The court heard argument on plaintiff Ryan Young's motion for an order granting preliminary approval of a proposed FLSA class on January 31, 2012. (ECF 45.) Gregory Alumit appeared for plaintiff; David King and Jennifer Garten appeared for defendant. For the following reasons, the court GRANTS in part and DENIES in part plaintiff's motion for conditional certification.
I. ALLEGED FACTS AND PROCEDURAL BACKGROUND
Plaintiff, a corrections officer at Mule Creek State Prison, claims that the California Department of Corrections and Rehabilitation's ("CDCR") policy to request time off illegally requires him and other putative class members to work without being paid. (FAC ¶¶ 1-3, 13-15.) Plaintiff alleges that all adult CDCR facilities in the state of California utilize this same policy, which requires that Holiday Time Off ("HTO") request forms be submitted exactly thirty days prior to the holiday requested and exactly thirty minutes prior to the start of the shift on the day the request is submitted. (Id. ¶¶ 13-15.) Plaintiff alleges this policy also requires correctional officers to wear their uniforms as they submit their HTO forms. (Id. ¶ 14.) Moreover, upon arriving at work to submit HTO forms, plaintiff alleges corrections officers are often asked to perform tasks before their assigned work time begins. (Id.) Officers are not paid for this additional time worked. (Id. ¶ 15.)
Plaintiff seeks to certify a class of all those who "are employed by [California] in a variety of correctional peace officer classifications and work at the various prisons, institutions, and offices run by the [CDCR]." (Id. ¶ 10.) Plaintiff claims these correctional officers' responsibilities include "feeding inmates, escort duties within the institutions, supervising inmates 24-hours-per-day, parole agent services, correctional firefighting, and inmate medical and counseling services." (Id. ¶ 11.) While plaintiff alleges CDCR operates thirty-three adult facilities and seven juvenile detention centers, plaintiff lists approximately thirty-nine facilities throughout California where putative class members are alleged to work. (Id.) The putative class consists of more than 10,000 members. (Id. ¶ 9.)
Plaintiff filed his original complaint on September 20, 2011. (ECF 1.) This court granted defendant's motion to dismiss (ECF 8) on November 29, 2011 on sovereign immunity grounds, concomitantly granting plaintiff leave to amend to seek prospective declaratory relief only. (ECF 16.) Plaintiff filed his amended complaint on December 27, 2011. (ECF 17.) Following two extensions of the pre-certification discovery deadline, plaintiff moved to conditionally certify this class on December 7, 2012. (ECF 45.) Defendant filed an opposition on January 17, 2013 (ECF 48), and plaintiff filed a reply on January 24 (ECF 56).
Plaintiff seeks conditional certification for a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Under the FLSA, an employer must pay a non-exempt employee at a rate not less than time-and-a-half his or her regular rate of pay if the employee works more than forty hours in one week. 29 U.S.C. § 207(a)(1); Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642, 647 (W.D. Wash. 2011). An employee may pursue an FLSA action to recover unpaid overtime wages and may bring the action "for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216; Troy, 276 F.R.D. at 649.
Most courts use a two-step approach to certification of a FLSA collective action. First, the court undertakes an initial inquiry, based primarily on the pleadings and any affidavits submitted by the parties, to determine whether plaintiff is similarly situated to the proposed class so that notice may be sent to the potential class members. Troy, 276 F.R.D. at 649; Leuthold v. Destination Am., 224 F.R.D. 462, 466-67 (N.D. Cal. 2004). At this first stage, "the Court requires little more than substantial allegations, supported by declarations or discovery, that the putative class members were together the victims of a single decision, policy, or plan." Troy, 276 F.R.D. at 649 (internal quotation marks, citations omitted). Second, after class members have opted in, the court employs a stricter standard in determining whether a collective action is warranted and whether the ultimate settlement is fair. Knipsel v. Chrysler Grp., LLC, No. 11-11886, 2012 WL 553722, at *1 (E.D. Mich. Feb. 21, 2012); Khait v. Whirlpool Corp., No. 06-6381 (ALC), 2010 WL 2025106, at *7 (E.D.N.Y. Jan. 20, 2010).
Plaintiff supports his claim of an illegal statewide policy with copies of employee policies from several correctional facilities and twelve declarations from plaintiff and some of his co-workers at Mule Creek. (Exs. A-O, Pl.'s Mot. for Conditional Certification, ECF 45.) Arguing the declarations are sufficient to meet the first step of the certification burden, plaintiff cites to Tolentino v. C & J Spec-Rent Servs. Inc., 716 F. Supp. 2d 642 (S.D. Tex. 2010) and Aguayo v. Oldenkamp Trucking, No. 04-6279, 2005 WL 2436477 (E.D. Cal. Oct. 3, 2005). (Pl.'s Reply 4, ECF 56.) Plaintiff additionally argues that the only proper inquiry at this point is whether the proposed class is subject to a single policy. (ECF 45 at 4; ECF 56 at 2-4.) Plaintiff urges that conditional certification will aid in efficient resolution of the many potential claims involving the CDCR policies he says are widely-applied. (ECF 56 at 5.) Assuming the class is certified, plaintiff also seeks to protect the broad scope of the proposed class. (Id. at 5-7.) Plaintiff stresses that the exact duties performed by the various employees are relatively unimportant in determining whether they were similarly situated because the complaint regards holiday time and not performance of duties. (Id. at 4.)
Defendant argues that the applicable CDCR employee policy manuals do not set forth the policies plaintiff claims they do, and that there is no common policy on HTO to which the proposed class is subject. (Def.'s Opp'n at 6-10, ECF 48.) Defendant cites to Valesquez v. HSBC Finance Corp., 266 F.R.D. 424 (N.D. Cal. 2010) and Hinojos v. Home Depot, 2:06-CV-00108, 2006 WL 3712944 (D. Nev. Dec. 1, 2006) for the proposition that plaintiff's declarations are insufficient given the scope of the class. (Id. at 10-11.) Defendant also argues there is no nexus linking the members of the proposed class, even if there were a common policy. (Id. at 13-15.) Lastly, defendant objects to the scope of the class, as well as the definition of the class and the proposed notice methods if the class is certified. (Id. at 15-20.)
A. Authentication of Exhibits
Initially, the court addresses sua sponte its concerns regarding the
plaintiff's exhibits containing copies of correctional facilities'
employee policies, which are not accompanied by a declaration
identifying the exhibits and swearing to their validity. However, the
Bates stamps and headings included for the majority of the policies
permit the court to
authenticate them under Federal Rule of Evidence 901(b)(4).*fn1
Las Vegas Sands v. Nehme, 632
F.3d 526, 532-33 (9th Cir. 2011). In the case of two documents,
however, attached to plaintiff's brief as Exhibit C, pages 1 to 3 and
11, no information ...