Holmes v. Kelly Services USA, LLC et al

Filing 69

OPINION AND ORDER (1) Granting in Part and Denying in Part Plaintiff's 40 Renewed Motion for Conditional Certification, (2) Allowing Plaintiff to Send Opt-In Notices, and (3) Staying Action. Signed by District Judge Matthew F. Leitman. (HMon)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRACIE HOLMES,
Plaintiff,

Case No. 16-cv-13164
Hon. Matthew F. Leitman

v.
KELLY SERVICES USA, LLC et al.
Defendants.
_________________________________/
OPINION AND ORDER (1) GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S RENEWED MOTION FOR CONDITIONAL
CERTIFICATION (ECF #40), (2) ALLOWING PLAINTIFF TO SEND OPTIN NOTICES, AND (3) STAYING ACTION
Plaintiff Tracie Holmes worked as a call-center agent at a call center in
Hampton, Virginia from August 2015 through March 2016.

In this putative

collective action, Holmes alleges that her employers at the call-center, Defendants
Kelly Services USA, LLC, Kelly Services, Inc.,1 and Health Net Federal Services
LLC, violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the “FLSA”),
when they failed to pay her and her fellow agents for all of the time they worked
each day. Holmes now asks the Court to conditionally certify a collective of all
hourly call-center agents who worked at the Hampton facility during the previous

1

For ease of reference, the Court will refer to both Kelly Services entities
collectively as “Kelly Services.”
1

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three years. For the reasons that follow, the Court will (1) conditionally certify an
FLSA collective, but one not nearly as broad as Holmes has requested, (2) allow
Holmes to send opt-in notices to that limited collective, and (3) stay this action
pending future decisions by the United States Supreme Court and United States
Court of Appeals for the Sixth Circuit in the cases identified below.
I
A
Kelly Services “manage[s] employment opportunities for more than one
million workers around the globe.” (First Am. Compl. at ¶2, ECF #34 at Pg. ID 825.)
Among other things, Kelly Services “employs call center agents…in a number of
different environments (e.g., brick-and-mortar sites and on-site at their clients’
locations).” (Id. at ¶3, Pg. ID 825.) Health Net runs one such “brick-and-mortar call
center” that Kelly Services uses in Hampton, Virginia. (Id. at ¶4, Pg. ID 826.)
Kelly Services operates two different call-center programs out of the Hampton
facility: the “Veterans Affairs Choice” program (the “VA Program”) and the TriCare program. (See Holmes Dep. at 28-29, ECF #62-1 at Pg. ID 1414.) About 150
call-center agents work on the VA Program, and they are separated into a day shift
and a night shift. (See id. at 30-32, Pg. ID 1415.) The night shift consists of six
different “teams” that work under different supervisors. (Id. at 33-35, Pg. ID 141516.) Each night-shift team is comprised of approximately ten call-center agents. (See
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id. at 30, Pg. ID 1414) Two of these teams work on an upstairs floor of the Hampton
facility, and four teams work on a downstairs floor. (See id.) The remaining agents
assigned to the VA Program are assigned to the day shift. (See id. at 30-31, Pg. ID
1414.)
B
Holmes began working for the Defendants at the Hampton facility in August
2015.2 (See id. at 26, Pg. ID 1414.) At that time, she participated in a two-week
training and orientation program. (See id. at 43-44, 48, Pg. ID 1418-19.) Holmes
says that she participated in this program with approximately 15-20 other call-center
agents and that all but one of those agents worked on the night shift. (See id. at 4445, 60-61, Pg. ID 1418, 1422.)
During this two-week program, Kelly Services trained Holmes and the other
agents on how to use the computer programs that they would need to use on a daily
basis and provided instruction on its policies and procedures, including the
company’s time-keeping policy. Among other things, the trainers told the agents
that they needed to be ready to work immediately upon the start of their scheduled
shift time. (See id. at 59, Pg. ID 1422.) Because agents could not begin their work

