Trogdon v. Kleenco Maintenance & Construction, Inc.
OPINION and ORDER granting in part and denying in part 25 Motion to Certify. Signed by Honorable P. K. Holmes, III on May 15, 2015. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
STEPHEN TROGDON, individually and on behalf
of and all others similarly situated
Case No. 5:14-CV-05057
KLEENCO MAINTENANCE & CONSTRUCTION, INC.
OPINION AND ORDER
Before the Court is Plaintiff Stephen Trogdon’s motion to conditionally certify a collective
action, approve notice, and toll the statute of limitations (Doc. 25), Defendant Kleenco
Maintenance & Construction, Inc.’s (“Kleenco”) response (Doc. 27), and the parties’ supporting
For the following reasons, the Court finds that Trogdon’s motion should be
GRANTED IN PART and DENIED IN PART.
Kleenco is in the business of providing storm water management, landscaping, and other
construction services for large retailers throughout the United States. In addition to its home office
in Alexandria, Indiana, it operates offices in Centerton, Arkansas, Flagstaff, Arizona, and
Harrisburg, Pennsylvania. 1
In June 2013, Kleenco became the subject of a United States
Department of Labor investigation involving unpaid overtime compensation dating back to August
31, 2011. In cooperation with the Department of Labor, Kleenco personnel calculated unpaid
overtime compensation for each employee in Kleenco’s Arizona, Arkansas, Indiana, and Maryland
offices. Kleenco personnel then visited each office to meet with employees, explain the amounts
Until October 2013, Kleenco also operated an office in Hagerstown, Maryland.
owed to them individually, provide check payments, and obtain signed “Release and Settlement
Agreements” from each employee.
Trogdon was an employee of Kleenco from November 20, 2010 through the relevant time
of the Department of Labor investigation, and one of ten employees from the Arkansas office—
nine of whom have not been located—who did not sign a Release and Settlement Agreement.
Trogdon brought suit against Kleenco for unpaid overtime wages under the Fair Labor Standards
Act, 29 U.S.C. § 201, et. seq., and Arkansas law based on Kleenco counting travel and work time
separately for overtime purposes, and automatically deducting a 30-minute meal break regardless
of whether an employee actually took a meal break. Now, pursuant to 29 U.S.C. § 216(b), Trogdon
seeks to conditionally certify his FLSA claims as a collective action on behalf of a class consisting
of Kleenco’s hourly employees who worked at any time during the three years prior to their filing
a consent to join this action.
Conditional Certification of Collective Action
“The FLSA allows named plaintiffs to sue [their employer] ‘for and in behalf
of . . . themselves and other employees similarly situated.’” Bouaphakeo v. Tyson Foods, Inc., 765
F.3d 791, 796 (8th Cir. 2014) (quoting 29 U.S.C. § 216(b)).
This type of suit—a collective
action—is distinguishable from a class action pursuant to Federal Rule of Civil Procedure 23, as
it requires that plaintiffs use the opt-in mechanism under 29 U.S.C. § 216(b) for joining a putative
class of plaintiffs rather than the opt-out procedures in Rule 23. Schmidt v. Fuller Brush Co., 527
F.2d 532, 536 (8th Cir. 1975). Ultimately, certification of a collective action will depend on
whether the named plaintiff is similarly situated to the putative class. Neither § 216(b) nor the
Eighth Circuit Court of Appeals has defined when “other employees [are] similarly situated” so
that collective action certification and authorization of notice is appropriate. Davenport v. Charter
Comms., LLC, 2015 WL 164001, at *4 (E.D. Mo. Jan. 13, 2015). However, most district courts
within the Eighth Circuit, including this Court, have utilized a two-stage approach for collective
action certification under § 216(b). See e.g., Croft v. Protomotive, Inc., 2013 WL 1976115, at *3
(W.D. Ark. May 13, 2013). 2
The two-stage approach to certifying a collective action is divided into (1) the notice stage
and (2) the opt-in or merits stage. Id. at *1. First, when a named plaintiff moves for certification
of a collective action—typically early in the discovery process—a court considers whether the
putative class should be given court-authorized notice of the opportunity to opt in to the action.
Id. This requires an initial determination of whether the plaintiff and putative class members are
similarly situated, but because this inquiry is made at such an early stage of the litigation, the Court
applies a fairly lenient standard. Kautsch v. Premier Commc’ns, 504 F. Supp. 2d 685, 688 (W.D.
