White v. The NIF Corporation

Filing 26

Order granting 4 MOTION to Certify Class filed by Katherine White & denying the 24 MOTION to Toll Statute of Limitations filed by The NIF Corporation. The parties are ordered by 8/31/2015 to submit for judicial approval an agreed notice & consent to join. Signed by Chief Judge William H. Steele on 8/19/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KATHERINE WHITE, etc.,
Plaintiff,
v.
THE NIF CORPORATION, etc.,
Defendant.

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) CIVIL ACTION 15-322-WS-N
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ORDER

The plaintiff has filed a motion for conditional certification and to facilitate
notice. (Doc. 4). The defendant concedes it is “in a virtually indefensible position
relative to the subject motion.” (Doc. 25). Rather than contest the merits of the
plaintiff’s motion, the defendant has filed a “motion to toll the statute of
limitations.” (Doc. 24). The defendant’s theory – unsupported by any legal
analysis or citation to authority – is that tolling the limitations period as of the date
the complaint was filed will protect potential class members while saving the
defendant the “hardship” of “increased litigation costs and having to address
Plaintiff’s allegations not only in this Court, but in the court of public opinion.”
(Id. at 2).
“An action to recover the liability prescribed in either of the preceding
sentences may be maintained against any employer ... in any Federal or State court
of competent jurisdiction 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) (emphasis added). The FLSA thus allows the maintenance of a collective
action, and notice to potential class members, if the represented employees are

“similarly situated” to the named plaintiffs. Hipp v. Liberty National Life
Insurance Co., 252 F.3d 1208, 1218 (11th Cir. 2001).1
The Eleventh Circuit has recommended that trial courts consider
certification under Section 216(b) in two stages. “The first determination is made
at the so-called ‘notice stage.’ At the notice stage, the district court makes a
decision — usually based only on the pleadings and any affidavits which have
been submitted — whether notice of the action should be given to potential class
members.” Hipp, 252 F.3d at 1218 (internal quotes omitted). “Because the court
has minimal evidence, this determination is made using a fairly lenient standard,
and typically results in ‘conditional certification’ of a representative class. If the
court ‘conditionally certifies’ the class, putative class members are given notice
and the opportunity to ‘opt-in.’” Id. (internal quotes omitted). At the second stage,
in response to a motion to decertify made after discovery, the court makes a more
informed factual determination on the similarly situated issue. Id. at 1218.
At the initial stage, “[t]he plaintiffs bear the burden of demonstrating a
reasonable basis for their claim of class-wide discrimination.” Grayson v. K Mart,
79 F.3d 1086, 1097 (11th Cir. 1996) (internal quotes omitted). “The plaintiffs may
meet this burden, which is not heavy, by making substantial allegations of classwide discrimination, that is, detailed allegations supported by affidavits which
successfully engage defendants’ affidavits to the contrary.” Id. (internal quotes
omitted). “[T]he district court should satisfy itself that there are other employees
... who desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their job
requirements and with regard to their pay provisions.” Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008) (internal quotes omitted).

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Section 216(b) applies to actions under the Age Discrimination in Employment
Act (“ADEA”), and cases (such as Hipp) construing Section 216(b) in the ADEA context
apply equally to cases brought under the FLSA. Albritton v. Cagle’s, Inc., 508 F.3d
1012, 1014 n.1 (11th Cir. 2007).

2

The plaintiff’s presentation easily satisfies this relaxed standard. The
defendant’s motion to toll the statute of limitations is not supported and is due to
be denied on that basis. Even were it granted, it would not “moot” the plaintiff’s
motion, (Doc. 25 at 2), since the defendant’s motion does not provide for notice to
potential class members.
For the reasons set forth above, the plaintiff’s motion for conditional
certification is granted, with the class and sub-class defined as set forth in the
motion. (Doc. 4 at 1-2). The defendant’s motion to toll the limitations period is
denied. The parties are ordered to submit for judicial approval, on or before
August 31, 2015, an agreed notice and consent to join.
DONE and ORDERED this 19th day of August, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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