noting “it is quite clear that a defendant in a § 216(b) action is not categorically forbidden from communicating with prospective opt-in plaintiffs.”
How later courts described this case
- noting “it is quite clear that a defendant in a § 216(b) action is not categorically forbidden from communicating with prospective opt-in plaintiffs.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
LLOYD BROWN, on behalf of himself and
all others similarly situated,
Plaintiff,
v. Case No: 5:18-cv-490-Oc-30PRL
ANSAFONE CONTACT CENTERS,
LLC,
Defendant.
ORDER
THIS CAUSE came on for consideration on the Report and Recommendation
submitted by Magistrate Judge Philip R. Lammens (Doc. 134). Lloyd Brown objected to
the Report and Recommendation (Doc. 138), and Ansafone Contact Centers, LLC
responded (Doc. 141). Having reviewed the Report and Recommendation, the party’s
filings (Docs. 120–130), the transcript of the evidentiary hearing (Doc. 131), the objections,
and response, the Court concludes the Magistrate Judge's Report and Recommendation
should be adopted, confirmed, and approved in all respects.
BACKGROUND
Ansafone operates a call center in Ocala, Florida. Brown worked in the call center
as a customer service representative (“CSR”). Brown alleges that Ansafone violated the
Fair Labor Standards Act (“FLSA”) by not compensating him and other CSRs for all the
time they worked. So Brown filed this collective action against Ansafone.
In December 2018, this Court conditionally certified the collective action and
directed that a Notice be mailed to the class members. (Docs. 32 and 39). The approved
Notice was mailed on January 9, 2019, and the sixty-day opt-in period for the class
members closed on March 10, 2019. In all, 62 class members opted into the lawsuit.
On July 21, 2019, Brown filed the instant motion (Doc. 120) to stay discovery and
reopen the notice period based on meetings that Ansafone held with currently employed
class members shortly before the Notice was sent. Brown alleges the CSRs were threatened
to not opt into the lawsuit during these meetings, based on the testimony of two former
Ansafone employees who attended at least one of the meetings. But Ansafone denies that
any such statements were made and provides declarations of about 20 CSRs who deny that
threats were made. (Doc. 121). Ansafone also provided declarations from its Human
Resources Manager Dawn Johnson and Director of Operations Lynda Owens, the two who
conducted the meetings, denying that they made any threats and, in fact, explicitly told the
CSRs that it was unlawful for Ansafone to retaliate against anyone who opts in.
The Court referred Brown’s motion to the Magistrate Judge to conduct an
evidentiary hearing and provide a Report and Recommendation. After the hearing, the
Magistrate Judge issued his Report and Recommendation (Doc. 134) setting forth the law
and his factual findings. The Magistrate Judge explained:
As a starting point, there is no bright-line rule barring a defendant
from speaking with putative class members. See Bobryk v. Durand Glass
Mfg. Co., Inc., No. 12-cv-5360 (NLH/JS), 2013 WL 5574504, at *3 (D.N.J.
Oct. 9, 2013); Longcrier v. HL-A Co., Inc., 595 F.Supp.2d 1218, 1225 (S.D.
Ala. 2008) (noting “it is quite clear that a defendant in a § 216(b) action is
not categorically forbidden from communicating with prospective opt-in
plaintiffs.”). However, federal courts have exercised their discretion to
correct the effects of communications with potential FLSA collective action
members after misleading, coercive, or improper communications are made.
See Billingsley v. Citi Trends, Inc., 560 Fed. Appx. 914, 922 (11th Cir. 2014).
(Doc. 134, p. 5). The Magistrate Judge then concluded that the testimony of Brown’s two
witnesses failed to show that Ansafone’s “meetings were misleading, coercive, or
otherwise abusive.” (Doc. 134, p. 5). The Magistrate Judge also noted, “In sharp contrast,
[Ansafone] presented credible and convincing testimony by Ms. Owens and Ms. Johnson
regarding the content of the meetings … and denied delivering any threats of retaliation
against the customer service representatives, discouraging them from joining the lawsuit,
or telling them that there would be consequences for joining the lawsuit.” (Doc. 134, p. 9).
