McQueary v. Confluence Energy, LLC

Filing 26

ORDER granting 19 Unopposed Motion for Court Approval of Notice of Potential Class Members and Consent Form. By Judge Robert E. Blackburn on 3/12/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Robert E. Blackburn, Judge
Civil Action No. 14-cv-02274-REB-KLM
BRYAN McQUEARY, on behalf of himself and others similarly situated,
Plaintiff,
v.
CONFLUENCE ENERGY, LLC,
Defendant.

ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION
Blackburn, J.
This matter is before me on the Unopposed Motion for Court Approval of
Notice to Potential Class Members and Consent Form [#19]1 filed December 31,
2014. The motion is unopposed and is granted.
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 wage provisions of the Fair Labor
Standards Act (FLSA or Act). The plaintiff seeks to pursue a collective action under the
Act on behalf of himself and other similarly situated current and former Solids Control
Technicians employed by the defendant, Confluence Energy, LLC. Section 216(b) of
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“[#19]” 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.

the FLSA 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). Contrary to the procedures
governing a typical class action under Rule 23, plaintiffs who wish to participate in a
FLSA 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).
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,
536 U.S. 934 (2002) (citation and internal quotation marks omitted). The court makes
this determination relying on the allegations of the complaint and any supporting
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

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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).
III. FACTS
According to the plaintiff, the defendant employed the plaintiff and other persons
as Solids Control Technicians and paid these workers as day rate workers. The day
rate workers allegedly are and were paid based only on the number of days they
worked. Often, the plaintiff alleges, he and other day rate workers regularly worked 84
or more hours per week, but they were not paid overtime for hours worked in a week in
excess of 40 hours.
IV. ANALYSIS
The actions alleged in the complaint [#1], if proven, violate the provisions of the
FLSA. Further, the allegations in the complaint constitute substantial allegations that
the plaintiff and other employees of the defendant were together the victims of a single
decision, policy, or plan of the defendants.
The proposed Notice of Collective Action Lawsuit shown at Exhibit A to the
motion [#19] generally provides adequate notice to potential plaintiffs and is approved,
with one addition. The Consent Form To Join Lawsuit proposed by the plaintiffs, also

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shown at Exhibit A to the motion [#19] is approved. The Notice of Collective Action
Lawsuit delivered to potential plaintiffs shall provide that any and all completed consent
forms must be received by counsel for plaintiffs by a date specified in the notice. The
date by which such forms must be received shall be no more than 60 days after the
date on which the Notice of Collective Action Lawsuit is mailed to potential plaintiffs.
V. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Unopposed Motion for Court Approval of Notice to Potential
Class Members and Consent Form [#19] filed December 31, 2014, is GRANTED on
the terms stated in this order;
2. That under 29 U.S.C. § 216(b), this case is CONDITIONALLY CERTIFIED as
a collective action concerning the claims of the named plaintiff under the Fair Labor
Standards Act on behalf of all current and former Solids Control Technicians employed
by Confluence Energy, LLC who were paid on a day rate basis and who worked more
than forty hours in any work week;
3. That with the amendment specified in this order, the Notice of Collective
Action Lawsuit shown at Exhibit A to the motion [#19] is APPROVED;
4. That the Consent Form To Join Lawsuit also shown at Exhibit A to the
motion [#19] is APPROVED;
5. That the Notice of Collective Action Lawsuit SHALL PROVIDE that any
and all completed consent forms must be received by counsel for plaintiffs by a date
specified in the notice, which date shall be no more than sixty (60) days after the date

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on which the Notice of Collective Action Lawsuit first is mailed to potential plaintiffs;
6. That within fourteen (14) days of the entry of this order, defendant Confluence
Energy, LLC, SHALL PROVIDE to the plaintiff the names and addresses of all current
and former Solids Control Technicians employed by the defendant on or after August
15, 2011;
7. That within twenty (20) days after mailing the Notice of Collective Action
Lawsuit to potential plaintiffs, the plaintiff SHALL PROVIDE to the defendant
information received regarding mail addressed to potential plaintiffs which is
undeliverable;
8. That within ten (10) days of receiving information concerning such
undeliverable mail, the defendant SHALL PROVIDE to the plaintiff alternate contact
information for potential plaintiffs for whom mail is undeliverable, including e-mail
addresses, if any;
9. That the mailing of notice to potential plaintiffs SHALL BE LIMITED to the
Notice of Collective Action Lawsuit and the Consent Form to Join Lawsuit as
approved in this order;
10. That potential plaintiffs SHALL BE provided sixty (60) days from the date of
the first mailing of the notice to return the consent form and become an opt-in plaintiff in
this lawsuit;
11. That thirty (30) days after the initial mailing, the plaintiff MAY SEND a
reminder notice by mail under the same conditions as the first notice mailing;
12. That the reminder notice SHALL BE identical to the to the Notice of

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Collective Action Lawsuit and the Consent Form to Join Lawsuit approved in this
order, except that the title may read “Reminder Notice to Potential Class Members”; and
13. That the deadline to return the consent form SHALL NOT BE EXTENDED
by the mailing of a reminder Notice;
Dated March 12, 2015, at Denver, Colorado.
BY THE COURT:

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