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Johnston v. J&B Mechanical, LLC

United States District Court, W.D. Kentucky, Owensboro Division

September 1, 2017

JACK JOHNSTON, individually and on behalf of those similarly situated PLAINTIFF/COUNTER-DEFENDANT



         This matter is before the Court on a motion by Plaintiff, Jack Johnston, to conditionally certify a collective action and to facilitate notice to collective plaintiffs [DN 14]. Fully briefed, this matter is ripe for decision.

         I. BACKGROUND

         Plaintiff, Jack Johnston, filed a civil action against Defendant, J&B Mechanical, LLC, alleging that J&B Mechanical failed to pay the correct amount of overtime compensation to Johnston and others similarly situated in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (Complaint ¶1.) Johnston was employed by J&B Mechanical from July 18, 2009, through January 21, 2017, as a millwright laborer and a field foreman. Johnston alleges that he was one of an estimated 40 to 80 individuals employed by J&B Mechanical in the past few years as millwrights who served in the capacity of a helper, laborer, or field foreman. Johnston represents that all such personnel performed substantially the same work for the company as millwrights. Johnston avers that in a normal work week, he would work 50 to 70 hours or more for J&B Mechanicals, and approximately seven to 10 of those hours were spent in travel time to out-of-town work sites. Johnston alleges that J&B Mechanical did not count its millwrights' travel time towards their total number of hours worked for calculation and payment of hourly overtime wages in violation of the FLSA.

         J&B Mechanical filed an answer denying that it failed to pay the correct amount of overtime compensation. (Answer ¶¶ 17-27.) Contemporaneously with its answer, J&B Mechanical filed a counterclaim against Johnston alleging that Johnston “engaged in a pattern and practice of fraud, misrepresentation, disloyalty, and deceit” with respect to time he reported working at or while traveling to or from out-of-town worksites. (Counterclaim ¶¶ 8-9.) Johnston now moves the Court to conditionally certify a class of current and former field foremen, laborers, or helpers, or other functional equivalents, to approve notice to advise putative plaintiffs of their rights under the FLSA, and to furnish them an opportunity to opt-in to this action. J&B Mechanical opposes the conditional certification and certain aspects of Johnston's proposed notice.


         The Fair Labor Standards Act (“FLSA”) mandates that “‘employers pay a federally-established minimum wage, as well as overtime, to certain types of employees.'” Tassy v. Lindsay Entertainment Enterprises, Inc., 2017 WL 938326, *2 (W.D. Ky. Mar. 9, 2017)(quoting Boaz v. FedEx Customer Info. Servs., Inc., 725 F.3d 603, 605 (6th Cir. 2013) (citing 29 U.S.C. §§ 206(a), 207(a)). To enforce that mandate, the FLSA provides that an employee may bring a claim “for and in behalf of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). A collective action under the FLSA permits similarly situated employees to “opt in” to the action, unlike the opt-out approach typically utilized under Federal Rule of Civil Procedure 23. “An opt-in action under § 216(b) prohibits any person from becoming a party plaintiff in the collective action unless he or she files a written consent with the Court; therefore, these similarly situated employees must be notified of the lawsuit.” Ross v. Jack Rabbit Servs., LLC, 2014 WL 2219236, at *2 (W.D. Ky. May 29, 2014)(citing Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)).

         In the first stage, “which takes place at the beginning of discovery, the Court must determine whether to conditionally certify the collective action and authorize the distribution of notice to putative class members.” Tassy, 2017 WL 938326, *2 (citing Comer, 454 F.3d at 546- 47). Because conditional certification decisions generally are made prior to discovery, “a plaintiff's evidentiary burden is not a heavy one.” Ross, 2014 WL 2219236, *2. “Conditional certification requires only a modest factual showing that the putative opt-plaintiffs are ‘similarly situated' to the named plaintiff.” Tassy, 2017 WL 938326, *2 (citing White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012)). “At this stage, courts generally consider the pleadings and any affidavits which have been submitted.” Green v. Platinum Restaurants Mid-America, LLC, 2015 WL 6454856, at *1 (W.D. Ky. Oct. 26, 2015). The initial certification is “conditional and by no means final.” Comer, 454 F.3d at 546.

