Brown v. Refuse Materials, Inc. et al

Filing 27

ORDER granting 4 Motion to Certify Class. Ordered by Judge Hugh Lawson on 5/30/2013. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
MOSES BROWN, on behalf of
himself and all similarly situated
individuals,
Plaintiff,
v.

Civil Action No. 7:13-cv-37 (HL)

REFUSE MATERIALS, INC., and
DONALD POPE, II,
Defendants.

ORDER
Before the Court is Plaintiff Moses Brown’s Motion for Conditional
Collective Action Certification and Issuance of Notice to Putative Class Members
(Doc. 4-1). For the reasons stated below, the Motion is granted.
I.

BACKGROUND
Plaintiff Moses Brown is a former floor installer employed by Defendants

Refuse Materials, Inc. (“RMI”) and Donald Pope, II (collectively, “Defendants”).
Plaintiff filed this suit under the Fair Labor Standards Act on behalf of himself and
other similarly situated floor installers, alleging that Defendants failed to pay the
floor installers overtime compensation for hours worked in excess of forty hours
in given work weeks. Plaintiff has filed this Motion for Conditional Collective
Action Certification to begin the process of pursuing class action litigation against
Defendants.

II.

DISCUSSION
Under the Fair Labor Standards Act (“FLSA”), a collective action “may be

maintained against any employer … by any one or more employees for and on
behalf of himself or themselves and other employees similarly situated. No
employee shall be a party plaintiff to any such action unless he gives consent in
writing[.]” 29 U.S.C. § 216(b). The opt-in process under the FLSA is different than
the opt-out process that governs class procedure under Federal Rule of Civil
Procedure 23. In a Rule 23 class action, “each person who falls within the class
definition is considered to be a class member and is bound by the judgment,
favorable or unfavorable, unless he has opted out.” Hipp v. Liberty Nat. Life Ins.
Co., 252 F.3d 1208, 1216 (11th Cir. 2001).1 In contrast, under the FLSA, a
putative plaintiff must affirmatively opt in to the class proceeding if he or she
wishes to become a class member and wishes to be bound by the outcome of
the action. Id.
For an opt-in action, the Eleventh Circuit has suggested a two-tiered
procedure for district courts to follow in determining whether to certify a collective
action under § 216(b). Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,

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Hipp involved a collective action brought under the Age Discrimination and
Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. However, the ADEA
incorporates the FLSA’s collective action mechanism, and therefore, Hipp applies
in both contexts. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 n.
36.
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1259-60 (11th Cir. 2008). The first part of the procedure is the “notice” stage,2 in
which a district court is charged with determining whether conditional certification
of a class should be granted and other similarly situated employees should be
notified of the action. Id. at 1260. This step takes place at the beginning of a case
and the district court’s decision about conditional certification is usually based
only on the pleadings and any affidavits which have been submitted. Pittman v.
Comfort Systems USA, 8:12-cv-2142, 2013 WL 525006 (Moody, J.) (M.D. Fla.
Feb. 13, 2013). The Eleventh Circuit has adopted a “fairly lenient standard” at
this notice stage. Id. (citing Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th
Cir. 2007)). “The district court’s broad discretion at the notice stage is thus
constrained, to some extent, by the leniency of the standard for the exercise of
discretion.” Id. This lenient standard is attributed to the fact that, in most cases,
discovery has not begun at all or has only recently begun and the record is still
undeveloped.
The second step in the certification process is triggered by an employer’s
motion for decertification. Morgan, 551 F.3d at 1261. This step typically occurs
later in the litigation, when the district court has a much more developed record
than it had at the notice stage, and the court can therefore make a more formal
determination about the certification of the class. Id.

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This first part is also called the “conditional certification” stage because the
decision about class certification may be reexamined when more information
about the opt-in plaintiffs is available. Morgan, 551 F.3d at 1261.  
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The present case is currently in the notice stage of the certification
process, and consequently, this Court is faced with determining whether
conditional certification should be granted so that other similarly situated
employees receive notification about the suit. To earn conditional certification at
this preliminary stage, Plaintiff bears the burden of demonstrating that there is a
reasonable basis to believe that: (1) there other employees who are similarly
situated with respect to their job requirements and pay provisions, and (2) there
are other employees of the defendant who desire to opt in. These two elements
are discussed more fully below.
A. Similarly Situated Requirement
Neither the FLSA nor Eleventh Circuit case law provides a clear definition
of “similarly situated.” Todd v. Daewon America, Inc., 3:11-cv-1077, 2013 WL
557859 (Thompson, J.) (Feb. 13, 2013) (citing Morgan, 551 F.3d at 1260).
Instead, courts have recognized that whether employees are similarly situated
depends on the type of violation alleged. Id. In FLSA cases, courts look to
whether job requirements and pay provisions are comparable to determine if
employees are similarly situated. Morgan, 551 F.3d at 1262-63; see also Dybach
v. State of Fla. Dept. of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991). To prove
that employees’ job requirements are similar at the notice stage, “plaintiffs need
show only ‘that their positions are similar, not identical’ to the positions held by
the putative class members.” Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th

