Young et al v. Chieftain Coating, LLC et al

Filing 51

ORDER Denying 20 Motion to Strike Opt-In-Consents. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COLLETTE YOUNG et al.,
Plaintiffs,
Case No. 20-CV-10520-DT
v.
HON. DENISE PAGE HOOD
CHIEFTAIN COATING, LLC, et al.,
Defendants.
___________________________________/
ORDER DENYING MOTION TO STRIKE OPT-IN CONSENTS
I.

BACKGROUND
On February 28, 2020, Plaintiffs Collette Young and Henry Bennett filed a

Collective Action complaint under Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
201 against Defendants Chieftain Coating, LLC, Burkard Industries, Inc, and John
“Jay” Burkard. [Complaint, ECF No. 1]. All Defendants filed their answers to the
complaint on May, 11, 2020. [ECF Nos. 17, 18]
Burkard Industries in Clinton Township, Michigan, provided metal finishing
services to customers and employs hourly production workers [ECF No.1, Page.ID
4] [ECF No. 10, Page.ID 53] Plaintiffs Young and Bennett were employed as hourly
production employees at Burkard Industries. [ECF No.1, Page.ID 4] Young worked
for Burkard from 1997-2019 and Bennett from 1993-2019. [ECF No.1, Page.ID 4-5]
[ECF No. 18 at 284] Bennett was employed with Chieftain after October 31, 2019.

[ECF No. 18, Page.ID 285] Phyllis Holland, Linda Lietz, Ariana Thompson, and Raif
Zenuni also worked for Burkard Industries. Attached to the complaint are opt-in
consent forms from the two named Plaintiffs as well as consent forms from Phyllis
Holland, Linda Lietz, Ariana Thompson, and Raif Zenuni. [ECF No. 10, Page.ID 5456] [ECF No. 18, Page.ID 285] [ECF No. 1-1, Page.ID 22-30]
Plaintiffs state that the job duties of hourly production workers included
physically hanging metal parts on the production lines; washing, masking, and coating
the parts; moving the parts back off the production lines; and packaging the parts for
distribution. [ECF No. 10, Page.ID 55]. Plaintiffs allege that Defendants maintained
an employment policy, which is the basis of this FLSA complaint, that required hourly
production employees like Plaintiffs to work unpaid overtime hours before, during,
and after their scheduled shifts. [ECF No.10, Page.ID 56]
This matter is before the Court on Defendants’ Motion to Strike Opt-In
Consents. Plaintiffs oppose the motion. A hearing was held on the matter.
II.

ANALYSIS
A.

Standard of Review

The district court has the broad discretion to authorize “notice” to putative
Collective members in an FLSA collective action and allow them to opt-in to the
suit. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (citing

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Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989). In Hoffman-LaRoche,
the Supreme Court recognized the “propriety, if not the necessity, for court
intervention in the notice process” because of the potential for misuse of the class
device through misleading communications by the parties. 493 U.S. at 169, 171. The
district court also has the managerial responsibility to oversee the joinder of additional
parties to maintain efficiency and has the discretion to begin its involvement at the
point of the initial notice rather than a later time. Hoffmann–La Roche, 493 U.S. at
165-66.
B.

Opt-In Consent Forms

A plaintiff may file a collective action under § 216(b) of FLSA on behalf of
himself and other “similarly situated” employees who file a consent in writing to
become party plaintiffs to the lawsuit. 29 U.S.C.A. § 216 (West). Specifically, the
provision states that no employee shall be a party plaintiff “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.” Id. Once the similarly situated nature of the class is established
during the conditional certification stage of a Collective Action, the court has the
discretion to authorize notification to potential class members and allow them to file
a consent to join the lawsuit. Wlotkowski v. Michigan Bell Tel. Co., 267 F.R.D. 213,
219 (E.D. Mich. 2010) (citing Comer, 454 F.3d 544 at 546); see also Olivo v. GMAC

