Campbell et al v. System Dynamics International, Inc.

Filing 30

MEMORANDUM OPINION regarding amended motion to conditionally certify this case as a collective action. Signed by Judge R David Proctor on 9/5/2018. (AHI)

FILED

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2018 Sep-05 AM 10:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JONATHAN CAMPBELL and EDGAR
HERNANDEZ,
Plaintiffs,
v.
SYSTEM DYNAMICS
INTERNATIONAL, INC.,
Defendant.

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MEMORANDUM OPINION
This matter is before the court on Plaintiffs’ amended motion to conditionally certify
this case as a collective action. (Doc. # 21). Jonathan Campbell and Edgar Hernandez
(“Plaintiffs”) claim their employer violated the Fair Labor Standards Act (“FLSA”) by failing
to pay them for overtime hours at the required time-and-a-half rate. They now seek to
conditionally certify a collective action of other similarly situated employees pursuant to 29
U.S.C. § 216(b). Plaintiffs’ employer, System Dynamics International, Inc. (“SDI”) agrees that
conditional certification is appropriate but contests the scope of Plaintiffs’ proposed class.
After careful consideration, the court agrees with SDI that Plaintiffs’ proposed class is too
broad and that it should conditionally certify a narrower class of employees, as explained more
fully below.
I.

Background
Plaintiffs are two former employees of SDI, a private military subcontractor that supplies

drone pilots to fly Army drones. (Doc. # 1 at ¶¶ 16, 19; Doc. # 23 at 3). In military parlance, and
within the nomenclature of SDI, drone pilots are known as Air Vehicle Operators (“AVOs”).

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(Doc. # 23 at 3). Their primary function is to operate military drones from a ground control
station. (Id. at 4).
Over the past three years, SDI has employed several dozen AVOs. (Doc. # 21 at 7; Doc.
# 23 at 3). When AVOs are first hired by SDI, they undergo a training period of approximately
14 to 16 weeks at various sites throughout the United States. (Doc. # 1 at ¶ 43). During stateside
training, AVOs sometimes work more than 40 hours per week. (Doc. # 9 at ¶¶ 48, 49). After
completing training, the AVOs are flown to the Continental United States Replacement Center
(“CRC”) at Fort Bliss in El Paso, Texas for processing by the military before they deploy
overseas. (Doc. # 1 at ¶ 61). Following the one-week processing at the CRC, the AVOs serve on
deployments overseas. (Id. at ¶ 63). At the end of their deployments, the AVOs are flown back to
the United States, where they undergo out-processing at the CRC. (Id. at ¶ 64).
In this lawsuit, Plaintiffs claim that SDI violated the FLSA by misclassifying AVOs as
exempt from the Act’s overtime requirements and failing to pay its AVOs at the required timeand-a-half rate for overtime hours worked while stateside.1 (Id. at ¶¶ 73, 78, 81). SDI
acknowledges that, prior to January 1, 2017, it classified AVOs as exempt from the FLSA’s
overtime requirements. (Doc. # 23 at 5). It did so based on its belief that AVOs meet the “highly
compensated employee” exemption of 29 C.F.R. § 541.601. (Id.). But in 2017, SDI changed its
policy. Effective January 1, 2017, SDI classified AVOs as nonexempt and began paying them a
time-and-a-half premium for overtime hours based on the Department of Labor’s 2016 decision
to raise the minimum compensation for a highly compensated employee. (Id.). Plaintiffs now
move the court to conditionally certify a collective action consisting of all AVOs employed by

1

Plaintiffs do not contend that they were entitled to time-and-a-half pay for overtime hours worked overseas, and for
good reason, since the FLSA does not have extraterritorial application. See 29 U.S.C. § 213(f).

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SDI at any point during the FLSA’s three-year limitations period for willful violations of the Act,
29 U.S.C. § 255(a). (Doc. # 25 at 9-10).
II.

