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Opinions – U.S. District Court, Maryland: 2/14/11

Administrative Law

Telecommunications tower location

BOTTOM LINE: A wireless telecommunications provider’s motion seeking to compel the zoning board to grant a permit to erect a cell tower was granted because the board’s denial of the permit application was made without regard to local zoning law and because the provider satisfied criteria established by the zoning ordinance for obtaining such a permit.

CASE: T-Mobile Northeast LLC v. Frederick County Board of Appeals, Civil No. JFM-10-1037 (filed Dec. 30, 2010) (Judge Motz). RecordFax No. 10-1230-40, 12 pages.

FACTS: T-Mobile Northeast LLC, a wireless telecommunications service provider, applied to the Frederick County Board of Appeals for a special use exception to install a cell tower in Frederick County, in order to close a gap in T-Mobile’s service coverage.

In order to remedy a gap in coverage identified through dropped-call data, customer complaints, and research analysis conducted by radio frequency engineers, T-Mobile designated a one-mile radius “search ring” inside of which a cell site would need to be located in Frederick County. T-Mobile identified one existing structure within the search ring upon which collocation of the cell site would be possible: an existing unipole installed by AT&T Wireless. AT&T, however, would only permit T-Mobile to attach at 40 feet above ground level. After T-Mobile’s radio frequency engineer determined that 40 feet was too low to close the gap in coverage, T-Mobile made the decision to construct a new facility. T-Mobile identified 3857 South Mountain Road in Knoxville, Maryland (the “Property”) as a suitable site for closing the gap in coverage.

The proposed cell site is a 150-foot stealth telecommunications unipole.

The Property is zoned “A” (Agricultural), allowing for the construction of a new cell tower as a special exception under the Frederick County Code of Ordinances. Section 1-19-8.332 of the Zoning Ordinance details the necessary components of a successful special exception application. T-Mobile’s application supplied information regarding each criterion and the documents required by §§1-19-88 and 18.

At a Jan. 28, 2010, hearing, T-Mobile was permitted twenty minutes to present evidence in support of its application for a special exception. T-Mobile introduced five witnesses with expertise as to T-Mobile’s cell site location process, as well as general expertise in the areas of site acquisition, zoning, wireless project management, radio frequency engineering, wireless network design, site development, environmental science, and real estate values. T-Mobile described the proposed facility, the need for more coverage in the area, and its method for identifying the Property as an ideal location for a cell site. T-Mobile also testified as to the stealth nature of the proposed unipole, as well as the photo simulations and the balloon tests T-Mobile conducted, demonstrating its efforts to minimize the visual impact of the proposed cell site. Additionally, T-Mobile submitted a petition signed by thirty-three community members supporting the installation of the unipole. T-Mobile’s expert witnesses testified that the unipole would not negatively affect property values, and that the unipole would not negatively affect historic properties or the Appalachian Trail. Several community members also spoke in favor of T-Mobile’s application, citing concerns over their current cell phone reception and their inability to make phone calls in emergency situations.

In opposition to the application, several community members and the Executive Director of Harper’s Ferry Conservancy spoke in general terms about their concerns over the impact a unipole would have on the rural character of the area and on the mountain views and gave their opinion that there were other locations more suitable places. One person presented the Board with an appraisal of his property, predicting that the unipole would cause a decrease in his property value by ten percent. Others testified similarly.

On Feb. 1, 2010, the Board voted to deny T-Mobile’s special exception application by a vote of 3-2. The Board issued its written Findings and Decision, stating, in part, that T-Mobile needed to consider other sites for its equipment.

T-Mobile filed an action in the district court seeking an injunction directing the Board to grant its application, as well as any ancillary permits necessary to construct the cell site. T-Mobile moved for Summary Judgment pursuant to Fed.R.Civ.P. 56.

The court granted the motion for Summary Judgment.

LAW: T-Mobile claimed that the Board’s decision violated §332(c)(7)(B)(iii) of the Telecommunications Act (TCA) because it was not supported by “substantial evidence.” T-Mobile also claimed that the Board violated Maryland law concerning special exceptions to zoning ordinances. The two claims merged because courts require that in order for a zoning board decision to satisfy the TCA’s substantial evidence test, the challenged decision accord with applicable local zoning law. See, e.g., T-Mobile Cent., LLC v. Wyandotte County, 546 F.3d 1299, 1307 (10th Cir. 2008). In other words, if a zoning board’s decision violates a state’s zoning law, as a matter of law it is not supported by substantial evidence.

The TCA, 47 U.S.C §301 et seq., aims to reduce impediments imposed by local governments upon the installation of facilities for wireless communications, such as cell towers. See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005). Section 332(c)(7) requires that local governments act on requests for authorization to locate wireless facilities “within a reasonable period of time,” §332(c)(7)(B)(ii), and each decision denying such a request must “be in writing and supported by substantial evidence contained in a written record,” §332(c) (7)(B)(iii).

