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Sandoval v. Serco, Inc.

United States District Court, E.D. Missouri, Eastern Division

May 10, 2019

MAR'BELLA SANDOVAL, individually and on behalf of all others similarly situated, Plaintiff,
v.
SERCO, INC., Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff's Opposed Motion for Conditional Certification and Notice to Putative Class Members (Doc. No. 38) and Defendant's Motion for Denial of Plaintiff's Motion for Court-Facilitated Notice, Accounting of Plaintiff's Communications with Putative Class Members, and Sanctions. (Doc. No. 64). The motions are fully briefed and ready for disposition.[1]

         I. Background

         This is an action for overtime pay under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219 and the Missouri Minimum Wage Law (“MMWL”), Mo. Rev. Stat. §§ 290.500, et seq. Defendant Serco, Inc. (“Serco”) is a multinational services company headquartered in Virginia that serves primarily federal, state, and local governments. (Collective/Class Action Complaint (“Compl.”), Doc. No. 1 at ¶ 20). Serco employs numerous customer service or call-center employees across the nation who are responsible for speaking with and assisting customers of Serco's clients. Plaintiff is a former Serco hourly call-center employee. (Compl. at ¶ 11).

         Plaintiff brings Count I of her complaint as an “opt-in” collective action under the FLSA, § 216(b), on behalf of “all hourly call-center employees who were employed by Serco, Inc., anywhere in the United States, at any time from September 17, 2015 through the final disposition of this matter.” (Compl. at ¶ 40). Count II is brought under the MMWL as a Federal Rule of Civil Procedure 23 class action on behalf of “all hourly call-center employees who were employed by Serco, Inc., in Missouri, at any time from September 17, 2016 through the final disposition of this matter.” (Compl. at ¶ 69).

         Plaintiff alleges that she and the putative class members are required to start and log-in to their computers, open and log-in to multiple different Serco computer programs, and ensure that each program is running correctly - all of which can take up to twenty minutes - before they are able to take their first phone call, which comes in as soon as their official shift starts. (Compl. at ¶ 27). Plaintiff further alleges that Serco frequently required her and the putative class members to assist customers after the end of their scheduled shifts, and to remain at their computers during the lengthy shut-down process, activities which were performed after the employees' scheduled shifts had concluded. (Compl. at ¶ 28). As a result of Serco's policy and practice of requiring its employees to perform these start-up and shut-down tasks off-the-clock and without pay before their scheduled shifts began, and after their scheduled shifts ended, Plaintiff alleges that she and the putative class members were not compensated for all hours worked. (Compl. at ¶¶ 3, 4, 26-34).

         On November 21, 2018, Plaintiff filed her Motion for Conditional Certification and Notice to Putative Class Members. (Doc. No. 38). In her motion, Plaintiff requests the Court conditionally certify a collective action and authorize notice to the following class:

All hourly call-center employees who worked for Serco, Inc. in the Affordable Care Act Division, anywhere in the United States, at any time in the preceding three years through the final disposition of this matter.

         Serco opposes certification on the grounds that Plaintiff has failed to (1) clearly define the group of individuals she purports to represent; and (2) establish she is “similarly situated” to the individuals she purports to represent. In further opposition, Serco argues that conditional certification and court-facilitated notice would be improper because Plaintiff has already, without this Court's authorization, distributed notice before filing her motion. Serco notes that by the time it filed its answer to Plaintiff's complaint on November 9, 2018, 273 consent to join forms had been filed by Plaintiff's counsel. (See Doc. Nos. 9-19, 22-25, 27, 31, 34-36).