Analysis
The FLSA permits an employee to maintain a collective action against an employer on

behalf of himself “and other employees similarly situated.” 29 U.S.C. § 216(b). The Eleventh
Circuit has structured a two-step process for determining whether an FLSA case may proceed as
a collective action. See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001).
The first step occurs early in the litigation and requires the district court to determine “whether
notice of the action should be given to potential class members” so that they can decide whether
to opt in to the lawsuit. Id. at 1218. Before facilitating notice, a district court must satisfy itself
that there are other employees who (1) desire to opt in to the lawsuit and (2) are similarly
situated with respect to both their job responsibilities and their pay provisions. Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008). The Eleventh Circuit has described the
standard for determining whether employees are similarly situated at this stage as “fairly
lenient,” Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007), but has made clear that
the determination must rest on more than “counsel’s unsupported assertions,” Morgan, 551 F.3d
at 1261. Because the certification decision is made early in the litigation, it is “usually based only
on the pleadings and any affidavits which have been submitted.” Hipp, 252 F.3d at 1218.
The first step is known as “conditional certification” because the decision to certify a
collective action can be reconsidered in the second step, after the close of discovery. See
Morgan, 551 F.3d at 1261. This second step is “triggered by an employer’s motion for
decertification.” Id. Because discovery will have concluded by the time of the decertification
motion, the district court is now better positioned to resolve any factual disputes concerning

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whether the class members are similarly situated. Id. Consequently, the second step is “less
lenient, and the plaintiff bears a heavier burden” in showing that the class members are in fact
similarly situated. Id.
The parties agree that certification of a conditional class is appropriate in this case. (Doc.
# 23 at 3). But they disagree about the scope of the class and the appropriate manner of providing
notice to potential class members of their right to join this collective action. Accordingly, the
court addresses each of these issues in turn.
A. The Scope of the Class
Plaintiffs contend that because SDI treats all AVOs similarly with respect to their job
duties and pay practices, the conditional class should encompass all AVOs who worked for SDI
at any point during the FLSA’s three-year limitations period for willful violations. (Doc. # 25 at
4-5). SDI counters that the class should include only those AVOs who both worked for SDI
during the three-year limitations period2 and were hired before January 1, 2017, when SDI began
paying AVOs time-and-a-half for any overtime worked. (Doc. # 23 at 8).
At the conditional certification stage, Plaintiffs “bear the burden of demonstrating a
reasonable basis” for their claim that AVOs were subject to a common illegal pay policy.
Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996) (internal quotation marks
omitted). That burden “is not heavy,” and Plaintiffs may carry it by making “detailed
allegations” that AVOs were subject to a common illegal pay policy. Id. Plaintiffs need not
conclusively establish their allegations at this point; rather, their allegations need only be

2

SDI agrees that, because Plaintiffs have alleged willful violations of the FLSA, the appropriate limitations period
for purposes of certifying the collective action is three years rather than two. (Doc. # 23 at 6); see also 29 U.S.C.
§ 255(a) (establishing a baseline two-year limitations period for FLSA claims and a three-year limitations period for
claims arising out of willful violations of the FLSA). But SDI does not concede that it either violated the FLSA or
that any violation was willful, and it reserves its right to argue those issues at summary judgment or trial. (Doc. # 23
at 6 n.7).

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“supported by affidavits which successfully engage defendants’ affidavits to the contrary.” Id.
(internal quotation marks omitted).
The parties disagree about the scope of the proposed class in three areas. The court
discusses each below.
1. Employees Hired On or After January 1, 2017
Plaintiffs’ proposed class is problematic because they have failed to provide detailed
allegations or any supporting evidence showing that SDI failed to pay AVOs time-and-a-half for
overtime hours after December 31, 2016. In fact, there is significant record evidence submitted
by both parties showing just the opposite—that SDI began paying AVOs time-and-a-half for
overtime beginning in January 2017. That evidence includes the declarations of three members
of SDI management with direct knowledge of SDI’s pay policies, all of whom testify that SDI
began paying AVOs time-and-a-half for overtime beginning in January 2017. (Doc. # 23-1; Doc.
# 23-2; Doc. # 23-3). Additionally, SDI submitted the declarations of two AVOs hired in 2017
who testify that SDI paid them time-and-a-half for any overtime they worked while stateside.
(Doc. # 23-4; Doc. # 23-5). SDI also submitted two pay stubs from those employees showing
that they were paid time-and-a-half for overtime worked in 2017. (Doc. # 23-4 at 5; Doc. # 23-5
at 5). Finally, contemporaneous emails from SDI human resources submitted by Plaintiffs
confirm SDI’s January 2017 change in pay policy. (Doc. # 21 at 54).
Plaintiffs purport to “neither accept nor agree” that SDI began paying AVOs time-and-ahalf for overtime in 2017. (Doc. # 25 at 6). But Plaintiffs have failed to support their contention
with anything that approaches evidence which “successfully engage[s]” SDI’s contrary evidence.
See Grayson, 79 F.3d at 1097. Indeed, the only evidence Plaintiffs have offered on the issue are
the declarations of the two named plaintiffs, Jonathan Campbell and Edgar Hernandez. However,

