Green et al v. Drake Beam Morin, Inc.

Filing 44

ORDER. The Plaintiffs Motion for Conditional Collective Action Certificationand Memorandum in Support 17 , filed 6/27/2011, is GRANTED. By Judge Robert E. Blackburn on 12/6/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No.11-cv-01063-REB-CBS
JOHN GREEN, and
ELIZABETH ENRIGHT, individually and on behalf of others similarly situated,
Plaintiffs,
v.
DRAKE BEAM MORIN, INC.,
Defendant.

ORDER GRANTING PLAINTIFFS’ MOTION FOR
CONDITIONAL COLLECTIVE ACTION CERTIFICATION
Blackburn, J.
The matter before is Plaintiffs’ Motion for Conditional Collective Action
Certification and Memorandum in Support [#17]1 filed June 27, 2011. I grant the
motion and conditionally certify a collective action for purposes of notice and discovery.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
29 U.S.C. § 216(b) (Fair Labor Standards Act).
II. STANDARD OF REVIEW
This case involves alleged violations of the overtime provisions of the Fair Labor
Standards Act (“FLSA” or ”the Act”). Plaintiffs seek to pursue a collective action under
the Act on behalf of consultants employed by defendant. Section 216(b) of the Act
1

“[#17]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this Order.

provides the exclusive means of bringing such class-wide claims to redress alleged
violations of the FLSA. See 29 U.S.C.A. § 216(b); Brown v. Money Tree Mortgage,
Inc., 222 F.R.D. 676, 678-79 (D. Kan. 2004). In contrast to the procedures governing a
typical class action under Rule 23, plaintiffs who wish to participate in such a collective
action must opt in to the action. See 29 U.S.C. § 216(b) (“No employee shall be a party
plaintiff to any such action unless he gives his consent in writing to become such a party
and such consent is filed in the court in which such action is brought.”); In re American
Family Mutual Insurance Co. Overtime Pay Litigation, 638 F.Supp.2d 1290, 1298
(D. Colo. 2009).2
2

Chief Judge Daniel explained the rationale underlying this unique procedure in a recent

decision,
Congress specifically abandoned a representative, opt-out scheme and
created the current opt-in procedures for FLSA actions in response to
“excessive litigation spawned by plaintiffs lacking a personal interest in
the outcome,” in order to limit “private FLSA plaintiffs to employees who
asserted claims in their own right,” and to free “employers from the
burden of representative actions.” Hoffmann-La Roche Inc. [v.
Sperling], 493 U.S. 165, 173, 110 S.Ct. 482, [488,] 107 L.Ed.2d 480
(1989). “The opt-in language of § 216(b) was a direct result of this clear
congressional dissatisfaction with the original class action provisions of
the FLSA” and was designed to “limit the burden on the defendant and
the participation of the court.” Dolan [v. Project Constructions Corp.],
725 F.2d [1263] 1267 [(10th Cir. 1984)]. Unlike a Rule 23 class action,
once a FLSA collective action is initially certified upon a determination
that a group of employees are “similarly situated,” the opt-in plaintiffs may
be subject to some individualized discovery, following which they will be
required to demonstrate that they are “similarly situated” under a stricter
standard. Thiessen, 267 F.3d at 1102-3.
As the Third Circuit noted “mandating an opt-in class or an opt-out class
is a crucial policy decision.” De Asencio v. Tyson Foods, Inc., 342 F.3d
301, 311 (3rd Cir. 2003). “The FLSA's opt-in provision directly contrasts
with Rule 23's opt-out scheme and demonstrates Congress's intent to
ensure that parties with wage and hour claims under the FLSA take
affirmative steps to become members of a class seeking redress of those
claims in federal court.” McClain v. Leona's Pizzeria, Inc., 222 F.R.D.
574, 577 (N.D. Ill. 2004).
In re American Family Mutual Insurance Co. Overtime Pay Litigation, 638 F.Supp.2d at 1298.

2

A collective action under the FLSA may be maintained only by and among
employees who are “similarly situated.” The Tenth Circuit has adopted a two-step
analysis governing this determination. At the initial “notice stage,” the trial court must
determine whether plaintiffs have made “substantial allegations that the putative class
members were together the victims of a single decision, policy, or plan.” Thiessen v.
General Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001), cert. denied,
122 S.Ct. 2614 (2002) (citation and internal quotation marks omitted). The court makes
this determination relying on the allegations of the complaint and any affidavits filed by
plaintiffs. Brown, 222 F.R.D. at 680. Certification at this step is conditional, and the
standard of proof “is a lenient one that typically results in class certification,” allowing
notice to be sent to the putative class members and discovery to be undertaken. Id. at
679.
After discovery is complete, the second, or “decertification,” stage occurs. At that
point, the court applies a much stricter standard to determine whether class members
are similarly situated and, consequently, whether the action should continue as a
collective action. In making that determination, the court must evaluate, inter alia, “the
disparate factual and employment settings of the individual plaintiffs; the various
defenses available to defendant which appear to be individual to each plaintiff; fairness
and procedural considerations; and whether plaintiffs made any required filings before
instituting suit.” Brown, 222 F.R.D. at 679 (citing Thiessen, 267 F.3d at 1103).

