Buffington v. Ovintiv USA Inc. et al

Filing 38

ORDER Granting 21 Motion for Conditional Certification and Notice to Putative Class Members. By August 16, 2021, the parties shall jointly file a proposed Notice and Consent Form for the Court's approval, and identify any disputes between the parties which require resolution by the Court. By Judge Raymond P. Moore on July 16, 2021. (rvill, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 20-cv-02477-RM-STV
MORGAN BUFFINGTON, individually and on behalf of all others similarly situated,
Plaintiff,
v.
OVINTIV USA INC.; and
NEWFIELD EXPLORATION COMPANY,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Plaintiff seeks conditional certification of “safety consultants” in this Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., putative collective action. At issue is
Plaintiff’s Motion for Conditional Certification and Notice to Putative Class Members (the
“Motion”) (ECF No. 21), which Defendants oppose. The matter is now fully briefed. After
considering the Motion, court record, and applicable law, and being otherwise fully advised, the
Court finds and orders as follows.
I.

BACKGROUND
Defendants are large oil and gas companies headquartered in Colorado who operate

throughout the United States. Plaintiff alleges that he is a “safety consultant”1 who was
employed by Defendants to monitor, inspect, and collaborate with Defendants’ other employees

1

At times it appears Plaintiff uses “safety consultant” and “safety advisor” synonymously.

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regarding the safety of operations in the field, i.e., at Defendants’ jobsites. Plaintiff alleges that
Defendants misclassified safety consultants as independent contractors and violated the FLSA by
failing to pay them overtime.
II.

DISCUSSION
A. The Conditional Collective Certification
Plaintiff claims that, in violation of the FLSA, he was not paid overtime compensation to

which he was entitled. Plaintiff submitted a declaration, made pursuant to 28 U.S.C. § 1746, in
support of his Motion. There, Plaintiff stated that he was Defendants’ safety consultant between
February 2017 and December 20192 whose job was to ensure the safety of Defendants’ jobsite
and personnel in accordance with applicable regulations and standards. He was treated as an
independent contractor and paid a flat sum or “day-rate” for each day that he worked, regardless
of the number of hours worked each day or week. He worked a substantial amount of overtime,
often working more than 12 hours each day, for weeks at a time, but was not paid compensation
for such overtime. He knows, based on his experience working for Defendants, his observations
on location, and his conversations with co-workers, that Defendants’ other safety consultants
performed the same or similar jobs; were classified as independent contractors; and were paid a
day-rate in the same manner under Defendants’ standard pay practice. Plaintiff also submitted
eight other declarations, from other safety consultants with varying job titles, which stated
essentially the same thing.

2

Plaintiff’s complaint alleges he worked from “approximately” October 2016 to December 2019, but his declaration
states that he worked from “approximately” February 2017 through December 2019. This difference in the start
date of his alleged employment is immaterial to the Court’s analysis or decision.
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Plaintiff contends the method and manner in which safety consultants, misclassified as
independent contractors, were paid is the result of Defendants’ uniform corporate policy – a
common pay practice – which disregards the number of hours safety consultants work each
week. Thus, Plaintiff seeks to represent a collective consisting of “all safety consultants who
worked for, or on behalf of [Defendants] during the past 3 years who were classified as
independent contractors and paid a day-rate with no overtime.” Plaintiff argues safety
consultants are similarly situated and contends his Motion should be granted.
Defendants oppose Plaintiff’s Motion, arguing the Court should apply the standard
announced by the Fifth Circuit in Swales v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 434 (5th
Cir. 2021) to allow discovery first or, alternatively, to deny the Motion in whole or in part.
Defendants also submitted a declaration, challenging Plaintiff’s allegations and declarations. The
Court addresses the arguments in turn.
1. The Swales Standard
Defendants argue the Court should apply the standard articulated in Swales to decide the
Motion. The Swales court stated that, “[i]n our view, a district court must rigorously scrutinize
the realm of ‘similarly situated’ workers, and must do so from the outset of the case, not after a
lenient, step-one ‘conditional certification.’” Swales, 985 F.3d at 434. Based on this standard,
Defendants contend the Court should stay any decision on the Motion to allow them to conduct
discovery on the issue of whether Plaintiff and others who have opted-in are similarly situated to
the proposed nationwide members consisting of Defendants’ safety consultants.
Plaintiff, unsurprisingly, contends the Court must follow long-standing Tenth Circuit
precedent set forth in Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1105 (10th Cir. 2001)