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nothing in those declarations contradicts the substantial record evidence that shows SDI began
paying AVOs time-and-a-half for overtime hours in 2017. To be sure, the declarations state that
SDI failed to pay Plaintiffs time-and-a-half for overtime they worked while stateside and that
SDI applies their pay policies uniformly to all AVOs. (Doc. # 21 at 39, 47). But even taking
those statements as true (and, to be clear, the court does), they do not rebut the evidence of SDI’s
2017 change in pay policy since both Plaintiffs were hired and completed pre-deployment
stateside training in 2016, before SDI reclassified AVOs as nonexempt and began paying them
time-and-a-half for overtime. (Doc. # 21 at 33, 36, 42). The declarations simply do not assert that
SDI failed to pay Plaintiffs or any other AVOs a time-and-a-half premium for overtime worked
in 2017.
Moreover, it is not as though Plaintiffs were unaware of SDI’s claimed 2017 change in
pay policy or lacked the opportunity to test this claim during discovery on class certification
issues. In its sworn responses to one of Plaintiffs’ interrogatories, SDI made clear that AVOs
hired before January 1, 2017 were not paid a premium rate for overtime hours worked stateside
but that AVOs hired after January 1, 2017 were so paid. (Doc. # 21 at 78). Unlike the typical
case where the parties have conducted little to no discovery at the conditional certification stage,
see Anderson, 488 F.3d at 952, the parties here have already engaged in significant discovery
dealing solely with certification issues. (Doc. # 15 at ¶ 4). So far, Plaintiffs have served, and SDI
has responded to, two requests for admission, eight interrogatories, and ten requests for
production. (Doc. # 23 at 10). Thus, Plaintiffs have not been without opportunity to obtain
evidence calling into question the veracity of SDI’s 2017 change in pay policy. Because
Plaintiffs have wholly failed to produce any evidence that “successfully engage[s]” SDI’s

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contrary evidence, the court declines to include AVOs hired after December 31, 2016 in the
conditional class. See Grayson, 79 F.3d at 1097.
2. Plaintiffs’ “Bookend Weeks” Claim
Plaintiffs argue that SDI improperly paid AVOs during “bookend weeks”--i.e., the week
when deploying abroad and the week when returning stateside from the deployed location--and
that this claim applies to all AVOs, whether hired before or after January 1, 2017. (Doc. # 25 at
7-8). This argument runs into two problems.
First, Plaintiffs do not explain what, if anything, about SDI’s pay practices regarding socalled bookend weeks violates the FLSA. The only references to bookend weeks in Plaintiffs’
declarations and briefing on this motion are conclusory statements that AVOs were not paid
“properly” (or at the “proper rate”) during bookend weeks. (Doc. # 21 at 3, 11); see also (Doc.
# 21 at 39) (“SDI failed to pay me properly for the week when I deployed and the week when I
returned stateside from my deployment.”); (Doc. # 21 at 47) (“SDI failed to pay the AVOs
properly for the week when they deployed and the week when they returned stateside from
deployments.”). Such cursory briefing would not meet the pleading standard of Federal Rule of
Civil Procedure 8(a), much less the standard for establishing that a party is entitled to conditional
class certification.3
Second, and more significantly, the only evidence Plaintiffs have submitted regarding
SDI’s pay practices for “bookend weeks” suggests that any claims arising out of those practices
will be individual in nature and unsuitable for a collective action. In an email to an AVO, an SDI
representative explains that an AVO’s pay status (hourly vs. salaried) during bookend weeks
3

Based on Plaintiffs’ Complaint, it appears that their “bookend weeks” claim may really just be another way of
claiming that they were not paid an overtime premium. See (Doc. # 1 at ¶ 28(d)) (referencing SDI’s failure to pay
AVOs “proper overtime compensation for all hours while traveling to and from deployments overseas”) (emphasis
added). In that case, Plaintiffs’ “bookend weeks” claim simply collapses into their overtime claim.