“The special exception use is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid.” Schultz v. Pritts, 291 Md. 1, 11 (1981). Where the local legislature has determined that as part of its comprehensive plan certain uses are appropriate in a zone by way of special exception, the local legislature has, in effect, declared that such uses, if they satisfy the other specific requirements of the ordinance, promote the health, safety and general welfare of the community. See Anderson v. Sawyer, 23 Md.App. 612, 624 (1974).

Importantly, though, “[a] special exception…is merely deemed prima facie compatible in a given zone. The special exception requires a case-by-case evaluation by an administrative zoning body or officer according to legislatively-defined standards. That case-by-case evaluation is what enables special exception uses to achieve some flexibility in an otherwise semi-rigid comprehensive legislative zoning scheme.” People’s Counsel for Baltimore County v. Loyola College in Md., 406 Md. 54 (2008).

Once a special exception applicant has introduced facts and documents that satisfy the specific criteria for a special exception set forth in the zoning ordinance, “the appropriate standard to be used in determining whether a requested special exception use … should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone.” Schultz, 291 Md. at 22-23.

Here, the Board made no finding that the granting of the special exception at the proposed location would have adverse effects that are not inherently associated with cell towers. Therefore, if T-Mobile satisfied the specific criteria set forth in the Frederick County Zoning Ordinance for obtaining a special exception, the Board’s decision was not in accord with controlling Maryland law.

The Board found that T-Mobile’s submission of its attempt to collocate on the AT&T tower only, without any information on attempts to find alternative sites for the unipole within the one mile search ring, was “inadequate” because “[t]here was no specific evidence presented as to any effort made by the Applicant to locate other land.” The Board concluded that “simply stating that the only existing structure in the area was inadequate, without any evidence that there was no other land which may have been available, and without more, fails to sustain Applicant’s burden of either production or persuasion on this critical element.”

However, §1-19-88.332(B)(2) simply does not require an applicant to consider any alternatives at all. Of course, if an applicant does not consider any alternatives, this might be a factor that the Board could take into account in deciding whether to grant a special exception. If no suitable alternative has been considered, the Board might conclude that a special exception should not be granted because the special exception “at the particular site proposed would have…adverse effects above and beyond those inherently associated with such a special exception irrespective of its location within the zone.” Shultz, 291 Md. at 22-23.

Here, however, the opponents to the special exception sought by T-Mobile presented no evidence of a suitable alternative site, and the alternative that T-Mobile had considered self-evidently was a reasonable one. Under these circumstances §1-19-88.332(B)(2) imposed no obligation upon T-Mobile to identify other potential sites and negotiate with the owners of those sites before seeking a special exception.

Accordingly, it was found that T-Mobile satisfied the criteria established by the Frederick County Zoning Ordinance for obtaining a special exception. Because it did so, in order for the Board to deny the special exception sought by T-Mobile, under Shultz the Board would have had to find that the installation of a cell tower on the proposed site had adverse effects not inherent in cell towers themselves. The lack of such a finding invalidated the Board’s decision both under Maryland law and the TCA.

Accordingly, T-Mobile was entitled to summary judgment.

COMMENTARY: Because the Board’s decision was not in accord with Maryland zoning law, it was not necessary to decide whether it otherwise was not supported by substantial evidence. It was noted, however, that although the TCA does not define the term “substantial evidence,” the legislative history demonstrates Congress’s intent that the term hold the same meaning as in administrative law. See H.R. Conf. Rep. No. 104-458, at 208 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223 (“the phrase ‘substantial evidence contained in a written record’ is the traditional standard used for judicial review of agency actions.”). “[S]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” AT&T Wireless PCS v. City Council of Va. Beach, 155 F.3d 423, 430 (4th Cir. 1998). Significantly, “substantial evidence,” while more than a scintilla, is also less than a preponderance. Id.

Civil Procedure

Class certification

BOTTOM LINE: Because plaintiffs made the requisite factual showing that members of the putative collective action were similarly situated, the Motion for Conditional Certification and Court-Authorized Notice were granted.

CASE: Calderon, et al. v. GEICO General Insurance Company, et al., No. RWT 10CV1958 (filed Jan. 12, 2011) (Judge Titus). RecordFax No. 11-0112-40, 22 pages.

FACTS: Samuel Calderon was employed by GEICO as a Senior Security Investigator from March 2008 until June 2010. GEICO employs 230 Investigators nationwide. They are responsible for investigating insurance claims involving questionable, suspect, or fraudulent activities. Investigators interview witnesses, obtain statements, take photographs and write preliminary reports regarding their findings.