2

In Holmes’ First Amended Complaint, she alleges that she was “jointly
employ[ed]” by Kelly Services and Health Net. (First Am. Compl. at ¶4, ECF #34
at Pg. ID 826.) Health Net denies that it employed Holmes. (See Health Net Resp.
Br. at n.1, ECF #60 at Pg. ID 1316-17.) The Court need not resolve that dispute for
the purposes of ruling on Holmes’ conditional certification motion.
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without first logging into various computer programs, Holmes says that the trainers
told her and the other agents to arrive at work early so that they could “launch” the
required programs before their shift officially started. (Id. at 59-60, Pg. ID 1422.)
The trainers instructed Holmes and the other agents to record these pre-shift
activities as “time worked” on their time sheets, and they said that Kelly Services
would pay the agents for this additional working time. (Id. at 75, Pg. ID 1426.) The
trainers further told the agents that if they recorded this time but were not paid for it,
or were otherwise instructed “not to record all of [their] working time,” to report that
discrepancy to Kelly Services’ “service center” so that it could be remedied. (Id. at
83-84, Pg. ID 1428.)
At or around the time of Holmes’ training, she also received a copy of Kelly
Services’ time-keeping policy. (See ECF #40-5.) This policy provided that callcenter agents would be paid for all of the time they spent working, including time
spent “before, or after, [an agent’s] shift doing required activities such as … turning
on, or off, work stations, logging into, or out of, the company phone system, and
initiating, or closing, software applications necessary to call-center duties.” (Id. at
Pg. ID 908.) The policy also specifically required agents to contact Kelly Services
if their supervisors instructed them not to record all of the time they spent working:
If for any reason you are instructed not to record all actual
hours worked or are instructed to record only your
scheduled start and end times instead of your actual start
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and end times you must immediately notify the Employee
Service Center.
(Id. at Pg. ID 909; emphasis in original.)
C
After Holmes completed the training and orientation program, she began
working on the VA Program. (See Holmes Dep. at 29-32, ECF #62-1 at Pg. ID 141415.) Kelly Services assigned Holmes to a night-shift team under supervisor LaTanya
Price, located on the upstairs floor of the Hampton facility.3 (See id. at 32, 34, Pg.
ID 1415-16.)
Holmes says that, consistent with her training, she would arrive at her work
station a few minutes before her scheduled shift time so that she could launch the
computer programs that she needed to conduct her work. (See id. at 64-66, Pg. ID
1423-24.) She would also spend a couple of minutes each day after her shift ended
logging out of her computer. (See id. at 73-74, Pg. ID 1425-26.) After her first week
of work, Holmes recorded all of this additional time (approximately 7-13 minutes
per day) on her time sheet. (See id. at 75-76, Pg. ID 1426.) However, when she
received her paycheck, she was not compensated for any of this pre- or post-shift
work. (See id. at 76, Pg. ID 1426.) Holmes believed that her supervisor, Price, had

3

Homes would also fill in on a day shift “every once in a while” if she had other
plans at night. (Holmes Dep. at 31-32, ECF #62-1 at Pg. ID 1415.) However, she
primarily worked on the night shift. (See id.)
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altered her time entries and deleted the time Holmes spent logging onto and off of
her computer each day. (See id.)
Holmes never asked Price or anyone else why Price had seemingly altered the
time entries. (See id. at 76-77, Pg. ID 1426.) Nor did Holmes ever report the issue
to Kelly Services’ “service center” as required by Kelly Services’ time-keeping
policy. (See id. at 83-84, Pg. ID 1428.) Instead, Holmes, on her own accord,
“stop[ped] recording all of the time [she] actually worked and [] start[ed] recording
[only] the time that [she was] scheduled [to work].” (Id. at 77-78, Pg. ID 1426-27.)
Approximately seven months later, on March 22, 2016, Price sent an email to
Holmes and five other members of her team regarding when the agents should arrive
at work. Holmes says that Price’s email, quoted in full below, reinforced that agents
were not to be paid for time spent working before and after their scheduled shifts:
Please keep in mind that you are able to come on the
production floor at 3:50pm, so that you can get logged
onto the systems Lotus, QC, and DOMA. However; [sic]
if there is a problem that will give you time to contact the
help desk or Leadership if needed. You can log into InContact between 3:55 and 4:00pm. Please do not log into
In-Contact at 3:50pm when you arrive, you will not start
getting paid until 4:00pm. I know when 12:00am comes
around most of you are ready to go, please do not log out
of In-Contact until 12:30AM.
(ECF #40-6 at Pg. ID 911; emphasis added). The following week, on March 31,
2016, Holmes left her job as a call-center agent at the Hampton facility.

