Stallings v. Antero Resources Corp.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 3/12/2018. This court respectfully RECOMMENDS that Plaintiff Brett Stallings's Expedited Motion for Conditional Certification and Notice to Putative Class Members 23 be GRANTED IN PART and DENIED IN PART. In addition, IT IS ORDERED that: (1) By March 26, 2018, the Parties will meet and confer and submit an amended proposed Notice for the court's consideration, taking into account the direc tions set forth in this Recommendation; and (2) By March 26, 2018, Antero will provide the names, last known addresses, and last known telephone numbers of Solids Control Operators and Pipeline Inspectors who were independent contractors for Antero from March 12, 2015 to the present for the location(s) where Mr. Stallings worked. (nywlc2, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:17-cv-01939-RM-NYW
BRETT STALLINGS, individually and as on behalf of all others similarly situated,
ANTERO RESOURCES CORP.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiff Brett Stallings’s (“Plaintiff” or “Mr.
Stallings”) Expedited Motion for Conditional Certification and Notice to Putative Class
Members (“Motion” or “Motion for Conditional Certification”), filed November 27, 2017.
The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), the Order
Referring Case dated August 11, 2017 [#6], and the Memorandum dated November 28, 2017
[#24]. Having reviewed the Motion and associated briefing, the applicable case law, and the
entire docket, this court concludes that oral argument will not materially assist in the resolution
of this matter. For the reasons stated herein this court respectfully RECOMMENDS that the
Motion for Conditional Certification be GRANTED IN PART and DENIED IN PART.
The following facts are drawn from the operative Complaint and are taken as true for the
purposes of the instant Motion.
Mr. Stallings is a former employee of Defendant Antero
Resources Corporation (“Defendant” or “Antero”), having worked as a Solids Control Operator
(“SCO”) and Pipeline Inspector (“PI”) from “approximately January 2014 until October 2015.”
[#1 at ¶ 7, 42; #23-2 at ¶ 2].
Antero is a Colorado corporation engaged in “natural gas
produc[tion] in the Marcellus and Utica shale fields in Ohio and West Virginia.” [#32 at 2]; see
also [#1 at ¶ 9, 16]. Plaintiff alleges while working as a SCO and PI Antero improperly
classified him and all other SCOs and PIs as independent contractors. See [#1 at ¶ 4, 7–8, 42;
#23-2 at ¶ 2]. In doing so, Antero did not pay Mr. Stallings, or any SCO or PI, overtime
compensation for hours worked in excess of forty hours per week. See [#1 at ¶¶ 3, 7–8, 17, 46,
51, 56–57; #9 at ¶ 46; #23-2 at ¶¶ 8, 13–15, 17]; cf. [#32-1 at ¶¶ 4–5, 7; #32-2 at ¶ 6]. Instead,
Antero subjected such workers to its “day-rate system” under which Antero paid them “a flat
amount for each day worked,” regardless of the number of hours worked per day and/or week.
See [#1 at ¶¶ 4, 17, 46, 50, 56–57; #9 at ¶ 18; #23-2 at ¶¶ 3, 13]. Mr. Stallings further alleges
that he did not receive a guaranteed salary or weekly compensation, he received compensation
only for the days actually worked. See [#1 at ¶¶ 18, 56; #9 at ¶ 18; #23-2 at ¶¶ 3, 7].
Plaintiff then initiated this matter, asserting violations of section 7 of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207, against Antero. See generally [#1]. Plaintiff alleges
Defendant improperly classifies SCOs and PIs as independent contractors to avoid paying such
workers overtime compensation for hours worked in excess of forty hours per week. See [id. at
¶ 51]. Plaintiff brings this claim on behalf of himself and all similarly situated SCOs and PIs,
and seeks “overtime wages under the FLSA in an amount equal to 1.5 times their rate of pay,
plus liquidated damages, attorney’s fees, and costs.” [Id. at ¶ 53]. Antero filed its Answer to
Plaintiff’s Complaint on September 12, 2017. [#9].