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Cir. 1996) (citing Sperling v. Hoffman-LaRoche, 118 F.R.D. 392, 407 (D.N.J.
1988)).
In the present case, the Court must determine whether floor installers who
worked for Defendants are similarly situated under § 216(b). Plaintiff claims that
the floor installers are similarly situated for four reasons: (1) they were paid in the
same manner; (2) they performed the same primary duty of manual labor,
specifically commercial floor installation and remodeling; (3) they regularly
worked in excess of forty hours in given work weeks without being paid overtime
compensation; and (4) they were subjected to the same unlawful payroll policy of
Defendants. Defendants argue that the floor installers worked varied hours and
schedules, and thus, Defendants contend that the floor installers’ job
requirements are distinguishable and they are not similarly situated.
The Court finds that Defendants’ argument misses the mark. The Northern
District of Georgia has previously ruled that in making the determination about
whether employees are similarly situated “variations in specific duties, job
locations, working hours, or the availability of various defenses” should not be
considered at the notice stage. Scott v. Heartland Home Fin., Inc., 1:05-cv-2812TWT, 2006 WL 1209813 at *2 (Thrash, J.) (N.D. Ga. May 3, 2006). This Court
agrees with the Northern District. The notice stage is not the time to make factual
determinations about the employees who wish to proceed in a collective action.
Those issues are better addressed after the completion of discovery and during

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the second stage of the certification determination when there is more
information available.
Though the floor installers in this case may have worked at different times
or on different schedules, the Court finds that Plaintiff has alleged sufficient facts
to show that the floor installers are a similarly situated class at this early notice
stage.
B. Desire of Others to Opt In
Before conditionally certifying a class for notice purposes, a plaintiff is
responsible for demonstrating that there are other potential plaintiffs who wish to
participate in the action. Dybach, 942 F.2d at 1567-68 (stating that “the district
court should satisfy itself that there are other employees of the [defendant] who
desire to ‘opt in’”). In this case, one floor installer, Chris Doctor, has already
completed a form indicating his consent to join (Doc. 3-1). Defendants argue that
Doctor’s consent form is insufficient to meet the burden of demonstrating that
other employees wish to opt in, but this Court disagrees. Plaintiff has shown a
reasonable basis for his claim that other floor installers wish to opt in to this
action.
District courts have allowed conditional class certification when only one
employee consents to opt in. See Santiago v. Mid-South Painting, Inc., No. 1121289-CIV, 2011 WL 3418252 at *4 (Altonaga, J.) (S.D. Fla. 2011) (conditionally
certifying a class where only the plaintiff submitted his own declaration about
opting in to the action); Guerra v. Big Johnson Concrete Plumbing, Inc., No. 056

14237, 2006 WL 2290512 at *4 (Lynch, Magistrate J.) (S.D. Fla. 2006)
(conditionally certifying a collection action class where only one other employee
besides the plaintiff had opted in). The Court notes that Plaintiff has alleged that
the number of floor installers is small, and thus, one employee who has opted in
in addition to Plaintiff is not necessarily an insignificant number. Further, “courts
within this circuit have determined that evidence of a common payroll policy or
scheme is sufficient to establish[ ] there [are] other employees desiring to opt in
….” Santiago, 2011 WL 3418252 at *4 (internal citations and quotations omitted).
Plaintiff in this case has alleged that the floor installers were paid in the same
way, performed the same duties, and worked similar hours in a given week, all of
which support a finding that there are likely other employees who wish to opt in.
The Court finds that Plaintiff has presented sufficient evidence to
demonstrate that there are other floor installers who would wish to opt in to the
litigation. Thus, this element has been satisfied.
III.

CONCLUSION
In sum, the Court finds that under the Eleventh Circuit’s lenient approach

at this early notice stage, it is appropriate to grant conditional certification.
Plaintiff’s motion is granted and notice shall go out to other similarly situated
employees who may wish to opt in to the suit. Defendants did not raise any
objection to the proposed notice submitted by Plaintiff (Doc. 4-5), and thus, the
notice is approved for distribution.

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SO ORDERED, this 30th day of May, 2013.

s/ Hugh Lawson______________
HUGH LAWSON, SENIOR JUDGE
ebrs  

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