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II
On September 1, 2016, five months after Holmes stopped working for the
Defendants, she filed this action on behalf of all Kelly Services’ call-center agents
nationwide. (See Compl. ECF #1.) In her Complaint, and in a declaration she signed
under oath, Holmes claimed that Kelly Services “fail[ed] to pay [all of its call-center]
[a]gents for [the] no less than 7 to 13 minutes per day” that the agents spent logging
onto and off of their computers. (See id. at ¶¶ 28, 31, ECF #1 at Pg. ID 7-8; Holmes
9/14/16 Decl. at ¶¶ 7, 10, 13, ECF #5-2 at Pg. ID 69-70.) Holmes insisted that she
“kn[e]w that all of defendant’s hourly agents [nationwide] are subjected to [these]
same practices and procedures and that all of us lost wages because we were not paid
properly.” (Holmes 9/14/16 Decl. at ¶19, ECF #5-2 at Pg. ID 71; emphasis added.)
Holmes thereafter filed a motion in which she asked the Court to conditionally
certify a nationwide FLSA collective of “[a]ll current and former hourly call center
agents [nationwide] who worked for Kelly Services USA, LLC or Kelly Services,
Inc. at any time in the past three years.” (ECF #5 at Pg. ID 28.)
At a subsequent hearing, the Court expressed concern about the foundation of
some of the sworn statements in Holmes’ declaration. Specifically, the Court
questioned how Holmes, who worked for eight months at one call center in Virginia,
could have had personal knowledge (as she attested to in her sworn declaration) that
all of Kelly Services’ call-center employees nationwide were not properly paid for
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all of the time they spent working. (See, e.g., 11/29/16 Hearing Tr. at 41-42, ECF
#45 at Pg. ID 1020-21.) The Court provided Holmes the opportunity to address its
concerns by submitting a supplemental declaration that set forth the basis of her
personal knowledge. (See 11/29/16 Order, ECF #29 at Pg. ID 795.)
Instead of submitting a revised declaration, on December 16, 2016, Holmes
filed a First Amended Complaint in which she seeks to represent a substantially
narrower collective – one that includes only “current and former hourly brick-andmortar call-center agents who worked for Defendants in Health Net Federal
Services, LLC’s Hampton, Virginia call center at any time during the last three
years.” (First Am. Compl., ECF #34 at ¶45, Pg. ID 835.) Although much narrower
than the nationwide collective that Holmes originally sought to represent, this
collective still consists of hundreds of current and former call-center agents.
Holmes renewed her motion for conditional certification of the narrower
collective on January 20, 2017. (See ECF #40.) In support of that motion, Holmes
submitted a revised declaration. (See ECF #40-3.) In that revised declaration,
Holmes appears to have reconsidered the extent of her knowledge. While in her
initial declaration she attested that all of Kelly Services’ employees nationwide were
not paid for “off-the-clock” work, in her revised declaration she says only that
workers at the Hampton facility were not paid for that work. According to Holmes,
she “and other hourly Agents [at the Hampton facility] regularly worked off-the8

