Rakowsky v. Federal Express Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

________________________________________________________________

ANDREW RAKOWSKY, Individually )

and on behalf of all others )

similarly situated, )

)

Plaintiff, )

) No. 23-cv-02340-TLP-tmp

v. )

)

FEDERAL EXPRESS CORPORATION, )

)

Defendant. )

________________________________________________________________

ORDER GRANTING PLAINTIFF’S MOTION FOR DISTRIBUTION OF COURT-

AUTHORIZED NOTICE

________________________________________________________________

Before the court by order of reference from the presiding

district judge is plaintiff Andrew Rakowsky’s Motion for

Distribution of Court-Authorized Notice. (ECF No. 39.) The motion

was held in abeyance to allow the parties to engage in discovery

relating to whether court-authorized notice should be approved,

pursuant to Clark v. A&L Homecare and Training Center, LLC, 68

F.4th 1003 (6th Cir. 2023). (ECF No. 58.) After completing this

discovery, defendant Federal Express Corporation (“FedEx”) filed

its response in opposition, and Rakowsky filed a reply. (ECF Nos.

70, 81-82.) For the reasons below, the motion is GRANTED.1

1The undersigned magistrate judge enters this order pursuant to 28

U.S.C. § 636(b)(1)(A). See Lescinksy v. Clark Cnty. Sch. Dist.,

539 F. Supp. 3d 1121, 1125–26 (D. Nev. 2021); Bradford v. Team

Pizza, Inc., No. 1:20-cv-00060, 2020 WL 5987840, at *1 (S.D. Ohio

I. BACKGROUND

On May 26, 2023, Andrew Rakowsky filed this putative

collective action alleging that FedEx violated the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., by misclassifying

its security specialists as exempt from overtime pay and failing

to pay them the premium for their overtime hours worked. (ECF No.

1 at PageID 4-6, Compl. ¶¶ 24-36.) Rakowsky asserts this claim on

his own behalf and on behalf of those similarly situated

individuals “who are or have been employed by Defendant as a

Security Specialist (II, III, or Senior), or in other job titles

performing similar duties anywhere in the United States (except in

Pennsylvania) during the applicable statutory period.”2 (Id. at

PageID 2.) Rakowsky alleges that he and other security specialists

routinely worked more than forty hours a week but were not paid

the overtime premium. (Id. at PageID 6.) Rakowsky subsequently

filed the present motion, requesting that the court authorize

notice of this lawsuit to approximately 446 FedEx security

specialists nationwide, as follows:

Oct. 9, 2020); Bearden v. AAA Auto Club South, Inc., 2:11-cv-

03104-JTF-dkv, 2013 WL 1181474, at *1 n.2 (W.D. Tenn. Mar. 18,

2013); Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 383–84

(E.D.N.Y. 2010).

2He also alleges that FedEx violated New York Labor Law, Article

19 §§ 650, et seq., and the supporting New York State Department

of Labor regulations, and seeks to bring these state law claims as

a putative class action pursuant to Federal Rule of Civil Procedure

23. (ECF No. 1 at PageID 1, 7-8, 10-13.) These state law class

action claims are not at issue in the present motion.

All persons who worked for Defendant as a Security

Specialist (II, III, or Senior), or other job titles

performing similar duties anywhere in the United States

(except in Pennsylvania) at any time since three years

prior to the filing of this Complaint through the

present.

(ECF No. 39-1 at PageID 256; ECF No. 39-3 at PageID 314 (Ex. 7);

ECF No. 70 at PageID 511.) In support of his motion, Rakowsky filed

his own sworn declaration, declarations from seven opt-in

plaintiffs, FedEx’s posted job descriptions for security

specialists, and excerpts from his deposition testimony and from

two opt-in plaintiffs.

