Udd v. Phoenix, City of

• Court: District Court, D. Arizona
• Decided: March 23, 2020
• Docket: 2:18-cv-01868
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Darren Udd, No. CV-18-01868-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 City of Phoenix,

13 Defendant. 14 15 At issue is Plaintiff Darren Udd’s Motion for Conditional Certification and Notice 16 of Lawsuit (Doc. 36, Mot.), to which Defendant City of Phoenix filed a Response (Doc. 47, 17 Resp.) and Plaintiff filed a Reply (Doc. 51, Reply). In this Order, the Court will also resolve 18 the parties’ discovery-related motions: Defendant’s Motion to Exclude Evidence and Legal 19 Theories which Plaintiff Concealed and Untimely Disclosed; Request for Sanctions (Doc. 20 37), and Plaintiff’s Motion to Exclude Defendant’s Untimely Disclosures (Doc. 50). The 21 Court will resolve all of these matters without oral argument. See LRCiv 7.2(f). 22 I. BACKGROUND 23 Plaintiff worked as a police officer for Defendant’s Police Department, and he 24 became a homicide detective in the Homicide Unit of the Violent Crimes Bureau in 2008, 25 where he worked until his retirement on December 15, 2017. (Doc. 36-1 at 3–8, Udd Decl. 26 at 1.) He alleges that Defendant did not compensate him for working off-the-clock overtime 27 hours as a homicide detective, even though Defendant knew or should have known he was 28 performing that work. In this lawsuit, Plaintiff, on behalf of a putative class of similarly- 1 situated homicide detectives, brings a claim against Defendant for failure to properly pay 2 overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). (Doc. 1, 3 Compl.) Plaintiff now moves for an Order conditionally certifying the class and requiring 4 Defendant to produce contact information for similarly-situated homicide detectives so that 5 Plaintiff can send out a notice of this lawsuit to potential class members. 6 II. LEGAL STANDARDS 7 Congress enacted the FLSA “to protect all covered workers from substandard wages 8 and oppressive working hours.” Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 9 728, 739 (1981). Among the FLSA’s central provisions is its requirement that employers 10 pay non-exempted workers at one and a half times the regular rate for any time worked in 11 excess of forty hours in a single week. 29 U.S.C. § 207; see Tyson Foods, Inc. v. 12 Bouaphakeo, 136 S. Ct. 1036, 1042 (2016). 13 The FLSA provides a mechanism—the “collective action”—through which workers 14 can sue jointly for violations of its overtime compensation and other provisions. See 29 15 U.S.C. § 216(b). The collective action allows a representative plaintiff to bring suit on 16 behalf of a group of workers who are “similarly situated,” see id., and thereby serves to (1) 17 reduce the burden on plaintiffs through the pooling of resources, and (2) make efficient use 18 of judicial resources by resolving common issues of law and fact together. See Hoffman- 19 La Rouche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). 20 The decision to certify a collective action under the FLSA is within the discretion 21 of the Court. Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010). To certify a 22 collective action under the FLSA, the Court must determine whether the named plaintiff 23 and potential opt-in members are “similarly situated.” 29 U.S.C. § 216(b). The FLSA does 24 not define the term “similarly situated,” and the Ninth Circuit Court of Appeals has not 25 construed the term. Colson, 687 F. Supp. 2d at 925. 26 The majority of courts, including this one, have adopted a two-tiered approach to 27 class certification. Id. First, and at issue here, is the “notice stage,” during which courts 28 determine based on pleadings and affidavits whether a collective action should be certified 1 on a conditional basis. Wynn v. Nat’l Broad. Co., Inc., 234 F. Supp. 2d 1067, 1082 (C.D. 2 Cal. 2002); see also Baughman v. Roadrunner Commc’ns LLC, No. CV 12-565-PHX-SRB, 3 2012 WL 12937133 at *3 (D. Ariz. Sept. 27, 2012). 4 Conditional certification at this first stage requires the plaintiff to make “substantial 5 allegations that the putative class members [are] subject to a single illegal policy, plan, or 6 decision.” Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). 