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and that, even if the Court could deviate from the Thiessen standard, it should not. In Thiessen,
the Tenth Circuit discussed three approaches for determining whether plaintiffs are “similarly
situated” for purposes of the FLSA and approved the district court’s two-step ad hoc approach,
stating it was arguably “the best of the three approaches.” Id. at 1105. The Court need not decide
the merits of Swales’ legal analysis, and whether it is viable in light of Thiessen, because it
agrees with Plaintiff and finds no reason to deviate from Thiessen, even if it could do so.
2. Thiessen’s Ad Hoc Approach
Under the two-stage ad hoc approach approved in Thiessen, at the initial notice stage, “a
court requires 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 (quotation
marks, brackets, and citation omitted). This standard is “fairly lenient,” see id. at 1103, and the
Tenth Circuit has cautioned district courts to “avoid focusing on the merits” underlying the
claims. See Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988) (cautioning in context of
Rule 23).
At the second stage, generally made “[a]t the conclusion of discovery (often prompted by
a motion to decertify), the court then makes a second determination, utilizing a stricter standard
of ‘similarly situated.’” Id. at 1102-03. It is at this second “stricter standard” stage where the
Court considers factors such as “(1) disparate factual and employment settings of the individual
plaintiffs; (2) the various defenses available to defendant which appear to be individual to each
plaintiff; [and] (3) fairness and procedural considerations.” Id. at 1103 (quotation marks and
citation omitted).

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As stated, Plaintiff contends safety consultants are similarly situated. Defendants contend
Plaintiff’s declarations omit material facts which show the safety consultants are not similarly
situated. Specifically, Defendants argue their safety consultants (1) were provided and
compensated by multiple third-party staffing companies (2) worked in multiple (three) operating
areas (3) for two separate companies (Defendants Newfield and Ovintiv). However, Defendants
contend, Plaintiff and the other declarants provided services only through third-party staffing
companies Petro Safety Services, LLC or RWDY, worked only in the Anadarko operating area,
and worked only for Newfield. Thus, Defendants conclude, Plaintiff fails to – and cannot – show
that a nationwide collective of safety consultants provided through other third-party staffing
companies, working in other operating areas, or working for Ovintiv are similarly situated to
Plaintiff.
Plaintiff’s reply argues that he is similarly situated to those he seeks to represent,
regardless of the staffing company, locations worked, or any other individualized factor. This is
because, Plaintiff contends, Defendants treated all putative collective action members as
independent contractors who were paid a flat day-rate regardless of where they worked, which
company they were staffed by, or any other individualized factors.
Sufficiency of Allegations and Declarations. Defendants contend the allegations in the
complaint are too conclusory and the declarations contain hearsay and statements unsupported by
personal knowledge. Therefore, Defendants assert, Plaintiff fails to present “substantial
allegations” to support relief. The Court agrees that the allegations in the complaint, standing
alone, may be insufficient. However, the Court may consider the declarations which, even
discounting any hearsay, are supported by the declarants’ personal experiences and observations.

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And, contrary to Defendants’ contention, the Court finds the allegations – coupled with the
declarations – are sufficient to constitute “substantial allegations.” The Court addresses below
the reach of these substantial allegations as it applies to other third-party staffing companies, in
other operating areas, and to Ovintiv.
Single Pay Structure. Defendants contend Plaintiff’s allegation that he and other safety
consultants nationwide received a flat day-rate without overtime would require the Court to
speculate that third-party staffing companies nationwide paid their safety consultants similarly to
Petro Safety. Defendants argue Plaintiff’s case is similar to Nelson v. FedEx Ground Package
Sys., Inc., No. 18-CV-01378-RM-NYW, 2018 WL 6715897 (D. Colo. Dec. 21, 2018),
recommendation adopted, 2019 WL 1437765 (D. Colo. Feb. 8, 2019) (Moore, J.), where the
Court found the allegations and supporting documents insufficient. The Court disagrees.
Nelson is distinguishable as plaintiff alleged he was employed by an independent service
provider (“ISP”), whom defendant relied on to deliver packages, and failed to provide substantial
allegations to allow for the conclusion that defendant promulgated and bound its ISPs to a single
action, plan, or policy. Plaintiff there instead relied on substantial allegations that defendant and
the ISPs worked closely together, to reach an inference of a single decision, policy, or plan
which affected third-party employee compensation. No such allegations or theories are relied
upon here. Instead, Plaintiff alleges that safety consultants were all misclassified as independent
contractors when they were in fact Defendants’ employees and that Defendants dictated their
compensation. Although Defendants dispute and challenge these allegations, these arguments
mainly go to the merits of the case or the stricter second standard.