         The second stage occurs “after ‘all of the opt-in forms have been received and discovery has concluded.'” Comer, 454 F.3d at 546 (citation omitted). “In making its final-certification decision, the Court scrutinizes a number of factors, such as “the ‘factual and employment settings of the individual[ ] plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, [and] the degree of fairness and procedural impact of certifying the action as a collective action.'” Tassy, 2017 WL 938326, *2 (quoting O'Brien v. Ed Donnelly Enterprises, 575 F.3d 567, 584 (6th Cir. 2009)(alterations in original) (quoting 7B Charles Alan Wright et al., Federal Practice and Procedure § 1807, at 497 n.65 (3d ed. 2005)). “Regardless of the stage, the lead plaintiff bears the burden of ‘showing that the opt-in plaintiffs are similarly situated.” Tassy, 2017 WL 938326, *2 (citing Wright et al., supra, § 1807, at 476 n.21).

         A. Conditional Certification

         The Court finds that Johnston has provided sufficient factual support to merit conditional certification of a collective action. “In order to show that conditional certification is proper, all that [Johnston] must show at this stage is that [his] ‘position is similar, not identical, to the positions held by the putative class members.'” Tassy, 2017 WL 938326, *2 (quoting Comer, 454 F.3d at 546-47.). Here, Johnston submitted an affidavit stating that all hourly, non-exempt employees of J&B Mechanical in the positions of field foremen, laborers, helpers, or other functional equivalents, were for all wage and hour purposes treated similarly. Johnston avers that while working on a job site, all members of the crew did essentially the same type of work, regardless of whether they were classified by the company as field foremen, laborers, or helpers. (Johnston Aff. ¶ 8.) According to Johnston, all of these employees received pay at differential rates, based on whether they were working on “in-town” or on “out-of-town” jobs. (Johnston Aff. ¶¶ 15, 19, 22.) These employees received mileage payments when working on “out-of-town” jobs, in lieu of hourly overtime wages. (Id.) Johnston represents that he worked and rode with other field foremen and millwrights on extended travel duty for J&B Mechanical. (Id. ¶¶ 21-22.) Based on his discussions with other co-workers, Johnston avers that he has been able to determine that the pay scheme enacted by J&B Mechanical is applicable across the board. (Id. at ¶¶15-22.) In fact, Johnston specifically lists 19 other individuals that he contends did not receive the correct amount of overtime pay. (Id. at ¶ 20.)

         J&B Mechanical disagrees. It asks the Court to deny conditional certification of the collective action arguing that Johnston has failed to meet his burden of proving that he is similarly situated to other members of the putative collective action. The Court will address these arguments in turn.

         First, J&B Mechanical argues that it has filed several counterclaims, including breach of duty of loyalty, fraud, negligent misrepresentation, and unjust enrichment, against Johnston which renders him a poor representative of the putative collective action. J&B Mechanical maintains that he over-reported his hours worked and claimed entitlement to “per diem” payments on days that such payments were not earned pursuant to the company's policy. J&B Mechanical also suggests that the counterclaims bring Johnston's credibility into question. At the first stage, district courts within the Sixth Circuit do not “resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Bradford v. Logan's Roadhouse, Inc., 137 F.Supp.3d 1064, 1072 (M.D. Tenn. 2015); Shipes v. Amurcon Corp., 2012 WL 995362, at *5 (E.D. Mich. Mar. 23, 2013); Myers v. Marietta Mem'l Hosp., 201 F.Supp.3d 884, 891 (S.D. Ohio 2016). While J&B Mechanical's counterclaims may be meritorious, the Court finds it inappropriate to engage in a merits analysis at this stage of the action in order to determine whether a conditional certification is warranted.

         Second, J&B Mechanical asserts that conditional certification is inappropriate because Johnston is likely subject to the motor carrier exemption under the FLSA, 29 U.S.C. § 213(b)(1). The motor carrier exemption provides that overtime pay requirements are not applicable to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to provisions of [the Motor Carrier Act].” 29 U.S.C. § 213(b)(1). “Courts generally do not evaluate the legality of the challenged policy or the applicability of an FLSA exemption at this stage of the certification process.” Williams v. King Bee Delivery, LLC, 2017 WL 987452, *4 (E.D. Ky. Mar. 14, 2017)(citing Bradford, 137 F.Supp.3d at 1072); Waggoner v. U.S. Bancorp, 110 F.Supp.3d 759, 769 (N.D. Ohio ...

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