FedEx is a Delaware Corporation with its principal place of

business in Memphis, Tennessee. (ECF No. 12 at PageID 2, Ans. ¶

14.) FedEx is an international organization offering shipping,

transportation, e-commerce, and business services. (ECF No. 12 at

PageID 2.) From 2015 to 2022, Rakowsky worked as a Security

Specialist III and a Senior Security Specialist for FedEx in New

York and Vermont. (Id.) Since at least May 26, 2020, all security

specialists have been classified as exempt from overtime and paid

a regular monthly salary regardless of the number of hours worked

in any period. (ECF No. 72-4 at PageID 696, 698, Varcadipane Decl.

¶¶ 5, 12.) According to FedEx, all security specialists are

classified as exempt “on the ground that they serve in a bona fide

administrative capacity because their primary duty is the

performance of office and non-manual work directly related to

FedEx’s management and general business operations, and their

primary duties have included the exercise of discretion and

independent judgment.” (ECF No. 72-4 at PageID 698.)

In his motion and reply, Rakowsky provides evidentiary

support showing similarities between and among the security

specialists he seeks to be noticed about this collective action

lawsuit. He provides evidence that all security specialists share

the same primary job duty: “providing loss-prevention and site

monitoring services.” (ECF No. 39-1 at PageID 259) (citing

identical language contained in ¶ 6 of all eight of the opt-in

plaintiffs’ declarations.) Specifically, security specialists are

expected “to prevent, analyze, respond to, and resolve any and all

threats to the safety and security of the people, property, and

facilities in the FedEx system.” (ECF No. 39-3 at PageID 292, Ex.

4, FedEx job postings.) The work involves “observing and monitoring

sorting operations and deliveries to help prevent employee theft

or violence and maintain safety and security, investigating

incidents of employee theft, violence, violations of safety and/or

security rules, vandalism, pilfering, and other similar

occurrences, and helping to train delivery drivers on FedEx’s

safety protocols.” (ECF No. 39-1 at PageID 259) (citing ¶ 7 of all

opt-in plaintiffs’ declarations.) If a work-place incident occurs,

security specialists are “tasked with conducting interviews and

preparing incident reports,” as well as “conducting various audits

including vehicle security audits and night audits.” (Id. at PageID

260) (citing ¶ 8 of all opt-in plaintiffs’ declarations.) All

security specialists use FedEx’s case management system, called

eSIMS, to log their activities and investigations, update security

files, and provide caseload status updates. (Id.) (citing ¶ 9 of

all opt-in plaintiffs’ declarations.) Security specialists are not

responsible for supervising, hiring, or firing other employees.

(Id.) (citing ¶ 17 of all opt-in plaintiffs’ declarations.)

Rakowsky’s and the opt-in plaintiffs’ descriptions of their

similar job duties are further supported by FedEx’s own posted job

descriptions. Security Specialist IIs “implement[] loss prevention

programs and conduct[] investigations in theft, pilferage,

workplace violence, and other acts detrimental to the FedEx brand,

its customers, and its employees.” (ECF No. 39-3 at PageID 287)

(Security Specialist II Duties.) Security Specialist IIIs are

responsible for “investigating, reporting, and advising on missing

packages, pilferages, misconduct and other matters related to

protecting the FedEx brand.” (Id. at PageID 292) (Security

Specialist III Duties.) Senior Security Specialists are

responsible for “address[ing] product loss mitigation” and

“physical security considerations,” among other tasks. (Id. at

PageID 296) (Senior Security Specialist Duties.) These job

responsibilities are consistent across seniority levels,

geographic territories, and under different supervisors. (ECF No.

39-1 at PageID 260) (citing ¶¶ 3-5 of all opt-in plaintiffs’

declarations); (ECF No. 39-3 at PageID 277–97) (job descriptions

showing generally consistent duties at locations in Washington,

D.C., Maryland, New Jersey, Pennsylvania3 and Texas.) Because FedEx

pays all security specialists a fixed salary based on their exempt

classification, security specialists “do not have to keep track of

their actual hours worked[.]” (ECF No. 39-1 at PageID 260) (citing

¶¶ 10, 14, 15 of all opt-in plaintiffs’ declarations.)