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clock because supervisors specifically directed us to perform the off-clock work and
told us that we would not start getting paid at the start of our scheduled shift.” (Id.
at ¶17, Pg. ID 901.) Holmes insists that “all of Defendants’ hourly [call-center
agents] in the Hampton, Virginia call center are subjected to the same practices and
procedures [as she was] and that all of us lost wages because we were not paid
properly.” (Id. at ¶20, Pg. ID 902; emphasis added.)
The Court held a telephonic status conference with counsel for all parties on
February 23, 2017. During that conference, the Court again expressed concern about
whether Holmes had personal knowledge to support her broad statements about all
call-center agents at the Hampton facility that she made in her revised declaration.
The Court therefore allowed Defendants to take Holmes’ deposition regarding those
statements.
The Defendants took Holmes’ deposition on April 6, 2017. (See Holmes Dep.
Tr., ECF #62-1.) The deposition revealed that Holmes had overstated her knowledge
in her revised declaration in a number of respects. Among other things, Holmes
testified at her deposition that:
 She never worked on the Tri-Care Program and did not
know anything about the agents who worked on the TriCare Program. (See id. at 29, 40-41, Pg. ID 1414, 1417.)
 She never saw any other employees’ pay stubs or time
sheets. (See id. at 74-75, Pg. ID 1426.)

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 She was not aware how long it took day shift agents to log
onto or off of their computers each day. (See id. at 70, Pg.
ID 1425.)
 She did not know how long it took employees on any of
the downstairs, night-shift teams to log onto or off their
computers each day. (See id. at 70-71, Pg. ID 1425.)
 The second upstairs, night-shift team was “too far” away
for her to know whether those employees logged out of
their computers before or after the end of their scheduled
shift. (Id. at 81-82, Pg. ID 1427-28.)
 Statements in her declaration that supervisors required
their team members to work “off-the-clock” and not be
paid for that additional time spent working referred only
to other “night-shift” teams on the VA Program, not all
call-center agents at the Hampton facility. (Id. at 86-87,
93, Pg. ID 1430.)
 She specifically recalled speaking with only three other
employees at the Hampton facility about performing “offthe-clock” work without compensation: Jocelyn White,
Elonda Burrell, and Ruth Curtis. (See id. at 88, Pg. ID
1429.) Two of those three – Burrell and White – worked
on the same team as Holmes. (See id. at 89, Pg. ID 1430.)
 Holmes did not recall speaking with any other call-center
agents about not being paid for “off-the-clock” work. (See
id. at 88, Pg. ID 1429.)
The Court held a hearing on Holmes’ renewed conditional certification
motion on June 28, 2017. As of the date of this Opinion and Order, Holmes has not
submitted any declarations and/or affidavits in support of her motion from any callcenter agents other than herself. In addition, no other employee at the Hampton

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facility has filed an “opt-in” notice declaring that the employee is interested in
joining Holmes’ proposed collective.4
III
Holmes asks the Court to conditionally certify a collective under 29 U.S.C.
§ 216(b). Collective actions “serve[] an important remedial purpose by allowing a
plaintiff who has suffered only small monetary harm to join a larger pool of similarly
situated plaintiffs in order to reduce individual litigation costs and employ judicial
resources efficiently. Gaffers v. Kelly Services, Inc., 203 F.Supp.3d 829, 842-43
(E.D. Mich. 2016) (internal punctuation omitted). “Section 216(b) establishes two
requirements for a [collective] action: 1) the plaintiffs must actually be ‘similarly
situated,’ and 2) all plaintiffs must signal in writing their affirmative consent to
participate in the action.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th
Cir. 2006).
Courts in this circuit have adopted a two-tiered approach when considering
whether to certify a collective. “At the ‘notice stage’ – which takes place at the
beginning of discovery – the court determines whether the suit should be
conditionally certified as a collective action so that potential opt-ins can be notified

4

On October 21, 2016, Tyishunda Beall filed an “opt-in” notice in which she sought
to join this action as a plaintiff. (See ECF #25-1 at Pg. ID 767.) However, as Holmes’
counsel has acknowledged, Ms. Beall did not work at the Hampton facility. She
therefore falls outside of Holmes’ proposed collective. As of the date of this Opinion
and Order, no other person has filed an “opt-in” notice in this action.
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of the suit’s existence and of their right to participate.” Shipes v. Amurcon Corp.,
2012 WL 995362, at *4 (E.D. Mich. Mar. 23, 2012).

