Finding the declarations from plaintiffs to be unreliable, a federal judge in Pennsylvania recently denied conditional certification of an FLSA collective action arising out of allegedly unpaid overtime for a proposed nationwide class of more than 9,000 retail representatives employed by Crossmark, Inc. Postiglione v. Crossmark, Inc., No. 2:11-cv-960 (E.D. Pa. Nov. 14, 2012). Notably, the court did not stop there. Rather, it also concluded under Federal Rule of Civil Procedure 20(a) that the 52 named plaintiffs could not bring their claims together in one suit because there was no common plan or policy that applied to all 52 of them. As such, the court dismissed the case to all but the first named plaintiff.
The plaintiffs in Postiglione alleged that Crossmark violated the FLSA by not paying its employees overtime. Specifically, the plaintiffs alleged that they were not properly paid for (1) administrative tasks performed either before or after completing their work at retail locations; (2) driving to their first assignment or home from their last assignment of the day; and (3) all the time spent working at the retail locations.
The court allowed minimal pre-certification discovery, including allowing Crossmark to take the depositions of ten individuals. In support of their bid for conditional certification, the plaintiffs submitted a number of sworn affirmations signed by many of the named plaintiffs. After the court raised concerns at oral argument on the plaintiffs’ motion for conditional certification, the plaintiffs proposed narrowing the class.
The court ultimately concluded that even under the plaintiffs’ narrowed class definition, the plaintiffs had failed to meet their burden to make a modest factual showing that the proposed class members were similarly situated to the named plaintiffs. The court reasoned that the evidence proffered by the plaintiffs in support of their motion was “patently unreliable” due largely to admissions obtained during pre-conditional certification discovery.
In particular, the court noted that the plaintiffs’ affirmations regarding Crossmark’s alleged failure to pay overtime appeared to have been derived from forms and not to have been individually drafted for the employees signing them, that many of the named plaintiffs contradicted their sworn affirmations in their deposition testimony, and that Crossmark’s proffered timesheets contradicted both the affirmations and the depositions. The court also noted that the plaintiffs’ evidence suggested that there was no common nationwide policy at all, as the disparities in the named plaintiffs’ testimony demonstrated that any illegal plans or policies that existed were instituted by individual supervisors.
Finally, the court concluded that based upon the evidence submitted, the plaintiffs could not even demonstrate a common plan or policy with regard to all of the named plaintiffs. Rather, the court found that the evidence admitted at trial was likely to be highly individualized and focused on the policies and instructions of the named plaintiffs’ 38 different supervisors. Accordingly, the court dismissed the claims of all but the first named plaintiff.
The Postiglione decision underscores the need to push for discovery before conditional certification, as it may provide an opportunity to discredit speculative allegations and generic affidavits and thereby avoid conditional certification altogether. Moreover, the opinion lends further support to the proposition that — even under a lenient standard — courts should take more than a fleeting glimpse at the evidence offered in support of conditional certification.