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David v. Kohler Co.

United States District Court, W.D. Tennessee

August 30, 2017

RICHARD DAVID and MATT HOFFMAN individually and on behalf of others similarly situated, Plaintiffs,
KOHLER CO., Defendant.



         Before the Court is Plaintiffs Richard David and Matt Hoffman’s Amended Motion to Certify (ECF No. 46). The Motion was referred to the United States Magistrate Judge, and the Magistrate Judge has issued his Report and Recommendation (ECF No. 60). For the reasons set forth below, the Court ADOPTS the Report and Recommendation, GRANTS Plaintiffs’ Amended Motion to Certify, and orders other appropriate relief.


         The Magistrate Judge has reported the following background facts, which the Court hereby adopts as its own findings. Plaintiffs were hourly-paid manufacturing employees of Defendant Kohler Co. (Amended Compl., ECF No. 40, ¶ 4, 6; Exhibits C-F.) Plaintiffs Richard Davis and Matt Hoffman each alleges that he was employed at Kohler’s manufacturing plant in Union City, Tennessee as an hourly-paid manufacturing employee within the three years preceding the filing of this suit. Each alleges that he performed off-the-clock work (including before, during, or after shifts and through meal breaks) without being clocked in and therefore without compensation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). Since Davis and Hoffman filed their initial Complaint, fourteen other Plaintiffs have given their consent to join the action: Michael Swain (Huntsville, Alabama), Larry McClendon (Sheridan, Arkansas), Benjamin Pruitt (Union City, Tennessee), Tasia Jackson (Union City, Tennessee), Angela Kroll (Kohler, Wisconsin), Jeffrey King (Brownwood, Texas), Candise McKellar (Hattiesburg, Mississippi), Janet Bundy (Brownwood, Texas), Patricia McClendon (Hattiesburg, Mississippi), Thomas Hence (Hattiesburg, Mississippi), Jamar Drumgoole (Sheridan, Arkansas), Derick Bennett (Hattiesburg, Mississippi), Latasha Smith (Union City, Tennessee), and Danny L. Keene (Kohler, Wisconsin).

         Each of the 14 opt-in Plaintiffs have filed declarations indicating that that they were also hourly-paid manufacturing employees of Kohler within the three years preceding the filing of this suit and were subject to Defendant’s off-the-clock policies or practices (including work performed before, during and after work and/or during meal breaks without being clocked in), all of which deprived them of compensation and resulted in violations of FLSA overtime requirements. All of the opt-in Plaintiffs assert that they were similarly situated to Plaintiffs Davis and Hoffman during the class period. Opt-in Plaintiff Janet Bundy, a Kohler employee in Brownwood, Texas, also indicated in her declaration that she “observed other hourly-paid co-workers performing ‘off-the-clock’ work before, during or after their shifts during [her] employment at Kohler during the last three years.” (See “Consent Declarations,” Collective Exhibit F, Bundy Decl. ¶ 5.)

         The Magistrate Judge has recommended that the Court grant Plaintiffs’ Amended Motion to Certify. The Magistrate Judge concluded that Plaintiffs have met their lenient burden at this stage of the case to show that they are similarly situated to the putative class they seek to represent, despite the fact that the named Plaintiffs and the opt-in Plaintiffs are employed at six different facilities working different jobs in different departments. The Magistrate Judge reasoned that these differences could result in decertification at a later stage of the case. However, for purposes of conditional certification, the Magistrate Judge found that Plaintiffs had met their burden to show that they were similarly situated. The Magistrate Judge therefore recommended as follows:

(1) the Court issue an order authorizing this case to proceed as a collective action against Defendant Kohler Co. and directing the parties to confer and file a mutually acceptable notice;
(2) the Court issue an order directing Defendant to immediately provide a list of names, last known addresses, and last known telephone numbers for all putative class members within the last three years;
(3) the Court order Defendant to post the notice prominently at each of Defendant’s manufacturing facilities in the United States where putative class members work. This notice shall also be mailed (at Plaintiffs’ expense) to each such current and former hourly-paid manufacturing employee who was so employed during the last three years so each can assess their claims on a timely basis as part of this litigation; and
(4) the Court issue an Order tolling the statute of limitations for the putative class as of the date the motion is granted (except for those who already have opted into this action) and requiring that the opt-in Plaintiffs’ consent forms be deemed “filed” on the date they are postmarked.

