# In the United States Court of Federal Claims

No. 13

- 457C (Filed: May 28 , 2014)

* * * * * * * * * * * * * * * * * *

* TAMARA BARRY, et al.

, * FLSA; 29 U.S.C. § 216(b);

* Collective Action; Conditional

Plaintiff s , * Certification; Class Definition;

* Class Notice; Statute of Limitations

v. *

*

THE UNITED STATES OF AMERICA

, *

*

Defendant. *

*

* * * * * * * * * * * * * * * * * *

Jacob Yaakov Statman

, Snider and Associates, LLC

, Baltimore, MD , for plaintiffs

Martin Mason Tomlinson , Civil Division, United States Department of Justice, Washington

, DC, for defendant

OPINION AND ORDER

KAPLAN, Judge:

Plaintiffs are current and former GS

- 1801 Immigration Officers (IOs) and GS

- 0132

Intelli gence Research Specialists (IRS s) with t he United States Department of Homeland Security (DHS) , United States Citizenship and Immigration Services (USCIS) Office of Fraud Detection and National Security

. Until February 12, 2012, USCIS designated plaintiffs’ positions as exempt 1 from the overtime provisions of the Fair Labor Standards Act (FL SA), 29 U.S.C. § § 201

- 219, as amended by the Portal

- to

- Portal Act, 29 U.S.C. §§ 251

- 262. In this suit, they seek backpay and liquidated damages under § 216(b) f or the hours they worked in excess of forty per week during the time that they were designated as FLSA exempt , prior to February 12,

1 The FLSA exempts from overtime pay requirements, among others, “any employee employed in a bona fide executive, administrative, or professional capacity .” 29 U.S.C. § 213(a)(1).2012

. 2 Plaintiffs also allege that the USCIS willfully violated the FLSA in designating them as

exempt , thus extending the statute of limitations under § 255(a) 3 from two years to three years.

Currently pending before the court is the plaintiffs’ motion for conditional certification of a collective action under § 216(b) of the FLSA and for a uthorization to m ail n otice to po tential

c lass m embers

. The government opposes the motion for conditional certification , primarily on the ground that, because the government no longer dispute s plaintiffs’ non

- exempt status, no common issues of law or fact unite the proposed class, and only individualized inquiries remain

for adjudication. The government also finds fault with plaintiffs’ proposed class definition and

class notic e . For the reasons that follow, the Court grants plaintiffs’ motion for conditional class certification, adopts a modified class definition that addresses the government’s concerns

, an d approves the notice attached to this Opinion for distribution to potential class members

.

DISCUSSION

I. LEGAL STANDARDS FOR CONDITIONAL CERTIFICATION OF AN FLSA

COLLECTIVE ACTION

A collective action under the FLSA “may be maintained against any employer .

. . 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) . To participate in the collective action, plaintiffs must “opt in”

— that is, they must give “consent in writing[,] . . . and such consent is filed in the court in which such action is brought .” Id.

This c ourt has adopted a two

- step approach for determining whether certification of a collective action is appropriate

. Whalen v. United States , 85 Fed. Cl. 380, 383 (2009). This approach “ involves a preliminary determination of whether the plaintiffs were subject to a common employment policy or plan, and then, after discovery, an opportunity for the defendant to decertify the collective action on the ground that the plaintiffs are not in fact similarly

situated .” Id. ( citing Cameron

- Grant v. Maxim Healthcare Servs. , 347 F.3d 1240, 1243 n.2 (11th

Cir. 2003) and Heckler v. DK Funding , 502 F. Supp. 2d 777, 779 (N.D. Ill. 2007) )

. T he first

step, which plaintiffs ask the Court to undertake here, is known as conditional certification , and it facilitates the opt

- in process by requiring the defendant to produce the names and addresses of employees in the proposed class and by settling the form of the notice to be distributed to the

class

. Whalen , 85 Fed. Cl. at 383.

Plaintiffs’ burden at the conditional certification stage is low. Specifically, plaintiffs need only “make a ‘modest factual showing, ’ ” based on “the pleadings, affidavits, and other

2 Section 207(a)(1) of the FLSA provides that “ no employer shall employ any of his employees

. . . for a workweek longer than forty hours unless such employee receives compensation for his employment in e xcess of the hours above specified at a rate not less than one and one

- half times the regular rate at which he is employed.”

3 Section 255(a) provides that “[a]ny action . . . for . . . unpaid overtime compensation . . . under the Fair Labor

Standards Act . . . 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 be commenced within three years after the cause of action accrued.”

2available evidence ,” that potential class members are “ similarly situated. ” Gayle v. United

States , 85 Fed. Cl. 72, 77 (2008) (citing Hoffmann v. Sbarro, Inc. , 982 F. Supp. 249, 261 (S.D.N.Y. 1997) and Cuzco v. Orion Builders, Inc.

, 477 F. Supp. 2d 6 28, 632 (S.D.N.Y. 2007)). The Supreme Court has indicated that potential class members are similarly situated if they share “common issues of law and fact arising from the same alleged [prohibited] activity.” Hoffman

La Roche, Inc. v. Sperling , 493 U.S. 165, 170 (1989).