The court entered a Scheduling Order in this matter, setting November 13, 2017 as the
deadline by which Plaintiff was to file his Motion for Conditional Certification, if any; June 18,
2017 as the discovery deadline; and July 20, 2018 as the deadline by which Antero was to file its
Motion to Decertify the Collective Action, if any. See [#15; #16]. Following a two-week
extension, Plaintiff filed the instant Motion on November 27, 2017. [#23]. Mr. Stallings
requests conditional certification for the following potential opt-in plaintiffs: 1
All current and former Solids Control Operators and Pipeline Inspectors
employed by, or working on behalf of, Antero Resources Corp., who were
classified as independent contractors and paid a day-rate, at any time from [the
date three years back from the date that any Court-approved Notice and Consent
form is distributed to potential class members], to present.
[Id. at 4 (brackets added) (footnote omitted)]. Plaintiff avers that such workers are similarly
situated for purposes of conditional certification. See generally [#23].
Antero opposes conditional certification, arguing that Mr. Stallings fails to provide
substantial allegations that he and putative collective action members are similarly situated,
given that the job duties and responsibilities under the umbrella categorizations of SCO and PI
differ significantly. [#32]. In particular, Antero contends that, with respect to the SCOs, it
engages other companies to manage the waste disposal process, and that it did not employ or
engage individuals as SCOs. [#32 at 2–3]. Antero argues, in the alternative, that any collective
action that is conditionally certified must be narrowed in scope or divided into subclasses. [#32
at 2]. The Motion for Conditional Certification is now ripe for Recommendation.
The Fair Labor Standards Act
The FLSA governs the payment of minimum wages and overtime compensation between
an employer and its employees. See 29 U.S.C. §§ 206–207. Under the statute, a covered
Often, courts and parties refer to the potential opt-in plaintiffs as a “class,” but recent case law
in this District has discussed in detail the difference between a collective action under the FLSA
and a class action under Rule 23 of the Federal Rules of Civil Procedure. See e.g., Oldershaw v.
DaVita Healthcare Partners, Inc., 255 F. Supp. 3d 1110 (D. Colo. 2017). Accordingly, this
court refers to the potential plaintiffs in any collective action as “potential opt-in plaintiffs,” as
opposed to a “collective class” in an effort to be more precise.
employer must pay its employees for the time that it employs them; and the FLSA generally
requires covered employers to compensate employees for work in excess of forty hours in a work
week. See 29 U.S.C. §§ 206(a), 207(a). The required overtime compensation is one and onehalf times an employee’s “regular rate” of pay. 29 U.S.C. § 207(e). The FLSA defines an
“employer” as “any person acting directly or indirectly in the interest of an employer in relation
to an employee.” 29 U.S.C. § 203(d). The FLSA “defines the verb ‘employ’ expansively to
mean ‘suffer or permit to work.’” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326
(1992) (quoting 29 U.S.C. § 203(g)).
Section 216(b) of the FLSA authorizes private individuals to recover damages for
violations of minimum wage and overtime provisions. It provides in relevant part that “[a]n
action to recover the liability [for unpaid overtime compensation, retaliation and liquidated
damages] may be maintained against any employer ... in any Federal or State court of competent
jurisdiction by any one or more employees for and in behalf of himself or themselves and other
employees similarly situated.” 29 U.S.C. § 216(b). The FLSA thus provides plaintiffs the
opportunity to proceed collectively, which allows “plaintiffs the advantage of lower individual
costs to vindicate rights by the pooling of resources.” Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 170 (1989) (interpreting the ADEA, which explicitly incorporates the collective action
provisions of the FLSA). Plaintiffs who wish to participate in an FLSA collective action must
opt in to the action. 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.”). See also In re American Family Mutual Insurance
Co. Overtime Pay Litigation, 638 F. Supp. 2d 1290, 1298 (D. Colo. 2009).
