Hanna v. ComTrans Incorporated et al

Filing 54

ORDER denying 27 Motion for Conditional FLSA Class Certification; 32 Motion Seeking Reconsideration, and 35 Motion to Strike. (See Order for details.) Signed by Judge Douglas L Rayes on 10/28/2016. (MMO)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Gregory Mark Hanna,

10

Plaintiff,

11

ORDER

v.

12

No. CV-16-01282-PHX-DLR

ComTrans Incorporated, et al.,

13

Defendants.

14
15
16

Plaintiff has filed a motion for conditional class certification, (Doc. 27), and a

17

motion to strike, (Doc. 35). Defendants have filed a motion for reconsideration. (Doc.

18

32.) The motions are fully briefed, and neither party requested oral argument. For the

19

reasons below, all three motions are denied.

20

BACKGROUND

21

On April 29, 2016, Plaintiff Gregory Hanna filed a collective action under the Fair

22

Labor Standards Act (FLSA) against Defendants ComTrans, Inc.; L. Neal Thomas,

23

President and CEO of ComTrans; and Cynthia Cross, Vice President of ComTrans.

24

(Doc. 1.) ComTrans “is in the business of providing behavioral health and social services

25

transportation to children and adults with special or unique non-emergency

26

circumstances.” (Id., ¶ 20.) It employs over 400 drivers “whose principal business is to

27

provide transportation services for the company’s clients. (Id., ¶ 21.) Hanna, a former

28

ComTrans driver, alleges that ComTrans failed to pay him overtime wages in violation of

1

the FSLA. (Id., ¶ 1.)

2

ComTrans utilizes different classes of drivers to accomplish different tasks.

3

Drivers are classified as either Crisis Drivers or Routine Drivers. (Doc. 34-1 at 3.)

4

Routine Drivers are further classified into several subcategories: Case Aide/Visitation,

5

DCS Transportation, Schools/Special Needs, Behavioral Health Children, Behavioral

6

Health Adults, Dialysis/Medical, and Friendship. (Id.) Hanna asserts that he worked as a

7

Routine Driver and Case Aide. (Doc. 1, ¶ 23.)

8

As a Routine Driver, Hanna operated a ComTrans-owned vehicle to provide

9

transportation services for clients “from their home, health care facilities, and various

10

other locations.” (Doc. 27-3 at 3.) Typically, Hanna worked from 6 a.m. to 6 p.m.

11

driving to scheduled transportation “pick-ups” throughout the day, during which he was

12

required to work numerous hours “but was not allowed to record [his] time” and receive

13

pay. (Id.) For example, he alleges that he was “required to prepare [his] schedule in

14

advance of each day,” which included downloading the manifest, printing it, locating the

15

first stop, and writing out the route he “was going to take to reach [his] passengers.” (Id.)

16

In addition, he was required to complete paperwork after his shift. (Id.)

17

Hanna also asserts that he did not receive compensation for “downtime, which was

18

time longer than thirty minutes in between passenger pick-ups.” (Id.) During this time,

19

he had to wear his ComTrans uniform and “respond to calls from ComTrans dispatch.”

20

(Id.) Hanna did not receive compensation for cancelled pick-ups, turning in his weekly

21

manifest to the ComTrans main office, or performing mandatory maintenance and

22

cleaning his ComTrans vehicle.

23

“automatically deducted thirty minutes from [his] work time for lunch, even though [he]

24

was required to respond to dispatch, perform mandatory maintenance on [his] vehicle,

25

and perform other work duties during this time.” (Id.) He was also required to attend

26

Mandatory ComTrans training for which he did not receive compensation. (Id.) Overall,

27

he asserts he worked approximately sixty hours per week. (Id.)

28

(Id. at 4.)

He further asserts that ComTrans

Hanna alleges that ComTrans “issued extensive written policies and procedures

-2-

1

for its employees who worked as routine drivers to follow.” (Id.) He claims all Routine

2

Drivers throughout Arizona “had the same job duties, were subject to the same written

3

rules and policies as [he] was, and were compensated in the same manner[.]” (Id. at 5.)

4

Hanna alleges that his wife also worked as a Routine Driver for ComTrans and that he

5

“observed that all of the policies applicable to me also applied to her[.]” (Id. at 6.)