         On March 14, 2019, Serco filed a motion for denial of court-facilitated notice, accounting of Plaintiff's communications with the putative class, and sanctions, asserting that Plaintiff's counsel has been unilaterally contacting unrepresented individuals to solicit their participation in this case. According to Serco, on February 17, 2019, an attorney at Plaintiff's counsel's firm emailed the following communication to an unknown number of individuals:

We have added an update to our case against Serco. You can find the update here, https://a2xlaw.com/active-cases/serco/[2]
Please share this website with anyone you know who worked for Serco so they can complete the consent form linked at the bottom to join the case. Every person who joins makes the case stronger and pushes Serco to settle more quickly before more people join. Additionally, please take a moment to look at our other active cases. Oftentimes, wage violations like the one in this case are shared across the industry and you may find that you are eligible for another case we have against another employer you worked for.
If you have already signed a consent form to join this case you do not need to complete another one. If your address, phone number, or other contact details have changed please email those changes to Team@a2xlaw.com with the subject line CHANGE OF CONTACT INFORMATION.…
E-MAIL NOTICE - The information contained in this email is intended only for the individual or entity to which it is addressed. Its contents (which include any attachments) may contain confidential or privileged information or both. If you are not an intended recipient, you are prohibited from using, disclosing, disseminating, copying or printing its contents. If you received this email in error, please notify the sender and purge all copies from your system.

(Emphasis added). (Doc. No. 66-2). One of the recipients of this communication posted it to her Facebook page on February 20, 2019. Serco argues this communication is misleading, improper, and unethical, and a “perversion” of the court-facilitated notice process.

         II. Discussion

         A. Motion for conditional certification

         Section 7 of the FLSA mandates that an employer may not subject non-exempt employees to a work week in excess of forty hours, unless the employee is compensated for his or her overtime with additional pay of at least one and one-half times his or her regular hourly wage. 29 U.S.C. § 207. A collective action under the FLSA to recover overtime compensation and liquidated damages 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). Unlike a Rule 23 class action, a collective action under the FLSA is pursued on an “opt-in” basis, requiring employees to provide their consent in writing to join the action. Id.; Murphy v. Ajinomoto Windsor, Inc., No. 1:15CV0120, 2017 WL 1194455, at *2 (E.D. Mo. Mar. 30, 2017).

         The FLSA does not define the term “similarly situated.” Kautsch v. Premier Communications, 504 F.Supp.2d 685, 689 (W.D. Mo. 2007). Moreover, the Eighth Circuit has not yet decided the standard for determining whether employees are “similarly situated.” District courts in this circuit, however, consistently apply a two-step analysis to the question of conditional certification. See, e.g., Kennedy v. Boulevard Bank, No. 4:12CV40 JCH, 2012 WL 3637766, at *2 (E.D. Mo. August 22, 2012); Ondes v. Monsanto Co., No. 4:11CV197 JAR, 2011 WL 6152858, at *2 (E.D. Mo. Dec. 12, 2011); Perrin v. Papa John's Intern., Inc., No. 4:09CV1335 AGF, 2011 WL 4089251, at *2 (E.D. Mo. Sept. 14, 2011); Beasely v. GC Servs. LP, 270 F.R.D. 442, 444 (E.D. Mo. 2010); and Littlefield v. Dealer Warranty Servs., LLC, 679 F.Supp.2d 1014, 1016 (E.D. Mo. 2010).

         Under this two-step process, the plaintiff first moves for class certification at an early stage in the litigation. Kautsch, 504 F.Supp.2d at 688. A plaintiff's burden when seeking conditional certification is not onerous and the merits of a plaintiff's claims are not considered. Id. Plaintiffs can meet this burden by making a modest factual showing, based upon the pleadings and affidavits, that the proposed class were victims of a single decision, policy, or plan. Ondes, 2011 WL 6152858, at *3 (citations omitted). The plaintiff “need not show that members of the conditionally certified class are actually similarly situated.” Dernovish v. AT&T Operations, Inc., No. 09-0015-CV-W-ODS, 2010 WL 143692, at *1 (W.D. Mo. Jan. 12, 2010) (internal quotations and citation omitted). The Court will not make any credibility determinations or findings of fact with respect to contradictory evidence presented by the parties at this initial stage. Perrin, 2011 WL 4089251, *3 (citing Luiken v. Domino's ...


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