Roby v. Lincoln Electric Company, No. 1:2018cv00006 - Document 142 (N.D. Ohio 2021)
Court Description: Memorandum Opinion and Order denying Defendant's Motion for Summary Judgment (Related Doc # 131 ). Judge Donald C. Nugent on 4/14/2021. (M,S)
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Roby v. Lincoln Electric Company Doc. 142 Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 1 of 10. PageID #: 4170 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION ) CASE NO. 1:18CY006 ) ) ) ) JUDGE DONALD C. NUGENT ERIC ROBY, Plaintiff, V. THE LINCOLN ELECTRIC COMPANY, Defendant. ) ) MEMORANDUM OPINION ) AND ORDER ) This matter is before the Court on the motion of Defendant Lincoln Electric Company ("Lincoln")for Summary Judgment on Plaintiff Eric Roby's Fair Labor Standards Act("FLSA") Claim.(ECF #131). The motion is now fully briefed and ready for decision. For the reasons that follow. Defendant's Motion for Summary Judgment is denied. I. PROCEDURAL AND FACTUAL BACKGROUND^ The Named Plaintiff, Eric Rohy,filed this action on January 2,2018, on behalf of himself and "all others similarly situated," asserting one covmt: "Violation ofthe Fair Labor Standards Act-Failure to Pay Overtime Compensation based on Defendant, The Lincoln Electric Company's("Lincoln")imposition of a 20 minute meal period auto-deduction for piece rate Except as otherwise cited, the factual summary is based on the parties' briefing and supporting evidentiary materials. Dockets.Justia.com Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 2 of 10. PageID #: 4171 workers in certain departments at its Mentor and Euclid Ohio plants. With respect to Mr. Roby, the 20 minute meal period auto-deduction ended in December 2017.(Roby Dep.,ECF #131 Ex. A.) Mr. Roby received his final pay with that auto-deduction on December 20, 2017.(Pushey Deck f 3, ECF #131 Ex B). There have been no further meal deductions for piece workers taken from Mr. Roby's pay since that time. Id. The Court conditionally certified the class on December 28,2018. Following certification, 315 Plaintiffs opted in from a potential class of 1,255. All ofthe opt-in Plaintiffs signed and filed a "Consent to Sue Under the FLSA." Mr. Roby did not attach his written consent to the Complaint,^ nor did he sign and file the consent form that was signed and filed by all ofthe opt-in Plaintiffs. On February 24,2021,the Court granted Lincoln's Motion to Decertify the Conditionally Certified Collective Action and dismissed the claims of all opt-in Plaintiffs without prejudice. The only remaining plaintiffis Mr. Roby. II. STANDARD OF REVIEW Summaryjudgment is appropriate when the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter of law." Fed. R. Civ. P. 56(a). The burden of showing the absence ofany such "genuine issue" rests with the moving party: [A] party seeking summary judgment always bears the initial responsibility of informing the district court ofthe basis for its motion,and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a The Complaint, signed by Plaintiffs counsel, states in a footnote to paragraph 1 that "Roby's executed Consent to Sue form is attached as Exhibit A,however no Exhibit A was filed with the Court. -2- Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 3 of 10. PageID #: 4172 genuine issue of material fact. Celotex Corp. v. Catrett, All U.S. 317, 323(1986)(citations omitted). A fact is "material" only if its resolution will affect the outcome ofthe lawsuit Anderson v. Liberty Lobby, Inc., All U.S. 242,248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. The court will view the summaryjudgment motion in the light most favorable to the party opposing the motion Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587(1986). Summaryjudgment should be granted if a party who bears the burden of proof at trial does not establish an essential element oftheir case. Tolton v. American Biodyne, Inc., 48 F.3d 937,941 (d"' Cir. 1995)(citing Celotex, All U.S. at 322). Accordingly,"[t]he mere existence of a scintilla of evidence in support ofthe plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis,51 F.3d 476,479 (6**" Cir. 1995)(citing Anderson, All U.S. at 252). Moreover,ifthe evidence presented is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summaryjudgment. Anderson, All U.S. at 249-50(citations omitted). In most civil cases involving summaryjudgment,the court must decide "whether reasonable jurors could find by a preponderance ofthe evidence that the [non-moving party] is entitled to a verdict." Id. at 252. However,ifthe non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which,if believed, will meet the higher standard. Street v. J.C. Bradford & Co.,886 F.2d 1472,1479(6"" Cir. 1989). Once the moving party has satisfied its burden of proof, the burden then shifts to the non- -3- Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 4 of 10. PageID #: 4173 mover. The non-moving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by ajiuy." Cox v. Kentucky Dep't of Transp., 53 F.Sd 146,149(6"' Cir. 1995). Evidence may be presented by citing to particular parts ofthe record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes ofthe motion only), admissions, interrogatory answers, or other materials. Fed. R. Civ. P. 56(c). In lieu of presenting evidence. Fed. R. Civ. P. 56(c) also allows that a party may show that the opposing party's evidence does "not establish the presence of a genuine dispute" or that the adverse party "cannot produce admissible evidence to support the fact." According to Fed. R. Civ. P. 56(e), [i]f