6

Hanna now seeks conditional certification of the following class: “All current and

7

former ComTrans employees who worked as routine drivers for ComTrans from April

8

29, 2013 to the present.” (Doc. 27-1 at 3.) He seeks unpaid overtime compensation and

9

a declaration that ComTrans violated the FLSA. (Doc. 1 at 13.)

10

PRELIMINARY MOTIONS

11

On August 12, 2016, the Court denied Defendants’ motion for extension of time to

12

respond to Hanna’s motion for conditional class certification, which was filed on July 18,

13

2016. (Doc. 31.) Defendants then moved for reconsideration of the Court’s order, (Doc.

14

32), and subsequently filed their response on August 26, 2016, three weeks past the

15

original deadline, (Doc. 34). Thereafter, Hanna moved to strike the response as untimely.

16

(Doc. 35.)

17

The Court denies Defendants’ motion for reconsideration and denies Hanna’s

18

motion to strike Defendants’ response. Though the response is untimely, a “motion to

19

strike is a drastic remedy which is disfavored by the courts and infrequently granted.”

20

Vesecky v. Matthews (Mill Towne Center) Real Estate, LLC, No. CV-09-1741-PHX-JAT,

21

2010 WL 749636, at *1 (D. Ariz. March 2, 2010) (internal quotations omitted). The

22

Court prefers resolving fully briefed motions when possible, and Hanna has not suffered

23

any prejudice resulting from Defendants’ untimely response. In the future, however,

24

Defendants must comply with deadlines or risk the Court striking future briefs or

25

pleadings. As such, both motions are denied, and the Court will consider Defendants’

26

response.

27
28

MOTION FOR CLASS CERTIFICATION
The FLSA prohibits covered employers from employing any employees “for a

-3-

1

workweek longer than forty hours unless such employee receives compensation for his

2

employment in excess of the hours above specified at a rate not less than one and one-

3

half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). “Any

4

employer who violates the provisions of . . . section 207 . . . shall be liable to the

5

employee or employees affected in the amount of . . . their unpaid overtime

6

compensation[.]” Id. § 216(b). A collective action to recover these damages may be

7

brought “against any employer . . . by any one or more employees for and in behalf of

8

himself or themselves and other employees similarly situated.” Id. Employees not

9

named in the complaint who wish to join the action must give their consent in writing to

10

the court in which the action is brought. Id.

11

“Section 216(b) does not define ‘similarly situated,’ and the Ninth Circuit has not

12

construed the term.” Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010).

13

Although courts in other circuits have taken different approaches in this determination,

14

“district courts within the Ninth Circuit generally follow the two-tiered or two-step

15

approach for making a collective action determination.”

16

Caremark LLC, No. Cv-14-00652-PHX-DJH, 2014 WL 4247730, at *3 (D. Ariz. Aug.

17

21, 2014) (“The majority of courts, including those within the District of Arizona, have

18

adopted the two-tiered approach in deciding whether to grant FLSA collection action

19

status.” (internal quotations and alterations omitted)). Under this approach,

20
21
22
23
24
25
26
27
28

Id.; see also Villarreal v.

the court determines, on an ad hoc case-by-case basis, whether plaintiffs are
similarly situated. This requires the court to first make an initial ‘notice
stage’ determination of whether plaintiffs are similarly situated. At this
first stage, the court requires nothing more than substantial allegations that
the putative class members were together the victims of a single decision,
policy, or plan. If a plaintiff can survive this hurdle, the district court will
conditionally certify the proposed class and the lawsuit will proceed to a
period of notification, which will permit the potential class members to optinto the lawsuit. Once the notification period ends, the Court moves on to
the second step of the certification process. At the second step, in response
to a motion to decertify the class filed by the defendant, the court makes yet
another determination whether the proposed class members are similarly
situated; this time, however, the court utilizes a much stricter standard to

-4-

1
2

scrutinize the nature of the claims.
Colson, 687 F. Supp. 2d at 925 (internal citations and some quotations omitted).

