special circumstances exist. Blake v. Broadway
Services, Inc., 2018 WL 4374915, at *5 (D. Md. 2018)
the information sought, Defendant shall produce a list of
each House Manager's name, last known address, any
available email, dates of employment with Defendant and
locations of employment with Defendant for any House Manager
during the last three years. Plaintiffs' requests for job
titles and telephone numbers are denied. In explanation,
first, this Court no longer considers notice by email to be
an inappropriate vehicle under the FLSA. See e.g.,
Butler, 876 F.Supp.2d at 575 (ordering the
production of emails and permitting notice by email because
“communication through email is now the norm.”
(citiation omitted)). Defendant, however, asserts that it
does not collect or maintain employee emails. While this
Court cannot order Defendant to produce something it does not
have, it will ask that Defendant check its records again and
produce any available emails for the putative plaintiffs.
Second, the Court is also unconvinced that the collection and
production of location and date information is excessive. The
general logistical nature of the information and its
potential utility in facilitating effective notice outweighs
the arguably minimal burdens of production.
the request for job titles is unnecessary (considering House
Manager is the job title) and Plaintiffs have not presented
any special circumstances to necessitate the production of
telephone numbers. See e.g., Blake, 2018 WL
4374915, at *5 (2018) (declining to order the production of
telephone numbers); Arnold v. Acappella, LLC, 2016
WL 5454541, at *4 (D. Md. Sept. 29, 2016) (same). In Reply,
Plaintiffs concede that telephone numbers are not initially
appropriate, but then argue that if any notice goes
undelivered Defendant should, not only produce a
corresponding personal telephone number, but also personal
identifying information such as the last four digits of a
putative class member's social security number within
five (5) days of a request by Plaintiffs. (ECF No. 24 at 3).
This proposed system for handling undelivered response is
denied as premature and unjustified. Nothing suggests that
such a system is necessary under the circumstance. Just as
the Honorable Judge Blake in Blake, 2018 WL 4374915
(2018) provided, “this court may order a second round
of notice” via telephone if posed with a high
proportion of undeliverable responses. The reality of
changing addresses, however, is not grave enough for
establishing a reactive contingency involving social security
numbers at this time.
a reminder notice, Plaintiffs have also not shown special
circumstances to necessitate a second reminder notice or
anything that would lead this Court to conclude that the
initial notice through physical mail and email would be
insufficient. See e.g., Calderon v. Geico Gen.
Ins. Co., 2011 WL 98197, at *8 (D. Md. Jan. 12, 2011)
(“Plaintiffs' request to send reminder notices has
the potential to unnecessarily stir up litigation, and will
therefore be denied.” (quotations omitted)).
Plaintiffs' attached proposed order requests that
Defendant post the notice within each group home is owns and
operates, that Plaintiffs send a post-card half-way through
the opt-in period, and that Plaintiffs maintain a webpage
with all relevant information and a downloadable copy of the
notice. In Reply, Plaintiffs argue that these aspects of
their requested notice went undisputed and should therefore
be permitted. The Court however is not prepared to accept
such an argument. Proposed orders are courtesies to the Court
and not designed to advance additional legal arguments or
propose crucial details that should be within the actual
motions they accompany. Seeing as these requests were not
presented by motion, nor any argument in their support ...