Sloan v. Renzenberger, Inc. et al
MEMORANDUM AND ORDER granting 35 Plaintiff's Motion for Conditional Certification of Class Claims under Section 216(b) of the FLSA as set forth in the Memorandum and Order. See Memorandum and Order for further details. Signed by District Judge Carlos Murguia on 4/15/2011. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHNNYETTE SLOAN, on behalf of
herself and all others similarly situated,
MEMORANDUM AND ORDER
Plaintiff Johnnyette Sloan, on behalf of herself and all others similarly situated, brings this
action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., to recover unpaid
overtime compensation and related penalties and damages. Defendant Renzenberger, Inc., is a
Kansas corporation that provides crew transportation services to railroads and other industries.
Plaintiff Sloan claims in Count I that a class of hourly, nonexempt employees who worked as
dispatchers and auditors at defendant’s Kansas administrative facility are entitled to, inter alia,
unpaid overtime under the provisions of the FLSA.1 This matter is before the court on Plaintiff’s
Motion for Conditional Certification of Collective Claims Under § 216(b) of the FLSA (Doc. 35).
In the instant motion, plaintiff seeks conditional certification of the class; designation of plaintiff
(See Docs. 1, at 15; 36, at 1–2). Since this action was filed, three plaintiffs have opted-in.
Plaintiff Sloan’s complaint also asserts a class action under Kansas law for breach of contract; unjust
enrichment; and violation of the Kansas Wage Payment Act, Kan. Stat. Ann. § 44-312, et seq. She
also brings individual claims against Renzenberger for violations of the Family and Medical Leave
Act (“FMLA”) and the Americans with Disabilities Act (“ADA”).
Sloan as class representative and her counsel as class counsel; approval of plaintiff’s proposed
Notice and Consent to Become a Plaintiff (Doc. 36-7); an order requiring defendant to post the
notice at its Kansas facility in an area readily and routinely available for review by potential class
members; and an order requiring defendant to provide plaintiff with a list of names, addresses, and
phone numbers of putative class members. Defendant argues that plaintiff’s suit is not appropriate
for conditional class certification because it does not allege that plaintiff and putative class members
were victims of a single policy, plan, or decision to deny them overtime; instead putative class
members make individualized claims. For the following reasons, the court conditionally certifies the
Standard for Conditional Class Certification
Conditional certification of a class under the FLSA requires compliance with the FLSA class
action mechanism, which states: “An action to recover the liability prescribed in either of the
preceding sentences may be maintained . . . by any one or more employees for and in behalf of
himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Whether an
employee may maintain a § 216(b) class action, then, depends on whether he or she is “similarly
situated” to other members of the putative class. Although § 216(b) does not define the term
“similarly situated,” the Tenth Circuit has endorsed the ad hoc method of determination.
Under the Tenth Circuit’s ad hoc method, “a court typically makes an initial ‘notice stage’
determination of whether plaintiffs are ‘similarly situated.’” Thiessen v. Gen. Elec. Capital Corp.,
267 F.3d 1095, 1102 (10th Cir. 2001). This standard is a lenient one, Williams v. Sprint/United
Mgmt. Co., 222 F.R.D. 483, 485 (D. Kan. 2004), which “‘require[s] nothing more than substantial
allegations that the putative class members were together the victims of a single decision, policy, or
plan,’” id. The court typically makes the determination fairly early in the litigation, before the
parties complete discovery. Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 679 (D. Kan.
2004). And in making the determination, the court does not reach the merits of plaintiff’s claims.
See Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 435 (D. Kan. 2007). After the parties
have completed discovery, the court then makes a second determination, applying a stricter
“similarly situated” standard. Thiessen, 267 F.3d at 1102–03 (citation omitted).
This case is in its early stages. The original complaint was filed September 21, 2010.
Although three individuals have filed opt-in consent forms and it appears that some discovery has
occurred, the court’s December 2010 scheduling order did not set a discovery deadline, nor has there
been a date set for the final pretrial conference, or for trial. Moreover, defendant does not argue that
the “second stage” analysis applies. Thus, the court will analyze plaintiff’s motion under the lenient
“notice stage” standard described above.