The court finds that the security specialists’ declarations

submitted by the plaintiffs as well as by FedEx demonstrate that

they are required to perform substantially similar job duties,

even though how those duties are handled on a day-to-day basis and

the amount of time spent on those duties can vary among the

specialists. (ECF No. 39-4 at PageID 319) (Security Specialist III

and Senior Security Specialist in Mechanicville, New York, Andrew

3Security specialists in Pennsylvania are excluded from this

lawsuit due to a separate lawsuit filed on behalf of security

specialists in that state. See Fischer v. Fed. Express Corp., 509

F. Supp. 3d 275 (E.D. Pa. 2020), aff’d, 42 F.4th 366 (3d Cir.

2022). The Fischer court approved the distribution of notice but

concluded that it lacked general and specific personal

jurisdiction over out-of-state plaintiffs’ claims. Fischer, 509 F.

Supp. 3d at 285-88. The court ruled that jurisdiction was limited

to security specialists who worked in Pennsylvania and that general

jurisdiction covering nationwide claims only exists if the

defendant “is incorporated in, or maintains its principal place of

business in, the forum state.” Id. at 285. As a result, Rakowsky

filed this putative class and collective action against FedEx in

the Western District of Tennessee, the location of FedEx’s

principal place of business.

Rakowsky Decl.) (“I observed and monitored sorting operations and

deliveries to help prevent employee theft or violence and maintain

safety and security. I was required to investigate incidents of

employee theft, violence, violations of safety and/or security

rules, vandalism, pilfering, and other similar occurrences. I also

helped to train delivery drivers on FedEx’s safety protocol.”);

(ECF No. 71-1 at PageID 539) (Security Specialist III and Senior

Security Specialist in Oklahoma and northwest Arkansas, Scott

Avery Decl.) (“I have spent about 60% of my time performing various

types of investigations, working in eSIMS, writing reports,

researching packages, reviewing video footage . . . [and] have

spent the remaining 40% of my time doing awareness sessions, doing

sort inspections, interacting with law enforcement, and

interacting with Operations.”); (ECF No. 71-2 at PageID 546–47)

(Security Specialist II, Security Specialist III, and Senior

Security Specialist in Arizona and New Mexico, Michael Barry Decl.)

(“I have spent most of my time interviewing witnesses, writing

reports and updating the eSims system. . . . I have provided advice

and counselling to operations [personnel] and management. These

are referred to as awareness sessions . . . .”); (ECF No. 71-4 at

PageID 563–67) (Security Specialist III and Senior Security

Specialist in Florida, Michael Dodd Decl.) (describing how his job

is completed through conducting investigations into workplace

violence and packages, “walking the various sort operations[,]”

and conducting job-related activities including updating the case

files through eSIMS and interacting with security guards); (ECF

No. 72-2 at PageID 674–77) (Security Specialist III and Senior

Security Specialist in Cleveland, Ohio, Donald Scurlock Decl.)

(describing that his job consists of investigations into workplace

violence and packages, conducting security awareness sessions, and

using the eSIMS system.)

These declarations also show that while security specialists’

work schedules can vary, they often work more than forty hours per

week and are required to be on-call 24 hours a day. (ECF No. 39-1

at PageID 260–61) (citing ¶¶ 11, 12 of all opt-in plaintiffs’

declarations); (ECF No. 39-4 at PageID 323) (Senior Security

Specialist in Nevada and Utah, Jeff Blanc Decl.) (“I regularly

worked over forty (40) hours per week.”); (ECF No. 71-4 at PageID

561) (Dodd Decl.) (working 40 hours per week, but “there are weeks

that I work more than 40 hours and some weeks that I work fewer

than 40 hours”); (ECF No. 72-1 at PageID 659) (Security Specialist

III and Senior Security Specialist in Kentucky and Indiana, Brian

Spriggs Decl.) (“I typically have worked approximately 40 hours

per week. Sometimes I have worked fewer than 40 hours per week,

and sometimes I have worked more.”); (ECF No. 72-3 at PageID 682)

