Sardina et al v. Charles et al
Filing
124
ORDER Granting 76 Plaintiffs' Motion for Conditional Collective Action Certification and for Judicial Notice to Class Pursuant to 29 U.S.C. § 216(b)B. Signed by Judge Robert E. Blackburn on 3/29/2016.(cmira)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Robert E. Blackburn, Judge
Civil Action No. 15-cv-00054-REB-KLM
MARISOL SARDINA, also known as Alejandra Arredondo,
COLUMBA RODRIGUEZ, also known as Anabel Echeverria,
MARGARITA HERRERA, also known as Jessica Gonzalez,
ALBERTO ECHEVERRIA, also known as Jesus F. Gonzalez,
ANGELICA LU
BLANCA AVILA, also known as Rosa Medina,
PATRICIA ALEJANDRE GARCIA, also known as Ana Moncada,
JESSICA MORALES TAVERA,
MARIA QUINONES M., also known as Karime Dominguez,
ROSAURA ZAVALA, also known as Alejandra Gutierrez, Individually and on behalf of
others similarly situated,
Plaintiffs,
v.
TWIN ARCHES PARTNERSHIP, LTD.,
LORENA ESTRADA, and
CLIFF PETE, in their individual and corporate capacities,
Defendants.
ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION
Blackburn, J.
This matter is before me on the Plaintiffs’ Motion for Conditional Collective
Action Certification and for Judicial Notice to Class Pursuant to 29 U.S.C. §
216(b)B [#76]1 filed August 21, 2015. The defendants filed a response [#92], and the
plaintiffs filed a reply [#95]. I grant the motion.
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“[#76]” 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.
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 plaintiffs seeks to pursue a collective action under
the Act on behalf of themselves and other similarly situated current and former
employees of the defendants. Section 216(b) of 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, 67879 (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
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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).
III. FACTS
The plaintiffs allege that they are non-exempt hourly cooks, trainers, cashiers
and maintenance workers who perform work on behalf of the defendants at a
McDonald’s restaurant operated by the defendants at 245 South Main Street in
Longmont, Colorado. According to the complaint [#48], the plaintiffs and other
employees of the defendants who are situated similarly were/are not properly paid for all
work performed for their employer, including overtime. Complaint [#48], ¶¶ 1 - 6. In
addition, the plaintiffs allege that the defendants failed properly to maintain daily work
records for their employees, in violation of the FLSA. Id., ¶ ¶ 8 - 9.
IV. ANALYSIS
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The actions alleged in the complaint [#48], if proven, violate the provisions of the
FLSA. Further, the allegations in the complaint constitute substantial allegations that
the plaintiffs and other employees of the defendants were together the victims of a
single decision, policy, or plan of the defendants.
The Notice of Collective Action Lawsuit shown at Exhibit B [#76-2] to the
motion [#76] generally provides adequate notice to potential plaintiffs and is approved.
The Consent Form To Join Lawsuit also shown at Exhibit C [#76-3] to the motion
[#76] 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 consistent with the terms of this order and specified in the
notice.
V. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiffs’ Motion for Conditional Collective Action Certification
and for Judicial Notice to Class Pursuant to 29 U.S.C. § 216(b)B [#76] filed August
21, 2015, 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 plaintiffs under the Fair Labor
Standards Act on behalf of all current and former employees of the defendants;
3. That the Notice of Collective Action Lawsuit shown at Exhibit B [#76-2] to
the motion [#76] is approved;
4. That the Consent Form To Join Lawsuit also shown at Exhibit C [#76-3] to
the motion [#76] is approved;
4. That if the plaintiffs retain a class action administration service to assist with a
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large volume of mailing addresses, mailings, and tracking of notices and consents to
join, the plaintiffs may change the instructions for return of the consent to join forms as
shown in the Notice of Collective Action Lawsuit and/or the Consent Form To Join
Lawsuit;
5. That within fourteen (14) days of the entry of this order, the defendants shall
provide to counsel for the plaintiffs a list of all hourly employees who worked at the
McDonald’s restaurant operated by the defendants at 245 South Main Street in
Longmont, Colorado, on or after January 8, 2012;
6. That the list of employees shall include for each employee: (1) the name of
the employee; (2) the last known mailing address; (3) the last known e-mail address;
(4)the last known telephone number; (5) dates of employment; and date of birth;
7. That the plaintiffs shall obtain an accurate Spanish translation of both the
Notice of Collective Action Lawsuit and the Consent Form To Join Lawsuit and
shall include the Spanish translation of these documents in the mailing of notice to
potential plaintiffs;
8. That on or before May 2, 2016, the plaintiffs shall mail the Notice of
Collective Action Lawsuit and the Consent Form To Join Lawsuit to all potential
plaintiffs known to the plaintiffs;
9. That within 60 days of the mailing of the Notice of Collective Action Lawsuit
and the Consent Form To Join Lawsuit, the plaintiffs may contact potential plaintiffs
known to them via phone, text message, and e-mail for the purpose of obtaining a
correct mailing address for the potential plaintiffs contacted;
10. 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
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in the notice, which date shall be no more than one hundred twenty (120) days after the
date on which the Notice of Collective Action Lawsuit first is mailed to potential
plaintiffs;
11. That on or before May 2, 2016, counsel for the plaintiffs shall provide to
counsel for the defendants copies of the Notice of Collective Action Lawsuit and the
Consent Form To Join Lawsuit, in both English and Spanish;
12. That from May 4, 2016, through June 15, 2016, the defendants shall post
copies of the Notice of Collective Action Lawsuit and the Consent Form To Join
Lawsuit, in both English and Spanish, at a conspicuous place in their business where
all employees are likely to see the Notice of Collective Action Lawsuit and the
Consent Form To Join Lawsuit, in both English and Spanish; and
13.. 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.
Dated March 29, 2016, at Denver, Colorado.
BY THE COURT:
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