3

Although the plaintiffs’ “burden is light,” conditional certification is “by no means

4

automatic.” Id. “All that need be shown by the plaintiff is that some identifiable factual

5

or legal nexus binds together the various claims of the class members in a way that

6

hearing the claims together promotes judicial efficiency and comports with the broad

7

remedial policies underlying the FLSA.” Wertheim v. State of Arizona, No. CIV 92-453

8

PHX RCB, 1993 WL 603552, at *1 (D. Ariz. Sept. 30, 1993). The allegations need not

9

be “strong [n]or conclusive;” the plaintiff need only show “that there is some factual

10

nexus which binds the named plaintiffs and the potential class members together as

11

victims of a particular alleged policy or practice.” Colson, 687 F. Supp. 2d at 926.

12

“Plaintiffs need only show that their positions are similar, not identical, to the positions

13

held by the putative class members.” Juvera v. Salcido, 294 F.R.D. 516, 520 (D. Ariz.

14

2013) (internal quotations omitted). In other words, “[t]he court must only be satisfied

15

that a reasonable basis exists for the plaintiffs’ claims or class wide injury.” Bollinger v.

16

Residential Capital, LLC, 761 F. Supp. 2d 1114, 1119 (W.D. Wash. 2011) (internal

17

quotations marks omitted).

18

Ultimately, whether a collective action should be conditionally certified is within

19

the discretion of the court. Colson, 687 F. Supp. 2d at 925. The court should not review

20

the underlying merits of the action, nor should it “resolve factual disputes . . . at the

21

preliminary certification stage of an FLSA collective action.” Id. at 926. “The court’s

22

determination at this first step is based primarily on the pleadings and any affidavits

23

submitted by the parties.” Kelsey v. Entm’t U.S.A. Inc., 67 F. Supp. 3d 1061, 1065 (D.

24

Ariz. 2014) (internal quotations omitted).

25

I. Similarly Situated

26

In support of his motion, Hanna submitted his declaration and copies of the

27

following documents:

28

Management Program – Drivers, Defensive Driving Classroom Training, Dress Code

Routine Driver Job Description, ComTrans Consequence

-5-

1

Policy, ComTrans Routine Driver’s Guide, and Downtime Policy Acknowledgement.

2

(Doc. 27-3.) He argues that he is similarly situated to other potential class members

3

because ComTrans’ employment practices are uniformly applied to all of the Routine

4

Drivers. (Doc. 27 at 9.) He further claims that all Routine Drivers “performed the same

5

duties, under the same conditions, and under the same practice of requiring the Drivers to

6

perform work off the clock.” (Id.)

7

Defendants argue that the class should not be conditionally certified because

8

Hanna fails to provide sufficient evidence to demonstrate that he is similarly situated to

9

other putative class members. They assert that Hanna fails to provide declarations from

10

other ComTrans drivers or deposition testimony from ComTrans representatives.

11

Instead, Hanna relies solely on his declaration, which Defendants argue is insufficient.

12

The Court agrees.

13

The evidence presented by Hanna is similar to that proffered in Colson, 687 F.

14

Supp. 2d at 914. There, the plaintiff brought suit under the FLSA claiming that her

15

former employer, Avnet, Inc., failed to pay overtime wages to all of its Sales &

16

Marketing Representatives (SMRs) across the country. Id. at 917. In support of her

17

motion for conditional collective action certification, she provided her own declaration,

18

the declaration of a former Avnet employee, a declaration from her attorney, a copy of a

19

SMR job description, and correspondence between her attorney and Avnet’s in-house

20

counsel. Id. at 926.

21

The court denied the motion for two reasons. First, the court noted that “the mere

22

classification of a group of employees . . . as exempt under the FLSA is not by itself

23

sufficient to constitute the necessary evidence of a common policy, plan, or practices that

24

renders all putative class members as ‘similarly situated’ for § 216(b) purposes.” Id. As

25

such, the plaintiff could not rely solely on the allegation that all SMRs were misclassified

26

as exempt under the FLSA to satisfy § 216(b).

27

Second, the court found that the plaintiff failed to meet her evidentiary burden to

28

demonstrate that “all SMRs performed similar tasks and were, as a discernable class,

-6-

1

potentially misclassified as employees exempt from over-time pay requirements.” Id. at

2

928.

3

employees from other states” and referenced “discussions . . . with [unidentified] co-

4

workers, unspecified company communications, and undocumented interactions with

5

other SMR employees and Avnet clients.” Id. at 929 (internal quotation marks omitted).

