SIZEMORE et al v. GRAYHAWK HOMES INC et al

Filing 37

ORDER granting 17 Motion for Leave to File Excess Pages; granting 13 Motion to Certify Class Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 4/27/2018 (glg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MICHAEL CAMERON
SIZEMORE, et al.,
Plaintiffs,
v.
GRAYHAWK HOMES INC, et al.,
Defendants.

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CASE NO.: 4:17-CV-161 (LJA)

ORDER
Before the Court are Plaintiffs’ Complaint, Doc. 1, Plaintiffs’ Motion for Conditional
Certification of Collective Action and Issuance of Court-Approved Notice, Doc. 13, and
Defendants’ Motion for Leave to File Excess Pages for Defendants’ Response. Doc. 17. For
the reasons set forth below, Plaintiffs’ Motion, Doc. 13, and Defendants’ Motion, Doc. 17,
are GRANTED.
BACKGROUND
Defendants Grayhawk Homes Inc. and David Erickson are residential homebuilders.
Doc. 1 at 1. Erickson is Grayhawk’s CEO. Id. Prior to this action, Plaintiffs worked for
Grayhawk and Erickson as construction superintendents or assistant superintendents. Id. On
August 3, 2017, Plaintiffs filed a Complaint on behalf of themselves and all other similarlysituated individuals against Defendants for alleged violations of the Fair Labor Standards Act
of 1938 (FLSA), 29 U.S.C. § 201 et seq. Doc. 1 at 1. Specifically, Plaintiffs alleged that, during
the past three years, Plaintiffs and those similarly situated: (1) had the position of
construction superintendent or assistant superintendent while employed by Defendants; (2)
worked in that capacity at Defendants’ insistence, request, or allowance for more than forty
hours per week; (3) were misclassified as exempt under the FLSA; and (4) were not paid
time-and-a-half for hours worked above forty hours per week in violation of the overtime
compensation provision of the FLSA. Id. at 2, 8; see 29 U.S.C. § 207.

On November 22, 2017, Plaintiffs filed their Motion for Conditional Certification of
Collective Action and Issuance of Court-Approved Notice. Doc. 13. Defendants timely filed
a Response, and Plaintiffs timely filed a Reply. Docs. 18 & 23. Plaintiffs’ Motion is now ripe
for review. M.D. Ga. L.R. 7.3.1(A).
LEGAL STANDARD
The FLSA’s Overtime Provision “requires employers to pay one and one-half times
the employee’s regular rate of pay for hours worked in excess of forty hours per week.”
Prickett v. DeKalb Cty., 349 F.3d 1294, 1296 (11th Cir. 2003); see 29 U.S.C. § 207(a)(1).
“Employers who violate these provisions of the FLSA are ‘liable to the employee or
employees affected in the amount of their unpaid overtime compensation and in an
additional equal amount as liquidated damages.’ 29 U.S.C. § 216(b).” Id. (punctuation
omitted). “An [opt-in] FLSA action for overtime pay can be maintained by ‘one or more
employees for and in behalf of himself or themselves and other employees similarly situated.’
29 U.S.C. § 216(b).” Id. “Congress’ purpose in authorizing § 216(b) class actions was to
avoid multiple lawsuits where numerous employees have allegedly been harmed by a claimed
violation or violations of the FLSA by a particular employer.” Id. at 1297.
“The Eleventh Circuit applies a two-stage process to FLSA collective action. The first
stage in determining whether a collective action should be certified is the notice stage (also
referred to as the conditional certification stage) at which time the court determines whether
other similarly situated employees should be notified.” Jackson v. Fed. Nat’l Mortg. Ass’n, 181
F. Supp. 3d 1044, 1050 (N.D. Ga. 2016) (citations omitted) (citing Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008)). “The second stage of the certification
process is typically precipitated by a motion for decertification by the defendant usually filed
after discovery is largely complete and the matter is ready for trial.” Id.
“[A]t the initial stage the district court’s decision to certify a class is based primarily
on pleadings and affidavits.” Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007). “A
plaintiff has the burden of showing a ‘reasonable basis’ for his claim that there are other
similarly situated employees.” Morgan, 551 F.3d at 1260. “[A]t the initial stage, courts apply a
fairly lenient standard for determining whether the plaintiffs are truly similarly situated.”
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Anderson, 488 F.3d at 953 (punctuation omitted). Thus, “[b]efore granting conditional
certification, the court should determine: (1) whether employees sought to be included in the
putative class are similarly situated with respect to their job requirements and pay provisions;
and (2) whether there are other employees who wish to opt-in to the action.” Jackson, 181 F.
Supp. 3d at 1052.
DISCUSSION
I.

