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Fein v. City of Benicia

United States District Court, E.D. California

August 31, 2017

JASON FEIN, on behalf of himself and all similarly situated individuals, Plaintiff,



         Presently before the Court is Plaintiff's Renewed Motion for Conditional Certification and Facilitated Notice, ECF No. 22, under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-19. Plaintiff previously moved for conditional certification and facilitated notice, ECF No. 6, but that motion was denied for failure to “meet the lenient standard for conditional certification, ” ECF No. 12, at 4. Plaintiff has now met his burden as set forth below, and his motion is accordingly GRANTED.[1]


         Plaintiff Jason Fein is a fire captain employed by Defendant City of Benicia. As part of his compensation, Plaintiff has the option of declining health benefits and receiving cash instead. Plaintiff has exercised this option. In this lawsuit, Plaintiff alleges that his “regular rate” of pay for purposes of calculating overtime compensation under the FLSA should have, but did not, include these cash-in-lieu-of-health-benefits payments. That is, Plaintiff contends he was underpaid for overtime work, which is to be paid at one-and-a-half times his regular rate of pay.

         Plaintiff is party to a collective bargaining agreement, and thus his fellow employees were given the same option. Plaintiff therefore contends that his fellow fire captains are “similarly situated” under the FLSA if they also opted for cash in lieu of health benefits and worked overtime. Plaintiff also identifies four other collective bargaining agreements-called memorandums of understanding (“MOUs”)-in force between Defendant and other types of workers that contain similar options to collect cash instead of health benefits. Accordingly, Plaintiff claims that employees subject to these other MOUs who also opted for cash in lieu of health benefits and worked overtime are “similarly situated” under the FLSA.

         In light of these arguments, Plaintiff seeks conditional certification of the following class under the FLSA: “any and all current or former employees of the City of Benicia who have worked overtime and received cash payments in lieu of health care benefits within the same pay period at any time since June 27, 2013.” Pl.'s Renewed Mot. for Conditional Certification (“Pl's Mot.”), ECF No. 22, at 1.


         “The [C]ourt's determination of whether a collective action is appropriate is discretionary. Plaintiffs bear the burden of showing that they and the proposed class are similarly situated for purposes of [29 U.S.C. § 216(b)]. The term ‘similarly situated' is not defined under the FLSA and the Ninth Circuit has yet to address the issue.” Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 535-36 (N.D. Cal. 2007) (citations omitted). “While courts have employed several approaches to interpret whether the parties are ‘similarly situated, ' this Court follows a two-tiered case-by-case approach.” Rodriguez v. SGLC, Inc., No. 2:08-cv-01971-MCE-KJM, 2009 WL 454613, at *1 (E.D. Cal. Feb. 5, 2009) (quoting Adams, 242 F.R.D. at 536).

The first step under the two-tiered approach considers whether the proposed class should be given notice of the action. This decision is based on the pleadings and affidavits submitted by the parties. The court makes this determination under a fairly lenient standard due to the limited amount of evidence before it. . . . In the second step, the party opposing the certification may move to decertify the class once discovery is complete and the case is ready to be tried.

Id. (ellipsis in original) (quoting Adams, 242 F.R.D. at 536).

         Under this two-tiered approach, courts also vary on what satisfies the “fairly lenient standard” required under the first step. Some require only that plaintiffs demonstrate the existence of a common plan or policy. See, e.g., Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 67-68 (E.D. Pa. 2009). Others follow a “hybrid” approach that also looks to whether the work duties of the class members are sufficiently similar. See, e.g., Smith v. Tradesmen Int'l, Inc., 289 F.Supp.2d 1269, 1372 (S.D. Fla. 2003).


         In support of his prior motion for conditional certification and facilitated notice, “Plaintiff provide[d] only his declaration that he is ‘aware of other fire captains who are subject to' Defendant's allegedly unlawful payment scheme and his attorney's declaration that he is ‘informed and believe[s]' that other City employees fit into the proposed class.” Mem. & Order, at 4. The Court denied that motion because “Plaintiff ha[d] not specifically identified a single other potential plaintiff and thus c[ould not] meet the lenient standard for conditional certification.” Id.; see also Adams, 242 F.R.D. at 536 (“[T]he named plaintiff must demonstrate that there existed at least one similarly situated person . . . .”).

         To remedy the defects of his prior motion, Plaintiff now provides declarations from other firefighters that they received cash in lieu of health benefits, worked overtime, and did not have those cash payments figured into their regular rate of pay for overtime pay calculation purposes. See Decl. of Carl Littorno, ECF No. 22-4; Decl. of David Calkins, ECF No. 22-5; Decl. of Drake Martin, ECF No. 22-6; Decl. of Gregory Peterson, ECF No. 22-7. Plaintiff also provides declarations from police officers-who are governed by a different one of the five MOUs the City has with its various employees-who were also subject to this allegedly unlawful practice. See Decl. of Majonne Roberson, ECF No. 22-8; Decl. of Sergio Cruz, ECF No. 22-9. Plaintiff argues that these declarations demonstrate ‚ÄúDefendant uniformly applies [the challenged] policy to all current and former employees regardless of job classification, bargaining unit[, ] or whether they were covered by a ...

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