7 Because of the minimal evidence available to the Court at the pleading stage, the initial 8 determination to certify is “based on a fairly lenient standard, and typically results in 9 ‘conditional certification’ of a representative class.” Wynn, 234 F. Supp. 2d at 1082. The 10 evidence must only show that there is some “factual nexus which binds the named plaintiffs 11 and the potential class members together as victims of a particular alleged policy or 12 practice.” Colson, 687 F. Supp. 2d at 926. But while the plaintiff’s burden is light, 13 conditional certification at this first stage is not automatic. Id. at 925. If the plaintiff meets 14 its burden and the Court grants conditional certification, a court-approved written notice is 15 sent to employees, who in turn become parties to a collective action only by filing written 16 consent with the court. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). 17 At the second stage, after discovery and often precipitated by a motion for 18 decertification by the defendant, the court reevaluates whether the claimants who have 19 consented to sue are indeed “similarly situated.” Wynn, 234 F. Supp. 2d at 1082. This 20 analysis, which is based on much more information, is subject to a stricter standard. Id. 21 22 23 24 25 III. ANALYSIS 26 A. Conditional Certification 27 1. Similarly Situated Potential Plaintiffs 28 1 To demonstrate that he is entitled to conditional class certification, Plaintiff first 2 provides his own declaration, in which he avers that he and other homicide detectives 3 worked numerous off-the-clock overtime hours and Defendant’s policies did not provide 4 for paying overtime hours when a homicide detective’s status was off duty, even though 5 Defendant knew homicide detectives were working off-the-clock. (Udd Decl. at 4–6.) 6 Plaintiff includes statements from his supervisor, Sergeant Lumley, that indicate that 7 Plaintiff worked “countless hours, off duty, at home.” (Udd Decl. at 2.) Plaintiff also avers 8 that the homicide detectives were under a heavy workload and had no choice but to work 9 off-the-clock to fulfill their duties. (Udd Decl. at 5.) 10 Plaintiff also supports his Motion with the declarations of two other homicide 11 detectives working for Defendant who were subject to the same policy or practice regarding 12 off-the-clock overtime pay as Plaintiff. (Doc. 36-1 at 10–13, Roe Decl.; Doc. 36-1 at 26– 13 28, Ruggeri Decl.) Those homicide detectives make similar statements regarding the heavy 14 workload under which they worked. (Roe Decl. at 2–3; Ruggeri Decl. at 2–3.) Plaintiff’s 15 spouse also prepared a declaration in which she avers that she observed Plaintiff working 16 for extended periods of time at home in the evenings, on weekends, on holidays, and on 17 sick days and other days off. (Doc. 36-1 at 45, Amy Udd Decl. at 1.) In addition, Plaintiff 18 provides with his Motion selected portions of Defendant’s policy documents, including 19 those related to overtime pay. (Mot. Ex. 5.) 20 In response, Defendant provides ten declarations of other detectives to argue that 21 detectives’ work practices vary greatly and Plaintiff cannot demonstrate a “homicide-wide 22 policy to deny overtime.” (Resp. at 15-17, Exs. 1–10.) As Plaintiff points out in his Reply, 23 four of these declarants do not aver they worked as homicide detectives, and two declarants 24 appear to have worked as homicide detectives outside the potential class period.1 (Reply at

25 1 Under the FLSA, an employee may bring an action on behalf of himself and other employees similarly situated within two years of when the action accrued or, in the case of 26 a willful violation, within three years. 29 U.S.C. § 216(b). Persons wishing to join an FLSA collective action must affirmatively opt in to the suit by filing a notice of consent. Under 27 the statute, “[n]o 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 28 such action is brought.” Id. For each plaintiff who opts in to the case after the filing of the complaint, the action is not considered commenced for purposes of the statute of limitations 1 3–4.) Plaintiff argues that three of the remaining four detectives do aver that they worked 2 without compensation during off-the-clock time, albeit of their own choice and without 3 informing supervisors. (Reply at 4; see Resp. Ex. 3 ¶ 14, Ex. 4 ¶ 16, Ex. 10 ¶ 15.) 