Preliminary reports are reviewed by each Investigator’s supervisor, who grades them on a scale of one to five. The supervisor then determines whether additional investigative steps, such as an examination of the claimant under oath, are necessary and returns the preliminary report to the Investigator. Investigators send a final report to the assigned claims professional only after their reports are approved by their supervisors.

Investigators must obtain approval from their supervisors to hire a private investigator to assist them in their investigations and are not permitted to decide whether to pay or deny an investigated claim. According to Calderon, Investigators are not allowed to make recommendations or give opinions as to whether fraud occurred. GEICO, however claims that Security Investigators are encouraged to express their opinions regarding whether fraud has occurred in their reports. Further, GEICO asserted that Investigators have the authority to determine whether to refer cases involving suspected fraud to law enforcement or regulatory agencies. During the course of their investigations, Investigators may convince a claimant to withdraw his or her claim.

In July 2010, Calderon and others filed a collective action alleging that Security Investigators were improperly categorized as “exempt” employees under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201 et seq., and therefore were not paid overtime wages even though they worked in excess of forty hours per work week. The Complaint contained one count alleging that GEICO willfully violated the FLSA. Calderon and 10 opt-in plaintiffs sought to recover unpaid overtime compensation, liquidated damages, costs and attorney’s fees.

On Oct. 22, 2010, Plaintiffs for conditional collective action certification and court-approved notice pursuant to FLSA §216(b). A hearing was held on Dec. 3, 2010, after which the district court granted Calderon’s motion and ordered court-approved notice.

LAW: Under 29 U.S.C. §216(b), employees may maintain a “collective action” against their employer for violations of the FLSA if the employees are “similarly situated.” Section 216(b) provides, in pertinent part: “Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages… An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”

This section “established an opt-in scheme whereby potential plaintiffs must notify the court of their intention to be a party.” Robinson v. Empire Equity Group, Inc., 2009 WL 4018560, at *1 (D.Md. Nov.18, 2009). “Courts have discretion to allow collective actions and to facilitate notice to potential plaintiffs by ordering the employer to produce names and addresses of employees who may have been subjected to the allegedly unlawful practice.” Id.

The district court has adopted a two-step approach to determine whether collective treatment is warranted. Id. at *2. At the first stage, conditional certification, Plaintiffs must make a “preliminary factual showing, usually by pleadings and affidavits, that a similarly situated group of potential plaintiffs exists.” Id. “Because the court has minimal evidence [at this stage], this determination is made using a fairly lenient standard, and typically results in conditional certification of a representative class.” Yeibyo v. E-Park of DC, Inc., 2008 WL 182502, at *7 (D.Md. Jan.18, 2008).

At the conditional certification stage, “the court does not make a conclusive determination that a class of similarly situated plaintiffs exists; it merely determines whether the plaintiffs have made a ‘modest factual showing’ of similar situation that justifies notifying potential plaintiffs of the suit.” Robinson, 2009 WL 4018560, at *2. “Factual disputes do not negate the appropriateness of court facilitated notice,” but “[m]ere allegations in the complaint are not sufficient; some factual showing by affidavit or otherwise must be made.” Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519-20 (D.Md. 2000).

“Plaintiffs are similarly situated when they raise a similar legal issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from similar job requirements and pay provisions.” Robinson, 2009 WL 4018560, at *2. “[C]lass members’ positions need not be identical, only similar.” Id. However, conditional certification is inappropriate if it is apparent that the job responsibilities of potential class members differ in significant ways. See Andrade v. Aerotek, Inc., 2009 WL 2757099, at *3 (D.Md. Aug.26, 2009). “After discovery is complete and more factual information is available to the court, the defendant may file a motion to decertify the class” at which point “the court uses a higher standard to determine whether the members of the class are similarly situated.” Robinson, 2009 WL 4018560, at *2.

In determining whether GEICO Security Investigators are similarly situated for the purpose of conditional certification, the analyses of two recent cases — Andrade v. Aerotek, Inc. and Robinson v. Empire Equity Group, Inc. — were instructive.

Andrade involved claims by a putative FLSA class of recruiter trainees, recruiters and accounting recruiting managers (ARMs) against their former employer, an international staffing agency. The Court denied plaintiffs’ motion for conditional certification with respect to a class of recruiters and ARMs because it found that there were marked differences in the job responsibilities of individual recruiters, and in the responsibilities of recruiters as compared to ARMs. Andrade, 2009 WL 2757099, at *3-4. The recruiters’ degree of hiring and firing authority varied from one division of the company to another, as did their degree of authority to negotiate wages and benefits for individuals they hired. Id. at *3. The type and number of recruits hired by different recruiters also varied by division. Id. The responsibilities of ARMs differed in important ways from those of recruiters and the responsibilities of ARMs also differed from one ARM to the next. Some ARMs made hires without their client being involved, while other ARMs made no such hires. Id. at *3 & n. 8. Some ARMs notified terminated employees of their termination, while others did not. Id. n. 8. Unlike recruiters, ARMs were responsible for client account management and sales functions, in addition to recruiting. Id. at *2. The Court held that conditional certification of a group of ARMs and recruiters was inappropriate given their widely divergent job responsibilities and levels of authority to perform certain hiring and termination functions. Id. at *4.

