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Andrako v. United States Steel Corp.

September 2, 2009

GEORGE ANDRAKO, ET AL., PLAINTIFFS,
v.
UNITED STATES STEEL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Ambrose, Chief District Judge

MEMORANDUM ORDER OF COURT

Plaintiffs brought this action against their employer, Defendant United States Steel Corporation ("U.S. Steel" or "Defendant"), under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., seeking compensation for time spent donning and doffing (i.e., putting on and taking off) certain protective gear as well as showering and walking to and from their workstations after donning and before doffing. On June 22, 2009, I issued an order entering partial summary judgment in favor of U.S. Steel, dismissing Plaintiffs' claims for time spent donning, doffing, and showering, but declining to dismiss Plaintiffs' claims for post-donning and pre-doffing walking time. (Docket No. 62).

Now pending before the Court is Plaintiffs' Amended Motion to Proceed as a Collective Action and to Facilitate Notice Under 29 U.S.C. § 216(b) (Docket No. 126), which Plaintiffs filed on August 20, 2009.*fn1 In their amended motion, Plaintiffs seek an order authorizing this case to proceed as a Section 216(b) collective action and authorizing notice to the following potential opt-in plaintiffs whom the Named Plaintiffs contend are similarly situated to them:

All hourly production and maintenance workers at the Clairton Coke Works, who, at any time since November 30, 2004 were employed in an "OSHA-regulated area," and who walked to and from the production facilities (the Coke plant) to don and doff protective gear and shower.

Pls.' Am. Mot. (Docket No. 126) ¶ 8. Plaintiffs also seek approval of proposed notice and opt-in consent forms; and notice and opt-in consent forms to be sent by Plaintiffs' counsel to potential optin plaintiffs by first class U.S. mail. Plaintiffs further request that a proposed fifteen-question Questionnaire be approved for mailing to potential opt-in plaintiffs along with the notice and opt-in consent forms. See Docket No. 126, and Exs. 1-3. Defendant opposes the Amended Motion. (Docket No. 188). After a careful review of the submissions by the parties and for the reasons discussed in this Memorandum Order, Plaintiffs' Motion is granted in part and denied in part.

I. Conditional Certification

A. Requirements

The FLSA mandates employers to pay employees at least the minimum wage for all hours worked. 29 U.S.C. § 201, et seq. The FLSA permits employees to maintain a collective action under 29 U.S.C. §216(b) on their own behalf and on behalf of all similarly situated employees. Plaintiffs have petitioned to proceed collectively against Defendant under 29 U.S.C. § 216(b) for compensation for post-donning time spent walking to the production facilities at the beginning of the day and time spent returning to the lockers at the end of the day prior to doffing and showering. In relevant part, Section 216(b) authorizes collective actions against employers: 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 brought. 29 U.S.C. § 216(b); Sperling v. Hoffman La-Roche, Inc., 862 F.2d 439, 444 (3d.Cir.1988) (two requirements for §216(b) class action are that employees are similarly situated and each class member file individual consent to opt-in).

The FLSA does not define the term "similarly situated" and neither the United States Supreme Court nor the Court of Appeals for the Third Circuit provide direct guidance on determining whether potential class members are similarly situated. In the absence of definitive precedent, district courts in the Third Circuit have developed a two-stage test. Kuznyetsov v. West Penn Allegheny Health Sys., No. 09-CV-379, 2009 WL 1515175, at *1 (W.D. Pa. June 1, 2009) (Ambrose, J.). During the initial notice stage, the court determines whether a class should be conditionally certified for the purpose of notice to potential opt-in plaintiffs and for pretrial discovery regarding their individual claims. Id. (citing cases). In so doing, the court preliminarily determines whether the proposed class consists of similarly situated employees. Id. (citing Smith v. Sovereign Bancorp, No. 03-2420, 2003 WL 22701017, at *2 (E.D. Pa. Nov. 13, 2003)). Courts generally examine the pleadings and affidavits of the parties to decide whether the proposed class members are similarly situated, see Aquilino v. Home Depot, Inc., No. 04-4100, 2006 WL 2583563 at *1 (D.N.J. Sept. 7, 2006), and utilize a "fairly lenient" standard in rendering such a determination. Pontius v. Delta Fin. Corp., No. 04-1737, 2005 WL 6103189, at *3 (W.D. Pa. June 24, 2005); see also Kuznyetsov, 2009 WL 1515175, at *1; DeAsencio v. Tyson Foods, 130 F. Supp. 2d 660, 663 (E.D. Pa. 2001) (at first tier, plaintiffs have "fairly low burden" to prove similarly situated requirement). If the plaintiff meets the requisite showing, the class is conditionally certified for the purpose of notice and discovery. Kuznyetsov, 2009 WL 1515175, at *1. Once the class is conditionally certified, notice is given to the potential plaintiffs so that they may elect whether to opt-in to the action. Id.

