SWAFFORD et al v. CENTRAL TRI-AXLE INC.

Filing 51

ORDER ON MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND FACILITATE NOTICE - For the foregoing reasons, the Court GRANTS Plaintiffs' Motion (Filing No. 22 ) and conditionally certifies the FLSA claim as a collective action for the f ollowing class: All current and former dump truck drivers who are or were employed by Defendant Central Tri-Axle, Inc. during the three-year period prior to the date of this Order. The Court ORDERS CTI to produce the names, home addresses, and home telephone numbers ("Employee Information") of all current and former dump truck drivers who are or were employed by CTI during the three-year period prior to the date of this Order. CTI is ordered to provide the Employee Information in a usable electronic format to counsel for Plaintiffs within fourteen (14) days from the entry of this Order. The Notice shall be mailed within seven (7) days after CTI provides the Employee Information. The "Consent to Become Party Plaintiff& quot; form shall be enclosed with the Notice, along with a self-addressed, postage paid return envelope. Plaintiffs are permitted to send subsequent mailings of this Notice. The Notice and Consent forms shall be mailed by first-class mail or overn ight delivery. The potential plaintiffs shall have sixty (60) days after the deadline for mailing of the Notice of Collective Action Lawsuit to return a Consent to Become Party Plaintiff form to opt-in to this litigation, unless the parties agree to permit late filings or good cause can be shown as to why the form was not returned prior to the deadline. See order for details. Signed by Judge Tanya Walton Pratt on 11/13/2017. (MEJ)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CATHY SWAFFORD and RICK WOEHLECKE, )
individually and on behalf of others similarly
)
situated,
)
)
Plaintiffs,
)
)
v.
)
)
CENTRAL TRI-AXLE INC.,
)
)
Defendant.
)

Case No. 1:17-cv-00278-TWP-DML

ORDER ON MOTION TO CONDITIONALLY CERTIFY A
COLLECTIVE ACTION AND FACILITATE NOTICE
This matter is before the Court on a Motion to Conditionally Certify a Collective Action
and Facilitate Notice Pursuant to 29 U.S.C. § 216(b) filed by Plaintiffs Cathy Swafford
(“Swafford”) and Rick Woehlecke (“Woehlecke”) (collectively, “Plaintiffs”) (Filing No. 22).
Plaintiffs previously were employed by Defendant Central Tri-Axle, Inc. (“CTI”) as dump truck
drivers. Plaintiffs generally worked fifty to sixty-six hours per week for CTI, yet CTI failed to
accurately record their hours worked and failed to pay Plaintiffs overtime premium for overtime
hours worked.

Because they were not paid overtime wages and suffered other wrongful

deductions, Plaintiffs initiated this lawsuit against CTI under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq., and the Indiana Wage Payment, Wage Deductions, and Wage
Claim statutes, Ind. Code §§ 22-2-5-1, et seq.; 22-2-6-1, et seq.; 22-2-9-1, et seq. Plaintiffs ask
the Court to conditionally certify a collective action for the FLSA claim and permit notice to others
who similarly have worked or are working for CTI as drivers and who have not been paid for
overtime work. For the following reasons, the Court GRANTS Plaintiffs’ Motion to Conditionally
Certify a Collective Action and Facilitate Notice.

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I.

BACKGROUND

CTI is an Indiana corporation with its principal place of business in Edinburgh, Indiana.
CTI hauls aggregate materials from various quarries within Indiana to its customers’ sites. In order
to provide these hauling services, CTI employs individual drivers. These employees drive
equipment, including dump trucks, and transport materials such as stone, gravel, and dirt to various
locations throughout Indiana (Filing No. 39-1 at 1).
CTI employed Swafford as a dump truck driver from approximately June 2014 to April
2016. As a driver, Swafford drove CTI’s dump trucks. She generally arrived at CTI’s lot each
day between 5:30 a.m. and 5:45 a.m., and was often one of the first drivers there. After arriving
at work in the morning, Swafford would warm up her truck and do a walk around inspection. She
was required to complete a pre-trip inspection of the truck, which involved a visual inspection. If
Swafford determined that the truck required additional air in the tires, replaced lights, or other
general maintenance or safety repairs, Swafford was responsible for ensuring that the truck
received whatever maintenance was required to be ready for service. Swafford was instructed that
her job required her to drive to a gravel pit to pick up her hauls for the day. Most gravel pits were
between fifteen to twenty minutes away but could be as far as two hours away. No time records
were kept for Swafford’s work prior to her first run (Filing No. 23-1 at 1–2).
At the end of the workday, Swafford drove her truck back to CTI’s lot, filled it up with
fuel, cleaned out the truck, locked the truck, completed paperwork, and returned the paperwork to
the office. Then she would leave work. No time records were recorded or maintained for these
work duties. Id. at 2. Swafford generally worked ten to twelve hours each day, five days a week,
and she worked an additional six hours on some Saturdays. Her paystubs did not reflect all the
hours she worked in the week. CTI did not track all of the hours Swafford actually worked, and,