II. APPLICATION OF THE STANDARDS FOR CONDITIONAL

CERTIFICATION

P laintiffs have made the required “modest showing” that the proposed class m embers are similarly situated. Thus, the proposed class members occupy the same positions in the same specific job series under the General Schedule . In addition, as the government has conceded , all proposed class members were previously misclassified as FLSA

- exempt employees , presumably

on the same basis

. T he government ’s argument that this concession e liminates any common questions of law or fact among the class members

, Def.’s Resp. 6

- 7

, is meritless

. Notwithstanding the government’s concession that it previously misclassified the plaintiffs’ positions as FLSA exempt, there remain two significant questions common to the class: ( 1) whether the government must pay class members liquidated damages (which can be avoided only if the government proves that it previously des ignated these employees as FLSA exempt in

goo d faith and with reasonable grounds for believing that such designation was consistent with the FLSA (29 U.S.C. § 260)); and ( 2) whether the government willfully vi olated the FLSA so

that a three

- year (rather than two

- year) statute of limitations applies

.

Nor is there any merit to the government’s argument that individualized questions regarding how much compensation each employee is due overwhelm any common questions, thus defeating the purpose of a collective action to “yield a more efficient or afford able resolution” of employees’ claims. See Def.’s Resp. at 9. I ndividualized damages determinations

must be made in virtually every FLSA case involving multiple plaintiffs ; if the existence of individual questions regarding the amount of damages due coul d defeat certification of a

collective action , section 216(b)’s provision for collective actions would be rendered null. Indeed, e ven in the Rule 23(b)(3) class action context, in which standards for certification are much more stringent, individualized i ssues of damages do not preclude class certification as long as “the damages sought are the result of the class

- wide injury that the suit alleges.” Gomez v. Tyson Foods, Inc. , 295 F.R.D. 397, 40 2 (D. Neb. 2013) (quoting Butler v. Sears, Roebuck &

Co. , 727 F.3d 796, 799 (7 th Cir. 2013)); see also Thompson v. Bruister & Assocs.

, 967 F. Supp. 2d 1204, 1217

- 18 (M.D. Tenn. 2013) ; Espinoza v. 953 Assocs. LLC , 280 F.R.D. 113, 130 (S.D.N.Y. 201 1 ) . Here, while damages among class me mbers may vary in amount because some members worked more overtime than others, all damages claimed are the result of the class

- wide misclassification of employees as exempt from FLSA requirements.

III. THE DEFINITION OF THE CLASS

The plaintiffs have submitted the following proposed definition of the conditional class:

All past or present employees of Defendant from February 12, 2009 until the present (the “Claims Period”) who: (1) at any time during the Claims Period

3worked within the United States; (2) encumbered at any time during the Claims

Period a GS

- 1801 Immigration Officer (“IO”) or GS

- 0132 Intelligence Research Specialist (“IRS”) position within the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services O ffice of Fraud Detection and National Security; and (3) had their FLSA exemption status converted from

exempt to non

- exempt.

Joint Submission 1

, ECF No. 25

.

The government ’s first object ion to this definition is based on the fact that “it encompasses employees who did not work in the s ame regional offices under the s ame timekeeping and compensation procedures as the named plaintiffs

. ” Joint Submission 2 ; see also Def.’s Resp. 12

- 13. The government observes that the plaintiffs “ have not identified any common method or plan for timekeeping regardin g hours worked, or any common methodology for providing compensation to IOs and IRSs who worked more than 40 hours per week in the relevant time period. ” Def.’s Resp. 12

- 13

.

This objection is clearly without merit. The government does not deny that empl oyees in the designated positions were subject to a nationwide policy under which they were not compensated at FLSA

- required overtime rates because their positions h ad been, on a nationwide basis, designated FLSA exempt. Va riations in the methods of time keeping or of assigning overtime work from region to region or supervisor to supervisor have no apparent bearing on the adjudication of the liability issues that are common to the proposed nationwide class , which are

based on that nati onwide policy

.

Th e cases cited by the government in support of this objection

, Def.’s Resp. 13

, are easily distinguishable from this one. In those cases , certification was denied because the plaintiffs failed to provide any evidence of the existence of a nationwide policy that affected all members

of the class. See Gayle , 85 Fed. Cl. at 78

- 79 (conditional class certification denied because plaintiffs failed to provide any evidence of a na tionwide policy of denying overtime compensation to per diem nurses at the VA); Briggs v. United States , 54 Fed. Cl. 205, 206

- 07 (2002) (no conditional class cer tification based on claim that Census employees in a number of

locations had been denied FLSA o vertime pay where there was no allegation of a common management practice or policy that served as the bas is for the denial of such pay). By contrast, in this case, the government does not deny that the decision to exempt these employees’ positions from t he FLSA was based on a nationwide policy.