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depends on whether the AVO chooses to travel in the middle of a pay period or near the end of a
pay period. (Doc. # 21 at 84). Thus, any claims based on SDI’s pay practices during bookend
weeks will likely turn on individual issues regarding when during a pay period an AVO chose to
travel. Even if the court could discern some plausible FLSA violation in SDI’s pay practices for
bookend weeks (and, to be clear, it cannot), it is not convinced such claims would be suitable for
a collective action.
3. Plaintiffs’ “Comp Time” Claim
Plaintiffs also argue that SDI improperly substituted “comp time” for overtime hours
worked at the improper rate and that this claim likewise applies to all AVOs, regardless of when
they were hired. (Doc. # 25 at 7-8). This argument runs into the same problem discussed
above—Plaintiffs do not explain in any detail how SDI’s pay practices regarding “comp time”
violate the FLSA. See (Doc. # 23 at 3, 11; Doc. # 25 at 4, 7-8). But more fundamentally,
Plaintiffs have presented no evidence whatsoever in support of this allegation. Neither of
Plaintiffs’ declarations submitted in support of this motion mentions the “comp time” claim, and
indeed, the allegation does not even appear in Plaintiffs’ Complaint. The court will not permit an
allegation that was mentioned for the first time in Plaintiff’s certification motion--and there only
cursorily and with no supporting evidence--to provide the basis for certifying a collective action.
B. The Manner of Notice
The parties’ final disagreement concerns the means used to notify potential class
members of their right to opt in to this collective action. To facilitate notice, SDI has agreed to
provide Plaintiffs with the names and last known addresses of potential class members, as well as
those potential members’ employment dates and status. (Doc. # 23 at 12). But SDI objects to
Plaintiffs’ request for the email addresses of potential class members. (Id. at 13).

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SDI argues that there is no reason to believe that notice via U.S. mail would be
inadequate to give potential class members timely and accurate notice of this suit. (Id.). It relies
on Miller v. JAH, LLC, No. 5:16-CV-01543-AKK, 2018 WL 305819, at *3 (N.D. Ala. Jan. 5,
2018), where the court declined to authorize email notice of a collective action “because it [had]
no basis yet to find that the traditional method of notice will not reach the prospective class
members.”
Plaintiffs argue that email notice is appropriate in this case because AVOs are frequently
deployed around the world and thus do not have ready access to their last registered mailing
address. (Doc. # 25 at 9). They rely on Kiley v. MedFirst Consulting Healthcare Staffing, LLC,
297 F. Supp. 3d 1260, 1267 (N.D. Ala. 2018), where the court authorized email notice of a
collective action based on the plaintiffs’ evidence that the defendant’s employees were “highly
mobile and often work away from home for long periods of time.”
The court agrees with Plaintiffs that notice by both email and U.S. mail is appropriate in
this case, for two reasons. First, AVOs spend a significant amount of time abroad and thus may
not have timely access to mail sent to their permanent U.S. residences. Second, the court desires
to expedite notice of this action due to the fact that the FLSA’s statute of limitations continues to
run against individual AVOs until they consent to opt in to this collective action. Accordingly,
the court grants Plaintiffs’ request to notify putative opt-in plaintiffs of this action by both email
and U.S. mail.
III.

Conclusion
For the reasons explained above, Plaintiffs’ motion to conditionally certify this case as

a collective action (Doc. # 21) is due to be granted in part. The court agrees to conditionally

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certify a collective action consisting of all AVOs employed by SDI between August 22, 20154
and January 1, 2017. SDI is directed to provide to Plaintiffs, in a mutually agreed upon format:
(1) the names of all AVOs within the conditionally certified class; (2) their last known mailing
address; (3) their last known email address; and (4) the dates during which they were employed
by SDI and whether they are a current or former employee. The parties are directed to meet and
confer regarding the content of the notice as well as the deadlines for distributing notice to class
members and for class members to return signed consents. An order consistent with this
Memorandum Opinion will be entered.
DONE and ORDERED this September 5, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

4

During class-based discovery, the parties entered into a two-week tolling agreement for AVOs who had not already
filed an opt-in notice. (Doc. # 23 at 7 n.8). Thus, SDI has placed the beginning of the class period at “three years and
two weeks before the Court’s order on [this] Motion.” (Id. at 7; Doc. # 23-8 at 2). Plaintiffs agree that “the
beginning of the lookback period is as [SDI] states.” (Doc. # 25 at 4).

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