(unspecified security specialist in Nevada and Utah, Neil Toliver

Decl.) (“I typically have worked between 30 and 50 hours per

week.”); (ECF No. 71-2 at PageID 543) (Barry Decl.) (“[N]ormally

I have worked between 35 and 40 hours per week, sometimes up to

45.”); (ECF No. 39-4 at PageID 325) (Security Specialist III and

Senior Security Specialist in Ohio, James Cracchiolo Decl.) (“I

was required to be on-call 24 hours a day and was expected to

respond immediately when anyone contacted me from assigned

locations.”); (ECF No. 71-2 at PageID 544) (Barry Decl.) (“I am

required to be available to take calls and receive messages on

weekends and after hours, because of potential emergencies.”);

(ECF No. 71-3 at PageID 553) (unspecified security specialist in

Suffolk County, New York, James Cahill Decl.) (“I am required to

be reachable after hours and on weekends. Though, when I have

missed calls I have never been counseled or disciplined because of

it.”); (ECF No. 71-4 at PageID 572) (Security Specialist II and

Security Specialist III in Massachusetts, Mike Doyle Decl.) (“I

have received work-related calls or messages after hours

approximately 2 to 3 times a week. These calls are usually for

general questions. When I receive after-hours calls, I have the

discretion to determine whether they require an immediate

response.”); (ECF No. 72-3 at PageID 684–85) (Toliver Decl.) (“As

a Security Specialist, I have received work-related calls or

messages after hours and on weekends[.]”).)

The similarities of the job duties among security specialists

are further supported by Peter Varcadipane, FedEx’s Managing

Director of Security for the Southern Region, who explains in his

declaration that

[i]n furtherance of these duties, Specialists perform a

variety of regular tasks, including but not limited to

(1) investigating missing packages to prevent loss and

theft (called Package Investigations); (2) investigating

instances of alleged violations of FedEx’s anti-

workplace violence policies (Workplace Violence or WPV

Investigations); (3) conducting surveillance of FedEx

drivers to detect potential violations of FedEx policies

concerning safety and security of packages while on the

road (Vehicle Security Audits); (4) identifying topics

on which FedEx operations personnel may require

education, advice and training on security matters, and

delivering such education, advice and training (Security

Awareness Sessions); (5) observing FedEx operations to

identify suspicious packages and activity; (6)

performing analysis of data and operational trends to

identify and address trends of potential theft,

potential security vulnerabilities; (7) overseeing the

operation of security equipment (such as cameras and

alarms) at FedEx facilities; and (8) working and

coordinating with contracted security service providers

(such as guards) and local law enforcement.

(ECF No. 72-4 at PageID 697–98.)

In support of its argument against court-authorized notice,

FedEx primarily relies on declarations from security specialists

it obtained to illustrate that they work under minimal supervision

and their duties involve exercising independent judgment and

discretion. (ECF No. 70 at PageID 514-519.) In addition, FedEx

relies on the declaration of Robert Crandall of Resolution

Economics, its proposed expert, who opines that “performing

similar duties is not the same thing as performing the same job.”

(ECF No. 74 at PageID 816.) In support of his opinions, Crandall

submits several charts to compare the duration and type of tasks

performed by Rakowsky and the security specialists who submitted

declarations. For example, he attaches one chart (Exhibit 4)

comparing the “Average and Median Duration of Customer Shipment

Loss Cases by Employee”:

Average Duration of Cases Median Duration of Cases

50

43.47 45

> 45

EF a0

30.1430

26.38

37 25

s 25

20

& . 7.36

□ °° | 6.26 7330 6.37 648s a

2s 3 3 wy 284

Andrew Damian Danielle Darryl Hector James. John Kelvin Kevin Mark

Rakowsky Farley Martinez Kimble Luna cCracchiolo Benavidez Yong Malonsom Mckee

Fad Cases 2EE Cases Fal Cases 91 Cases 1,801 128 Cases 1415 S28 Cases 325 Cases 1298

Cases Cases Cases.