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Mortg. Corp., 374 F. Supp. 2d 545, 546 (E.D. Mich. 2004) (citing Hoffmann–La
Roche, 493 U.S. at 169). Conditional certification, however, does not, in itself,
produce a class of plaintiffs with an independent legal status or automatically join
additional parties to the action. Symczyk, 569 U.S. at 67.
The class device for FLSA Collective actions should not be confused with a
Rule 23 lass action, which uses an “opt-out” approach and more stringent certification
standard. O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 583 (6th Cir. 2009),
abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016).
“Opt-in” employees in an FLSA Collective action also become party plaintiffs, unlike
absent class members in a Rule 23 class action. Id. After discovery, defendants can
move to “decertify” if additional evidence is uncovered that shows a class is not
similarly situated. Wlotkowski, 267 F.R.D. at 219.
Defendants argue that “conditional certification of the class and issuance of
notice” is a prerequisite to opt-in consents being filed, and because it has not yet
occurred, the individuals who signed the consents have no standing in the action.
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013); Beery v. Quest
Diagnostics, Inc., No. 12-cv-00231, 2013 WL 3441792, at *3 (D.N.J. Jul. 8, 2013)
[ECF No. 20, Page.ID 314] Defendants argue the opt-in consents filed by plaintiffs
should be stricken because they premature as the Court has not conditionally certified

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the class, the parties have not agreed on an opt-in notice, and the Court has not
approved the opt-in notices. [Id. at 314-15]. Defendants also point out that the
proposed notice differs from the opt-in consents already filed. [Id. at 315]
Plaintiffs argue that conditional certification is not a prerequisite to opt-in
consent being filed because the only requirements for a collective action under §
216(b) are that potential members (1) be similarly situated and (2) signal in writing
their consent to participate in the action. [ECF No. 24, Page.ID 342] Comer v. WalMart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). Plaintiffs argue that while
conditional certification is an important procedural device to facilitate notice in an
FLSA action, it is “neither necessary nor sufficient for the existence of a
representative class.” Id. Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 194
(3rd Cir. 2012) (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 n. 10 (2nd Cir.
2010)); see also Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 535-36 (3rd Cir. 2012)
(repeating same quote).
Plaintiffs further argue that this Court has recognized that the sole consequence
of conditional certification is sending out court-approved notice to employees who
may become part of the action and does not create a party with independent legal
status. [Id. at 343] Gaffers v. Kelly Servs., Inc., 203 F. Supp. 3d 829, 843 (E.D. Mich.
2016), rev'd and remanded on other grounds, 900 F.3d 293 (6th Cir. 2018) (quoting

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Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013)); see also Sutka v.
Yazaki N. Am., Inc., 2018 U.S. Dist. LEXIS 40250, *24-25 (E.D. Mich. Mar 12,
2018). Plaintiffs assert that collective actions can go forward without obtaining
conditional certification [Id.] Plaintiffs argue that “nothing in the text of [FLSA §
216(b)] prevents plaintiffs from opting in to the action by filing consents with the
district court, even when the notice described in Hoffmann-La Roche has not been
sent” so long as such plaintiffs are ‘similarly situated.’” [Id.]; Myers, 624 F.3d at 555
n.10.
Plaintiffs claim that employees routinely opt-in to FLSA collective actions
when the complaint is filed and prior to conditional certification. [Id. at 344].
Plaintiffs cite two cases, Gaffers v. Kelly Services, Inc., No. 2:16-cv-10128 (E.D.
Mich.) and Serbay v. Dialog Direct, Inc., No. 2:16-cv-12716 (E.D. Mich.), both
allowing pre-certification opt-ins prior to a grant of conditional certification. Plaintiffs
argue that employees must file consent forms at the earliest possible time in FLSA
collective actions because the statute of limitations runs for employees until they
affirmatively opt-in and does not toll with conditional certification. [Id. at 345] See
Fisher v. Michigan Bell Telephone Tel. Co., 665 F. Supp. 2d 819, 828-29 (E.D. Mich.
2009). Plaintiffs argue that an FLSA collective action does not start until both a
complaint and consent form is filed by the named plaintiff, so it is appropriate to file

