Abney v. R.J. Corman Railroad Group, LLC

Filing 18

MEMORANDUM OPINION & ORDER: The Motion 9 to Certify Class by Jason W. Abney is GRANTED. 2. The proposed collective FLSA class is conditionally certified as: All current and former Operators/Laborers who worked for Defendant from June 2014 to t he present, who worked more than forty (40) hours per week in one or more work weeks and were paid hourly rates plus overtime, but who were not paid for all travel time from: (a) home site to assigned project location; (b) one assigned project loca tion to another assigned project location; and/or (c) an assigned project location back to home site. 3. The defendant shall produce, in an electronic readable format to Plaintiff'scounsel within fourteen (14) days a list containing the full na mes, job titles, last known addresses, personal e-mail addresses, and dates of employment for all putative class members who worked as Operators/Laborers for Defendant between June 2014 and the present. 4. Neither party shall engage in any contact w ith any individual disclosed as a putative class member for reasons related to this litigation until after such individual's Consent to Join has been filed; 5. Plaintiff's counsel shall send Notice, consistent with this Memorandum Opinion and Order, to all individuals whose names appear on the list produced by the defendant's counsel by first-class mail; and 6. All individuals whose names appear in the list produced by the defendant's counsel shall have sixty (60) days from the date the notices are mailed to file a Consent to Join form in this action. Signed by Judge Danny C. Reeves on 08/29/2017.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
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JASON W. ABNEY, etc.,
Plaintiffs,
V.
R.J. CORMAN RAILROAD GROUP,
LLC,
Defendant.
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Civil Action No. 5: 17-260-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of Plaintiff Jason Abney’s motion for
conditional certification of a collective action and facilitation of notice to potential class
members. [Record No. 9]

Abney has filed a Complaint [Record No. 1] against his former

employer, Defendant R. J. Corman Railroad Group, LLC (“RJC Group”), on his own behalf
and on behalf of other similarly-situated individuals, for overtime compensation relief under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 207(a), 216(b). Abney has filed the
declarations of Corey York [Record No. 10-13], Brandon Smith [Record No. 11-1], Charles
Johns [Record No. 16-1], James Mattingly [Record No. 16-2], and Ryan Dempsey [Record
No. 17-1], who have consented to join the case.
The underlying allegations, as set forth in Abney’s Complaint and declaration, are as
follows: The defendant provides railroad construction and maintenance services. [Record
No.1, ¶ 7] Abney worked for “R.J. Corman Railroad” as an operator and laborer from August
2015 through March 2017. [Record No. 9-5, ¶ 3] He was required to travel to project locations
away from home. [Record No. 1, ¶ 8] Abney and similarly-situated individuals were not paid
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for all time spent traveling away from their home site and back, in violation of 29 U.S.C. §
207(a)(1). [Record No. 1, ¶¶ 10, 12] He defines similarly-situated individuals as “all
Operators/Laborers who worked for Defendant from June 2014 to the present, who worked
more than forty (40) hours per week and were paid an hourly rate plus overtime, but not paid
for all travel time from: (a) home site to assigned project location; (b) one assigned project
location to another assigned project location; and/or (c) an assigned project location back to
home site.” [Record No. 9, p. 2] Abney seeks conditional certification as a collective action
and requests that the Court facilitate the notice to potential collective action plaintiffs.
I.
An action to recover unpaid overtime compensation under the FLSA may be
maintained against any employer by “any one or more employees for and in behalf of himself
or themselves and other employees similarly situated. 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.” 29 U.S.C. § 216(b). The FLSA
collective action mechanism serves an important remedial purpose and allows plaintiffs who
have suffered relatively small monetary harm to join a larger pool of similarly-situated
plaintiffs. Gunn v. NPC, Int’l, Inc., 625 F. App’x 261, 267 (6th Cir. 2015).
Courts within the Sixth Circuit apply a two-step approach to determine whether a
collective action is proper. White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 877 (6th
Cir. 2012). During the “notice stage,” the Court determines whether the plaintiff has presented
sufficient evidence of similarly-situated putative plaintiffs to warrant court-facilitated notice
and to conduct discovery. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 545 (6th Cir. 2006).
The plaintiff must establish at least a “colorable basis” for his claim that a class of similarly-2 