Employees

Based in part on these differences in duration and caseload among

the security specialists, Crandall opines that they are not

Similarly situated. (Id. at PageID 820.)

II. ANALYSIS

A. Legal Standard

The FLSA “mandates that employers pay a federal minimum wage

and overtime to certain types of employees.” Clark, 68 F.4th at

1007. A plaintiff who alleges violations of the FLSA can bring an

action to recover unpaid wages “for and in behalf of himself or

themselves and other employees similarly situated.” 29 U.S.C. §

=- 1 1 =-

216(b). Plaintiffs brought into these so called “collective”

actions must “(1) ‘actually be similarly situated’ and (2) ‘signal

in writing their affirmative consent to participate in the

action.’” Holder v. A&L Home Care and Training Ctr., LLC, 552 F.

Supp. 3d 731, 738 (S.D. Ohio 2021), rev’d on other grounds, Clark,

68 F.4th 1003 (quoting Comer v. Wal-Mart Stores, Inc., 454 F.3d

544, 546 (6th Cir. 2006)). “Additional plaintiffs beyond named

plaintiffs may be found by facilitated court notice, a process

traditionally called ‘conditional certification’ despite the Sixth

Circuit’s recent rejection of the term.” Rashad v. Mason’s Pro.

Cleaning Serv., LLC, No. 2:22-CV-02635-JTF-tmp, 2023 WL 5154534,

at *2 (W.D. Tenn. Aug. 10, 2023) (citing Clark, 68 F.4th at 1009).

“In Clark, the Sixth Circuit did away with previous methods that

district courts had applied to determine whether facilitated

notice was warranted, and instead embraced a new standard borrowed

from the analysis used when determining whether a preliminary

injunction is warranted.” Id. Under Clark, “for a district court

to facilitate notice of an FLSA suit to other employees, the

plaintiffs must show a ‘strong likelihood’ that those employees

are similarly situated to the plaintiffs themselves.” 68 F.4th at

1011 (citing Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th

548, 554 (6th Cir. 2021)). “That standard requires a showing

greater than the one necessary to create a genuine issue of fact,

but less than the one necessary to show a preponderance.” Id.

The Sixth Circuit also clarified that a court’s

facilitation of notice is not a “certification” —

conditionally or otherwise — of the collective action.

[Clark, 68 F.4th] at 1009. Instead, “other employees

become parties to the FLSA suit (as opposed to mere

recipients of notice) only after they opt in and the

district court determines — not conditionally, but

conclusively — that each of them is in fact ‘similarly

situated’ to the original plaintiffs.” Id. (citing 29

U.S.C. § 216(b)) (internal quotations omitted). In this

way, Clark emphasized, but did not alter, the second

step of the analysis. See Comer, 454 F.3d at 546–47

(describing the second stage as occurring after

discovery has concluded and “examin[ing] more closely

the question of whether particular members of the class

are, in fact, similarly situated.”). At the close of

discovery, courts must determine whether the opt-in

employees and plaintiffs are actually “similarly

situated” for the case to proceed to trial as a

collective action. Clark, 68 F.4th at 1008.

McClurg v. Dallas Jones Enters., Inc., No. 4:20-CV-201-RGJ, 2023

WL 8604177, at *3 (W.D. Ky. Dec. 12, 2023); see also Simpson v.

Adena Health Sys., No. 2:23-cv-02633, 2024 WL 3418137, at *1-2

(S.D. Ohio July 15, 2024); Gomez v. D&M Bolanos Drywall, LLC, No.

2:23-cv-02334, 2024 WL 2806479, at *2 (W.D. Tenn. May 31, 2024);

Garcia v. RickeyO Constr., LLC, No. 2:23-cv-02426, 2024 WL 1741349,

at *2 (W.D. Tenn. Mar. 13, 2024).