The issue before the court is whether plaintiffs have met their light burden of showing that
members of the putative class are similarly situated. A plaintiff can demonstrate that she and
putative class members are similarly situated by showing that they were subject to a common policy.
Brown, 222 F.R.D. at 679; Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (stating
“courts have held that plaintiffs can meet this burden by making a modest factual showing sufficient
to demonstrate that they and potential plaintiffs together were victims of a common policy or plan
that violated the law.”).
Plaintiff’s complaint alleges that as non-exempt, hourly employees, she and other putative
class members were required to record their work time in defendant’s “Chronos” or “Kronos” (see
Docs. 1, at 7; 36, at 4) timekeeping system; defendant’s policy required these employees to time
themselves in and out before and after each shift; and defendant’s policy stated employees would
“be paid only for the time registered by the time keeping system.” (Doc. 1, at 7) (quoting
Renzenberger Employee Handbook, at 34.) Plaintiff alleges that this timekeeping system “ignored
any time such employees entered which was more than 10 minutes before their shift began” and
processed this “rounded time entry”—not the actual pre-shift start time entered—for payroll
purposes. (Doc. 1, at 7.) While these allegations alone would not state an FLSA claim, plaintiff also
alleges defendant required employees to be early for their shifts for various reasons, but failed to pay
them for this time, despite the fact that they were clocked in. Plaintiff also claims that, at least for
some time period, if employees clocked in at least one hour after their shift began, the timekeeping
system ignored any time such employees entered before the next whole hour increment.2 Thus,
plaintiff asserts that defendant’s compensation policy requires plaintiff and putative class members
to perform work and/or be present at work while not being compensated, and that defendant’s
timekeeping system allows defendant to “shave” these employees’ recorded hours to eliminate or
reduce hours worked in excess of forty per week.
Defendant argues that, even if the allegations are taken as true, plaintiff does not allege she
and the putative class were victims of a single decision, policy, or plan. Rather, defendant argues
that the claims of each opt-in plaintiff are based on a different alleged policy or plan, and that they
were victims of different decisions by different supervisors. Defendant’s brief details the evidence
regarding each opt-in plaintiff.
Defendant argues that this allegation is moot. Upon plaintiff’s filing of this lawsuit,
defendant investigated this allegation and found that the system did have a “glitch.” Defendant
asserts that it researched the amounts due and owing each employee, and it issued checks to all
employees who were underpaid as a result of this glitch, including plaintiff Sloan and the three optin plaintiffs here. Plaintiff notes that the checks issued did not amount to double the lost time for
FLSA liquidated damages.
Defendant’s arguments—that the evidence presented by plaintiff and three opt-in plaintiffs
reveals each putative plaintiff will have highly individualized claims—are premature. At the notice
stage of certification, a court need only consider the substantial allegations of the complaint along
with supporting affidavits or declarations. Theissen, 267 F.3d at 1102; see Renfro, 243 F.R.D. at
434. Time clock rounding is permitted under federal regulations. However, such rounding is
unlawful if it consistently results in a failure to pay employees for time worked. 29 C.F.R. § 785.48;
see also Braun v. Superior Indus. Int’l Inc., No. 09-2560-JWL, 2010 WL 3879498, at *5 (D. Kan.
Sept. 28, 2010) (holding that the relevant question is not whether the Kronos system is lawful or
unlawful, but whether plaintiffs are required to perform pre- and post-shift work without
compensation). The complaint sets forth sufficient allegations regarding a common policy—through
the use of the timekeeping system and pre-shift policies that requires employees to be present and/or
perform work without compensation—to meet its low burden at this stage. See, e.g., Shockey v.
Huhtamaki, Inc., 730 F. Supp. 2d 1298, 1303–07 (D. Kan. 2010); Braun, 2010 WL 3879498, at
*4–5; Barnwell v. Corr. Corp. of Am., No 08-2151-JWL, 2008 WL 5157476, at *3–5 (D. Kan. Dec.
9, 2008). For these reasons, the court concludes that conditional certification of this action is
appropriate for purposes of sending notice to potential class members. Plaintiff Sloan is designated
as conditional class representative and her counsel as conditional class counsel. In the event that
discovery reveals that this is not a proper case for collective action, defendants may move to
decertify the class—and/or for summary judgment—at the close of discovery.