situated putative plaintiffs exists and that the class members together were victims of an
unlawful policy. Berry v. Office of the Fayette Cnty. Sheriff, No. 5: 14-CV-356, 2015 WL
476320, at *2 (E.D. Ky. Feb. 5, 2015). This standard is fairly lenient and typically results in
conditional certification of a representative class. Comer, 454 F.3d at 547. If the district court
conditionally certifies the class, putative class members are given notice and the opportunity
to opt-in. At the second stage, following discovery, the court examines more closely the
question of whether the members of the class are, in fact, similarly situated. Id.
Abney has submitted the declarations of Brandon Smith [Record No. 11-1], Corey York
[Record No. 10-13], Charles Johns [Record No 16-1], James Mattingly [16-2], and Ryan
Dempsey [Record No. 17-1], who have consented to opt-in to the lawsuit. Some of these
individuals, including Abney, attested that they were employed as operators or laborers for
“R.J. Corman” and that they similarly were not paid for all travel hours worked. [Record Nos.
9-5; 10-13; 11-1; 16-1] The defendant concedes, however, that Abney and Smith worked for
Defendant R.J. Corman Railroad Group during the relevant time period. [Record No. 13-1]
Mattingly and Dempsey reported that they worked as operators/laborers for the defendant and,
like Abney, were not paid properly for all travel hours worked. [Record Nos. 16-2; 17-1]
Additionally, York and Smith alleged that they had talked with other co-workers about being
underpaid for travel hours worked. [Record Nos. 10-13, p. 2; 11-1, p. 2]
The plaintiff has provided additional evidence that may suggest a widespread failure to
pay operators/laborers for all overtime hours resulting from travel away from home. [Record
No. 12-1] Corman Railroad Services recently issued a letter to its current employees indicating
that it “recently began reviewing its travel pay practices to determine compliance with the
[FLSA].” [Record No. 14, p. 1] Having determined that a bona dispute regarding overtime
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pay for travel hours existed, Corman Railroad Services offered payments to employees. Id. at
pp. 1-2. Abney filed several of the defendant’s recent job postings for operator/laborer which
state that extensive travel is required for the position. [See Record Nos. 9-10.]
The FLSA does not define “similarly situated,” but it is clear that plaintiffs are similarly
situated when they suffer from a single, FLSA-violating policy, and when proof of that policy
or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” O’Brien
v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009) (abrogated on other grounds
by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016)). There is no specific minimum
number of opt-in plaintiffs required to establish a showing of sufficient interest. Martin v.
Psalms, Inc., No. 2: 10-CV-2532, 2011 WL 2882387, at *8 (W.D. Tenn. July 15, 2011).
Instead, the relevant inquiry is whether there are similarly-situated employees who desire to
opt in. The plaintiff must show only that his position is similar, not identical, to positions held
by putative class members. Comer, 454 F.3d at 546-47.
Abney has shown that at least three of the defendant’s former employees (Smith,
Mattingly, and Dempsey) wish to opt in to this action. Smith, Mattingly, and Dempsey, like
Abney, attested that they worked for the defendant as operators/laborers and were subject to
the same travel pay policy that deprived them of proper overtime pay when working away
from home. [Record Nos. 11-1, 16-2, 17-1] Additionally, two other individuals formerly
employed under the R.J. Corman umbrella of companies (York and Johns) make the same
claims. [Record Nos. 10-13; 16-1] Accordingly, the plaintiff has made the minimal showing
for conditional certification required at the notice stage.
Abney’s proposed notice of lawsuit would provide notice to “all ‘operators/laborers’
who worked for defendant from June 2014 to the present. . . .” [Record No. 9-1, p.1] Although
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R.J. Corman Group is the only named defendant, Abney contends that notice should be
provided to employees of sixteen entities “own[ed], operat[ed]” or which “conduct business”
R.J. Corman Group.1 [Record No. 9, p. 3] The parties have devoted substantial argument to
the question of whether the defendant and these allegedly related entities are an enterprise or
a single employer for purposes of the FLSA. However, these are merit-based arguments which
the Court may not evaluate at this stage. See Ji Li v. Ichiro Rest. Inc., No. 14-cv-10232, 2015
WL 6828056, at *3 n.3 (S.D.N.Y. Nov. 5, 2015); Ali v. Sugarland Petroleum, No. 4: 09-cv170, 2009 WL 5173508, at *4 (S.D. Tex. Dec. 22, 2009). Discovery is in its infancy and the
record is too limited for such analysis. Further, at the notice stage, certification is conditional
and by no means final. Comer, 454 F.3d at 546. These arguments may be raised later in a
motion to decertify or for summary judgment, when the record is fully developed and the Court
can properly analyze the issues.
II.
The defendant has suggested additional clarifying language to paragraphs one and six
of the plaintiff’s Proposed Notice. [Record No. 13, p. 13] The additional proposed language
is not substantive in nature and is consistent with the plaintiff’s Proposed Notice. Further, it
does not appear that the plaintiff objects to the addition of the language. Accordingly, the