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III. ANALYSIS
Plaintiffs seek conditional certification under the first prong of the abovedescribed test. This litigation is still in its relative infancy, and, therefore, it is not the
appropriate juncture for the court to weigh evidence or make factual determinations as
to the possible ultimate merits of plaintiffs’ claims. Id. at 680. Plaintiffs’ burden now is
merely to present “substantial allegations” that all members of the putative class were
subject to a single decision, policy or plan. See Thiessen, 267 F.3d at 1102 (emphasis
added). Given that lenient standard, and the fact that little discovery has yet occurred in
this case, I find that it would be both legally erroneous and simply unfair to accept the
invitation implicit in defendant’s response and evidentiary submissions to investigate
further the potential efficacy of the allegations at this stage.
Looking solely to the allegations of the complaint and plaintiffs’ affidavits, I find
and conclude that plaintiffs have satisfied their burden to conditionally certify a class.
Plaintiffs allege that defendant predetermined the hours they were allowed to work and
for which they were to be paid. Further, plaintiffs maintain that these predetermined
allotments often proved inadequate for them to meet their clients’ needs but that
defendant prohibited them from reporting hours beyond those allotted under threat of
reprimand or termination. In addition, plaintiffs claim they were not compensated for
time devoted to other work-related tasks, such as study and preparation time,
answering phone calls, reading and responding to email, and travel time. As a result,
plaintiffs claim they worked a substantial amount of regular and overtime hours for
which they have not been paid.

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Based on these allegations of the complaint, as supported by the sworn
declarations submitted in support of the instant motion,3 I find and conclude that
plaintiffs have presented substantial allegations that the putative class members were,
as a group, the victims of a single decision, policy, or plan resulting in potential
violations of the FLSA. I further agree with plaintiffs that there is no reason at this early
juncture to limit the class definition to the West District. Moreover, plaintiffs allege that
this violation was willful, which makes the action subject to a three-year statute of
limitations. See 29 U.S.C. § 255(a).
Accordingly, this case properly is conditionally certified as a collective action.
However, in reviewing plaintiffs’ proposed form of notice, I note that they have defined
the class of eligible employees to include “consultant[s] employed by [defendant]
between April 21, 2008 and the present[.]” (Plf. Motion App., Exh. 6 at 1.) The
allegations of the complaint and the declarations attached to plaintiffs’ motion do not
support such a sweeping class definition. Instead, they implicate only hourly, nonexempt employees. Defendant avers that it also employs exempt, salaried consultants
who are not similarly situated to plaintiffs and would not be subject to the FLSA overtime
requirements in any event. Plaintiffs have agreed to accept this more limited class
definition. In addition, although defendant has international offices, plaintiffs apparently
have agreed to limit their class to consultants working in the United States. (See Def.
Resp. at 2 n.1 [#24], filed July 21, 2011.) See also 29 U.S.C. § 213(f).

3

Defendant attempts to undermine these submissions by pointing out that they are nearly
identical to one another. However, given that plaintiffs are alleging, as they must, a company-wide policy,
it hardly strikes this court as surprisingly that their allegations are similar.

5

Thus, I find that the proposed form of notice attached as Exhibit 6 to plaintiffs’
motion must be amended at page 1 in the first full paragraph so that it reads:
If you are or were an hourly, non-exempt consultant
employed by Drake Beam Morin, Inc. (“DBM”) in the
United States between April 21, 2008, and the present,
please read this notice. A collective action lawsuit may
affect your rights.
Any other reference to “consultants” in the proposed form of notice must be amended
similarly to reflect this more limited class definition. Plaintiffs also have agreed to
incorporate the first and second revisions to the form of notice proposed by defendant at
page 14 of its response, and I approve and adopt these revisions, which shall be
incorporated in the form of notice mailed to the class.4
In all other respects, I approve the proposed form of notice and consent to join
forms. Finally, I concur with plaintiffs that any and all consent to join forms should be
returned to plaintiffs’ counsel no later than 90 days from the date of this Order.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiffs’ Motion for Conditional Collective Action Certification
and Memorandum in Support [#17], filed June 27, 2011, is GRANTED;

4

These revisions are as follows:

•

Page 1, “Do Nothing” box – . . . [Defendant] proposes that the language be
modified to state, “By doing nothing, you give up the possibility of getting money
or benefits from a trial or settlement in this lawsuit. You keep any right to sue
[defendant] separately about the same legal claims in this lawsuit, but the statute
of limitations continues to run on any claims you may have.”

•

Page 2, Paragraph 5 – . . . [Defendant] proposes that the language be modified to
state, “DBM denies Plaintiffs’ allegations and maintains that it properly paid all
consultants for all hours worked, including all overtime.”

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2. That under 29 U.S.C. § 216(b), this case is CONDITIONALLY CERTIFIED as
a collective action concerning the plaintiffs’ claims under the Fair Labor Standards Act
on behalf of all current and former hourly, non-exempt consultants who were employed
by defendant in the United States for any length of time during the period April 21, 2008,
until the present;
3. That the proposed form of notice, attached as Exhibit 6 to plaintiffs’ motion, as
well as the consent to join form, attached as Exhibit 7 to plaintiffs’ motion, are
APPROVED, with the amendments described in this Order;
4. That defendant is ORDERED to provide to plaintiffs on or before Monday,
January 9, 2012, the names, addresses, phone numbers, and e-mail addresses of the
employees defined in paragraph 2, above; and
5. That the date reflected in paragraph 12 at page 3-4, of the form of notice
SHALL PROVIDE that any and all consent to join forms must be received by counsel
for plaintiffs by no later than Monday, March 5, 2012.
Dated December 6, 2011, at Denver, Colorado.
BY THE COURT:

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