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Hubbard v. General Dynamics Information Technology, Inc.

United States District Court, S.D. Mississippi, Eastern Division

July 2, 2019




         This matter is before the Court on the Motion for Conditional Certification of a Collective Action Class [69] filed by Plaintiffs, LaCrystal Hubbard and Krisha D. Hollingsworth. Defendant, General Dynamics Information Technology, Inc. (“GDIT”), has responded [80, 81] and Plaintiffs replied [84]. Having reviewed the parties' submissions and the record in this cause, as well as the relevant legal authorities, and otherwise being fully advised in the premises, the Court finds that the motion is not well taken and will be denied.

         I. BACKGROUND

         GDIT has operated contact centers at thirteen locations throughout the United States pursuant to different government contracts. [81] at p. 2. One such contact center was located in Hattiesburg, Mississippi. Id. The primary focus of this contact center was to support the Centers for Medicare & Medicaid Services (“CMS”) with the Federally Facilitated Marketplaces and Medicare Program by taking calls from customers about these programs. Id. GDIT provided these services through a contract known as Contact Center Operations (“CCO”). Id. At the call centers GDIT employed CCO agents, including Customer Service Representatives (“CSR”), Internal Support Group (“ISG”) employees, Quality Specialists, Instructors/Trainers, and Supervisors to support the contract and the customer. Id.

         Plaintiffs, LaCrystal Hubbard (“Hubbard”) and Krisha D. Hollingsworth (“Hollingsworth”), former employees of GDIT in various capacities, filed this lawsuit against GDIT as individuals and on behalf of others similarly situated, for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.

         A. Allegations of the Amended Complaint and FLSA Violations

         In their Amended Complaint, Plaintiff Hubbard alleges[1] that she and others “similarly situated” worked over 40 hours in one week for one or more weeks while employed at GDIT, and GDIT did not compensate them on a routine basis and failed to compensate them at the proper rate for their overtime. [37] ¶¶ 10, 12. Plaintiffs allege that “Hubbard and others similarly situated worked approximately 10-20 overtime hours each week depending on the individual and the circumstances.” [37] ¶ 13. Allegedly, the

nature of the work performed during the overtime hours included work that was the responsibility of the employee at their regular rate of pay as well as work that was the responsibility of others who were paid at higher rates of pay. Often the purpose of the overtime was for employees to complete their daily duties and meet daily quotas . . . Failure to work overtime in order to meet said quotas resulted in disciplinary measures being taken against the employee.

[37] ¶ 14.

         In their “Collective Action General Allegations, ” Plaintiff Hubbard alleges that she brings the action on behalf of herself and “all persons who previously worked or currently work for GDIT at customer service call centers who were not paid an overtime premium at a rate not less than one and one-half (1½) times the regular rate at which they are employed for all hours in excess of forty (40) hours in a work week.” [37] at ¶ 19 (emphasis added). Plaintiffs then allege that Plaintiff Hubbard is factually similarly situated to the collective action members she seeks to represent and that she is “personally aware that other persons who worked for Defendant GDIT were subject to the same practices and policies instituted by Defendant GDIT of requiring the putative collective action Plaintiffs to work more than 40 hours in a single week and failing to pay them an overtime premium . . . .” [37] at ¶¶ 21, 22 (emphasis added). Plaintiff Hubbard also alleges that they worked “more than forty (40) hours each week, completing tasks that went beyond de minimis activities.” [37] ¶ 23. Finally, Plaintiffs allege that they and others have held multiple positions at GDIT that were misclassified as being exempt from overtime pay and were denied overtime pay as a result of such misclassification. [37] at ¶ 25.

         In the allegations particularly relating to alleged violations of the FLSA, Plaintiff Hubbard alleges that she and others were non-exempt and subject to the “FLSA as it pertains to whether or not Plaintiff Hubbard and others similarly situated were entitled to minimum wage and overtime pay for all hours over forty (40) hours worked in a given week.” [37] ¶ 36. She goes on to allege that they are entitled to overtime pay and have not received it and that GDIT violated the FLSA by misclassifying her and others as exempt employees. [37] at ¶¶ 37-39.

         B. Procedural History and Summary of Arguments

         Plaintiffs filed this action on May 24, 2018. [1]. There were a number of notices from opt-in plaintiffs filed early on in this matter. [8-18]. GDIT filed a Motion to Dismiss as to portions of the Plaintiffs' claims [21], and the Court dismissed Counts II and III with prejudice [34]. Following a case management conference on September 6, 2018, the Court entered an Initial Case Management Order allowing for a few months of discovery prior to the Plaintiffs having to file their Motion for Conditional Certification on or before the deadline of December 3, 2018 [36]. On September 7, 2019, Plaintiffs filed an Amended Complaint [37]. In the ensuing months, there were depositions, document exchanges, as well as written discovery taken. After being granted a brief extension for filing this motion [66], Plaintiffs now seek conditional certification.