Mo. 2007). Specifically, the plaintiff bears the burden to make a modest factual showing that he
and the putative class members were victims of a common decision, policy, or plan of the employer
that affected all class members in a similar manner. Resendiz-Ramirez v. P & H Forestry, LLC,
515 F. Supp. 2d 937, 940–41 (W.D. Ark. 2007). While the burden of proof is relatively low, “some
identifiable facts or legal nexus must bind the claims so that hearing the cases together promotes
judicial efficiency.” Jost v. Commonwealth Land Title Ins. Co., 2009 WL 211943, at *2 (E.D. Mo.
Jan. 27, 2009) (quotations omitted). Some factors that may be considered by district courts making
While the two-stage approach is widely accepted, the Court finds it appropriate to emphasize that
nothing in Eighth Circuit or United States Supreme Court precedent requires district courts to
utilize this approach; rather, “[t]he decision to create an opt-in class under § 216(b), like the
decision on class certification under Rule 23, remains soundly within the discretion of the district
court.” Bouaphakeo, 564 F. Supp. 2d 870, 891 (N.D. Iowa 2008) (citing Hipp v. Liberty Nat. Life
Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001) (per curiam)).
this determination include: (1) whether everyone worked in the same location; (2) whether they
held the same job title; (3) whether the alleged violations occurred during the same time period;
(4) whether all workers were subjected to the same policies and practices, and whether those
policies and practices were established in the same manner by the same decision maker; and (5)
the extent to which the acts constituting the alleged violations are similar. Watson v. Surf-Frac
Wellhead Equip. Co., 2012 WL 5185869, at *1 (E.D. Ark. Oct. 18, 2012). If notification is deemed
appropriate, the class is conditionally certified for notice purposes and the action proceeds as a
representative action throughout discovery. Croft, 2013 WL 1976115, at *1 (citing ResendizRamirez, 515 F. Supp. 2d at 940). “Second, when discovery is largely complete, the defendant
may move for decertification, and the court will consider other factors to determine whether the
conditionally certified class should be permitted to proceed as a collective action.” Id.
As Trogdon has moved for conditional certification, the Court must now make an initial
determination of whether Trogdon and putative class members are similarly situated using the
fairly lenient standard applicable to the notice stage of certification. Trogdon requests that the
Court conditionally certify and approve notice to “all persons who worked as hourly employees
[for Kleenco] at any time during the three year period preceding the filing of the opt-in election
for each employee.” Considering the relevant standards and applicable factors above, the Court
finds that Trogdon has met his burden to demonstrate that he and putative class members are
similarly situated to the extent necessary to justify court-authorized notice to the proposed class.
Specifically, Trogdon has set forth substantial allegations that he and other hourly employees were
victims of policies or plans common to each of them, including: (1) Kleenco counting travel time
compensation separately from regular hourly compensation, so as to avoid a cumulative of the two
exceeding 40 hours per week; and (2) Kleenco automatically deducting pay for lunch breaks, even
when an employee may not have taken a lunch break. Each of the acts constituting the alleged
violations stemmed from alleged company-wide policies applicable to all hourly employees,
making the alleged violations similar and having occurred within relatively the same time period.
In addition, Trogdon has submitted declarations from four other hourly Kleenco employees
claiming unpaid overtime for the same reasons. At this stage, Trogdon’s factual allegations along
with the sworn declarations in support are sufficient to meet his low burden to show that he and
the proposed class of all other hourly employees were subject to common decisions, plans, or
policies to deprive them of appropriate compensation.
Kleenco argues that Trogdon has not shown that he is similarly situated to putative
plaintiffs because all plaintiffs’ claims will require individualized, fact-intensive inquiries into the
duties performed by each employee and the scope and types of travel each employee may have
done on the job. As stated above, at this stage of the litigation the determination of whether
plaintiffs are similarly situated turns on whether they were all subject to a common policy or
practice of failing to pay for time worked or at the requisite overtime rate. As a threshold matter,
class members need not be identically situated to be considered similarly situated. Kautsch, 504
F. Supp. 2d at 690. Moreover, the “disparate factual and employment settings of the individual
plaintiffs” is a consideration reserved for second stage analysis. Smith v. Heartland Auto. Servs.,
Inc., 494 F. Supp. 2d 1144, 1150 (D. Minn. 2005); Kautsch v. Premier Comms., 2008 WL 294271,
at *2 (W.D. Mo. Jan. 31, 2008); Bouaphakeo, 564 F. Supp. 2d at 892.
Kleenco also argues that Trogdon has not met his burden to show that the class should be
conditionally certified because he has failed to establish that other similarly situated individuals
desire to opt-in to the litigation. There is no consensus among district courts within the Eighth
Circuit as to whether a plaintiff is required to present evidence that similarly situated individuals
desire to opt in to the litigation. See Helmert v. Butterball, LLC, 2009 WL 5066759, at *4–5 (E.D.