In Thiessen v. General Electric Capital Corp., the United States Court of Appeals for the
Tenth Circuit (“Tenth Circuit”) approved a two-step process, known as an ad hoc approach, for
determining whether putative opt-in plaintiffs are similarly situated to the named plaintiff. 267
F.3d 1095, 1105 (10th Cir. 2001). Pursuant to this approach, the trial court determines at the
initial “notice stage” whether the plaintiff has asserted “substantial allegations that the putative
class members were together the victims of a single decision, policy, or plan.” Id. at 1102.
During the second stage in the ad hoc approach, after discovery has concluded and often
prompted by a motion to decertify, the court applies a stricter standard to determine whether the
action should continue as a collective action. In particular, the court must evaluate 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.” Id. at 1103 (citing
Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). Numerous courts in
this District have followed this ad hoc approach in determining whether plaintiffs can move
forward collectively under the FLSA. See, e.g., Baldozier v. American Family Mut. Ins. Co., 375
F. Supp. 2d 1089, 1092 (D. Colo. 2005); but see Turner v. Chipotle Mexican Grill, Inc., 123 F.
Supp. 3d, 1300, 1309 (D. Colo. 2015) (rejecting the two-step process in favor an approach that
allowed “workers bringing the same statutory claim against the same employer to join as a
collective, with the understanding that individuals may be challenged and severed from the
collective if the basis for their joinder proves erroneous.”). 2
The Tenth Circuit concluded that the “spurious” approach applied in Turner was not such a
gross abuse of discretion to warrant mandamus relief, but noted that it took no position as to the
merits of such approach. In re Chipotle Grill, Inc., No. 17-1028, 2017 WL 4054144, at *3 & n.1
The ad hoc approach is a case-by-case determination. Thiessen, 267 F.3d at 1105. Even
in light of factually similar cases, Mr. Stallings bears the burden of setting forth substantial
allegations that he and the other SCOs and PIs in this action are similarly situated for the purpose
of conditional certification. See Eagle v. Freeport-McMoran, Inc., No. 2:15-cv-00577-MVSMV, 2016 WL 7494278, at *2 (D.N.M. Aug. 3, 2016) (“Conditional certification in the notice
stage . . . is by no means automatic.”). At this “notice stage,” the court may rely on the
allegations of the complaint and any supporting affidavits filed by the plaintiff. Brown v. Money
Tree Mortgage, Inc., 222 F.R.D. 676, 680 (D. Kan. 2004). See also Smith v. Pizza Hut, Inc., No.
09-CV-01632-CMA-BNB, 2012 WL 1414325 (D. Colo. Apr. 21, 2012). Further, “the court does
not resolve factual disputes, decide substantive issues going to the ultimate merits, or make
credibility determinations.” Bradford v. Logan’s Roadhouse, Inc., 137 F. Supp. 3d 1064, 1072
(M.D. Tenn. 2015) (citation and internal quotation marks omitted). Although this burden is
“modest, it is not non-existent, and it cannot be satisfied simply by unsupported assertions.”
Korenblum v. Citigroup, Inc., 195 F. Supp. 3d 475, 480 (S.D.N.Y. 2016) (citations and internal
quotation marks omitted). Courts deny conditional certification in instances where the complaint
is wholly conclusory in nature, the supporting affidavit relies on hearsay from unidentified
sources, and the nature of the violation is rendered ambiguous by the particular circumstances of
the only named plaintiff. See, e.g., Saarela v. Union Colony Protective Servs., Inc., No. 13-cv01637-MSK-MJW, 2014 WL 3408771 (D. Colo. July 14, 2014) (dismissing motion for
conditional certification without prejudice and instructing the plaintiff he could renew his request
upon a more substantial showing that the defendant company’s alleged failure to pay overtime to
plaintiff was indicative of a policy that applied equally to other similarly-situated employees).
(10th Cir. Mar. 27, 2017). Here, the Parties proposed the use of the two-stage ad hoc approach,
and that is the approach this court will employ.
However, as noted by the presiding judge, the Honorable Raymond Moore, there is no
heightened pleading standard or evidentiary requirement at the conditional certification stage.
Sanchez v. Simply Right, Inc., No. 15-CV-00974-RM-MEH, 2017 WL 2230079, at *3 (D. Colo.