To obtain conditional

certification at this stage, a plaintiff need only make a “modest factual showing” that
her position is “similar” to the putative members of the collective. Comer, 454 F.3d
at 546-47. This is a “fairly lenient standard” that “typically results in conditional
certification of a representative class.” Id. at 547 (internal quotation marks omitted;
emphasis added). However, it is not “a mere formality.” Hawkins v. Alorica, Inc.,
287 F.R.D. 431, 439 (S.D. Ind. 2012). “[S]ome factual showing is required at this
stage.” Combs v. The Twins Group, Inc., 2016 WL 7230854, at *3 (S.D. Ohio. Dec.
14, 2016; emphasis added).
“At the second stage, following discovery, trial courts examine more closely
the question of whether particular members of the class are, in fact, similarly
situated.” Comer, 454 F.3d at 547. During this post-discovery phase, “the court has
much more information on which to base its decision, and, as a result, it employs a
stricter standard” Id. (internal punctuation omitted).
In this case, while the Court has allowed the Defendants to take limited
discovery with respect to the facts Holmes’ attested to in her revised declaration, the
parties have not engaged in full discovery. Accordingly, the Court will analyze
Holmes’ request for conditional certification under the pre-discovery, “fairlylenient” standard.
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IV
Holmes asks the Court to conditionally certify a collective of all hourly callcenter agents who worked at the Hampton facility during the previous three years.
But Holmes has failed to satisfy even her fairly-lenient burden to show that all of
these other call-center agents are similarly-situated to her. The Court will therefore
certify a much narrower collective – the only one that can be supported by the
evidence Holmes has submitted.
A
As Holmes’ counsel has acknowledged, for a call-center agent to be “similarly
situated” to Holmes, that employee must have: (1) worked before and/or after his or
her regularly scheduled shift time and (2) not been paid for that additional time spent
working. Holmes has provided evidence that eight other call-center agents, all of
whom worked under one of two night-shift supervisors, fall within this category.
First, she has shown that five members of her team were copied on supervisor Price’s
March 22 email quoted above in which Price appeared to say that agents on her team
would not be paid for pre-shift work. (See ECF #40-6 at Pg. ID 911.) Second,
Holmes testified that two additional members of her team who were not copied on
the March 22 email –Burrell and White – told her (Holmes) that they were not being
paid for “off-the-clock” work. (See Holmes Dep. at 88-89, ECF #62-1 at Pg. ID
1429.) Finally, Holmes testified that Curtis, a downstairs night-shift agent who
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worked under supervisor Tracy Wigfall, said that she received an email from Wigfall
that was similar to the one Price had sent Holmes’ team regarding “off-the-clock”
work.5 (See id.)
Under the fairly-lenient standard that applies here, this evidence could support
a finding that the hourly call-center agents at the Hampton facility who worked under
supervisors Price and Wigfall were required to work “off-the-clock” without
compensation.6 These agents are therefore “similarly-situated” to Holmes, and the

5

Holmes testified that she spoke with Curtis and that Curtis said that her supervisor,
Wigfall, had sent Curtis an email “such as th[e] one” that Price sent to her team.
(Holmes Dep. at 88-89, ECF #62-1 at Pg. ID 1429.) Curtis did not specify whether
the email was sent only to her or was sent to multiple members of her team. Given
the fairly-lenient standard that applies at this stage of the case, the Court will
construe Curtis’ statement as referring to an email that, like the email from Price,
was sent to multiple members of her team.
6