“Whether other employees are similarly situated for the

purpose of joining an FLSA suit typically depends on whether they

performed the same tasks and were subject to the same policies —

as to both timekeeping and compensation — as the original

plaintiffs were.” Clark, 68 F.4th at 1010 (citing Pierce v. Wyndham

Resorts, Inc., 922 F.3d 741, 745-46 (6th Cir. 2019)). The Sixth

Circuit also considers “(1) the ‘factual and employment settings

of the individual[] plaintiffs’; (2) ‘the different defenses to

which the plaintiffs may be subject on an individual basis’; and

(3) ‘the degree of fairness and procedural impact of certifying

the action as a collective action.’” Isaacs v. Landmark Recovery

of Louisville, LLC, No. 3:23-CV-00210, 2023 WL 6096730, at *10

(M.D. Tenn. Sept. 18, 2023), motion to certify appeal denied, No.

3:23-CV-00210, 2023 WL 7101869 (M.D. Tenn. Oct. 27, 2023) (quoting

Monroe v. FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017) and

Pierce, 922 F.3d at 745). “Plaintiffs are similarly situated if

they can demonstrate that they suffered from ‘a single, FLSA-

violating policy’ instituted by the employer defendant, or if their

‘claims [are] unified by common theories of defendants’ statutory

violations, even if the proofs of these theories are inevitably

individualized and distinct.’” Id. (citing Monroe, 860 F.3d at

398).

B. Strong Likelihood of Being Similarly Situated

Based on the numerous declarations and exhibits provided by

both parties, the court finds that the plaintiffs have shown a

strong likelihood that FedEx’s security specialists are similarly

situated to the plaintiffs themselves. The evidence demonstrates

that security specialists perform the same duties and are subject

to the same timekeeping and compensation policies. Security

specialists conduct investigations relating to loss prevention,

theft, pilferage, and workplace violence, conduct security

awareness sessions, use the eSIMS system to log their work, work

overtime hours, and are on-call twenty-four hours a day.

FedEx argues that court-authorized notice should not be

approved because security specialists fall within the

administrative exemption to the FLSA. Section 541.200(a) of the

regulations promulgated under the FLSA states in relevant part:

The term “employee employed in a bona fide

administrative capacity” in section 13(a)(1) of the Act

shall mean any employee:

(1) Compensated on a salary or fee basis pursuant

to § 541.600 at a rate of not less than $684 per

week . . . , exclusive of board, lodging or other

facilities;

(2) Whose primary duty is the performance of office

or non-manual work directly related to the

management or general business operations of the

employer or the employer’s customers; and

(3) Whose primary duty includes the exercise of

discretion and independent judgment with respect to

matters of significance.

29 C.F.R. § 541.200(a) (2024). Relying on several declarations and

Crandall’s expert report, FedEx claims that security specialists

use sufficient discretion and independent judgment in performing

their primary duties (as reflected by duration and caseload

differences) that they are properly classified as exempt from

overtime pay. (ECF No. 70 at PageID 525.) According to FedEx, not

considering this exemption for purposes of notice “flies in the

face” of Clark. (Id. at PageID 509.) FedEx argues that “defenses

(such as the administrative exemption) must be considered in

evaluating a motion for notice.” (Id. at PageID 522) (citing Clark,

68 F.4th at 1012.)

FedEx’s argument is not supported by Clark. It is true that

“[w]hether other employees are subject to individualized defenses

— such as an employee’s agreement to arbitrate a claim — can also

affect whether particular employees are similarly situated for

purposes of sending notice.” Clark, 68 F.4th at 1010 (emphasis

added). In this case, however, FedEx’s administrative exemption

argument applies across the board to all security specialists,

which actually weighs in favor of a similarly situated finding.

The court rejects FedEx’s administrative exemption argument as a

basis for denying court-authorized notice.

C. Proposed Notice

Collective action court-authorized notice should be “timely,

accurate, and informative.” Hoffmann-La Roche Inc. v. Sperling,

493 U.S. 165, 172 (1989). This ensures that those noticed can “make

informed decisions about whether to participate.” Hodges v. Pac.