However, the Andrade Court did conditionally certify a group of recruiter trainees, holding that they were similarly situated. The Court found that all recruiter trainees followed the same 90-day training program during which they completed computer training modules, shadowed recruiters, and became acclimated to the nature and pace of recruiting in their divisions. Id. at *4. All recruiter trainers were evaluated at the 45-day mark and at the end of their 90-day training program. Id. Further, during the training period, recruiter trainees were all allegedly subject to the same “policy of encouraging overtime work while forbidding the reporting of overtime hours.” Id. at *4. The reason recruiter trainees were similarly situated, the Court held, was because they both had similar job responsibilities and were subject to the same policy that allegedly violated the FLSA. Id. at *4-5.

In Robinson v. Empire Equity Group, Inc., the district court conditionally certified a group of loan officers as a FLSA class, finding that they were “similarly situated even though there [were] distinctions in their job titles, functions, [and] pay.” Robinson v. Empire Equity Group, Inc., 2009 WL 4018560, at *3 (D.Md. Nov.18, 2009). The Robinson Court held that the loan officers’ “essential duties appear to be the same.” Id. at *4.

Similarly, Plaintiffs in this action have “made a sufficient preliminary showing that the potential class members have similar duties.” Robinson, 2009 WL 4018560, at *4. Plaintiffs have submitted sworn declarations from several current and former Senior Security Investigators for Conditional Certification. All Plaintiffs alleged that while employed by GEICO they routinely worked over forty hours per week to investigate all files assigned to them and that they performed the same, primary job duty-investigating questionable, suspect or fraudulent claims. All Plaintiffs alleged that they were responsible for interviewing witnesses, obtaining statements, and taking photographs of purported accidents. They all alleged that they were required to obtain approval from the claims professional to whom the claim was assigned if they wished to use a private investigator to assist in an investigation. All plaintiffs allege they were required to submit regular reports to their supervisors, who decided if additional investigation was necessary. All claimed that they were required to simply report facts, but did not have the authority to deny a claim or determine whether an examination of the claimant under oath was warranted. Finally, all alleged that other Investigators in their region routinely worked over 40 hours per week and that GEICO has a company-wide policy of not paying Investigators overtime compensation because they are classified as “exempt” employees under FLSA.

Given the “lenient standard” employed in this district when determining if conditional collective action certification is appropriate, see Yeibyo v. E-Park of DC, Inc., et al, 2008 WL 182502, at *7 (D.Md. Jan.18, 2008), Plaintiffs’ sworn declarations sufficiently alleged that they perform similar job functions and are subject to a company-wide policy of not paying Security Investigators overtime despite the fact that they consistently work more than 40 hours per week.

Accordingly, the Plaintiffs’ motion was granted.

COMMENTARY: Having concluded that conditional certification was appropriate, the court turned to the parties’ disputes regarding the scope of court-authorized notice.

In Hoffman-La Roche v. Sperling, the Supreme Court held that court-approved notice to potential plaintiffs in FLSA collective actions is proper in “appropriate cases” and determining what is an appropriate case is within the discretion of the district court. Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989).

“Court authorization of notice serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the action.” Montoya v. S.C. C.P. Painting Contractors, Inc., et al., 2008 WL 554114, at *4 (D.Md. Feb.26, 2008). “Because the statute of limitations period continues to run with respect to each potential plaintiff’s collective action claim until that plaintiff files the written [opt-in] consent form, court-facilitated notice is crucial.” Id. “The court must take pains, however, to avoid the stirring up of litigation through unwarranted solicitation and to recognize that an employer should not be unduly burdened by a frivolous fishing expedition conducted by plaintiff at the employer’s expense.” Id.

GEICO argued that Plaintiffs waived their right to court-authorized notice because Plaintiffs’ counsel solicited potential plaintiffs to bring this action. This argument was not supported by case law.

The parties also disputed the appropriate geographic scope of the proposed notice. GEICO argued that providing notice to GEICO Security Investigators employed nationwide was inappropriate. Here, declarations were submitted from current and former employees who reported to five of GEICO’s eight regional offices. GEICO’s alleged misclassification of Security Investigators appeared to be nationwide, and therefore nationwide court-approved notice was appropriate.

PRACTICE TIPS: In a class action suit, plaintiffs’ request to send reminder notices to class members after already sending court approved notice has the potential to unnecessarily “stir up litigation,” and will therefore be denied. Montoya v. S.C.C.P. Painting Contractors, Inc., et al., 2008 WL 554114, at *4 (D.Md. Feb.26, 2008).