a party fails to properly support an assertion offact, or fails to properly address another party's assertion offact as required by Rule 56(c), the court may: (1)give an opportunity to properly support or address the fact; (2)consider the fact imdisputed for purposes ofthe motion; (3)grant summary judgment ifthe motion and supporting materials-including the facts considered undisputed -show that the movant is entitled to it; or (4)issue any other appropriate order In sum,proper summaryjudgment analysis entails "the threshold inquiry of determining whether there is the need for a trial—whether, in other words,there are any genuine factual issues that properly can be resolved only by a finder offact because they may reasonably be resolved in favor of either party." Anderson, All U.S. at 250. III. DISCUSSION Defendant asserts that it is entitled to summaryjudgment because Mr. Roby did not file -4- Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 5 of 10. PageID #: 4174 his written consent as required under Section 216(b)ofthe FLSA and the statute oflimitations does not stop running until a written consent is filed. As such, Defendant argues that Mr. Roby's claim is now time barred. Section 216(b)provides in relevant part: An action to recover the liability prescribed [in this section] may he maintained against any employer... in any Federal or State Court of competentjurisdiction 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)(emphasis supplied.) The statute oflimitations for an FLSA claim is two years, or ifthe violation is "willful," the limitations period is three years: (a)ifthe cause of action accrues on or after May 14,1947-[it] may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a 'willful' violation may he commenced within three years after the cause of action accrued. 29 U.S.C. § 255(a)(emphasis supplied.) Under Section 256, an action brought imder the FLSA commences: (a)on the date when the complaint is filed, if he is specifically named as a party plaintiffin the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or (b)if such written consent was not so filed or if his name did not so appear-on the subsequent date on which such written consent is filed in the court in which the action was commenced. 29 U.S.C. § 256. Thus, based upon the operation of Sections 255 and 256,the statute of -5- Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 6 of 10. PageID #: 4175 limitations for a 216(b) collective action does not stop running until a plaintiff, even the lead plaintiff, opts into the suit by filing a written consent with the Court. Because Mr. Roby never filed his written consent, the statute oflimitations never stopped running. His last paycheck in which the 20 minute auto-deduction was taken was December 20,2017-more than three years ago. Moreover, Mr. Roby testified that apart from the meal deduction, he was paid overtime whenever he worked more than 40 hours per week, thus, he has no basis for any impaid overtime claim apart from the 20 minute meal auto-deduction. Thus, Lincoln argues that Mr. Roby's claim is time barred. Plaintiff counters that while a named plaintiff in an FLSA action must file a written consent, the FLSA does not specify the form of written consent. Frye v. Baptist Mem. Hasp., Inc, 495 Fed. Appx.669,676 (6"' Cir. 2012). In Frye,the Sixth Circuit analyzed sections 216(b), 255 and 256 ofthe FLSA and concluded that the statutory language requires what it says:"a named plaintiff in a collective action [must] file a written consent to join the collective action." Id. at 675. While the plaintiff in Frye offered alternate conduct to constitute his written consent obligation, including hiring cormsel to file a collective action on his behalf, filing a complaint as class representative and appearing for deposition, the Sixth Circuit rejected the offerings noting that "even allowing latitude ofform,the requirement remains afiled written consent."Id. (Emphasis in original) The Court found that the filing ofan rmsigned deposition transcript or the filing of a collective complaint signed by his attorney did not satisfy FLSA's written-consent requirement, nor did the filing of his retainer agreement with counsel since the filing was made after the expiration ofthe FLSA's two and three year statutes oflimitations. Id. Here, Mr. Roby asserts that his declaration attached to his Motion for Conditional -6- Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 7 of 10. PageID #: 4176 Certification, filed on June 22,2018 satisfies the written consent requirement of§ 256.(See ECF #27-2) Other coiirts have fovuid that declarations made under oath submitted with a motion for conditional certification satisfies the written consent reqxxirement. See Arocho v. Crystal Clear Bldg. Services, Inc., 2015 WL 1400549 at *2(N.D. Ohio March 26,2015)(Declaration stating "I consent to bring this action on behalf of myself and all other similarly situated employees..." satisfied § 256 requirement). Lincoln argues that unlike Arocho,the Declaration filed by Mr. Roby does not contain the statement "I consent to bring this action on behalf of myself and all other similarly situated employees." Plaintiff points to the case caption of his Declaration which has his name in all capital letters followed by"On behalf of himself and all others similarly situated." Plaintiff also notes that Mr. Roby signed the declaration imder oath and described not only his own experience with Defendant's failure to pay him all wages due, but also his knowledge regarding Lincoln's failure to pay other