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Other Places, Other Employer. Defendants contend Plaintiff’s proposed collective
definition is too broad geographically and too broad in time. Defendants also assert that neither
Plaintiff nor any of the declarants ever worked for Ovintiv. Therefore, Defendants conclude, the
Motion should be denied or the class definition should be limited to similar circumstances. On
this record, at this stage, the Court disagrees.
The Court starts with the issue of which Defendants were the alleged employers of
Plaintiff and the other declarants. The declarations all state the safety consultants were employed
by Newfield and Ovintiv. The complaint alleges both Defendants were Plaintiff’s employers.
Defendants’ declaration states otherwise – that Plaintiff and declarants provided services only for
Newfield. At this stage, the Court does not resolve factual disputes. Accordingly, the Court
rejects Defendants’ argument that conditional certification should not be had as to safety
consultants of Ovintiv.
Next, Defendants contend that any conditional certification should be limited to the
Anadarko operating area because that was the only area in which Plaintiff and declarants
provided safety consultant services. But Plaintiff alleges that Defendants have a standard pay
practice for safety consultants – a flat day-rate for days worked and no overtime regardless of
how many hours worked – which Defendants’ declarant has not disputed.3 Thus, on this record,
it matters not where the safety consultants’ services were performed. Accordingly, this argument
also does not show conditional certification should not be had or should be limited.

3

Defendants state they do not determine how Petro Safety compensated safety consultants. But at issue is how
Defendants compensated safety consultants. Perhaps, at the end of the day, Plaintiff’s theory may not fly. But that is
an issue for another day.
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Finally, Defendants assert the class definition is too broad in time. It is unclear to the
Court what this means and Defendants did not elaborate. Accordingly, this argument is waived.
B. The Proposed Notice and Consent
Defendants contend that, in the event the Court deems conditional certification to be
proper, the parties be allowed to confer on the notice and method of distribution. The Court
agrees, with a caveat.
The Court has reviewed the proposed notice and consent form and the parties’ positions
regarding these documents. To assist the parties with their conferral, the Court provides some
guidance.
First, Defendants apparently have information as to potential collective members;
therefore, they need to provide what information they do have to Plaintiff. If Defendants require
additional time, the Court expects the parties to work in good faith to reach an agreement. Of
course, if they cannot do so, the Court will pick a time period for them.
Second, notice by text, e-mail, and mail is reasonable, especially since the safety
consultants work far afield at jobsites.
Third, no reminder notice may be issued. However, if any mail is returned as deliverable,
and that particular putative member has not otherwise received notice, Plaintiff may attempt to
locate a better mailing address and resend a notice by mail.
Fourth, and finally, the proposed notice should state the Court “authorized” – not
“ordered” – the notice; reflect that there has been “conditional” certification; state that the action
is for “alleged” unpaid overtime; and state more clearly that the safety consultant may, if he or
she wishes, retain separate counsel at his or her own expense.

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III.

CONCLUSION
In light of the lenient standard, the Court finds the record sufficient to support allowing a

nationwide conditional certification. If the facts are as Defendants contend, they will have an
opportunity to seek decertification and such other relief as they deem appropriate. As Judge
Jackson stated in Daugherty v. Encana Oil & Gas (USA), Inc., 838 F. Supp. 2d 1127, 1133 (D.
Colo. 2011), the Court reaches this conclusion without expressing any opinion as to “whether
plaintiff would be able to make a sufficient showing to avoid decertification of the conditional
class, or whether plaintiff’s claims in this case have merit.” Accordingly, it is ORDERED
(1) That the Motion for Conditional Certification and Notice to Putative Class Members
(ECF No. 21) is GRANTED as stated herein; and
(2) That, by August 16, 2021, the parties shall jointly file a proposed Notice and Consent
Form for the Court’s approval, and identify any disputes between the parties which
require resolution by the Court.
DATED this 16th day of July, 2021.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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