Defendants argue that the Court should not credit the statements allegedly made by
Burrell, White, and Curtis because the statements are hearsay. Courts in this circuit
have reached different conclusions about whether hearsay statements may be
considered when ruling on a motion for conditional certification. Compare Harrison
v. McDonalds Corp., 411 F.Supp.2d 862, 866 (S.D. Ohio 2005) (“The Court finds
that hearsay statements cannot be considered in connection with Plaintiff’s § 216(b)
motion for the purpose of determining whether other employees are similarly
situated”) with Fisher v. Michigan Bell Telephone Company, 665 F.Supp.2d 819,
825-26 (E.D. Mich. 2009) (rejecting argument that court should have disregarded
plaintiffs’ declarations in support of a Section 216(b) motion because they were
based, in part, on inadmissible hearsay). The Court here agrees with the court in
Fisher that “[b]ecause final disposition is not an issue at the conditional certification
stage, requiring a plaintiff to present evidence in favor of conditional certification
that meets the hearsay standards of the Federal Rules of Evidence fails to take[] into
account that the plaintiff has not yet been afforded an opportunity, through
discovery, to test fully the factual basis of his case.” Fisher, 665 F.Supp.2d at 826
(internal punctuation omitted). Thus, at this early stage of the case only, where
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Court will conditionally certify an FLSA collective comprised of hourly call-center
agents who worked at the Hampton facility for these two supervisors.
B
Holmes urges the Court to certify a much broader collective of all hourly callcenter agents at the Hampton facility on that ground that she has presented evidence
that the Defendants had a common policy or plan to deprive all agents of
compensation for “off-the-clock” work. The Court disagrees and concludes that
Holmes has not presented evidence of a common policy or plan that applies to all of
the hourly agents at the Hampton facility.
First, Holmes cites Kelly Services’ training practices as evidence of a
common policy or plan to not pay agents for “off-the-clock” work. (See Holmes
Reply Br., ECF #62 at Pg. ID 1387-88.) Holmes emphasizes that Kelly Services
trained its employees to arrive at work before their start of their scheduled shifts in
order to launch certain programs on their computers. (See Holmes Dep. at 59-60,
ECF #62-1 at Pg. ID 1422.) But the fact that Kelly Services may have trained its
call-center agents to arrive for work before their scheduled shift time (or to stay after
their scheduled shift to log off of their computers) is not evidence that Defendants
had a common policy not to pay the agents for this pre- and post-shift work. Holmes