In addition to its objection to the nationwide scope of the proposed conditional class, the government objects to the use of February 12, 2009 as the beginning date for the claims period

because use of that date would encompass potential opt

- in plaintiffs who are barred from participating by the statut e of limitations. Def.’s Resp. 14

- 15. It notes that t he statute of limitations for FLSA claims is three years at most ( 29 U.S.C. § 255(a) ) and su ggests that “ the form of notice be addressed to only those em ployees employed by the agency ‘ within three years of the date of th[is] notice

. ’ ” Def .’s Resp. 15 ( quoting Doucoure v. Matlyn Food, Inc. , 554 F. Supp. 2d 369, 3 73 (E.D.N.Y. 2008) )

.

4The gover nment’s point is well taken. The class definition should be limited to those whose claims are not barred by the statute of limitations, which is at most three years. In that regard, the Court is not persuaded by the plaintiffs’ reliance on a regulation issued by the Office of Personnel Management (OPM) ( 5 C.F.R. § 551.702 ) which governs the pursui t of FLSA claims through an OPM

- administered claims procedure. See Pl s

. ’ Reply 4

. Plaintiffs note that the government has acknowledged that it had already received fifty

- seven such administrative claims for backpay under the FLSA before this suit was filed and contend that

— as to these

individuals

— the OPM regulation requires that the t hree

- year look

- back period begin from the

date that the administrative claims were filed. Id

. (citing 5 C.F.R. § 551.702(c) (providing that a claimant “may preserve the claim period” for OPM’s administrative procedure “by submitting a written claim either to the agency employing the claimant during the claim period or to OPM”)).

Of course, an agency regulation cannot extend or alter the statute of lim itations for actions brought in court that is set forth in the FLSA , and the OPM regulations do not purport to

do so. In fact, the regulations themselves explicitly state that “[f] iling a claim w ith an agency or with OPM does not satisfy the statute of limitations governing FLSA claims filed in court. ” 5 C.F.R. § 551.703(c). Plaintiffs’ reliance on the OPM regulation is, accordingly, unavailing; any individuals with pending administ rative claims who choose to opt into this lawsuit will be entitled to recover in this Court for, at most, a claims period that begins three year s before they opt in to the case.

Accordingly, the Court adopts the following as the definition of the conditio nal class:

All past or present employees of Defendant from three years prior to the date of the current notice until the present (the “Claims Period”) who: (1) at any time during the Claims Period worked within the United States; (2) encumbered at any

tim e during the Claims Period a GS

- 1801 Immigration Officer (“IO”) or GS

- 0132 Intelligence Research Specialist (“IRS”) position within the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services office of Fraud

Detection and National Security; and (3) had their FLSA exemption status converted from exempt to non

- exempt.

IV. THE NOTICE

The plaintiffs and the government have worked together to prepare a Notice regarding the rights of potential plaintiffs to opt into this lawsuit. There remain two areas of disagreement between the parties . First, the government objects to including on the first page of the Notice at the top of the page a bolded, capitalized caption stating that “THIS NOTICE AND ITS

CONTENTS HAVE BEEN AUTHORIZED B Y THE UNITED STATES COURT OF

FEDERAL CLAIMS

. ” See Def.’s Resp. 15

- 16. It contends that the placement and form of this sentence improperly impl y court endorsement and encourage ment of plaintiffs to opt in to the

suit. Id. The government has submitted an alternative sample notice in which this caption appears on the last page of the Notice and is followed by a sentence stating that “THE COURT

HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF EITHER

PLAINTIFF’S CLAIMS OR DEFENDANT’S DEFENSES.” Def.’s Resp. Attach. A. Plaintiffs prefer that the caption appear on the first page “so that any potential class member immediately

5recognizes that the Court has authorized the mailing and not be under the false impression that the letter is junk mail or should be summarily thrown away.” Pl s. ’ Reply 5.

T he plaintiffs ’ point is well taken. The Court concludes that the caption as written and in

the context of the entire notice does not imply any court endorsement of the lawsuit itself. In

fact , t he proposed notice contains a sentence on page one that explicitly states that “no rulings on

the merits of this case have been made.” Joint Submission Ex. 1.

The second point of contention concerns a statement on page four of the proposed Notice

which s tates that federal law prohibits retaliation for taking part in this lawsuit or exercising their rights under the FLSA and advises persons who believe that they have suffered such retaliation to contact counsel for the plaintiff s . The government objects to the sentence advising individuals to contact plaintiffs’ counsel on the grounds that it “direct [ s ] individuals not necessarily related to plaintiffs’ claims to plaintiffs’ counsel .” Def .’s Resp

. 18. The Court agrees with the government on this point : it is sufficient to advise recipients of the Notice of their right to be free of retaliation, without explicitly directing them to plaintiffs’ counsel for assistance.

CONCLUSION

For the foregoing reasons, the plaintiffs’ motion for conditional certification of a

collective action is GRANTED

, and the Notice set forth in Attachment A to this opinion is approved for distribution.

IT IS SO ORDERED.

s/Elaine D. Kapla n ELAINE D. KAPLAN Judge

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