May 22, 2017). Courts within the Tenth Circuit have relied upon a plaintiff’s discussions with
others to find that there are substantial allegations that the plaintiff(s) and the putative opt-in
plaintiffs were together the victims of a single decision, policy, or plan. See e.g., Murphy v.
Allstaff Medical Resources, Inc., No. 16-cv-2370-WJM-MEH, 2017 WL 6945036, at *2 (D.
Colo. June 13, 2017); Sharp v. CGG Land (U.S.) Inc., No. 14-cv-0614-CVW-TLW, 2015 WL
222486, at *2 (N.D. Okla. Jan. 14, 2015). Thus, the standard for conditional certification has
been described as a “minimal burden,” see Lsysyj v. Milner Distrib. Alliance, Inc., No.
13cv01930-RM-MJW, 2014 WL 273214 (D. Colo. Jan. 24, 2014), and its application “typically
results in class certification.” Brown, 222 F.R.D. at 679.
Mr. Stallings moves for conditional certification of a collective action that includes SCOs
and PIs “employed by, or working on behalf of, Antero during the past three years who Antero
classified as independent contractors and paid a day-rate[.]” [#23 at 2]. Plaintiff argues that he
satisfies his initial burden of demonstrating that he and all other SCOs and PIs are similarly
situated, because they all: (1) shared the primary job duties of “performing manual labor in the
oilfield, operating oilfield equipment, and reporting to Antero supervisors”; (2) reported directly
to Antero and/or its clients; (3) received only a day-rate set by Antero with no overtime
compensation for hours worked in excess of forty, despite “working over 84 hours in a week”;
(4) were classified as independent contractors; (5) relied on Antero and/or its clients to set their
work schedules and provide all the necessary equipment needed for their projects; and (6) were
required to adhere to Antero’s directives for completing projects. [Id. at 5]. Mr. Stallings
continues that courts routinely grant conditional certification in similar actions, and asserts that
his proposed Notice and means of delivery via first class mail, email, and text message to
potential opt-in plaintiffs are necessary under the circumstances, given the fact that the members
of the potential collective are often in the field, away from their permanent addresses for
significant periods of time. [Id. at 14–17].
Antero opposes conditional certification for several reasons. First, Defendant contends
that Mr. Stallings fails to provide substantial allegations that he and all SCOs and PIs are
similarly situated, because his Complaint contains largely conclusory allegations, his Declaration
relies on hearsay and statements unsupported by personal knowledge, and his Motion for
Conditional Certification lacks sufficient evidentiary support. See [#32 at 4–8]. Second, Antero
argues that Plaintiff fails to establish how SCOs and PIs are similarly situated, given that these
are umbrella categorizations that cover several distinct jobs. [Id. at 8–11]. Third, and relatedly,
Antero urges the court to find that Mr. Stallings fails to plead allegations sufficient to pass the
economic realities test even at this initial phase, because a determination of whether SCOs and
PIs are similarly situated will require a fact-specific inquiry that is not satisfied by his pleadings
and Declaration. [Id. at 11–16]. Alternatively, Antero argues that, should the court conditionally
certify a collective action, it should do so by creating sub-categories of putative opt-in plaintiffs,
not the broad parameters requested by Plaintiff, and the court should amend the proposed Notice
and its means of delivery. See [id. at 16–20]. The court notes that Antero’s arguments, except
whether Plaintiff has sufficiently pled substantial allegations of being similarly situated to his
proposed collective, attack the merits of Plaintiff’s FLSA claim or require this court to make
factual or credibility determinations. Such determinations are not appropriate in the context of
conditional certification. Therefore, the court’s analysis will consider only whether Plaintiff
pleads substantial allegations that he and the SCOs and PIs were together the victims of a single
decision, policy, or plan, thereby satisfying the “similarly situated” requirement to justify
Are There Substantial Allegations to Support a Finding that Plaintiff is Similarly
Situated to Potential Opt-In Plaintiffs?
To determine whether there are substantial allegations to support a finding that Mr.