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as a result, Swafford was not paid the required overtime rate for all hours worked in excess of forty
hours in a single workweek. Id. at 2–3.
Swafford worked with approximately forty other drivers at CTI, and based on her
observations of and discussions with other drivers, Swafford understands that the other drivers
performed similar job duties, were subject to the same rules and directives, were subject to the
same timekeeping practices, and were paid based on the same pay plan. Id. at 3.
CTI employed Woehlecke as a dump truck driver from approximately May 2010 to July
2016 (Filing No. 23-2 at 1). The facts concerning Swafford’s employment experience at CTI noted
above are equally applicable to Woehlecke and his work experience at CTI. Id. at 1–3.
Plaintiffs filed this lawsuit against CTI on January 27, 2017. In late February 2017,
Plaintiffs received a letter from CTI, which explained, “We have found an error on the payroll in
which we have issued you a check. You will need to come in and sign for the check. If you have
questions please give the office a call.” (Filing No. 23-1 at 3–4; Filing No. 23-2 at 3.) This letter
was sent because of a U.S. Department of Labor investigation and settlement arising out of CTI’s
violation of the FLSA. Woehlecke talked with multiple current drivers for CTI who told him that
at the end of the workday on February 28, 2017, CTI offered them a check as payment for
previously unpaid overtime wages in exchange for a signed release (Filing No. 23-2 at 3).
On March 1, 2017, Woehlecke drove to CTI’s office and asked to see the documents
relating to the letter he had received. CTI’s fleet manager showed Woehlecke a document from
the Department of Labor, which stated that by signing the document, Woehlecke was releasing his
claims against CTI in exchange for approximately $235.00 in unpaid overtime wages. Id. at 3–4.
CTI acknowledges that the U.S. Department of Labor conducted an audit to determine its
compliance with the FLSA regarding CTI’s drivers. The Department of Labor looked at a

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particular timeframe and determined that approximately sixty drivers were due overtime pay. To
resolve the matter, CTI agreed to provide a fixed payment to the drivers, which included liquidated
damages. CTI asserts that forty-nine drivers have “cashed checks” provided as a result of the
Department of Labor investigation (Filing No. 39-1 at 2; Filing No. 44-1).
II.

LEGAL STANDARD

Under the FLSA, an employee is permitted to maintain a collective action for “unpaid
overtime compensation . . . for and in behalf of himself . . . and other employees similarly situated.”
29 U.S.C. § 216(b). The “District Court has the discretion to authorize notice to similarly situated
employees so that they may opt-in to a class.” Carter v. Indianapolis Power & Light Co., 2003
U.S. Dist. LEXIS 23398, at *7 (S.D. Ind. Dec. 23, 2003). “Such a collective action differs
significantly from a Rule 23 class action. Potential class members in a collective action must
affirmatively opt-in to be bound, while in a Rule 23 action they must opt out [to] not be bound.”
Cheesman v. Nexstar Broad. Grp., Inc., 2008 U.S. Dist. LEXIS 42265, at *3 (S.D. Ind. May 27,
2008) (emphasis in original). The standards governing class certification under Rule 23 are not
applicable to FLSA collective actions. Id. at *5.
Courts in the Seventh Circuit engage in a two-step inquiry to determine whether an FLSA
action may proceed as a collective action. Id. The first step is called the “notice stage” and
“involves an analysis of the pleadings and affidavits which have been submitted to determine
whether notice should be given to potential class members.” Id. (quoting Carter, 2003 U.S. Dist.
LEXIS 23398, at *8). “The second step, which usually occurs after discovery has largely been
completed, allows a court the opportunity to determine whether the class should be decertified or
restricted because various putative class members are not in fact similarly situated as required by
the statute.” Id.

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During the initial “notice stage,” a plaintiff does not have to prove her entire case. Rather,
the plaintiff must make only a threshold showing that she is similarly situated to the employees on
whose behalf she seeks to pursue claims. Coan v. Nightingale Home Healthcare, Inc., 2005 U.S.
Dist. LEXIS 15475, at *3 (S.D. Ind. June 29, 2005). This threshold showing is “relatively modest”.
Id. “The modest factual showing required at the first step of the proceedings may be lenient, but
it is not a mere formality.” Allen v. Payday Loan Store of Ind., Inc., 2013 U.S. Dist. LEXIS
169971, at *4 (N.D. Ind. Dec. 3, 2013) (citation and quotation marks omitted). “[T]o meet their
burden, Plaintiffs must provide evidence via an affidavit, declaration, or other support beyond
allegations in order to make a minimal showing of other similarly situated employees subjected to
a common policy.” Id.
III.