Ark. April 17, 2013) (noting the differences between districts in Eighth Circuits in whether an
evidentiary showing was required); Robinson v. Tyson Foods, Inc., 254 F.R.D. 97, 99 (S.D. Iowa 2008)
(requiring showing); Kautsch, 504 F.Supp.2d at 689–90 (not requiring showing). This Court has
previously expressed its disinclination to require a plaintiff to prove the existence of others who desire
to opt-in, Croft, 2013 WL 1976115, at *3, and that position remains unchanged. Still, “[a]ssuming
without deciding that the FLSA requires an employee to demonstrate that other employees are
interested in the action, the Court is satisfied that some potential class members would wish to opt-in
to this litigation if given the opportunity.” Helmert, 2009 WL 5066759, at *5.
Kleenco has also asserted various defenses that implicate the merits of Trogdon’s and putative
plaintiffs’ claims rather than whether they are similarly situated under the applicable standard at this
stage. Specifically, Kleenco argues (1) that plaintiffs have waived their ability to bring any action
against Kleenco for unpaid overtime; (2) that an automatic meal break deduction policy is not illegal;
(3) that Kleenco had no automatic meal break deduction policy anyway; and (4) that some plaintiffs
would be subject to the “motor carrier exemption” of the FLSA pursuant to 29 U.S.C. § 213(b)(1). In
addition, each party has filed motions for leave to file supplemental briefs setting forth additional
arguments based on a recent Eighth Circuit opinion 3 addressing whether certain plaintiffs effectively
waived their FLSA claims. 4 The Court finds that these arguments are premature. See Beasely v. GC
Servs. LP, 270 F.R.D 442, 445 (E.D. Mo. 2010) (citing Dernovish v. AT&T Operations, Inc., 2010
WL 143692, at *2 (W.D. Mo. Sept. 25, 2012) (explaining that arguments going to the merits of
plaintiffs’ claims are “not yet ripe for resolution” at the first stage analysis for conditional
certification). Kleenco is correct that the Eighth Circuit has stated that “[a] court may consider . . .
Beauford v. ActionLink, LLC, 781 F.3d 396 (8th Cir. 2015).
The Court will grant the parties’ motions for leave (Docs. 36 and 37), and the supplemental briefs
and exhibits attached to the motions are deemed admitted.
the various defenses available to [a] defendant which appear to be individual to each plaintiff” in
determining whether a plaintiff and class are similarly situated. Bouaphakeo, 765 F.3d at 796.
However, the context of that proposition and the authority upon which the Eighth Circuit relies
shows—as other district courts within the Eighth Circuit have acknowledged—that these factors
are considered during the second stage analysis. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d
1095, 1103 (10th Cir. 2001); Heartland Auto. Servs., Inc., 494 F. Supp. 2d at 1150; Kautsch, 2008
WL 294271, at *2; Bouaphakeo, 564 F. Supp. 2d at 892. Moreover, while the information Kleenco
provides may serve as a valid basis for decertification, the Court does not make findings of fact or
credibility determinations with respect to contradictory evidence submitted by the parties at this
stage. Loomis v. CUSA, LLC, 257 F.R.D. 674, 676 (D. Minn. 2009). Accordingly, the Court finds
it appropriate to defer until the second stage analysis any consideration of merits-based arguments
and potential defenses applicable to Trogdon or the putative class.
Finally, Kleenco argues that considerations of judicial economy and fairness weigh in favor
of not granting conditional certification. The Court disagrees. At this stage, there is a sufficient
factual and legal nexus between the claims that “hearing the cases together promotes judicial
efficiency.” Jost, 2009 WL 211943, at *2. However, the Court may revisit considerations of
judicial economy and fairness after the parties have engaged in further discovery and when the
Court can more appropriately consider the scope and parameters of the litigation as a whole—
including the plaintiffs before it. After discovery is complete and the matter is fully briefed,
Kleenco’s arguments may serve as a valid basis for decertification.
certification cannot be denied at this point in time simply because Trogdon or additional plaintiffs
may not ultimately prevail on their FLSA claims.
For those reasons, the Court finds that Trogdon has met his burden of establishing that he
is similarly situated to other hourly employees of Kleenco, as he has made substantial factual
allegations that all were victims of common decisions, policies, or plans to deprive them of
overtime compensation. Accordingly, the Court will conditionally certify this action for the
purpose of giving notice to putative plaintiffs.