Holmes’ burden is fairly lenient, and full discovery has not yet started, the Court will
consider the statements of Burrell, White, and Curtis when determining whether and
to what extent to certify a collective.
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has not presented any evidence that during the training, the agents were told (1) not
to record their pre- and post-shift work on their time sheets or (2) that they would
not be paid for that work. In fact, during this same training, Kelly Services
specifically told Holmes and the other agents to document all of the time they spent
working – including the time spent before and after their scheduled shift times – and
that Kelly Services would compensate the agents for that additional time. (See id.at
75, Pg. ID 1426; ECF #40-5 at Pg. ID 908.) Kelly Services also trained its agents
that if they were not paid for this additional working time, that they should report
the discrepancy so that it could be addressed. (See Holmes Dep., ECF #62-1 at 83,
Pg. ID 1428.) The training that Holmes received therefore does not support her
argument that Kelly Services had a common policy or plan not to pay agents for any
“off-the-clock” time they spent working.
Second, Holmes argues that the Court may infer that Defendants had a
common policy or plan not to pay its agents for all of the time they worked because
she has “identifie[d] several specific co-workers” who were required to perform
“off-the-clock” work without compensation. (Holmes Mot., ECF #40 at Pg. ID 873.)
However, as noted above, all of these “specific co-workers” worked on one of only
two teams at the Hampton facility. And Holmes has failed to produce any evidence
that any other agents on any other team were not paid for “off-the-clock” work.
Indeed, Holmes has admitted that she does not have evidence that extends beyond
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her team and Curtis’ team. For instance, Holmes acknowledged that she did not
know anything about the agents who worked on the “Tri-Care” Program at the
Hampton facility and that she had very limited knowledge about the agents who
worked on the day shift. (See Holmes Dep. at 29, 40-41, 70, and 86-87, ECF #62-1
at Pg. ID 1414, 1417, 1425, 1430.) Holmes further testified that while she observed
some agents appear to arrive early or stay late, she never saw these employees’ time
sheets or pay stubs, could not tell how long it took them to log onto or off of their
computers each day, and could not say whether they logged on and off during their
shift or before and after their shifts ended. (See id. at 74-75, 81-82, Pg. ID 1426-28.)
Holmes can therefore say nothing about whether most of the agents who worked at
the Hampton facility were or were not compensated for “off-the-clock” work. She
simply has failed to produce evidence that that any alleged non-payment for “offthe-clock” work extended beyond one or two “rogue” supervisors and the team
members who reported to them. Cf. Jackson v. Federal National Mortgage
Association, 181 F.Supp.3d 1044, 1057 (N.D. Ga. 2016) (granting motion for
conditional certification in part because plaintiff submitted evidence that alleged
instructions not to report overtime went beyond the “rogue actions of one or two
individuals”). See also Chalker v. Burlington Coat Factory of Florida, LLC, 2013
WL 5954783, at *3 (M.D. Fla. Nov. 7, 2013) (denying motion for conditional
certification in part because “plaintiff has presented no evidence of a ‘common
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scheme applied uniformly’ …. To the contrary, plaintiff’s evidence suggest[ed], at
most, that one or more store managers, acting independently and not in accord with
a common policy (and in defiance of a stated policy) coerced some employees into
working overtime without compensation”).
Courts have repeatedly refused to conditionally certify requested collectives
where plaintiffs have likewise failed to present evidence about the other employees
who would comprise the collective. For example, in Combs, supra, a Taco Bell
employee asked the federal district court to conditionally certify “a class of
approximately twelve other Taco Bell employees” whom he alleged were “owed
compensation for overtime hours worked during the same two-week period.”
Combs, 2016 WL 7230854, at *1. In support of his certification motion, the plaintiff
submitted a declaration in which he “[a]ssert[ed] … that he and the other Taco Bell
crew members worked overtime hours for which they were not properly paid during
the same two-week period.” Id. at *2. The court recognized that the plaintiff’s
burden at the conditional certification stage was “fairly lenient,” and that the
“rationale for applying a less rigorous evidentiary standard at this stage of the
litigation [was] sound.” Id. at ** 2-3. Nonetheless, the court declined to certify the
proposed collective in part because the plaintiff provided “no basis to infer how he
[] came to know that [the other employees] were not paid” for the overtime they
supposedly worked:
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Here, Combs has failed to present sufficient evidence to
support a finding that he and the other crew members are
similarly situated, even under a more lenient evidentiary
standard. Combs’s declaration does not contain facts
showing that he has actual or even constructive knowledge
that his fellow crew members at Taco Bell worked
overtime hours for which they were not paid. Such a
showing could be made at this early stage by, for example,
demonstrating that Combs’s knowledge is based on firsthand observations or conversations with co-workers.
Without a proper foundation, Combs’s declaration is
merely a restatement of the Complaint’s allegations.
Permitting this case to proceed as a collective action on so
little evidence would effectively eliminate the requirement
that plaintiffs must make at least a modest factual showing
that they are similarly situated to obtain conditional
certification.

Id. (internal citation and quotation marks omitted; emphasis added). See also
Harrison v. McDonalds Corp., 411 F.Supp.2d 862, 871 (S.D. Ohio 2005) (denying
motion for conditional certification and holding that plaintiff “failed to satisfy even
her minimal burden of showing that other McDonald’s employees are similarly
situated” to her in part because “[p]laintiff has offered nothing but speculation to
support her belief that other McDonald’s employees were not paid all of the money
to which they were entitled”); Gaffers v. Sitel Worldwide Corp., 2016 WL 3137726,
at *3 (M.D. Tenn. June 6, 2016) (holding that “[e]ven under the applicable ‘lenient’
standard for conditional certification, [p]laintiff must do more than simply state that
[d]efendants fail[ed] to pay [agents] for the alleged time [spent logging onto and off
of computers],” and denying conditional certification motion in part because the
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plaintiff “has not shown that he has personal knowledge of the other [agents], how
they record their time, why whether or in what manner they were required to work
off-the-clock, or what specific policies or practices required other [agents] to not be
paid for all work time”).
Moreover, Holmes has not supported her “common policy or plan” argument
with affidavits or declarations from other call-center agents who could corroborate
her claim that the conduct of Holmes’ supervisor was widespread. Although not
essential to conditional certification, these declarations could have provided
important support for her motion. See, e.g., Fisher v. Michigan Bell Telephone
Company, 665 F.Supp.2d 819, 826 (E.D. Mich. 2009) (granting motion for
conditional certification and noting that “[p]laintiffs have submitted declarations of
67 opt-ins and have produced the deposition testimony of eight opt-ins supporting
their claim that they are also victims of a common policy or plan that violates the
FLSA”); Gaffers, 203 F.Supp.3d at 843 (granting motion for conditional
certification in action where six employees submitted declarations).
Nor have any of Holmes’ former co-workers “opted-in” to this action –
including agents with whom Holmes’ remains friendly and in contact. (See Holmes
Dep. at 92-93, ECF #62-1 at Pg. ID 1430.) This too is “a strike against certification.”
Hadley, 2012 WL 523752, at *5.