4 The declarations Defendant submitted do not convince the Court that Plaintiff has 5 not met his burden at this first stage to show a factual nexus binding Plaintiff with other 6 homicide detectives as potential class members subject to Defendant’s alleged policy or 7 practice of not paying for off-the-clock overtime hours worked. See Colson, 687 F. Supp. 8 2d at 926. Plaintiff submitted his own declaration and two declarations of other homicide 9 detectives who by their statements are similarly situated potential class members, and even 10 Defendant’s declarants—to the extent they would fall within Plaintiff’s proposed class— 11 indicate a factual nexus with Plaintiff by stating they worked off-the-clock overtime hours 12 without compensation under Defendant’s policies.2 The Court will therefore grant 13 Plaintiff’s request for conditional class certification. See Leuthold, 224 F.R.D. at 462–63 14 (certifying a proposed class based on affidavits from three plaintiffs). 15 2. Notice 16 In response to Plaintiff’s proposed Notice of Overtime Lawsuit (Mot. Ex. 13), 17 Defendant makes several objections. First, Defendant proposes that it or a third-party 18 administrator—but not Plaintiff—send out the Notice to protect potential class members’ 19 privacy by not requiring Defendant to give Plaintiff the potential class members’ names 20 and addresses. (Mot. at 17.) Defendant argues that this is important in this instance given 21 that the potential class members are or were homicide detectives. Plaintiff “vigorously 22 objects,” considering that Defendant will only be disclosing the potential class members’ 23 contact information to Plaintiff, and Defendant has made no showing that such disclosure 24 puts the potential class members at risk. (Reply at 9–10.) The Court agrees with Plaintiff 25 that the case law cited by Defendant, U.S. Department of Defense v. Federal Labor 26 until the date on which the plaintiff's written consent is filed with the court. 29 U.S.C. § 27 256; see also 29 U.S.C. § 255(a).

28 2 The Court also notes that since the time Plaintiff filed his Motion, two individuals have filed consent to join forms with the Court to join this action as opt-in Plaintiffs. 1 Relations Authority, 510 U.S 487, 501 (1994), does not support the proposition that 2 potential class members’ contact information must be kept confidential from Plaintiff in 3 the present case. There, the Court sought to protect the contact information of non-union 4 members from a union, and no similar concerns exist here. The Court also agrees with 5 Plaintiff that a third-party administrator is not necessary in this instance, where the universe 6 of potential class members is relatively small. Accordingly, Defendant must provide to 7 Plaintiff the full name, last known address and last known e-mail address of all putative 8 class members—that is, current and former homicide detectives who have worked for the 9 Phoenix Police Department at any time during the last three years. 10 Next, Defendant requests that Plaintiff’s proposed 60-day opt-in period be reduced 11 to 45 days, citing for support a case from the Southern District of Ohio. This Court has 12 often approved a 90-day opt-in period in instances similar to this one, and in any event 13 does not find 60 days as proposed by Plaintiff to be excessive. Cf. Williams v. U.S. Bank 14 Nat. Ass’n, 290 F.R.D. 600, 614 (E.D. Cal. 2013) (rejecting conclusory proposal of a 60- 15 day, rather than 90-day, opt-in period where Defendant offered no “independent reason the 16 period should be reduced from 90 to 60 days,” other than that “some courts in this Circuit 17 have approved 60 days, and others have approved 90 days”). The opt-in period will be 60 18 days. 19 Defendant next proposes edits to Plaintiff’s proposed Notice. (Resp. Ex. 16.) The 20 Court disagrees with the first, namely, that the potential class only consist of homicide 21 detectives who performed off-the-clock work at home. Plaintiff has defined the potential 22 class as any homicide detective who has a claim for unpaid overtime wages, and the Court 23 rejects Defendant’s edits limiting the potential class beyond Plaintiff’s proposed definition. 24 Defendant next proposes informing potential collective action members that they 25 may be responsible for attorneys’ fees and costs should Defendant prevail. Citing cases 26 from other District Courts, Plaintiff argues that would chill participation. However, cases 27 in this District appear in accord that such information is necessary to fully inform opt-in 28 members of their rights and potential risks in joining the lawsuit. Schiller v. Rite of 1 Passage, Inc., No. 2:13-CV-0576-HRH, 2014 WL 644565 at *6 (D. Ariz. Feb. 19, 2014) 2 (“[P]otential class members should be made aware of the possibility of having to pay 3 defendant’s attorney’s fees if plaintiffs do not prevail.”); Barrera US Airways Grp., Inc., 4 No. CV-2012-02278-PHX, 2013 WL 4654567, at *9 (D. Ariz. Aug. 30, 2013). This is true 5 even though FLSA defendants may only be awarded attorney fees in certain situations. 