Stallings and potential opt-in plaintiffs are similarly situated, such that they are subject to a
single decision, policy, or plan, this court looks to the Complaint [#1] and Mr. Stallings’s
Declaration offered in support of the Motion for Conditional Certification [#23-2]. Mr. Stallings
worked for Antero from approximately January 2014 to October 2015 as a SCO and PI; as such,
his primary job duties, allegedly consistent with all other SCOs and PIs, included “performing
manual labor in the oilfield, operating oilfield equipment, and reporting daily activities to Antero
supervisors.” [#1 at ¶¶ 18–19, 41–42]; see also [#23-2 at ¶¶ 2, 11–12]. As a SCO and PI,
Antero classified Mr. Stallings as an independent contractor, paying him a day-rate for the days
actually worked, typically twelve-hour shifts per day “for weeks at a time,” and never paid him
overtime compensation for hours worked in excess of forty. See [#1 at ¶¶ 2–4, 8, 14, 17, 20;
#23-2 at ¶¶ 2–3, 7, 8, 13, 14, 17]. Further, Antero dictated Mr. Stallings’s day-to-day activities
while working on a project, including the scheduling of his shifts and the setting of day-rate
compensation; it also provided (or its clients provided) all the equipment needed for the project,
and it prohibited Mr. Stallings from “negotiat[ing] additional work” from Antero’s clients. See
[#1 at ¶¶ 22, 24–30, 33, 34, 36, 37, 38, 41; #23-2 at ¶¶ 3, 6, 8, 9, 10, 19, 20].
The Complaint alleges Mr. Stallings and other SCOs and PIs “regularly worked for
Antero in excess of 40 hours each week[,]” but “never received overtime for hours worked in
excess of 40 hours in a single workweek[;]” instead, Antero paid Mr. Stallings and “other
workers like him” a “daily rate with no overtime pay and improperly classified them as
[#1 at ¶¶ 2–4].
These allegations are repeated throughout the
Complaint in a variety of forms. E.g., [id. at ¶¶ 8, 14, 17, 46, 55, 56, 57].
The Complaint then defines the putative opt-in plaintiffs as:
Current and former oilfield personnel employed by, or working on behalf of,
Antero Resources Corp., during the past three years who were classified as
independent contractors and paid a day-rate.
[#1 at ¶ 8]. Plaintiff further alleges that “[n]umerous employees have been victimized by this
pattern, practice and policy which are in willful violation of the FLSA.
Many of these
employees have worked with Stallings and have reported that they were paid in the same manner
and were not properly compensated for all hours worked as required by the FLSA.” [Id. at ¶ 54].
The Complaint goes on to aver “[f]rom his observations and discussions with these employees,
Stallings is aware that the illegal practices or policies of Antero have been imposed on the
Putative Class Members.” [Id. at ¶ 55].
The Motion for Conditional Certification further limits the putative opt-in plaintiffs as:
All current and former Solids Control Operators and Pipeline Inspectors
employed by, or working on behalf of, Antero Resources Corp., who were
classified as independent contractors and paid a day-rate, at any time from 3 years
prior to the date of mailings, and the present.
[#23-1 at 2]. In his Declaration, Mr. Stallings states under oath that he received a flat sum dayrate, regardless of hours worked, and that “[a]ll of the other independent contractors in these
positions were paid the same way.” [#23-2 at ¶ 3]. Elsewhere he declares, “[b]ased on my
experience with Antero, observations on locations, and my conversations with co-workers,” the
schedules imposed by Antero, including twelve-plus hour days, “were typical of all” SCOs and
PIs; “all or the majority of Antero’s [SCOs] and [PIs] were classified as independent contractors
and paid a day-rate”; “all . . . [SCOs] and [PIs] regularly worked more than 40 hours each week
without receiving overtime compensation,” which was a “standard pay practice”; and “I know
there is a general interest among the [SCOs] and [PIs] in recovering back wages[.]” [Id. at ¶¶ 8,
13, 14, 15, 22].