Finally, the Magistrate Judge concluded that Owens and Johnson’s testimony “was further
corroborated by declarations from twenty-two customer service representatives, all of
whom attended the meetings and averred that they were not threatened with loss of job,
demotion, loss or hours or a schedule change, or any other threats of any kind to their jobs.”
(Doc. 134, p. 9).
DISCUSSION
On October 3, 2019, Brown filed an untimely objection to the Magistrate Judge’s
Report and Recommendation. While the precise objection is unclear, Brown appears to
argue that the testimony of his witnesses shows that Ansafone had improper
communications with class members who refrained from opting into the lawsuit for fear of
reprisal. Stated another way, Brown argues that the Magistrate Judge’s factual findings are
wrong. And if the Magistrate Judge had made the correct factual findings, then the law
would be on Brown’s side. The Court concludes the objection lacks merit.
As a threshold matter, the Court concludes that the standard of review is immaterial
because the result would be the same regardless of what standard is applied. (Doc. 138, pp.
3–4, arguing the Court’s review of factual determinations is de novo); (Doc. 141, pp, 2–4,
arguing that clear error standard applies because no specific and timely objections were
filed). The Court notes, though, that district courts generally must make “a de novo
determination” of proposed factual findings from a magistrate judge if there are specific
objections. 28 U.S.C. § 636(b). But as the Supreme Court explained, “the statute calls for
a de novo determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667,
674, 100 S. Ct. 2406, 2411, 65 L. Ed. 2d 424 (1980).
In reviewing the Magistrate Judge’s Report and Recommendation, hearing
transcript, and the parties’ declarations, the Court concludes the Magistrate Judge did not
err when weighing the conflicting testimony. The Magistrate Judge articulated reasons for
finding Brown’s witnesses unpersuasive, including their inability to specifically state what
threats were communicated and how. The Magistrate Judge also found that testimony of
Owens and Johnson was credible and supported by the numerous declarations that
Ansafone provided.1 The Court finds no error in these findings.
The Court also finds no error in the Magistrate Judge’s application of the factual
findings to the law. Based on the factual findings, Ansafone held informative meetings
1 The Court also concludes that the Magistrate Judge did not err by taking into account the
declarations of other CSRs by virtue of Brown not being able to cross-examine the declarants.
Brown made no such objection at the evidentiary hearing, and he chose not to call two of the
declarants as adverse witnesses even though they were available at the hearing. Further, Brown
could have subpoenaed any of the declarants himself if he wanted to examine them on their
statements, but he chose not to do so.
with the employed class members to let them know that they should be claiming all time
worked, that the approved Notice would be forthcoming, and that Ansafone would not
retaliate if they opted into the lawsuit. Because these communications were not
“misleading, coercive, or improper’, Billingsley, 560 Fed. Appx. at 922; they do not
warrant sanctions against Ansafone or the reopening of the notice period.
ACCORDINGLY, it is therefore, ORDERED AND ADJUDGED:
1. The Report and Recommendation (Doc. 134) of the Magistrate Judge is
adopted, confirmed, and approved in all respects and is made a part of this
order for all purposes, including appellate review.
2. Plaintiff Lloyd Brown’s Objection (Doc. 138) is OVERRULED.
3. Plaintiff Lloyd Brown’s “Motion for Sanctions against Defendant, Stay of
Discovery, Reopen Notice Period and to Issue Corrective Notice, Expedited
Briefing Schedule, and for Evidentiary Hearing” (Doc. 120) is DENIED.
DONE and ORDERED in Tampa, Florida, this 8th day of October, 2019.
JAMES 8. MOODY, JR.
UNITED STATES DISTRICT JUDGE
Copies Furnished To:
Counsel/Parties of Record