6 Schiller, 2014 WL 644565 at *6. Thus, Plaintiff shall add a portion of Defendant’s 7 proposed language in section 4 of the Notice, beginning with deleting “will not owe any 8 attorneys’ fees,” and adding “you may be required to share in liability for payment of 9 attorneys’ fees and costs. If you chose to join the lawsuit, you and the City will be bound 10 by any ruling, judgment, or settlement, whether favorable or unfavorable.” (See Resp. Ex. 11 16.) 12 Defendant also proposes to add the name and contact information for defense 13 counsel. Cases within this District exist holding that granting the plaintiff’s counsel 14 exclusive access to potential collective action members could provide them “an avenue to 15 mislead potential collective action members in an attempt to secure their consent to join 16 the lawsuit.” Bados Madrid v. Peak Constr., Inc., No. 2:09-CV-00311 WJS, 2009 WL 17 2983193, at *3 (D. Ariz. Sept. 17, 2009). Further, nothing precludes pre-opt-in 18 communication with a potential FLSA § 216(b) plaintiff, “unless the communication 19 undermines or contradicts the Court’s notice.” Parks v. Eastwood Ins. Servs., Inc., 235 F. 20 Supp. 2d 1082, 1085 (C.D. Cal. 2002). “If an undermining or contradictory communication 21 is sent, the Court can control the proceedings through sanctions, requiring payment for a 22 curative notice, regulation of future ex parte communications, or other appropriate orders.” 23 Id. Accordingly, the Court will require defense counsel’s contact information to be 24 included in section 4 of the Notice as requested by Defendant (see Resp. Ex. 16), subject 25 to the foregoing admonition precluding all communication proscribed by applicable law. 26 Defendant provides no legal support for any of the other changes it proposes to the 27 Notice (Resp. at 18 & Ex. 16), and Plaintiff does not stipulate to them, so the Court rejects 28 the balance of proposed changes and will not require Plaintiff to make those edits. The 1 Court mentions in particular a provision proposed by Defendant that Plaintiff vigorously 2 objects to: “The law firm of Jackson White will typically keep 30% to 35% of any recovery 3 for itself.” This provision presents myriad issues, and because Defendant does not 4 substantiate its addition, Plaintiff shall not add it. 5 In sum, Defendant shall provide the required contact information to Plaintiff for 6 Plaintiff to send the Notice to potential class members. The opt-in period shall be 60 days. 7 Plaintiff shall add Defendant’s proposed provisions notifying putative class members of 8 potential liability for attorneys’ fees and costs and identifying defense counsel, but need 9 not make any further edits to the Notice. 10 B. Discovery Motions 11 Around the same time as their briefing on Plaintiff’s Motion for Conditional 12 Certification, each side filed a motion to exclude the other side’s allegedly late-disclosed 13 information under Federal Rule of Civil Procedure 37. At the outset, the Court must point 14 out that it does not ordinarily consider such motions in this format. In the Case Management 15 Conference, the Court discussed how it handles discovery disputes, saying that it was the 16 Court’s goal to resolve them “as quickly and cheaply as possible.” Thus, the Court said 17 that if the parties could not resolve a discovery dispute through meet and confer, the Court 18 did not want “a round of briefing,” but instead asked the parties to “simply file a document 19 that is captioned Joint Notice of Discovery Dispute” in which each party gives the Court 20 “a paragraph on [its] position, which [the Court] will the flesh out when we’re on the 21 phone” in a telephonic conference to be set within a couple of days of the parties’ filing of 22 the Joint Notice. (Case Management Conference, Oct. 1, 2018 Tr. at 5.) 23 Nevertheless, Defendant filed a 16-page Motion with 216 pages of exhibits to say 24 that Plaintiff acted in bad faith by not timely providing a calculation of damages that 25 included his precise off-the-clock overtime hours and a written policy on overtime pay— 26 which policy Plaintiff argues Defendant already possessed and had cited. (Docs. 37, 40.) 