Antero questions whether Plaintiff ever worked as a SCO for Antero, see [#32 at 1 n.1;
#32-1 at ¶ 8], but that issue is one that cannot be resolved at this juncture because both the
Complaint and Mr. Stallings’s Declaration indicate that he was employed both as a SCO and a
PI. [#1 at ¶ 7; #23-2 at ¶ 2]. The Complaint and Declaration describe Mr. Stallings’s job duties
as “performing manual and standardized labor in the field—either with the solids control
equipment or the pipeline inspections” [#23-2 at ¶ 11] and “reporting daily activities to Antero
supervisors” [#1 at ¶ 19]. Mr. Stallings further asserts that the “daily and weekly activities of the
Putative Class Members were routine and largely governed by standardized plans, procedures,
and checklists created by Antero”; that “Putative Class Members were prohibited from varying
their job duties,” which were primarily “manual labor/technical in nature”; the “Putative Class
Members performed substantially similar job duties related to servicing oil and gas operations in
the field”; and “[a]ll of the Putative Class Members perform the same or similar job duties” and
are required to adhere to Antero’s direction of “day-to-day activities”. [#1 at ¶¶ 36, 38, 40, 45].
Mr. Stallings states that these statements are based on his “experience with Antero, observations
on locations, and [his] conversations with co-workers.” See, e.g., [#23-2 at ¶¶ 8, 12, 15]. He
further declares, “I know that Antero’s [SCOs] and [PIs] performed the same or similar job
duties that I performed . . . because the job duties traditionally performed by [SCOs] and [PIs]
are very standardized and are typically performed in the same or similar manner.” [Id. at ¶ 5].
This case presents a close call, and there is no question that this court would prefer
additional facts in both the Complaint and Plaintiff’s Declaration to inform the consideration of
this instant motion. But it is sufficient at this stage to provide “nothing more than substantial
allegations that the putative class members were together the victims of a single decision, policy,
or plan.” Thiessen, 267 F.3d at 1102 (citation and internal quotation marks omitted). This can
be established through a plaintiff’s pleadings and declaration or affidavit. See Zaldivar v. JMJ
Caterers, Inc., 166 F. Supp. 3d 310, 318 (E.D.N.Y. 2016) (“[C]ourts have routinely found that
the allegations in the pleadings and the personal observations of one plaintiff’s affidavit are
sufficient to make the modest factual showing necessary to conditionally certify a class.”
(collecting cases) (citations and internal brackets and quotation marks omitted)). Therefore,
given the lenient standard, this court concludes that Mr. Stallings has made substantial
allegations that he and other SCOs and PIs who worked at the same location(s) 3 were subject to a
single decision, policy, or plan to pay them as independent contractors with a single day-rate for
manual labor and for hours worked in excess of forty.
However, this court concludes that any conditional certification and resulting HoffmanLaRoche type notice must be limited to SCOs and PIs at the locations where Mr. Stallings
worked. 4 In review of both the Complaint and Declaration, Mr. Stallings’s knowledge is limited
to his personal observations and his discussions with co-workers at the location(s) he actually
worked. He makes no factual allegations that permit this court to conclude that he can extend
Mr. Stallings’s precise work locations from January 2014 to October 2015 will need to be
defined, as discussed below in the section considering the appropriate notice.
It appears from the proposed Notice that Mr. Stallings is limiting his definition of putative optin plaintiffs to SCOs and PIs, as opposed to the broader definition contained in the Complaint.
Compare [#23-1 at 2] with [#1 at ¶ 8]. To the extent that Mr. Stallings seeks to include any
position beyond SCO and PI, he has failed to establish that he has any knowledge of any job
duties beyond his own to justify inclusion. See Stubbs v. McDonald’s Corp., 227 F.R.D. 661,
666 (D. Kan. 2004).
any of his assertions to any Antero locations beyond those where he worked. There are no
allegations that Mr. Stallings knew of other SCOs and PIs that worked in other Antero locations;
that he visited or personally observed any other locations; that he spoke to any SCOs or PIs who
worked at any other location; or that any of his co-workers had previously or subsequently
worked at other Antero locations and informed him that the job duties or applicable pay policies
were substantially similar. Mr. Stallings does not point the court to a job description or other
documentation that reflects that there is a standard set of duties, or a standard pay policy, for
SCOs and PIs working for Antero at any U.S. location.