Bells, LLC, No. 2:17-cv-2564-SHL-dkv, 2018 WL 6574793, at *4 (W.D.

Tenn. Sept. 30, 2018) (quoting Hoffmann-La Roche, 493 U.S. at 170.)

Rakowsky’s proposed notice parameters are as follows:

(1) a 60-day notice period; (2) notice to be sent out

via U.S. mail, email [(attached at ECF No. 39-3 at PageID

314–16),] and text message; and (3) a reminder notice

via U.S. mail and email 21 days before the close of the

notice period [(attached at ECF No. 39-3 at PageID 318)].

(ECF No. 39-1 at PageID 268.) The proposed text messages Rakowsky

intends to send

contain links to a webpage that contains the notice, and

a webpage that contains the consent form: “As a current

or former Security Specialist with FedEx, you are

eligible to join a collective action overtime case. To

learn more, go to: https://bit.ly/[to be determined]. To

submit a consent form to join the case, go to:

https://bit.ly/[to be determined]. This message was

approved by the District Court for the Western District

of Tennessee.”

(Id. at PageID 268–69) (brackets in original.) Rakowsky also

requests that the court “order FedEx to disclose the names and

contact information for all putative collective members within 7

days of the Court’s Order to effectuate notice.” (Id. at PageID

268.)

In its response, FedEx argues that distribution of notice is

unnecessary because “Plaintiff’s counsel previously sent notices

to specialists across the United States, and several of these

specialists have opted in.” (ECF No. 70 at PageID 526). This

argument is based on a pre-notice letter labeled “Advertising

Material” sent out by counsel for Rakowsky on June 9, 2023, to

several current and former security specialists. (ECF No. 14-1 at

PageID 63.) However, counsel’s advertisements “do[] not

necessarily negate the need for court-authorized notice.”

Calderon v. Geico Gen. Ins. Co., No. RWT 10CV1958, 2011 WL 98197,

at *8 (D. Md. Jan. 12, 2011).

FedEx next argues that Rakowsky’s proposed notice should be

amended because it “would have recipients consent to join

subsequent actions. . . . Asking recipients to be bound to join

cases that do not even exist yet crosses the line from providing

notice of a lawsuit to encouraging participation.” (ECF No. 70 at

PageID 526–27) (emphasis in original) (citing Bolden v. U.S. Xpress

Enter., Inc., No. 1:13-cv-245-CLC-SKL, 2014 WL 12962192, at *6

(E.D. Tenn. June 27, 2014.)). The court agrees with FedEx.

Therefore, the statement regarding opt-in plaintiffs joining a

subsequent lawsuit must be stricken from the proposed notice.

The parties also disagree about whether the appropriate

statute of limitations should be two years or three. (ECF No. 70

at PageID 526; ECF No. 81 at PageID 899–900.) As one district court

has explained:

[T]he parties’ debate concerning whether the FLSA

statute of limitations should be two years or three years

requires a merits-based determination that is

inappropriate at this stage of the case. See, e.g.,

Weisgarber v. N. Am. Dental Grp., LLC, No. 4:18CV2860,

2020 WL 1322843, at *5 (N.D. Ohio Mar. 20, 2020)

(determining that “Defendants’ argument that the

statute-of-limitations should be two years as opposed to

three years requires a merit-based determination that

should be made in the next stage of the certification

process.”); Kinder v. MAC Manufacturing Inc., 318 F.

Supp. 3d 1041, 1048 (N.D. Ohio 2018) (explaining that

“[b]ecause [the] [d]efendants’ statute of limitations

argument requires an evaluation on the merits of [the]

[p]laintiff’s claim, it is inappropriate for resolution

at this early stage of litigation.”). This is because

whether Defendants’ alleged violations of the FLSA were

“willful” or not is a factual determination concerning

whether Defendants “either knew its conduct violated the

FLSA or showed reckless disregard about the matter.”

