United States District Court, E.D. Texas
GENE CHANCE, et al. Plaintiffs,
E. I. DU PONT DE NEMOURS AND CO. Defendant.
ORDER OVERRULING OBJECTIONS AND ADOPTING MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION
A. CRONE UNITED STATES DISTRICT JUDGE
court referred this case to the Honorable Zack Hawthorn,
United States Magistrate Judge, for pretrial management. The
court has received and considered the report (Doc. No. 70) of
the magistrate judge, which recommends that the court
conditionally certify an FLSA class, requires Defendant E. I.
du Pont de Nemours and Co. (“DuPont”) to provide
the Plaintiffs with contact information of current and former
employees, requires class counsel to mail notice and consent
forms, and requires DuPont to post notice of the collective
action in its Legacy facilities. Both DuPont and Plaintiff
Gene Chance (“Chance”) have filed timely
objections (Doc. Nos. 72, 74) to the report and
who files timely written objections to a magistrate
judge's report and recommendation is entitled to a de
novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. §
636(b)(1)(c) (Supp. IV 2011); Fed.R.Civ.P. 72(b)(2)-(3).
“Parties filing objections must specifically identify
those findings [to which they object]. Frivolous, conclusive
or general objections need not be considered by the district
court.” Nettles v. Wainwright, 677 F.2d 404,
410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds
by Douglass v. United Servs. Auto. Ass'n, 79
F.3d 1415 (5th Cir. 1996) (en banc).
objects only to the magistrate judge's conclusion that
equitable tolling is not appropriate in this case. Doc. No.
74. DuPont objects on two grounds: First, the report failed
to address DuPont's argument that conditional
certification is inappropriate because establishing liability
and damages for each individual class member “would
require a highly individualized analysis.” Doc. No. 72,
at 2. Second, DuPont objects that the report failed to
address who will serve as lead counsel for the conditionally
certified class. Id. at 7-8.
Chance's Objection Regarding Equitable Tolling
alleges that DuPont “was aware of it's [sic]
obligations to pay overtime wages at the regular rate of pay,
and further aware of employees' rights to also recover
liquidated damages” at the time DuPont notified
employees of their retroactive overtime pay adjustments. Doc.
No. 74, at 1. Chance points out certain language in the
letter accompanying the retroactive overtime payments to
DuPont employees: “This payment represents the
additional amount of pay due to you as a result of a
recalculation of your Overtime.” Doc. No. 46-1, at 1.
Chance does not make his argument explicit, but it appears
Chance is implicitly contending that the language in
DuPont's letter accompanying the retroactive overtime
payments satisfies the legal standard articulated in Section
F of the magistrate judge's report to merit equitable
tolling. See Doc. No. 70, at 20-21. Though Chance's
objection is likely too conclusive or general to require this
court to address it (see Nettles, 677 F.2d at 410
n.8), the undersigned will consider the objection out of an
abundance of caution.
F of the magistrate judge's report explained the legal
standard for equitable tolling, including the requirement
that “extraordinary circumstances . . . prevented
timely filing.” Menominee Indian Tribe of Wisconsin
v. United States, 136 S.Ct. 750, 755 (2016) (citation
omitted). Construed liberally, Chance argues that the
language in the letter accompanying DuPont's retroactive
overtime payments qualifies as an extraordinary circumstance
that prevented timely filing by putative class members.
Chance's objection does not cite any cases in support.
The plain language of the letter accompanying the retroactive
overtime payment can be read simply to mean the
additional amount DuPont believes it owed employees as a
result of a particular, good-faith recalculation of prior
overtime wages. Chance has not presented any evidence
that DuPont intentionally lied to its employees, knowingly
used misleading verbiage to lull employees into inaction, or
attempted to confuse employees. Accordingly, Chance has not
shown that any extraordinary circumstance exists to merit
equitable tolling at this time, and Chance's objection is
DuPont's Objection Regarding Individualized
objects to the magistrate judge's report by claiming that
the report did not “address at all the question of
whether liability was too individualized to warrant
conditional certification.” Doc. No. 72, at 2. DuPont
mischaracterizes the report because the report did address
DuPont's arguments in Sections B(2) and C of the report
and the inapposite authority relied upon by DuPont. See Doc.
No. 70, at 13-17. Accordingly, the report of the magistrate
judge is adopted and DuPont's objections are overruled.
DuPont's Objection Regarding Appointment of Lead
argues that the magistrate judge “failed to address a
key question: who will serve as lead counsel for the
conditionally certified collective?” Doc. No. 72, at
7-8. The parties have now reached an agreement as to who will
serve as class counsel. Doc. No. 73. DuPont's objection
is now moot.
Instructions Concerning the Proposed Notice
December 26, 2017, Chance filed an “Unopposed
Class Notice and Consent Form.” Doc. No. 75, at 1
(emphasis added). The filing noted disagreement between
Chance and DuPont “on who the Notice should be sent
to.” Id. The following day, DuPont filed an
opposition to Chance's filing indicating it was not truly
“unopposed.” Doc. No. 76, at 1. DuPont takes
issue with the “Plaintiff's characterization of
Defendant's position on the issue of which employees
should receive the Notice [because it] is incomplete.”
Id. at 2.
argues that the Notice and Consent forms should only be sent
to current and former hourly or salaried non-exempt
employees of DuPont's Legacy facilities who worked prior
to April 1, 2016, and who were paid overtime through
MyInfo's scheduled overtime allowance procedure. See
generally Doc. No. 76. DuPont is correct. Under the
first stage of Lusardi, the magistrate judge determined that
Chance has shown only that he is similarly situated to hourly
or salaried non-exempt DuPont employees at Legacy
facilities-not other DuPont facilities-paid under the MyInfo