See Blancarte v. Provider Plus,
Incorporated, No. 11-2567-JAR-KGG, 2012 WL 4442642, at *3 (D. Kan. Sept. 26, 2012)
(denying conditional certification for “mandatory lunch hour policy applie[d] uniformly to all
Delivery Driver/Technicians,” when the “[p]laintiff himself is the lone example of a Delivery
Driver/Technician being required to work off-the-clock over the lunch hour”); Peer v. Grayco
Mgmt. LLC, No. 3:16-CV-01578, 2017 WL 2403269, at *4 (M.D. Tenn. June 2, 2017) (denying
conditional certification where the plaintiff relied on his complaint and sole declaration and
sought conditional certification of a city-wide class, despite only working at one specific
Additionally, the Complaint’s general statements related to “current and former oilfield
personnel, employed by, or working on behalf of, Antero Resources Corp.” are too vague and
conclusory to support potential opt-in plaintiffs beyond Mr. Stallings’s specific locations of
employment. “Despite the lenient standard at this stage, mere conclusory declarations or those
based on hearsay or speculation are insufficient to grant conditional FLSA collective action
certification.” Beall v. SST Energy Corp., No. 15-CV-01741-MSK-NYW, 2016 WL 286295, at
*1 (D. Colo. Jan. 25, 2016). Indeed, “[t]he notice and opt-in process outlined by the FLSA is not
a discovery device to determine whether conditional certification is appropriate.
required under the law, even at the first stage of the conditional certification process.” Sanchez
v. JMP Ventures, L.L.C., No. 13 CIV. 7264 KBF, 2014 WL 465542, at *2 (S.D.N.Y. Jan. 27,
Defendant also argues that the court should limit any certification to the two-year
limitations period, as opposed to a three-year limitations period for willful violations, because
“Plaintiff has made no factual allegations from which willfulness can be inferred by the Court.”
[#32 at 11 n.3]. Plaintiff does not respond to this argument in his Reply. [#33].
Recently, the Tenth Circuit considered whether a complaint had sufficiently alleged
willfulness in the context of the FLSA, as required to apply a three, rather than two, year statute
of limitations. See Fernandez v. Clean House, LLC, --- F. 3d ----, 2018 WL 1123873 (10th Cir.
Mar. 2, 2018). In ruling that willfulness had been adequately pleaded, the Tenth Circuit first
observed that a statute of limitations defense is an affirmative defense and, thus, the defendant
bears the burden at the motion to dismiss phase. Id. at *2. Further, the Fernandez court held that
dismissal of an allegation of willfulness on a Rule 12(b)(6) motion is only appropriate when all
the elements of the affirmative defense appear plainly on the face of the complaint itself. Id.
Here, Plaintiff alleges that “Antero knowingly, willfully, or in reckless disregard carried out [an]
illegal pattern or practice of failing to pay the Putative Class Members overtime compensation.
Antero’s failure to pay overtime compensation to these employees were neither reasonable, nor
was the decision not to pay overtime made in good faith.” [#1 at ¶ 52]. In light of Fernandez,
this court concludes that such allegations are sufficient at this stage, and the proposed notice
should extend three, rather than two, years back.
As mentioned, similarly situated employees in an FLSA collective action must
affirmatively opt into the litigation. Upon granting conditional certification of an FLSA
collective action, a plaintiff may disseminate notice and consent forms to putative plaintiffs,
informing them of the litigation and giving instructions for how to join in the action. See
Hoffman La-Roche, 493 U.S. at 170. Under the FLSA, the court must ensure that the notice to
potential opt-in plaintiffs is fair and accurate. See id.; Avendano v. Averus, Inc., No. 14-cv01614-CMA-MJW, 2015 WL 1529354, at *10 (D. Colo. 2015).