DISCUSSION

Among other things, the FLSA prohibits employers from working their employees more
than forty hours in a workweek without compensating the employee overtime wages at a rate of at
least time and a half for hours worked in excess of forty hours. 29 U.S.C. §§ 207, 215(a)(2). The
FLSA provides a procedural mechanism whereby employees may litigate a collective action on
behalf of similarly situated employees. See 29 U.S.C. § 216(b). Plaintiffs ask the Court to
conditionally certify a collective action for their FLSA claim because they can meet the lenient,
relatively modest threshold showing that they are similarly situated to other drivers who were
denied overtime wages by their employer, CTI. Plaintiffs additionally ask the Court to allow them
to provide notice to potential plaintiffs who similarly have worked or are working for CTI as
drivers and who have not been paid for overtime work.
Attached to Plaintiffs’ Motion are declarations from both Swafford and Woehlecke. They
describe their work duties and activities, the lack of timekeeping records by CTI, their consistent

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workweek of more than forty hours, and the failure of CTI to pay them any overtime wages. In
their declarations, Plaintiffs also describe that they worked with approximately forty other drivers,
and based on their observations of, and conversations with, these other drivers, they understand
that the other drivers at CTI were subject to the same work policies, performed the same work
responsibilities, did not have their work hours accurately recorded, worked overtime hours, and
did not receive overtime wages.
Plaintiffs offer additional evidence regarding another similarly situated employee, Jeremy
Arney, a driver for CTI. At the time of his declaration in March 2017, Arney was a current
employee of CTI as a dump truck driver and had been since approximately April 14, 2014. Arney’s
work experience at CTI was very similar to that of Swafford and Woehlecke. Like Swafford and
Woehlecke, Arney was offered a check for overtime wages in exchange for a release of claims
against CTI (Filing No. 23-3). Plaintiffs filed a “consent to become a party plaintiff” for Arney,
who desires to join in a collective action (Filing No. 14). Eight other individuals—drivers for
CTI—have filed a notice with the Court, indicating their desire to join in a collective action against
CTI. (See Filing No. 16; Filing No. 17; Filing No. 18; Filing No. 19; Filing No. 28; Filing No. 32.)
In response to Plaintiffs’ Motion, CTI asserts that conditional certification of a collective
action is not appropriate because Plaintiffs’ declarations are not reliable and cannot establish that
similarly situated employees were subject to the same policies or practices that violated the FLSA.
CTI points to its opposing declaration, wherein it is noted that Swafford drove an average of 364
miles per day and Woehlecke drove an average of 374 miles per day, but their declarations claim
that they drove an average of 500 miles per day. (Compare Filing No. 39-1 at 1–2 with Filing No.
23-1 at 2 and Filing No. 23-2 at 2.)

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CTI also argues that Plaintiffs’ declarations lack foundation regarding the other drivers’
work experiences because Plaintiffs testified that they often were the first employees to arrive at
work, and at the end of the day, nobody else was there. CTI asserts that Plaintiffs would not have
had an opportunity to observe other drivers to determine their work experiences. CTI further
asserts that its drivers were on different work schedules and were not directed by CTI regarding
when they had to refuel their trucks, when to arrive at the facility to pick up the trucks, or when to
arrive at the gravel pits. CTI asserts that Plaintiffs do not understand how overtime was calculated
or compensated. CTI argues that these individual differences and factors make conditional
certification of a collective action inappropriate. CTI concludes that Plaintiffs’ declarations are
simply unfounded beliefs and speculation that cannot support certification.
CTI alternatively argues that even if certification is granted, Plaintiffs’ proposed class for
a collective action is overly broad because it “includes individuals who have resolved whatever
FLSA claim they may have had, including overtime pay requested in this Complaint.” (Filing No.
39 at 8.) CTI asserts,
In the present case, 49 employee drivers have cashed checks provided as a result of
a DOL audit with the cooperation of the DOL.
Because several individuals who fall within the definition of the proposed class
have accepted payment from Defendant . . . and therefore waived their right to bring
suit under the FLSA, the Court should reject Plaintiffs’ proposed class notice.
Id. (citations omitted).
Plaintiffs reply to CTI’s argument by noting that any supposed conflicts between their
declarations and the other evidence before the Court is based on CTI’s selective representation of
deposition testimony and is not relevant to the question of similarly situated employees. Plaintiffs
also provide evidence of the U.S. Department of Labor’s investigation of CTI and its findings that
CTI had violated the FLSA regarding its drivers (Filing No. 44-1). Plaintiffs assert that the U.S.
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Department of Labor’s report supports a finding that CTI’s drivers are similarly situated and were
subject to similar policies and practices that resulted in the drivers being deprived of overtime
wages in violation of the FLSA. The government investigation and report determined that nearly
sixty drivers were entitled to unpaid overtime wages.
Regarding CTI’s claim that the proposed class is too broad, Plaintiffs argue that deciding
the validity and nature of any release of claims by potential class members gets to the merits and
is premature. They also assert that the validity of any release is questionable because there is a
difference between waiving rights to file a lawsuit and waiving rights to join a lawsuit that is
already pending. CTI’s release did not inform putative class members that a collective action was
already pending. Additionally, the purported release is not a full release because it covers only a
limited timeframe in conjunction with the U.S. Department of Labor’s investigation. Furthermore,
Plaintiffs note, CTI simply states that employees cashed checks, but there is no evidence that
claims were released and there is no evidence regarding who even cashed checks. Thus, they
assert, the proposed class should not be narrowed.
The Court determines that conditional certification of a collective action for Plaintiffs’
FLSA claim is appropriate because Plaintiffs have made a threshold showing that they are similarly
situated to other drivers who were denied overtime wages by CTI. Plaintiffs’ declarations establish
their work duties, their overtime hours, and the denial of overtime wages. The declarations also
sufficiently describe the similar conditions of other drivers employed by CTI. While CTI argues
that Plaintiffs’ assertions regarding other drivers are unfounded beliefs and speculation because
they did not work the same hours as other drivers, CTI ignores Plaintiffs’ assertions that they talked
with fellow drivers about their experiences at CTI. Additionally, the report from the Department
of Labor’s investigation is strong evidence that the drivers at CTI were similarly situated and faced