piece rate employees. Plaintiff argues that this Declaration manifests Mr. Roby's consent to pursue this matter as a collective action and satisfies the requirement of§ 256. Many courts have determined that signed declarations or affidavits indicating that the signee is willing to serve as a party plaintiff in a collective action are sufficient to satisfy § 256. See Pineda v. Skinner Servs., Inc., 2020 WL 5575160, at *15(D. Mass. Sept. 28, 2020)(Plaintiff's declaration filed with motion for conditional certification titled "CONSENT TO JOIN COLLECTIVE ACTION" and including language "I hereby consent to become a plaintiff and to be bound byjudgment by the court or any settlement or resolution ofthis lawsuit."); Mayhew v. Loved Ones In Home Care, LLC,2018 WL 6816073 at *2(S.D. W. Va. December 27,2018)(lead plaintiffs signed affidavit attached to motion for conditional certification in -7- Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 8 of 10. PageID #: 4177 which she asserts that she is the plaintiff in the action and identifies the compensation practices alleged in the complaint to violate the FSLA which she asserts have negatively affected her and other employees is sufficient to satisfy § 256.); Callari v. Blackman Plumbing Supply, Inc., 988 F.Supp.2d 261,282(E.D. NY 2013)(signed declaration oflead plaintiff submitted in connection with his motion to compel responses to interrogatories satisfied written consent requirement where affidavit stated that he was the named plaintiffin this action and the caption ofthe declaration states that the plaintiff is bringing the action on behalf of himself and other employees similarly situated.); Mendez v. The Radec Corp.,260 F.R.D. 38,52(W.D.N.Y. 2009)("Courts have generally not taken a strict approach with regard to theform ofthe written consent, at least with respect to named Plaintiffs." In Mendez,the lead plaintifffiled an affirmation with his motion for class certification and for court approval to proceed as a collective action which stated "I am the Named Plaintiffin the above captioned matter" and the caption named Mendez as plaintiff on behalf of himself and all other employees similarly situated.); Contrera v. Longer,290 F.Supp.3d 269,277-279(S.D.N.Y. 2018)(declaration with same averments as in Mendez satisfies § 256 consent requirement.) While these cases all confirm that the form ofthe written consent is not strictly prescribed. Defendant coimters that the declarations or affidavits in those cases contained words to the effect that" I am the plaintiff in the captioned case" along with some other indication that they consented to participation in a collective action. Although the Sixth Circuit has not weighed in on the exact form a consent should take, it seems clear from Frye that the consent must be written and signed by the plaintiff and manifest the plaintiffs intent to participate in the -8- Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 9 of 10. PageID #: 4178 collective action.^ The "purpose ofthe consent requirement, presumably, is to put the [d]efendants on notice' and 'to ensure that each plaintiffintends to participate in the case, and is not simply a procedural figurehead for an enterprising class action lawyer." Mendez, supra, 988 F.Supp.2d at281 quoting D'Antuono v. C&GofGroton,/nc.,2012 WL 1188197,at*2(D. Conn. Apr. 19,2012). See also, Faust v. Comcast Cable Communications Management, LLC, 2013 WL 5587291 at *5(D. Md Oct. 9,2013)("The Court declines to read the consent requirement of Sections 216 and 256 so strictly as to require that a plaintiff explicitly state 'I consent' or 'I am the named Plaintiff in order to join a collective action under the FLSA. Rather, a signed declaration that 'manifests a clear intent to be a party plaintiff is sufficient to operate as consent.") While Mr. Roby's Declaration does not state that he is the plaintiff in the captioned matter, it does contain the caption ofthe case which shows Roby as the named plaintiff on behalf of himself and all others similarly situated. The Declaration echos the of violations ofthe FLSA asserted in the Complaint and states that both he and other employees have been negatively affected by the improper policy. The Declaration was submitted with Plaintiffs Motion for Conditional Certification which leads to the conclusion that Mr. Roby was aware that he was participating in a collective action. Mr. Roby's Declaration demonstrates his consent to be a party plaintiff in this action thus satisfying the statutory requirement. Further, the Declaration comports While the Supreme Court has not specifically considered this question, it stated in a footnote that "[ejven ifthis requirement [to file a written consent] were to apply to petitioner's suit, ... it was satisfied when petitioners individually signed at least two sets ofinterrogatories." Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728,736 n.ll (1981). -9- Case: 1:18-cv-00006-DCN Doc #: 142 Filed: 04/14/21 10 of 10. PageID #: 4179 with the purpose ofthe statute in that it put the Defendant on notice and ensured that Mr. Rohy intended to act as a plaintiff in a collective action. See Contrera, supra, 290 F.Supp.3d at 278. Since Mr. Rohy's Declaration was filed within the two and/or three year statutes oflimitation, Mr. Rohy's claim is not time barred. IV. CONCLUSION For the reasons stated above, Defendant's Motion for Summary Judgment(ECF #131) is denied. IT IS SO ORDERED. DONALD C. NUGEl United States District 5-ddge DATED: , »v>v.v , -10-
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