         Kohler has filed timely objections to the Magistrate Judge’s report and recommendation. Just as it did in opposing Plaintiffs’ Amended Motion to Certify, Defendant emphasizes the disparities among the members of the putative class. According to Kohler, Plaintiffs have not shown that they are similarly situated to the rest of the class they seek to represent, that all members of the putative class suffered from a single company policy in violation of the FLSA, or that a common theory of liability unifies their claims against Kohler. The putative class is defined so broadly as to include all of Kohler’s hourly-wage workers. In other words Plaintiffs seek to represent as many as 8,100 Kohler employees working at six facilities, all located in different states. The putative class consists of employees working in widely divergent positions with distinct job descriptions. Each facility has its own management structure and timekeeping procedures. In addition to the sheer number and variety of work settings, Defendant also cites the fact that not all of the opt-in Plaintiffs experienced the same practices described in the Amended Complaint. Kohler contends that the Magistrate Judge reached his recommended conclusion to grant certification but without an analysis of these specific showings.

         To the extent that the Court is inclined to grant conditional certification, Kohler requests that the Court define more precisely the putative class. Plaintiffs seek conditional certification of a class of all hourly employees of Kohler. Defendant again emphasizes the factual differences between the work settings of each member of the putative class. The Court should therefore redraw the parameters of the putative class with these distinctions in mind. Defendant also suggests that class treatment is inappropriate in light of the relatively small number of Plaintiffs who have opted into the suit. Finally, Defendant objects to the Magistrate Judge’s recommendations that the Court toll the statute of limitations for all prospective opt-in plaintiffs, that Kohler be required to provide the telephone numbers of its employees immediately, and that it post notice of the collective action at its facilities.

         Plaintiffs have filed a response to Defendant’s objections. Plaintiffs contend that they have made a prima facie showing that they are similarly situated to the members of the putative class, i.e. “all Kohler hourly-paid manufacturing employees” who were subject to Kohler’s “off-the-clock” policies. Pls.’ Resp. to Def.’s Obj. 10 (ECF No. 62). Plaintiffs argue that at the conditional certification stage, the Court is required to resolve any factual disputes in favor of Plaintiffs. Plaintiffs also defend the Magistrate Judge’s recommendation to require Kohler to produce the telephone numbers of each member of the putative class and post notice in their facilities.

         Following the submission of their response to Defendant’s objections, each named Plaintiff filed a supplemental declaration, in which they described in arguably greater detail just how Kohler failed to pay them for compensable time. Kohler has filed a Motion to Strike (ECF No. 65) the supplemental declarations. According to Kohler, Plaintiffs previously filed the same supplemental declarations (ECF No. 53) (along with declarations from five opt-in Plaintiffs) in conjunction with a reply brief in support of their Amended Motion to Certify. Kohler filed a motion to strike the declarations at that time, arguing in part that it was improper to file the declarations with a reply brief. Plaintiffs ultimately withdrew all of the declarations as well as their reply. As a result, the declarations were not part of the record considered by the Magistrate Judge. Now, Plaintiffs have re-filed what appear to be identical declarations. Kohler argues that Plaintiffs have improperly attempted to submit additional proof that the Magistrate Judge never considered in making his recommendation on the Amended Motion to Certify. Defendant therefore requests that the Court strike the declarations.

         Plaintiffs have responded in opposition to the Motion to Strike. While Plaintiffs concede that the presentation of new arguments which were not raised before the Magistrate Judge is disfavored, the presentation of new evidence is not. Plaintiffs state that the supplemental declarations bolster their showing that the named Plaintiffs are similarly situated to the putative class. Therefore, the Court can properly consider the supplemental declarations as part of its review of the report and recommendation.


         Kohler argues, and Plaintiffs have not contested the point, that the Court should review the Magistrate Judge’s report and recommendation de novo. Pursuant to 28 U.S.C. § 636, the Magistrate Judge may issue a report and recommendation for any dispositive motion. 28 U.S.C. § 636(b)(1)(B). The Court must “make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made.” § 636(b)(1)(C). After reviewing the evidence, the Court is free to accept, reject, or modify the proposed findings or recommendations of the Magistrate Judge. Id. The Court need not review, under a de novo or any other standard, those aspects of the report and recommendation to which no ...

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