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the consent forms at the start of litigation. Albritton v. Cagles, Inc., 508 F.3d 1012
(11th Cir. 2007). [Id. at 346]
Plaintiffs attack Defendants’ supporting cases: Melendez Cintron v. Hershey
P.R., Inc., 363 F. Supp. 2d 10 (D.P.R. 2005) and Beery v. Quest Diagnostics, Inc.,
2013 U.S. Dist. LEXIS 95096 (D. N.J. July 8, 2013). Plaintiffs argue that Melendez
is an outlier because it involved opt-in notices obtained through an unauthorized precertification letter sent by plaintiff’s counsel constituting improper notice. [Id.]
Plaintiffs argue that because consent forms in Melendez lacked a “factual basis of
similarity,” the court was left with no other choice but to strike the consent forms [Id.]
Plaintiffs indicate in the instant case, the additional consent forms filed May 12, 2020,
were obtained without unauthorized notice. See Kirkpatrick v. Cardinal Innovations
Healthcare Sols., 2017 U.S. Dist. LEXIS 141783 (M.D.N.C. Sept. 1, 2017) (the court
refused to apply Melendez to a situation where opt-in consents obtained prior to
certification solicitation). [Id. at 347] In Beery, Plaintiffs argue the opt-in plaintiffs
were dismissed because of a lack of subject matter jurisdiction. [Id. at 347-48]
Plaintiffs assert that striking the consent forms would frustrate the purpose of
the collective action mechanism by interfering with each potential plaintiff’s ability
to toll the statute of limitations and participate in the collective action. [Id. at 348]
Plaintiffs also highlight that in that Hoffmann-LaRoche, over 400 consent forms were

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filed prior to court-authorized notice in that case and that the Third Circuit Court of
Appeals and the United States Supreme Court declined to overturn the district court’s
decision to not strike the pre-certification forms. [Id. at 349]
Defendants reply that inclusion of the opt-in consents is highly prejudicial to
Defendants because they do not know how the consents were obtained or what
information was provided to the opt-in plaintiffs. [ECF No. 27, Page.ID 520]
Defendants argue that court-approved notice is the mechanism typically used to
explain to putative class members their rights and options in the action and grant those
members a choice to participate. White v. Baptist Mem'l Health Care Corp., 699 F.3d
869, 877 (6th Cir. 2012); See e.g., Troyer v. T. John E. Prods., Inc., No. 9-cv-821,
2010 WL 11534382, at *1 (W.D. Mich. Oct. 14, 2010); Russell v. Illinois Bell Tel.
Co., 575 F. Supp. 2d 930, 938 (N.D. Ill. 2008); Bishop v. AT & T Corp., 256 F.R.D.
503, 509 (W.D. Pa. 2009) [Id. at 520-21] Defendants indicate that absent courtapproved notice, Defendants have no way of ensuring that the full range of options
available to putative class members have been imparted on the opt-in plaintiffs. [Id.
at 521].
Defendants reply that even if this Court determines that the opt-in plaintiffs did
not need court-approved notice prior to filing their consents, the consent forms were
nonetheless premature as attached to the complaint. [Id. at 523] Defendants argue that