Similarly Situated Employees
The first question is whether the potential opt-in plaintiffs are similarly situated “with

respect to their job requirements and pay provisions.” Jackson, 181 F. Supp. 3d at 1052.
Plaintiffs have made the requisite showing at this stage. Plaintiff proposes a relatively narrow
class, consisting of two types of employees—construction superintendents and assistant
superintendents, who: (1) are all allegedly misclassified as exempt and were not paid timeand-a-half for hours worked above forty hours per week; (2) worked for Defendants within a
certain window of time; and (3) all have similar job duties and manual labor duties alleged to
be outside of their roles as exempt employees. See Docs. 1; 13-2 at 11-13; 13-3 to 13-9.
Plaintiffs have supported the existence of the class with the declarations of the six named
Plaintiffs, see Docs. 1; 13-3 to 13-9, and Defendants have admitted that they did not pay
superintendents time-and-a-half for hours worked above forty hours per week. See Doc. 18
at 2, 6. This is enough to satisfy this prong of the conditional certification analysis.
Defendants object to the certification of the class, arguing primarily that the positions
that the named and unnamed Plaintiffs held—construction superintendents and assistant
superintendents—were exempt positions under the FLSA. See Doc. 18 at 6-23. These
arguments go to the merits of Plaintiffs’ FLSA claims, not to whether the potential plaintiffs
are similarly situated.
II.

Interested Employees
There is no bright-line rule for how many non-named employees need to express

interest, but “[e]xamples of cases where a small number of opt-in plaintiffs satisfied the
threshold of interest required for a collective action are numerous.” Kubiak v. S.W. Cowboy,
Inc., 2014 WL 2625181, at *8 (M.D. Fla. June 12, 2014). In the instant action, there are six
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named Plaintiffs, and Plaintiffs have submitted evidence that at least one non-named
employee desires to join the suit. Docs. 1 at 1; 13-3 at 2. Thus, a reasonable basis exists to
believe that there are other non-named employees that desire to opt-in to this action.
Accordingly, the threshold burden of demonstrating actual interest in the present action is
met.
III.

Contact Information, Notice, and Scheduling
In light of the FLSA’s broad remedial purpose, courts may authorize notice to

potential § 216(b) class members and “establish the specific procedures to be followed with
respect to such possible ‘opting-in.’” Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1568
(11th Cir. 1991). Courts may also require defendants in an FLSA collective action to produce
potential § 216(b) class members’ contact information. See Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 170 (1989).
Here, Plaintiffs move for an order requiring: (1) Defendants to produce a list “of all
persons who worked for Defendants as a superintendent or assistant superintendent at any
time since August 3, 2014, including their names, mailing addresses, email addresses (to the
extent known), dates of employment, and dates of birth;” (2) “the issuance of Plaintiffs’
proposed notice, . . . to be mailed to all potential opt-in plaintiffs who worked for
Defendants at any time since August 3, 2014 as a superintendent or assistant
superintendent;” and (3) that “putative class members [have] 60 days from the date notice is
sent to file a consent form to participate in this action.” Doc. 13 at 1-2. Plaintiffs have
attached a proposed notice and opt-in form to their Motion and request the Court’s
approval of same. Doc. 13-1 at 1-7.
Upon careful review of the proposed notice and consent-to-join form, as well as
Defendants’ objections concerning the impropriety of both, the Court authorizes Plaintiff to
distribute the proposed initial notice and opt-in form to potential class members.

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CONCLUSION
Plaintiffs’ Motion, Doc. 13, and Defendants’ Motion, Doc. 17, are GRANTED.
Accordingly:
a. The Court CONDITIONALLY CERTIFIES a 29 U.S.C. § 216(b) class
of plaintiffs who: (1) are or where employed by Grayhawk Homes, Inc.
who worked as construction superintendents or assistant superintendents
at any time since August 3, 2014;1 and (2) who were not paid overtime for
work hours over 40 in a work week at the rate of one and one-half times
their regular rate of pay;
b. The Court APPOINTS Plaintiffs Michael Cameron Sizemore, James Ellis
Burditt, Jr., Marc Eugene Hoefert, James Samuel Mitchell, Randy Carl
Rogers, and Aaron Matthew Sovern as class representatives;
c. The Court DIRECTS Defendants to disclose to Plaintiff, within fifteen
days of this Order, the names, last known addresses, email addresses (to
the extent known); dates of birth; and job titles of all potential class
members employed by Defendants since August 3, 2014, in electronic,
importable, and searchable format;
d. The Court APPROVES Plaintiff’s proposed Notice and Opt-in form
attached to Plaintiff’s Motion. See Doc. 13-1 at 1-7. The Notice shall be
sent via mail, and potential class members will have sixty (60) days from
the date the notice is sent to respond; and
e. The Court APPROVES a second Notice of the lawsuit to be sent to those
potential class members whose notices are returned as undeliverable. The
second Notice must be sent within three (3) days of the return of the first
Notice. The potential class member will have an additional sixty (60) days
from the date the second Notice is sent to respond.

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Because Plaintiffs have alleged a willful FLSA violation, the statute of limitations is presumptively
three years rather than two years. 29 U.S.C. § 255(a). Defendants are not precluded from challenging the
three-year limitations period at an appropriate time in the proceedings.

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SO ORDERED, this 27th day of April, 2018.

/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT

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