United States District Court, E.D. Kentucky, Northern Division, Covington
MICHAEL STINE, et al. PLAINTIFFS
FEDEX GROUND PACKAGE SYSTEM, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge
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)
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
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.
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.
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.
Standard of Review
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)).
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).
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.
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”).
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' ...