[Hempfling v. Cmty. Mercy Health Partners, No. 3:17-CV-

182, 2018 WL 5465870, at *7 (S.D. Ohio Oct. 29, 2018).]

This Court thus rejects this argument while noting that

Defendants retain the ability to raise it once more at

a later stage in the litigation.

Hogan v. Cleveland Ave Rest., Inc., 690 F. Supp. 3d 759, 778 (S.D.

Ohio 2023). The court need not determine at this stage of the

litigation whether the two or three-year statute of limitations

applies. For purposes of court-authorized notice only, the

security specialists shall include those who would fall within the

three-year statute of limitations.

FedEx also argues that notice should be conducted through a

third-party administrator to protect privacy rights, because

Rakowsky requests personal identifying information including

contact information and the last four digits of social security

numbers. (ECF No. 70 at PageID 527) (citing ECF No. 39-5.) FedEx

cites two cases for this proposition. The first case, Davine v.

Golub Corporation, does not include any discussion of third-party

administrators. No. 14-30136-MGM, 2015 WL 1387922 (D. Mass. Mar.

25, 2015). The closest Davine comes to discussing parties

responsible for the dissemination of notice is a comment that “the

court defers decision on . . . an order requiring Defendants to

assist in the dissemination of notices.” Id. at *3. In the second

case FedEx cites, McCoy v. RP, Inc., the parties were in agreement

about using a third-party administrator. No. 2:14-CV-3171-PMD,

2015 WL 6157306, at *6 (D.S.C. Oct. 19, 2015) (“Defendants have

agreed to use a third-party administrator[.] . . . Plaintiff has

agreed to the use of a third-party administrator.”).

In Rakowsky’s reply, he cites several cases to support his

argument that a third-party administrator is unnecessary,

including Crosby v. Stage Stores, Inc., 348 F. Supp. 3d 742 (M.D.

Tenn. 2018). (ECF No. 81 at PageID 900.) Rakowsky also states that

he will forego his request for the employees’ partial social

security numbers. (Id. at PageID 900 n.9.) The court finds that

use of a third-party administrator for notice purposes would be

unnecessary. Therefore, Rakowsky is entitled to the remaining

identifying information (minus the partial social security

numbers) for those identified as putative collective members, and

Rakowsky may send the notice to those individuals via email and

U.S. mail. As to the request to use text messages as a third method

of notice, although FedEx does not address this method in its

response, the court will deny that request at this time, subject

to reconsideration if plaintiffs can show that delivery by mail

and email is insufficient as to any given potential opt-in

plaintiff. See Simpson, 2024 WL 3418137, at *5 (citation omitted)

(“[C]ourts are afforded broad discretion in determining how notice

and consent forms are to be disseminated and returned.”).4

4FedEx does not expressly oppose Rakowsky’s request for a sixty-

day notice period, that plaintiff be allowed to send a reminder

III. CONCLUSION

For the above reasons, Rakowsky’s Motion for Distribution of

Court-Authorized Notice is GRANTED as follows: (1) Rakowsky shall

make the required edits to the notice (ECF No. 39-3 at PageID 313-

18) within seven (7) days of the date of this Order and provide a

copy to FedEx; (2) FedEx shall provide to Rakowsky within seven

(7) days of this Order a list with the following information for

each FLSA collective member in an electronic, delimited, and

importable format: (a) name, (b) last-known address, (c) last-

known telephone number (for purposes of notice in the event mail

and email are deemed insufficient as to a particular collective

member), (d) last-known email address; (e) relevant job title(s),

and (f) dates of employment for each relevant job title; and (3)

within fourteen (14) days of receiving the list, the revised notice

shall be sent by plaintiffs’ counsel to those individuals by mail

and email.

IT IS SO ORDERED.

s/ Tu M. Pham

TU M. PHAM

Chief United States Magistrate Judge

September 30, 2024

Date

notice, and that FedEx be ordered to provide a list of all putative

collective members and their contact information within seven days

in electronic, delimited, and importable format.