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Stine v. Fedex Ground Package System, Inc.

United States District Court, E.D. Kentucky, Northern Division, Covington

June 18, 2019



          David L. Bunning United States District Judge

         This matter is before the Court on Plaintiffs' Motion to Facilitate, wherein Plaintiffs request an opportunity to notify other potential class members of the existence of this putative FLSA collective action and to provide them with the opportunity to “opt-in” pursuant to 29 U.S.C. § 216(b). (Doc. # 12). The Court construes this Motion as one for conditional certification under the FLSA. For the reasons set forth below, Plaintiffs' Motion (Doc. # 12) is granted.


         Plaintiffs Michael Stine and Zach Payne filed this putative collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), on July 5, 2018, and filed an Amended Complaint on September 11, 2018. (Docs. # 1 and 7). In their Amended Complaint, Plaintiffs allege that they were employed by Defendant Fedex Ground Package System, Inc., as “operations managers” in Boone County, Kentucky. (Doc. # 7 at 2). As operations managers, Plaintiffs allege that they were tasked with handling and sorting packages at Defendant's Boone County facility. Id. Plaintiffs allege that Defendant had longstanding policies and practices of requiring its operations managers to clock out and clock back in for their lunch breaks but to continue working through these “breaks” without pay in violation of the FLSA and Kentucky's minimum-wage and overtime statutes. Id. at 1. Plaintiffs also allege that they and other current and former similarly-situated employees regularly worked overtime and that, as a consequence of not being paid for their lunch breaks, received overtime pay which was one-half hour per day less than what should have been paid. Id. at 1-2.

         As a result of Defendant's alleged acts, Plaintiffs allege five causes of action: violation of 28 U.S.C. §§ 206 and 207(a) (Counts I and II, respectively); violation of Ky. Rev. Stat. § 33.285 (Count III); violation of 29 U.S.C. § 211(c) (Count IV); and violation of Ky. Rev. Stat. § 337.320(1) (Count V). (Doc. # 7 at 3-4). Plaintiffs seek, inter alia, “restitution for the lunch breaks they were not paid for and for the overtime compensation that would have resulted had the lunchbreak time been added to the hours worked for the week.” Id. Plaintiffs seek to bring this action “on behalf of themselves and all other current and former ‘operations managers' at . . . Fed Ex Ground, ” specifically, a “class of similarly situated employees . . . who may choose to opt in to this action . . . consist[ing] of all current and former employees of Defendant who were required by Defendant to work through their lunchbreak but did not get paid for the time or for the additional overtime that resulted.” Id. at 2.

         Defendant filed its Answer to the Amended Complaint on September 25, 2018, and thereafter the Court entered a Scheduling Order. (Docs. # 8 and 11). On November 16, 2018, Plaintiffs timely filed the instant Motion to Facilitate. (Doc. # 12). Plaintiffs attached to their Motion the Affidavit of Plaintiff Michael Stine, wherein he attests to facts in support of their allegations that (1) Plaintiffs Stine and Payne each worked for Defendant as operations managers within the past five years; (2) Defendant failed to pay its operations managers proper overtime compensation; and (3) the unlawful pay practices at issue in this case are pervasive, widespread, and substantially similar throughout Defendant's local class of workers known as operations managers. Id. at 3 (citing Doc. # 12-1). Plaintiffs' Motion to Facilitate requests that the Court issue an Order directing Defendant to “immediately provide Plaintiffs' counsel with a list of the names and contact information of all current and former operations manager employees employed in its Boone County, Kentucky location within the last five years immediately preceding the filing of the Complaint, ” and “authorizing the issuance of a Court-approved notice to the Potential Class Members so that they may be made aware of and can effectively assert their claims on a timely basis.” Id. at 1-2. Plaintiffs attach a proposed Notice and attendant opt-in form to their Motion. See (Doc. # 12-2). The Motion having been fully briefed, see (Docs. # 16 and 17), this matter is now ripe for review.