         Plaintiffs seek to conditionally certify the following class:

All Hattiesburg, MS and Waco, TX General Dynamics Information Technology, Inc. (“GDIT”) non-exempt employees who were denied overtime pay and/or straight time pay as a result of policies, procedures, and customs and practice related to security and recording time worked.

[69] at ¶ 4.

         In support of their motion, Plaintiffs argue that Plaintiffs and other similarly situated non-exempt employees were denied overtime pay and/or straight pay as a result of GDIT's policies and practices: namely that both GDIT's security procedures and GDIT's time recording and time reporting policies/custom and practice resulted in uncompensated time worked. [70] at pp. 5, 16. Plaintiffs submitted numerous documents: GDIT's CCO Secure Floor Policy [69-3]; the written job description for a Quality Monitor [69-15]; HCSD Contact Center Non-Exempt Beginning and End of Day Guideline for Use with ETS NETT [69-6]; excerpts from the depositions of Hubbard [69-1] and Hollingsworth [69-2], and Joseph Doctor, the 30(b)(6) representative for GDIT [69-4, 5]; and declarations from the following individuals: Krisha Hollingsworth [69-7], Cedric Dallas [69-8], Alexandra Disney [69-9], Kenya J. Polion-McNaire [69-10], Whitney Ware [69-12], Carl E. Johnson [69-12], Betty Lee Young [69-12], and Rosa Belara Young [69-12]. Plaintiffs also submitted a proposed notice to go to potential class members [69-13] and proposed notice of consent to join [69-14].

         GDIT denies liability for violations of FLSA and presents a host of arguments in opposition to conditional certification.[2] In their opposition memorandum, GDIT asserts the following arguments: (1) Plaintiffs cannot obtain conditional certification of claims that are not actionable[3]and that the class to be certified is not supported by the allegations of the Amended Complaint; (2) Plaintiff Hubbard is not yet a party to the collective action and therefore not a proper class representative;[4] (3) Plaintiffs cannot show that they are similarly situated; (4) Plaintiffs have not shown sufficient interest in joining in the lawsuit;[5] (5) Some potential opt-in plaintiffs are not viable parties. [81]. GDIT also submitted a host of documentary evidence for the Court's consideration in determining whether Plaintiffs have carried their initial burden for issuing notice to a potential class of aggrieved employees. [80] Ex. 1-27.


         A. General Background of the FLSA

         Enacted in 1938, the FLSA established a minimum wage and a rate for overtime compensation for each hour worked in excess of forty (40) hours in each workweek. 29 U.S.C. §§ 206(a)(1), 207(a)(3). An employer who violates these provisions may be held civilly liable for backpay, liquidated damages, and attorney's fees. 29 U.S.C. § 216(b). However, the FLSA did not define “work” or “workweek.” As a result, as explained in the case of IBP, Inc. v. Alvarez, the United States Supreme Court interpreted those terms broadly, defining “work” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” 546 U.S. 21, 25 (2005) (citations omitted). Similarly, the high court defined “the statutory workweek” to “includ[e] all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace.” IBP, 546 U.S. at 25 (citations omitted). When such expansive definitions were applied, courts issued rulings that found the time spent traveling between mine portals and underground work areas and the time spent walking from timeclocks to work benches was compensable as part of the workweek. Id. at 26. (citations omitted). These decisions flooded the courts with litigation, and Congress responded by enacting the Portal-to-Portal Act. Id.

         The Portal-to-Portal Act exempted employers from liability on future claims for two categories of work-related activities, which had been previously been treated as compensable under the case law: walking on the employer's premises to and from the actual place of performance of the principal activity of the employee, and activities that were preliminary and postliminary to that principal activity. Id. at 27. Part III of the Portal-to-Portal Act entitled “Future Claims, ” provides in relevant part:

(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, ... on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act-
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

29 U.S.C. § 254(a).

         As mentioned, the FLSA requires covered employers to pay a minimum wage to employees and overtime compensation to non-exempt employees for hours they have worked in excess of the defined maximum hours. 29 U.S.C. §§ 206, 207(a). Claims against employers who have violated either the minimum wage or the overtime compensation requirements under 29 U.S.C. § 216(b) are typically called wage and hour claims.

         In some cases, despite the exemptions in the Portal-to-Portal Act, employees continue to seek recovery under the FLSA for certain preliminary and postliminary work activities that would seem to be exempted under the Portal-to-Portal Act by arguing that these activities are compensable because they are “an integral and indispensable part of the principal activities.” See, e.g., Steiner v. Mitchell, 350 U.S. 247, 256 (1956). Examples of such claims are those for having to don and doff specialized protective gear, see Steiner and IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), and having to participate in postliminary security screenings, see Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014).

         B. Legal Standard for Certification of Collective Action

         The FLSA permits a court to order an action to proceed as a collective action on behalf of others ...

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