In the second stage of class certification, after the court is more fully informed through discovery, the defendant may move to decertify the class on the basis that the "similarly situated" standard has not been met and the court makes its final certification decision. Sperling, 826 F.2d at 444; Kuznyetsov, 2009 WL 1515175, at *2; Pontius, 2005 WL 6103189, at *3. The present matter involves a stage one analysis.

The district courts in this Circuit do not unanimously agree on the appropriate level of proof for a stage one determination that potential class members are similarly situated. Some courts confer conditional certification and notice if a plaintiff advances an allegation that he and the proposed class members were victims of a single employer policy. DeAsencio, 130 F. Supp. 2d at 663; Goldman v. Radio Shack Corp., No. 03-0032, 2003 WL 21250571, at *8 (E.D. Pa. April 16, 2003). Under this evidentiary approach, preliminary certification is granted upon a mere allegation that the putative class members were injured by a single policy of the defendant employer. Id. (conditional certification requires only lax showing of similarly situated). Others courts apply a more exacting, yet still relaxed, test requiring the plaintiffs to show a modest factual nexus between their situation and that of the proposed class members. Aquilino, 2006 WL 2583563, at *2; Smith, 2003 WL 22701017, at *2; Armstrong v. Weichert Realtors, No. 05-3120, 2006 WL 1455781, at *2 (D.N.J. May 19, 2006) (conditional certification issue determined under "modest factual showing" standard);Bishop v. AT&T Corp., No. 08-468, 2009 WL 763946, 2-3 (W.D. Pa. March 23, 2009); Dreyer v. Altchem Envt'l Servs., Inc., No. 06-2393, 2006 WL 3676013, at 2 (D.N.J. Dec. 12, 2006) (plaintiffs must show factual nexus between their situation and situations of other employees); Bond v. Nat'l City Bank of Pa., 2006 WL 1744474, 4 (W.D. Pa. June 22, 2006); Smith, 2003 WL 22701017, at 2-3.

In Smith, the district court observed that the mere allegation test contradicted the design of the FLSA's opt-in requirement to limit the size of collective actions, and chose to adopt the modest factual showing approach. Id. at **2-3. This evidentiary standard requires a plaintiff to show "a factual nexus between their situation and the situation of other current and former [employees] sufficient to determine that they are 'similarly situated.' " Aquilino, 2006 WL 2583563, at *1 (citation omitted). The Smith court described this standard of proof, as a "more stringent-although nonetheless lenient-test that requires the plaintiff to make a 'modest factual showing' that the similarly situated requirement is satisfied." Id. at *2 (citation omitted); see Mueller v. CBS, Inc., 201 F.R.D. 425, 428 (W.D. Pa. 2001) (requiring plaintiff to provide "a sufficient factual basis on which a reasonable inference could be made" that potential plaintiffs are similarly situated); Bosley v. Chubb Corp., No. 04CV4598, 2005 WL 1334565, 3 (E.D. Pa. June 3, 2005). I agree with the reasoning of those courts that have required a "modest factual showing" approach. See Kuznyetsov, 2009 WL 1515175, at *2. This approach "enables a court to narrow the potential class from all of a defendant's employees to just those employees who can possibly" have a claim under the same policy as allegedly affected Plaintiffs. Smith, 2003 WL 22701017, at *3; Kuznyetsov, 2009 WL 1515175, at *2.

B. Affidavits and Company Policies

To support their position, Plaintiffs submit the affidavits of two Named Plaintiffs, George Andrako and John McCormick. (Docket No. 127, Exs. 1, 2; Docket No. 149). Andrako's affidavit asserts that he has been employed by U.S. Steel at the Clairton Coke Works for 36 years and, at all relevant times, has worked on the "B Battery," an OSHA-regulated area. Andrako Aff. (Docket No. 149) ¶¶ 2-3. Andrako further asserts that he is required to don and doff protective gear and shower and that he dons, doffs, and showers at the plant's Maple Avenue locker room facility. Id. ¶¶ 3-4. Andrako further asserts that he walks to the Battery from the locker facility after donning and walks back to the locker room at the end of the production day to change and shower. Id. ¶ 5, 9. Andrako states that his walk between the Battery and the locker room takes approximately 15 minutes each way and that he has never been paid for this time. Id. ¶ 6. The affidavit further contends that all workers employed in OSHA regulated areas are required to don, doff and shower regardless of the location in the plant where they perform their work activities and that, with the exception of those workers who drive to the Batteries, all must walk to the plant from the locker rooms, regardless of which gate they enter from the street. Id. ¶¶ 10-11. McCormick's affidavit is materially similar to Andrako's, except that McCormick dons, doffs and showers at the plant's Wabash locker room facility and estimates that his walk between the Battery and the locker room takes approximately 10-15 minutes each way, depending on the route. McCormick Aff. (Docket No.127, Ex. 2) ¶ 3.*fn2 Plaintiffs also cite to the Declaration of ...


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