Equitable Tolling of the Statute of Limitations
Trogdon asserts that the statute of limitations should be tolled for the entire class of
plaintiffs due to Kleenco’s affirmative misconduct in having employees sign broad release and
settlement agreements, which ultimately delayed them pursuing their rights. 5 This argument is
without merit. The United States Supreme Court set forth various circumstances justifying
equitable tolling of a limitations period, such as cases:
in which a claimant has received inadequate notice . . . ; or where a motion for
appointment of counsel is pending . . . ; or where the court has led the plaintiff to
believe that she had done everything required of her . . . [or]
where affirmative misconduct on the part of a defendant lulled the plaintiff into
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (citations omitted). Considering
those cases, “[i]t is clear that equitable tolling is premised on the plaintiff’s excusable neglect,
which may or may not be attributable to the defendant.” Anderson v. Unisys Corp., 47 F.3d 302,
306 (8th Cir. 1995). The facts relevant to this issue show that Kleenco made its employees aware
of unpaid overtime they had accrued and offered to compensate them accordingly if they signed a
Release and Settlement Agreement. Absent, however, is any indication that Kleenco attempted to
mislead its employees or otherwise engaged in affirmative misconduct to prevent the filing of
Though not specifically stated in his motion, the Court presumes that Trogdon seeks to toll the
statute of limitations for putative plaintiffs back to February 11, 2014—the date his complaint was
claims. Therefore, the Court declines to equitably toll the statute of limitations to the extent
Trogdon seeks. However, the Court notes that the “[t]he delay caused by the time required for a
court to rule on a motion, such as one for certification of a collective action in an FLSA case, may be
deemed an extraordinary circumstance justifying application of the equitable tolling doctrine.” Yahraes
v. Rest Assocs. Events Corp., 2011 WL 844963, at *2 (E.D.N.Y. Mar. 8, 2011) (citations and internal
quotations omitted). In that regard, plaintiffs “whose putative class representatives and their counsel
are diligently and timely pursuing the claims should . . . not be penalized due to the courts’ heavy
dockets and understandable delays in rulings.” McGlone v. Contract Callers, Inc., 867 F. Supp. 2d
438, 445 (S.D.N.Y. 2012). Therefore, the Court finds it appropriate to toll the statute of limitations
from October 31, 2014—the date the motion for conditional certification was filed—until the date
this order is filed in order to account for the delay.
Proposed Notice and Consent to Join
Kleenco first argues that the opt-in period should be 45 days rather than 60 days as
proposed by Trogdon. Rather than providing any substantive argument as to why a 45 day opt-in
period is more appropriate, Kleenco merely cites to instances where a court approved a 45 day optin period. This is unavailing and the Court otherwise finds that a 60 day opt-in period strikes the
appropriate balance in affording Trogdon adequate time to facilitate notice while preventing
unreasonable delay. Therefore, a 60 day opt-in period will be afforded.
Kleenco also objects to multiple portions of the proposed notice and consent to join forms.
To remedy the perceived deficiencies, Kleenco requests that the parties be given a period of time
in which to complete and submit a mutually agreed-upon version of the forms. In light of the
numerous objections, the Court finds it appropriate to allow the parties time to resolve their
differences with the documents at issue. Therefore, following entry of this order, the parties will
have until May 29, 2015 to file a joint motion for approval of agreed-upon versions of Notice and
Consent to Join forms.
IT IS THEREFORE ORDERED that Trogdon’s motion is GRANTED IN PART AND
DENIED IN PART. The motion is GRANTED insofar as the Court conditionally certifies the
case as a collective action pursuant to 29 U.S.C. § 216(b) and authorizes notice to be sent to
putative opt-in plaintiffs. The opt-in class will consist of all current or former hourly employees
of Kleenco at any time during the three years prior to their filing of a consent to join form. Kleenco
is directed to provide list of the last known names and addresses for putative plaintiffs it has on
file in a readily readable electronic format no later than May 29, 2015.
IT IS FURTHER ORDERED that the motion is GRANTED insofar as the Court will toll
the statute of limitations for opt-in plaintiffs from October 31, 2014 to May 15, 2015.
IT IS FURTHER ORDERED that the motion is DENIED insofar as the Court declines to
approve Trogdon’s proposed Notice and Consent to Join forms at this time. The parties are
directed to confer and file a joint motion for approval of mutually agreed-upon versions of the
forms no later than May 29, 2015. If and when the Court approves the notice and consent to join
forms, the Court will set the start date for the 60 day opt-in period.
IT IS FURTHER ORDERED that the parties are to file a joint proposed scheduling order
no later than May 29, 2015. The joint proposed scheduling order should include proposed
deadlines for a trial date; completion of discovery; disclosure of experts and expert reports; and
for dispositive motions.
IT IS SO ORDERED this 15th day of May, 2015.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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