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Abney v. R.J. Corman Railroad Group, LLC

United States District Court, E.D. Kentucky, Central Division

August 29, 2017

JASON W. ABNEY, etc., Plaintiffs,



         This matter is pending for consideration of Plaintiff Jason Abney9');">9;s motion for conditional certification of a collective action and facilitation of notice to potential class members. [Record No. 9');">9] Abney has filed a Complaint [Record No. 1');">1] against his former employer, Defendant R. J. Corman Railroad Group, LLC (“RJC Group”), on his own behalf and on behalf of other similarly-situated individuals, for overtime compensation relief under the Fair Labor Standards Act (“FLSA”), 29');">9 U.S.C. §§ 207(a), 21');">16(b). Abney has filed the declarations of Corey York [Record No. 1');">10-1');">13], Brandon Smith [Record No. 1');">11');">1-1');">1], Charles Johns [Record No. 1');">16-1');">1], James Mattingly [Record No. 1');">16-2], and Ryan Dempsey [Record No. 1');">17-1');">1], who have consented to join the case.

         The underlying allegations, as set forth in Abney9');">9;s Complaint and declaration, are as follows: The defendant provides railroad construction and maintenance services. [Record No.1');">1, ¶ 7] Abney worked for “R.J. Corman Railroad” as an operator and laborer from August 201');">15 through March 201');">17. [Record No. 9');">9-5, ¶ 3] He was required to travel to project locations away from home. [Record No. 1');">1, ¶ 8] Abney and similarly-situated individuals were not paid for all time spent traveling away from their home site and back, in violation of 29');">9 U.S.C. § 207(a)(1');">1). [Record No. 1');">1, ¶¶ 1');">10, 1');">12] He defines similarly-situated individuals as “all Operators/Laborers who worked for Defendant from June 201');">14 to the present, who worked more than forty (40) hours per week and were paid an hourly rate plus overtime, but not paid for all travel time from: (a) home site to assigned project location; (b) one assigned project location to another assigned project location; and/or (c) an assigned project location back to home site.” [Record No. 9');">9, p. 2');">p. 2] Abney seeks conditional certification as a collective action and requests that the Court facilitate the notice to potential collective action plaintiffs.


         An action to recover unpaid overtime compensation under the FLSA may be maintained against any employer 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.” 29');">9 U.S.C. § 21');">16(b). The FLSA collective action mechanism serves an important remedial purpose and allows plaintiffs who have suffered relatively small monetary harm to join a larger pool of similarly-situated plaintiffs. Gunn v. NPC, Int9');">9;l, Inc., 625 F. App9');">9;x 261');">1, 267 (6th Cir. 201');">15).

         Courts within the Sixth Circuit apply a two-step approach to determine whether a collective action is proper. White v. Baptist Mem9');">9;l Health Care Corp., 9');">99');">9 F.3d 869');">9');">69');">99');">9 F.3d 869');">9, 877 (6th Cir. 201');">12). During the “notice stage, ” the Court determines whether the plaintiff has presented sufficient evidence of similarly-situated putative plaintiffs to warrant court-facilitated notice and to conduct discovery. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 545 (6th Cir. 2006). The plaintiff must establish at least a “colorable basis” for his claim that a class of similarly- situated putative plaintiffs exists and that the class members together were victims of an unlawful policy. Berry v. Office of the Fayette Cnty. Sheriff, No. 5: 1');">14-CV-356, 201');">15 WL 476320, at *2 (E.D. Ky. Feb. 5, 201');">15). This standard is fairly lenient and typically results in conditional certification of a representative class. Comer, 454 F.3d at 547. If the district court conditionally certifies the class, putative class members are given notice and the opportunity to opt-in. At the second stage, following discovery, the court examines more closely the question of whether the members of the class are, in fact, similarly situated. Id.

         Abney has submitted the declarations of Brandon Smith [Record No. 1');">11');">1-1');">1], Corey York [Record No. 1');">10-1');">13], Charles Johns [Record No 1');">16-1');">1], James Mattingly [1');">16-2], and Ryan Dempsey [Record No. 1');">17-1');">1], who have consented to opt-in to the lawsuit. Some of these individuals, including Abney, attested that they were employed as operators or laborers for “R.J. Corman” and that they similarly were not paid for all travel hours worked. [Record Nos. 9');">9-5; 1');">10-1');">13; 1');">11');">1-1');">1; 1');">16-1');">1] The defendant concedes, however, that Abney and Smith worked for Defendant R.J. Corman Railroad Group during the relevant time period. [Record No. 1');">13-1');">1] Mattingly and Dempsey reported that they worked as operators/laborers for the defendant and, like Abney, were not paid properly for all travel hours worked. [Record Nos. 1');">16-2; 1');">17-1');">1] Additionally, York and Smith alleged that they had talked with other co-workers about being underpaid for travel hours worked. [Record Nos. 1');">10-1');">13, p. 2');">p. 2; 1');">11');">1-1');">1, p. 2');">p. 2]