The court now turns to
considering the proposed notice to potential opt-in plaintiffs. Because there are a number of
issues that need to be addressed in the proposed Notice, this court ORDERS that the Parties meet
and confer and submit an amended proposed Notice that Judge Moore may consider in
conjunction with this Recommendation within fourteen (14) days of this Recommendation. To
the extent that there are any remaining issues related to the notice, they should be identified with
the filing of the amended proposed Notice.
First, the Notice must be limited to SCOs and PIs classified as independent contractors
who worked at the same location(s) as Mr. Stallings. Antero identifies this location as Ohio [#32
at 19], but certainly Mr. Stallings will have knowledge as to where he worked. And, although
this court is not as concerned that the use of the language “employed by” would somehow
implicate an improper legal conclusion [#32 at 16], it is more accurate to identify these workers
as “independent contractors” as such a classification is a central part of the Complaint. See
Second, as discussed above, it is incorrect to characterize Plaintiff or potential opt-in
plaintiffs as “Class Representatives” or “Class Members.” That terminology refers to classes
certified under Rule 23, and is not applicable to the FLSA claim before the court.
Third, in Section 6, the Notice inaccurately suggests that opt-in plaintiffs must be
represented by the Josephson Dunlap Law Firm and Bruckner Burch PLLC, and fails to advise
potential opt-in plaintiffs that they may secure their own representation or proceed pro se.
Indeed, the statement in Section 3, indicating that “[i]nstead of contacting the above counsel, you
may also contact counsel of your choice” does not resolve the issue, and is confusing in light of
Section 6, which advises potential opt-in plaintiffs that “[i]f you choose to join this collective
action lawsuit, your attorneys will be Michael A. Josephson and Lindsay R. Itkin of the law firm
Josephson Dunlap Law Firm and Richard J. (Rex) Burch and Matthew S. Parmet of the law firm
Bruckner Burch, PLLC.” Similarly, the suggestion that an opt-in plaintiff “should” contact
either of these firms if they have questions is inappropriate. While an opt-in plaintiff may
contact such firms, each potential opt-in plaintiff may secure his or her own counsel or proceed
Fourth, the court finds that it is appropriate to send a single notice via U.S. Mail to the
identified potential opt-in plaintiffs. Though Mr. Stallings indicates that electronic mail is
necessary, this court is not persuaded that multiple notices are required, and there has been no
indication that electronic mail is any more reliable than U.S. Mail in this instance. However, this
court is equally not persuaded that Plaintiff should not be provided the telephone number for
each potential opt-in plaintiff. Therefore, within fourteen (14) days of this Recommendation,
Antero will provide the names, last known address, and last known telephone numbers of SCOs
and PIs who were independent contractors for Antero from March 12, 2015 to the present for the
location(s) where Mr. Stallings worked.
Accordingly, this court respectfully RECOMMENDS that:
Plaintiff Brett Stallings’s Expedited Motion for Conditional Certification and
Notice to Putative Class Members [#23] be GRANTED IN PART and DENIED IN PART. 5
In addition, IT IS ORDERED that:
By March 26, 2018, the Parties will meet and confer and submit an amended
proposed Notice for the court’s consideration, taking into account the court’s directions set forth
By March 26, 2018, Antero will provide the names, last known addresses, and
last known telephone numbers of Solids Control Operators and Pipeline Inspectors who were
Within fourteen days after service of a copy of the Recommendation, any party may serve and
file written objections to the Magistrate Judge’s proposed findings and recommendations with
the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that
does not put the District Court on notice of the basis for the objection will not preserve the
objection for de novo review. “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” United States v. One Parcel of Real Property Known As
2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make
timely objections may bar de novo review by the District Judge of the Magistrate Judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s
decision to review a Magistrate Judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance
Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to
object to certain portions of the Magistrate Judge’s order, cross-claimant had waived its right to
appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992)
(by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s
ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver
rule does not apply when the interests of justice require review).
independent contractors for Antero from March 12, 2015 to the present for the location(s) where
Mr. Stallings worked.
DATED: March 12, 2018
BY THE COURT:
Nina Y. Wang
United States Magistrate Judge
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