27 Not to be outdone, Plaintiff filed a 7-page brief with 44 pages of exhibits to tell the Court 28 that Defendant acted in bad faith by not timely disclosing the ten declarants Defendant 1 cited in its Response to Plaintiff’s Motion for Conditional Certification. Total briefing on 2 the two discovery motions consisted of 67 pages of argument and 492 pages of exhibits— 3 figures the Court only mentions as a measure of time and cost. 4 This is precisely what the Court endeavors to avoid. It is, as the Court said at the 5 Case Management Conference, “an anathema to Rule 1,” which provides that the Rules of 6 Civil Procedure “should be construed, administered, and employed by the court and the 7 parties to secure the just, speedy, and inexpensive determination of every action and 8 proceeding.” 9 In its discovery motion, Defendant states in a footnote that its counsel “personally 10 contacted Chambers to seek guidance on the proper method of bringing the issues set forth 11 in the present Motion to the Court’s attention” and “was advised to file a motion.” (Doc. 12 37 at 2 n.2.) No record of this call or the question posed to Chambers exists, which is one 13 of the principal problems with seeking direction from the Court over the phone (and 14 presumably ex parte). The Court had laid out its expectations in the event of a discovery 15 dispute between the parties at the Case Management Conference, which of course counsel 16 of record for both sides attended. The Court is cognizant that it did not issue its ordinary 17 Scheduling Order after the Case Management Conference because the Court agreed with 18 Defendant to set deadlines only for the first phase of this litigation. Nevertheless, 19 substantial time and cost could have been saved had the parties followed the Court’s 20 direction in the Case Management Conference. 21 The Court will neither exclude the allegedly late-disclosed evidence of each side 22 nor sanction either party. Neither side was seriously prejudiced by the other. The discovery 23 process in an FLSA collective action such as this one is confounded by the fact that the 24 litigation proceeds in several related stages and the first phase has certain discovery 25 deadlines. The Court had what was required to decide Plaintiff’s Motion for Conditional 26 Certification—the early and first stage of the litigation. The Court will now schedule a 27 second case management conference, in which new deadlines for discovery will be set. 28 1 || Each side will have ample time to conduct discovery on the information it believes the 2|| other side disclosed late in the first phase. 3 In the first Case Management Conference, Defendant’s counsel stated, □□□□□□□□□□□□ s counsel] and I have had a lot of cases together. I believe we tend to work well[—Jeven 5 || when he and I have discovery disputes[—]we tend to work well together. I think he would 6|| agree.” (Oct. 1, 2018 Tr. at 4.) Thus far, this has turned out to be untrue, and going forward 7 || the Court again encourages both sides to make every reasonable effort to resolve discovery 8 || disputes between themselves, keeping in mind the context of the entire case. 9 IT IS THEREFORE ORDERED granting Plaintiffs Motion for Conditional || Certification and Notice of Lawsuit (Doc. 36) with the following caveats: Within 14 days 11 || of the date of this Order, Defendant shall provide the required contact information to || Plaintiff for Plaintiff to send the Notice to potential class members. The opt-in period shall 13 || be 60 days. Plaintiff shall add Defendant’s proposed provisions notifying putative class 14 || members of potential liability for attorneys’ fees and costs and identifying defense counsel, 15 || but need not make any further edits to the Notice. 16 IT IS FURTHER ORDERED denying Defendant’s Motion to Exclude Evidence || and Legal Theories which Plaintiff Concealed and Untimely Disclosed; Request for || Sanctions (Doc. 37). 19 IT IS FURTHER ORDERED denying Plaintiff's Motion to Exclude Defendant’s 20 || Untimely Disclosures (Doc. 50). 21 IT IS FURTHER ORDERED that the Court will set a Case Management 22 || Conference for the second phase of this litigation by separate Order. 23 Dated this 23rd day of March, 2020. CN ‘eh: 5 wefhlee— Unifga State#District Judge 26 27 28

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