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the same policies and practices that denied them overtime wages. The Court also notes that CTI’s
argument about discrepancies between 374 or 364 miles driven per day compared to 500 miles is
not relevant to the question of similarly situated employees being denied overtime wages. This
minor, irrelevant discrepancy does not undermine the propriety of certifying a collective action.
Concerning the argument of the breadth of the proposed class, the Court agrees with
Plaintiffs’ position. The proposed release is limited in its scope of time, and there is no evidence
before the Court that a release of claims was executed by potential plaintiffs who “cashed checks”.
The Court notes that there is a difference between waiving rights to file a lawsuit and waiving
rights to join a lawsuit that is already pending. There is no evidence that CTI informed any
potential class members that a collective action was already pending. Thus, the Court determines
that narrowing the proposed class is not appropriate that this stage of the litigation.
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion (Filing No. 22) and
conditionally certifies the FLSA claim as a collective action for the following class:
All current and former dump truck drivers who are or were employed by Defendant
Central Tri-Axle, Inc. during the three-year period prior to the date of this Order.
The Court ORDERS CTI to produce the names, home addresses, and home telephone
numbers (“Employee Information”) of all current and former dump truck drivers who are or were
employed by CTI during the three-year period prior to the date of this Order. CTI is ordered to
provide the Employee Information in a usable electronic format to counsel for Plaintiffs within
fourteen (14) days from the entry of this Order.
The Court authorizes that the proposed “Notice of Collective Action Lawsuit” and
corresponding “Consent to Become Party Plaintiff” form submitted by Plaintiffs at Filing No. 234 and Filing No. 23-5 may be issued to those individuals whose names are provided by CTI as
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required by this Order. The Notice shall be mailed within seven (7) days after CTI provides the
Employee Information. The “Consent to Become Party Plaintiff” form shall be enclosed with the
Notice, along with a self-addressed, postage paid return envelope. Plaintiffs are permitted to send
subsequent mailings of this Notice. The Notice and Consent forms shall be mailed by first-class
mail or overnight delivery.
The potential plaintiffs shall have sixty (60) days after the deadline for mailing of the
Notice of Collective Action Lawsuit to return a Consent to Become Party Plaintiff form to opt-in
to this litigation, unless the parties agree to permit late filings or good cause can be shown as to
why the form was not returned prior to the deadline.
SO ORDERED.
Date: 11/13/2017

DISTRIBUTION:

Philip J. Gibbons, Jr.
GIBBONS LEGAL GROUP, P.C.
[e-mail]
Robert J. Hunt
LAW OFFICE OF ROBERT J. HUNT LLC
[e-mail]

Alaina Cathrine Hawley
SCOPELITIS GARVIN LIGHT HANSON &
FEARY PC
[e-mail]
Alvin Jackson Finklea, III
SCOPELITIS GARVIN LIGHT HANSON &
FEARY PC
[e-mail]
Peter C. Morton
SCOPELITIS GARVIN LIGHT HANSON &
FEARY PC
[e-mail]

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