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Simply put, Holmes has not produced any evidence that the vast majority of
agents at the Hampton facility were required to work “off-the-clock” without
compensation, and for that reason the Court declines to certify the broad collective
she proposes. See Arrington v. Michigan Telephone Co., 2011 WL 3319691, at *6
(E.D. Mich. Aug. 1, 2011) (denying conditional certification motion in part because
“the plaintiffs have provided no evidence of common treatment beyond two
experiences of [two named plaintiffs] and their [unsupported] beliefs that other
[employees] are not being compensated for overtime work”).
V
In sum, Holmes has presented some evidence that agents at the Hampton
facility who worked for supervisors Price and Wigfall worked “off-the-clock” and
were not paid for that time. That evidence satisfies her fairly-lenient burden of
identifying similarly-situated employees who could comprise an FLSA collective.
Accordingly, the Court will conditionally certify a collective under the FLSA of all
hourly call-center agents who worked at the Hampton facility for the past three years
that worked for either (1) supervisor Price’s team or (2) supervisor Wigfall’s team.
Holmes attached a proposed opt-in notice to her conditional certification
motion. (See ECF #40-1.) In Defendants’ briefs opposing Holmes’ motion, they
raised various objections to the notice. The Court has reviewed those objections and
concludes that they are without merit. Holmes may send an opt-in notice to the
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limited collective identified above that substantially confirms to the proposed notice
attached to her motion. To the extent necessary, Defendants shall provide counsel
for Holmes with the last known mailing addresses and email addresses of the agents
at the Hampton facility who worked for either supervisor Price or Wigfall during the
past three years.
Finally, at the hearing on Holmes’ motion, counsel for both parties agreed that
after the Court resolved the conditional certification motion, it should stay this action
pending future decisions of the United States Court of Appeals for the Sixth Circuit
and the United States Supreme Court in the cases identified in the footnote below.7
The Court agrees that a stay of this action pending the resolution of those decisions
is appropriate.
Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that:
 Holmes conditional certification motion (ECF #40) is GRANTED IN
PART AND DENIED IN PART as set forth above. The collective is
defined as all current and former hourly call-center agents who worked
for the Defendants at the Hampton facility under supervisors Price or
Wigfall at any time during the past three years.

7

Epic Systems Corp. v. Lewis, Supreme Court Case No. 15-2997; Ernst & Young v.
Morris, Supreme Court Case No. 16-300; NLRB v. Murphy Oil USA, Inc., Supreme
Court Case No. 16-307; Gaffers v. Kelly Services, Inc., Sixth Circuit Case No. 162210.
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 Within ten days of the date of this Opinion and Order, Defendants shall
provide counsel for Holmes the last known mailing and email addresses
of those employees in the collective defined above.
 Holmes may send an opt-in notice to members of the collective defined
above that substantially conforms to the notice attached to her motion
(see ECF #40-1.) Potential “opt-in” plaintiffs shall have sixty days
from the date of this Opinion and Order to return the opt-in notice and
join the collective.
 At the expiration of the sixty-day opt-in period, this action shall be
STAYED pending the decisions of the United States Court of Appeals
for the Sixth Circuit and the United States Supreme Court cited in
footnote seven above. Once those decisions are issued, the Court will
set a telephonic status conference with the parties to discuss next steps
in this action.
IT IS SO ORDERED.

Dated: August 7, 2017

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 7, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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