JENNIFER TOMMEY, individually, and on behalf of a class of others similarly situated, Plaintiffs,
COMPUTER SCIENCES CORPORATION, Defendant.
MEMORANDUM AND ORDER
ERIC F. MELGREN UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant Computer Sciences Corporation’s Motion to Dismiss Plaintiff Jennifer Tommey, to Remove Her as Class Representative, and to Prohibit the Class Notice from Naming Tommey as Class Representative (Doc. 91) as well as Plaintiff’s Cross Motion for Equitable Tolling (Doc. 95). For the reasons set forth below, the Court denies both motions before it.
I. Procedural Background
This case arises from Defendant’s alleged failure to compensate Plaintiff Tommey and other similarly situated employees for work they were required to perform before and after their shifts and during breaks. Plaintiff filed her Second Amended Complaint on March 3, 2012, asserting claims for violation of the Fair Labor Standards Act (“FLSA”), the Kansas Wage Payment Act, unjust enrichment, quantum meruit, and breach of contract. On August 6, 2012, Plaintiff filed a motion to conditionally certify a collective action under the FLSA. Plaintiff’s motion requested that the Court certify the following class: “all current and former employees in Computer Science Corporation’s Overland Park, Kansas, facility with a position/title of CSR and/or customer service representative who performed pre-shift and/or post-shift work without compensation or who were required to work during unpaid breaks at any time during the past three (3) years.” That motion became fully briefed on September 18, 2012. On March 27, 2013, the Court granted Plaintiff’s motion for conditional certification and certified the class proposed by Plaintiff in her motion.
Because the class definition is limited to employees who worked “during the past three years, ” Defendant asserts that the class only includes employees who worked as CSRs after March 27, 2010; i.e., during the past three years as measured from the Court’s order for conditional certification. Because named-plaintiff Tommey only worked for Defendant as a CSR until December 2009, when she transferred to a position in accounting, and was therefore not a CSR after March 27, 2010, Defendant asserts that Tommey is not a member of the class and thus unable to adequately represent its interests. In response, Plaintiff seeks to equitably toll the statute of limitations.
Defendant contends that because Tommey is not a member of the conditionally certified class, she should be dismissed from the case, removed as class representative, and excluded from the class notice. In response, Plaintiff moves the Court for an Order equitably tolling the statute of limitations from August 6, 2012—the date Plaintiff filed her motion for conditional certification—to March 27, 2013—the date the Court granted it. Plaintiff argues that tolling the statute of limitations effectively extends the class period to a period of time during which Tommey worked for as Defendant as a CSR.
A. Plaintiff’s Cross Motion for Equitable Tolling (Doc. 95)
Plaintiff asks the Court to equitably toll the statute of limitations for approximately an eight month time span—from August 6, 2012, to March 27, 2013. Plaintiff argues that it is unfair to deny her claims and those of the class because of the amount of time that passed between when she initially sought collective relief and when the Court granted it to her. Defendants oppose Plaintiff’s motion arguing, among other points, that equitable tolling is not appropriate because Plaintiff has not shown active deception.
The statute of limitations for actions to recover overtime pay under the FLSA is two years or three years if the violation is “willful.” The limitations period for an opt-in plaintiff continues to run until the plaintiff files a written consent to join the action. “Equitable tolling is a doctrine that permits courts to extend statutes of limitations on a case-by-case basis in order to prevent inequity. This equitable tolling doctrine is read into every statute, including the FLSA.”“Equitable tolling excuses a plaintiff’s untimely filing of a federal claim when the court determines that Congress intended that the plaintiff’s federal rights should be enforced, despite his untimely filing.” The decision to invoke equitable tolling lies exclusively within the sound discretion of the trial court. The United States Supreme Court has stated that the doctrine should be used rarely or sparingly.
The Tenth Circuit has not addressed equitable tolling in an FLSA case. But, it has generally observed that: “Equitable tolling may be appropriate where ‘the defendant has actively misled the plaintiff respecting the cause of action, or where the plaintiff has in some extraordinary way been prevented from asserting his rights . . . . ’ ” Neither of these circumstances is applicable here. Plaintiff has not alleged any facts showing that Defendant actively mislead her or any of the other putative plaintiffs regarding their claims in this case. Furthermore, as another judge in this District found in Greenstein v. Meredith Corporation,  the mere delay in deciding a motion for conditional certification is not an “extraordinary circumstance” warranting the Court to toll the statute of limitations.
In addition, Plaintiff’s grounds for tolling do not meet the test employed by judges of this District for equitably tolling the statute of limitations. When analyzing whether to toll the statute of limitations for an FLSA claim, other judges in this District have looked to the following five factors set forth by the Sixth Circuit:
(1) whether the plaintiffs lacked actual notice of their rights and obligations; (2) whether they lacked constructive notice; (3) the diligence with which they pursued their rights; (4) whether the defendant would be prejudiced if the statute were tolled; and (5) the reasonableness of the plaintiffs remaining ignorant of their rights.
These standards do not necessarily address the situation where there is delay in deciding a motion for conditional certification. However, even applying them to this case, the Court concludes that equitable tolling should not be granted. First, the potential plaintiffs had either (1) actual or (2) constructive notice of their claims. Plaintiff’s Second Amended Complaint asserts in part that the potential plaintiffs are similarly situated employees that were not compensated for work performed over forty hours per week. Based on these facts, the potential plaintiffs would have been on actual notice of their claims against Defendant at the end of each pay cycle when Defendant did not compensate them for excess hours worked. With respect to the third factor, Plaintiff has not set forth any evidence showing that potential plaintiffs were prevented from diligently pursuing their rights. With respect to the fourth factor, Defendant may face additional claims if the Court orders equitable tolling, but the Court does not find that this would be unduly prejudicial. Plaintiff filed her complaint well in advance of the date she seeks to have the statute of limitations tolled. Finally, the Court is not aware of any reasons for potential plaintiffs to remain ignorant of their rights which should compel equitable tolling. As explained above, the potential plaintiffs in this case were aware of the facts giving rise to Plaintiff’s Second Amended Complaint at the completion of each pay cycle in advance of ...