6

In addition, the court concluded that the declaration of the former Avnet employee had

7

“even less evidentiary value” given that he did not work as a SMR and was not a member

8

of the putative class, and the declaration from the plaintiff’s attorney had “no evidentiary

9

value.” Id. Further, the job posting noted that it was intended to describe the general

10

nature of work and was not an exhaustive list of all responsibilities of a SMR. Id.

11

Consequently, the plaintiff failed to demonstrate that she was similarly situated to all

12

SMRs within the proposed class. Id. at 929-30.

The plaintiff’s declaration revealed that she had “minimal contact with SMR

13

Here, Hanna’s declaration explains his job duties as a ComTrans Routine Driver

14

and asserts that he was required to work hours for which he received no compensation.

15

But to maintain a collective action, he must do more than demonstrate that he alone was

16

subject to an unlawful policy or practice—he must show that other potential class

17

members are also similarly situated. See 29 U.S.C. § 216(b). Like the plaintiff in

18

Colson, his allegations regarding other ComTrans drivers are vague and conclusory. He

19

claims that he “knows” other ComTrans drivers were also required to abide by ComTrans

20

policies because he “observed other drivers being given copies of the same documents at

21

trainings[.]” (Doc. 27-3 at 5.) He also “observed other routine drivers working and had

22

conversations with them about the amount of hours they worked.” (Id.) Hanna fails,

23

however, to identify a single ComTrans driver to corroborate this information, and these

24

undocumented conversations with unidentified employees are insufficient to meet his

25

burden. Like Colson, the Court finds that, “[w]hile [Hanna’s] declaration has some value

26

in describing [his] own experience, it has no probative value in establishing that [he],

27

along with other [routine drivers], ‘were together the victims of a single decision, policy,

28

or plan.’” Colson, 687 F. Supp. 2d at 928-29 (quoting Thiessen v. Gen. Elec. Capital

-7-

1

Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)).

2

Furthermore, the documents attached to Hanna’s declaration do little to bolster his

3

position.

4

generally describes the duties of a ComTrans routine driver and notes that

5

“responsibilities of this position” are not “limited to” the duties specified. (Doc. 27-3 at

6

9.)

7

documents simply describe general policies applicable to all ComTrans drivers, such as

8

dress code, defensive driving, and training.

9

Acknowledgement constitutes some evidence regarding a single decision, policy, or plan

10

applied to all routine drivers, Hanna fails to come forward with any other ComTrans

11

driver that signed the form and complied with its provisions.

Like the job description in Colson, the Routine Driver Job Description

In addition, other than the Downtime Policy Acknowledgement, the remaining

And although the Downtime Policy

12

Because the burden for certification is light, in close cases courts will certify a

13

proposed class if the plaintiff at least provides a corroborating declaration from another

14

employee. See Shaia v. Harvest Mgmt. Sub LLC, 306 F.R.D. 268, 275 (N.D. Cal. 2015)

15

(certifying the class notwithstanding “thin” evidence because plaintiff submitted a

16

corroborating declaration from another employee of defendant, thus demonstrating that

17

class members are similarly situated). But when faced with scant evidence absent a

18

corroborating declaration from a potential class member, courts are unable to determine if

19

a plaintiff is similarly situated to potential class members, and therefore decline to certify

20

such classes. See Colson, 687 F. Supp. 2d at 930; Guess v. U.S. Bancorp, No. 06-07535-

21

JF, 2008 WL 544475, at *4 (N.D. Cal. Feb. 26, 2008) (denying certification where

22

plaintiff “failed to offer evidence form any potential class member (other than himself)

23

suggesting that persons employed in the various sales positions he identified are similarly

24

situated”). Here, the Court is faced with thin evidence absent a corroborating declaration

25

from a potential class member. Consequently, Hanna has failed to demonstrate that he is

26

similarly situated to other potential class members, and the motion for conditional

27

collective action certification is denied. This case will proceed as a single action brought

28

by Hanna against ComTrans for violations of the FLSA.

-8-

1

IT IS ORDERED that Plaintiff’s motion for conditional FLSA class certification,

2

(Doc. 27), Defendants’ motion for reconsideration, (Doc. 32), and Plaintiff’s motion to

3

strike, (Doc. 35), are DENIED.

4

Dated this 28th day of October, 2016.

5
6
7
8
9

Douglas L. Rayes
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-9-