  The entities are: R.J. Corman Aircraft Maintenance, LLC; R.J. Corman Aviation Services,
LLC; R.J. Corman Derailment, Services, LLC; R.J. Corman Distribution Centers, LLC; R.J.
Corman Equipment Company, LLC; R.J. Corman Railroad Company, LLC; R.J. Corman
Railroad/Ashland LLC; R.J. Corman Railroad Company/Bardstown Line; R.J. Corman
Company/Central Kentucky Lines, LLC; R.J. Corman Railroad Construction, LLC; R.J.
Corman Railroad Company/Material Sales; R.J. Corman Company/Memphis Line; R.J.
Corman Railroad Property, LLC; R.J. Corman Railroad Services, LLC; R.J. Corman Railroad
Switching Company, LLC; and R.J. Corman Railroad Company/Tennessee Terminal, LLC.  

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proposed language at Record No. 13, page 13 shall be added to the Notice before it is sent to
the potential class members.
The plaintiff has not explained why a follow-up notice prior to the close of the notice
period is necessary. Further, there is no indication that notice should be posted at the potential
plaintiffs’ worksites. “In FLSA cases, first-class mail is generally considered to be the best
notice practicable to ensure that proper notice is received by potential class members.”
Lindberg v. UHS of Lakeside, LLC, 761 F. Supp. 2d 752, 765 (W.D. Tenn. 2011). As the
defendant points out, only current employees would see the posted notice and the plaintiff will
be provided the current address for those individuals.

Finally, the plaintiff has not

demonstrated a need for the defendant’s employees’ birth dates and telephone numbers.
Accordingly, the defendant’s request to limit disclosure of its employees’ personally
identifying information will be granted, in part.
The defendant objects to Abney’s proposed three-year statute of limitations, contending
that its actions were not a willful violation of the FLSA. The ordinary statute of limitations in
a FLSA action is two years, but a willful violation extends the limitations period to three years.
29 U.S.C. § 255(a). The three year statute of limitations may apply when the employer
knowingly violates the FLSA or when it disregards the possibility that it might be violating
the FLSA. Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1324 (11th Cir. 2007). It is inappropriate
to attempt to determine whether the defendant willfully violated the FLSA at this stage of the
proceedings. Accordingly, a three-year look-back period for purposes of providing notice is
appropriate.
Based on the foregoing analysis, it is hereby
ORDERED as follows:
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1.

The plaintiff’s motion for conditional certification [Record No. 9] is

GRANTED.
2.

The proposed collective FLSA class is conditionally certified as:

All current and former Operators/Laborers who worked for Defendant from
June 2014 to the present, who worked more than forty (40) hours per week in
one or more work weeks and were paid hourly rates plus overtime, but who were
not paid for all travel time from: (a) home site to assigned project location; (b)
one assigned project location to another assigned project location; and/or (c) an
assigned project location back to home site.
3.

The defendant shall produce, in an electronic readable format to Plaintiff’s

counsel within fourteen (14) days a list containing the full names, job titles, last known
addresses, personal e-mail addresses, and dates of employment for all putative class members
who worked as Operators/Laborers for Defendant between June 2014 and the present.
4.

Neither party shall engage in any contact with any individual disclosed as a

putative class member for reasons related to this litigation until after such individual’s Consent
to Join has been filed;
5.

Plaintiff’s counsel shall send Notice, consistent with this Memorandum Opinion

and Order, to all individuals whose names appear on the list produced by the defendant’s
counsel by first-class mail; and
6.

All individuals whose names appear in the list produced by the defendant’s

counsel shall have sixty (60) days from the date the notices are mailed to file a Consent to Join
form in this action.

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This 29th day of August, 2017.

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