         The plaintiff has provided additional evidence that may suggest a widespread failure to pay operators/laborers for all overtime hours resulting from travel away from home. [Record No. 1');">12-1');">1] Corman Railroad Services recently issued a letter to its current employees indicating that it “recently began reviewing its travel pay practices to determine compliance with the [FLSA].” [Record No. 1');">14, p. 1');">1] Having determined that a bona dispute regarding overtime pay for travel hours existed, Corman Railroad Services offered payments to employees. Id. at pp. 1');">1-2. Abney filed several of the defendant9');">9;s recent job postings for operator/laborer which state that extensive travel is required for the position. [See Record Nos. 9');">9-1');">10.]

         The FLSA does not define “similarly situated, ” but it is clear that plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” O9');">9;Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009');">9) (abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 1');">136 S.Ct. 663');">1');">136 S.Ct. 663 (201');">16)). There is no specific minimum number of opt-in plaintiffs required to establish a showing of sufficient interest. Martin v. Psalms, Inc., No. 2: 1');">10-CV-2532, 201');">11');">1 WL 2882387, at *8 (W.D. Tenn. July 1');">15, 201');">11');">1). Instead, the relevant inquiry is whether there are similarly-situated employees who desire to opt in. The plaintiff must show only that his position is similar, not identical, to positions held by putative class members. Comer, 454 F.3d at 546-47.

         Abney has shown that at least three of the defendant9');">9;s former employees (Smith, Mattingly, and Dempsey) wish to opt in to this action. Smith, Mattingly, and Dempsey, like Abney, attested that they worked for the defendant as operators/laborers and were subject to the same travel pay policy that deprived them of proper overtime pay when working away from home. [Record Nos. 1');">11');">1-1');">1, 1');">16-2, 1');">17-1');">1] Additionally, two other individuals formerly employed under the R.J. Corman umbrella of companies (York and Johns) make the same claims. [Record Nos. 1');">10-1');">13; 1');">16-1');">1] Accordingly, the plaintiff has made the minimal showing for conditional certification required at the notice stage.

         Abney9');">9;s proposed notice of lawsuit would provide notice to “all ‘operators/laborers9');">9; who worked for defendant from June 201');">14 to the present. . . .” [Record No. 9');">9-1');">1, p.1');">1] Although R.J. Corman Group is the only named defendant, Abney contends that notice should be provided to employees of sixteen entities “own[ed], operat[ed]” or which “conduct business” R.J. Corman Group.[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] [Record No. 9');">9, p. 3] The parties have devoted substantial argument to the question of whether the defendant and these allegedly related entities are an enterprise or a single employer for purposes of the FLSA. However, these are merit-based arguments which the Court may not evaluate at this stage. See Ji Li v. Ichiro Rest. Inc., No. 1');">14-cv-1');">10232, 201');">15 WL 6828056, at *3 n.3 (S.D.N.Y. Nov. 5, 201');">15); Ali v. Sugarland Petroleum, No. 4: 09');">9-cv-1');">170, 2009');">9 WL 51');">173508, at *4 (S.D. Tex. Dec. 22, 2009');">9). Discovery is in its infancy and the record is too limited for such analysis. Further, at the notice stage, certification is conditional and by no means final. Comer, 454 F.3d at 546. These arguments may be raised later in a motion to decertify or for summary judgment, when the record is fully developed and the Court can properly analyze the issues.


         The defendant has suggested additional clarifying language to paragraphs one and six of the plaintiff9');">9;s Proposed Notice. [Record No. 1');">13, p. 1');">13] The additional proposed language is not substantive in nature and is consistent with the plaintiff9');">9;s Proposed Notice. Further, it does not appear that the plaintiff objects to the addition of the language. Accordingly, the proposed language at Record No. 1');">13, page 1');">13 shall be added to the Notice before it is sent to the potential class members.

         The plaintiff has not explained why a follow-up notice prior to the close of the notice period is necessary. Further, there is no indication that notice should be posted at the potential plaintiffs&#39');">9; worksites. “In FLSA cases, first-class mail is generally considered to be the best notice practicable to ensure that proper notice is received by potential class members.” Lindberg v. UHS of Lakeside, LLC, 1');">1 F.Supp.2d 752');">761');">1 F.Supp.2d 752, 765 (W.D. Tenn. 201');">11');">1). As the defendant points out, only current employees would see the posted notice and the plaintiff will be provided the current address for those individuals. Finally, the plaintiff has not demonstrated a need for the defendant&#39');">9;s ...

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