         II. ANALYSIS

         A. Standard of Review

         Pursuant to the FLSA, an employee may bring a collective action against any employer on his or her own behalf and on behalf of other employees “similarly situated.” 29 U.S.C. § 216(b). Separate in form from traditional class actions governed by Rule 23 of the Federal Rules of Civil Procedure, FLSA collective actions require potential class members to notify the Court of their desire to opt in to the collective action. Id. (“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.”); see also Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007). The decision to conditionally certify a class is within the discretion of the trial court. Snelling v. ATC Healthcare Servs., Inc., No. 2:11-CV-983, 2012 WL 6042839, at *2 (S.D. Ohio Dec. 4, 2012) (citing Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)).

         In determining whether to certify a collective action under the FLSA, the Sixth Circuit has adopted a two-tiered approach. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th Cir. 2006). The first stage, commonly called “conditional certification, ” involves providing notice to potential plaintiffs by giving them the opportunity to “opt-in” to the lawsuit. Id. at 546-47. The second stage occurs after this initial discovery process related to identifying and notifying potential plaintiffs occurs. Waggoner v. U.S. Bancorp, 110 F.Supp.3d 759, 764 (N.D. Ohio 2015) (citing Comer, 454 F.3d at 547 (stating that the second stage is initiated “after all of the opt-in forms have been received and discovery has concluded”)). This conditional, two-stage approach allows the Court to examine whether the plaintiffs who have filed opt-in notices with the Court during stage one are in fact similarly situated to the originally-named plaintiffs. Comer, 454 F.3d at 547. If the Court then determines at stage two that the plaintiffs are not similarly situated, the Court may decertify the class. Harrison v. McDonald's Corp., 411 F.Supp.2d 862, 864 (S.D. Ohio 2005).

         Plaintiffs seeking to certify a collective action under the FLSA bear the burden to show that they and the class they seek to represent are similarly situated. However, at this first stage-conditional certification-a named plaintiff must provide only a “modest factual showing” to demonstrate that he is similarly situated to his proposed co-plaintiffs, and the court's review of this modest showing “is made using a fairly lenient standard, ” which “typically results in ‘conditional certification' of a representative class.” Crawford, 2007 WL 293865, at *5 (quoting Comer, 454 F.3d at 546-47). See also Hamm v. S. Ohio Med. Ctr., 275 F.Supp.3d 863, 874 (S.D. Ohio 2017). Generally, courts require “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. (quoting Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001)). “[I]n order to meet this standard, plaintiffs must simply ‘submit evidence establishing at least a colorable basis for their claim that a class of similarly situated plaintiffs exist.'” Olivo v. GMAC Mortg. Corp., 374 F.Supp.2d 545, 548 (E.D. Mich. 2004). During this preliminary stage, “a district court does not generally consider the merits of the claims, resolve factual disputes, or evaluate credibility.” Waggoner, 110 F.Supp.3d at 765 (citing Swigart v. Fifth Third Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011)). Moreover, the FLSA “does not import ‘the more stringent criteria for class certification under Fed.R.Civ.P. 23' and it is also ‘less stringent than [the] Rule 20(a) requirement that claims ‘arise out of the same transaction or occurrence' for joinder to be proper[.]” Id. (citing O'Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 584 (6th Cir. 2009)).

         With respect to the initial inquiry into whether a plaintiff is similarly situated with the proposed collective class, the Sixth Circuit has observed that “plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or conduct in conformity with that policy proves a violation as to all the plaintiffs.” Id. (quoting O'Brien, 575 F.3d at 585). The court in O'Brien also explained, however, that “[s]howing a ‘unified policy' of violation is not required” to support conditional certification of a collective act. Id. at 584. Rather, plaintiffs may also meet the similarly-situated requirement if they can demonstrate, at a minimum, that “their claims [are] unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct.” Id. at 585. See also Lewis v. Huntington Nat'l Bank, 789 F.Supp.2d 863, 867 (S.D. Ohio 2011) (stating that, at the initial notice stage, “the named plaintiff need only show that [his] position [is] similar, not identical, to the positions held by the putative class members”).

         There are two issues before the Court in this first-stage analysis: (1) the appropriateness of conditional certification under the FLSA; and (2) the propriety of Plaintiffs' ...

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