Defendant argues that, should the court conditionally certify a class, such class should not
include auditors who worked in the Accounting Department/Data Processing Department because
they were not subject to time clock rounding through the Kronos system. By way of reply, plaintiff
disputes this allegation based on the testimony of opt-in plaintiff Shanell Jackson, an auditor in the
Accounting Department who performed work before her shift and was not compensated for it. The
court will not evaluate the merits of the claims or make findings of fact at this stage. See Renfro,
243 F.R.D. at 435 (noting court will not reach the merits of plaintiffs’ claims, “particularly when
defendant’s argument is more appropriately raised in a motion to dismiss or a motion for summary
However, the court is concerned that the class defined in the notice is misleadingly broad.3
Plaintiff has limited her collective action claims to defendant’s “non-exempt hourly dispatcher and
auditor employees located at [defendant’s] Kansas Administrative facility.” The class for this FLSA
collective action shall be that of current and former Renzenberger nonexempt, hourly auditors and
dispatchers located at the Kansas administrative facility who were employed in these positions from
[three years before the date of this order] to the present and who did not receive compensation for
earned wages including time worked in excess of forty hours per work week. Plaintiff shall so
define the class in her notice.
Proposed Notice and Consent to Potential Plaintiffs
Under the FLSA, the court has the power and duty to ensure fair and accurate notice, but it
should not alter plaintiffs’ proposed notice unless such alteration is necessary. Lewis v. ASAP Land
Express, No. 07-2226-KHV, 2008 WL 2152049, at *2 (D. Kan. May 21, 2008); see also Gieseke v.
First Horizon Home Loan Corp., No. 04-2511-CM, 2006 WL 2919076, at *1 (D. Kan. Oct. 11,
2006) (citing Heitmann v. City of Chicago, No. 04-C-3304, 2004 WL 1718420, at *3 (N.D. Ill. July
30, 2004)). Defendant raises specific objections to the proposed notice.
Plaintiff’s proposed Notice defines the class as “[a]ll current and former Renzenberger
AUDITORS and DISPATCHERS who were employed in these positions from ________ to the
present.” (Doc. 36-7, at 2, para. intro., para. 2.)
Defendant’s Objection No. 1: Defendant should not be required to produce telephone
numbers for every prospective class member.
Defendant’s Objection No. 2: Consent forms should be returned to the Clerk of the Court,
not to plaintiff’s counsel.
Defendant’s Objection No. 3: The notice should provide prospective class members with
defense counsel’s telephone number as well as plaintiff’s counsel’s phone number for questions, and
the notice should not include “Questions? Call 816-531-2277” at the bottom of every page.
Defendant’s Objection No. 4: Section Three should inform prospective class members that
they may be responsible for court costs should defendant prevail.
Defendant’s Objection No. 5: Defendant argues that providing addresses for all current
employees is sufficient and defendant should not also have to post notice at the worksite.
The court has considered defendant’s objections, but overrules them. The proposed notice,
although not particularly detailed, is fair and accurate and is substantially similar to many previously
approved by the court. The procedural requirements relating to this notice are not unduly
burdensome or unreasonable. The court approves the proposed notice, with the class definition set
out by the court in the previous section.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Conditional Certification of
Class Claims Under § 216(b) of the FLSA (Doc. 28) is granted as set out above. The class shall
consist of current and former Renzenberger nonexempt, hourly auditors and dispatchers located at
the Kansas administrative facility who were employed in these positions from three years before the
date of this order to the present and who did not receive compensation for earned wages including
time worked in excess of forty hours per work week. Plaintiff Sloan is designated as conditional
class representative and her counsel as conditional class counsel.
IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this
Memorandum and Order, defendant is directed to post the notice at its Kansas facility in an area
readily and routinely available for review by potential class members, and to provide plaintiff with
the names and current or last known addresses and telephone numbers for all current and former
auditors and dispatchers who have worked for defendant at any time since three years prior to the
date of this order.
Dated this 15th day of April 2011, at Kansas City, Kansas.
s/ Carlos Murguia
United States District Judge