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the Plaintiffs merely indicated that opt-in plaintiffs signed consent forms to join
litigation and provided no further information or factual basis demonstrating why optin plaintiffs were similarly situated. [Id.]
Defendants assert that opt-in plaintiffs’ rights are not at risk because although
the collective action may not toll the statute of limitations for putative class members,
the court-determined opt-in period ensures employees will have an opportunity to join
the suit. [Id. at 524]. Defendants argue that plaintiffs who attempt to opt-in at time of
filing are no worse off than those who wait until the court-designated period, and
should it appear the statute of limitations is going to run out against putative class
members, the Court can equitably toll the statute of limitations. [Id.] Defendants claim
that striking the opt-in consents is also not detrimental to plaintiffs’ case because a
lack of opt-in consents at the time of conditional class certification is not dispositive.
Anderson v. P.F. Chang's China Bistro, Inc., 2017 WL 3616475, at *10 (E.D. Mich.
Aug. 23, 2017). [Id. at 525].
First, the Court addresses whether the conditional certification and notice are
prerequisites to the filing of opt-in consent forms being filed. Plaintiffs’ assertions
regarding Gaffers and Serbay cases are correct. Opt-in consent forms have been
allowed to be filed prior to deciding on a Motion for Conditional Certification. Gaffers
v. Kelly Services, Inc., No. 2:16-cv-10128 (E.D. Mich.); Serbay v. Dialog Direct, Inc.,

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No. 2:16-cv-12716 (E.D. Mich.) (Cohn, J.) The Gaffers docket shows that Plaintiffs’
counsel submitted several opt-in consent notices prior to the grant of the Motion for
Conditional Certification. Gaffers v. Kelly Services, Inc., No. 2:16-cv-10128 (E.D.
Mich.) [2:16-cv-12716, dkt entry #4-2 to 4-5]
Plaintiffs and Defendants also cite the same provision from Symczyk to support
their arguments: “the sole consequence of conditional certification is the sending of
court-approved written notice to employees . . . who in turn become parties to a
collective action only by filing written consent with the court” Symczyk, 569 U.S. at
75. [ECF No. 27, Page.ID 521] [ECF No. 24, Page.ID 342-43] Ultimately, the
interpretation of this provision depends on whether the statement refers to putative
Collective members as a whole or only those putative Collective members that receive
court-approved notice—the former interpretation which supports Defendants’
argument, and the latter, Plaintiffs’ position.
As courts have permitted opt-in consents to be filed prior to conditional
certification and court-authorized notice, the Court finds that the cited provision only
refers to those employees that receive notice, not any employee who could be
classified as a putative Collective member. The interpretation the Court adopts is
consistent with the idea that the similarly situated employees only become party
plaintiffs through filing an opt-in consent form to join the lawsuit and that joinder is

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ultimately managed by the Court. Mickles on behalf of herself v. Country Club Inc.,
887 F.3d 1270, 1278 (11th Cir. 2018) (finding that the § 216(b) supports that those
who opt in become party plaintiffs upon the filing of a consent and that nothing
further, including conditional certification, is required) (emphasis added).
The Court rejects Defendants’ argument that allowing pre-certification opt-in
notices is unfairly prejudicial to Defendants. Just as in other cases where opt-in
consents were filed to the court prior to court-authorized notice, the language of notice
and opt-ins consents here will have not been approved by Defendants.
Opt-in notices are not final determinations of an opt-in Plaintiffs’ status within
the lawsuit. All opt-in Plaintiffs who file consent to the Court in an FLSA Collective
action, are subject to “decertification” if the Court determines after the conclusion of
discovery that opt-in plaintiffs were not similarly situated to named Plaintiffs. The
Court may then dismiss without prejudice those plaintiffs who are not similarly
situated. Shipes v. Amurcon Corp., No. 10-14943, 2012 WL 995362, at *4 (E.D. Mich.
Mar. 23, 2012). The Court declines to adopt a standard which requires conditional
certification prior to opt-in consents based on the arguments set forth by Defendants.
However, Plaintiffs propose an opt-in consent form that differs from the opt-in
consent forms already filed before the Court. [ECF No. 1-2] [ECF No. 1-3] [ECF No.
10-1, Page.ID.78] A review of the docket in Gaffers and Serbay, both cases that

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Plaintiffs’ Counsel, Jesse Young, filed opt-in notices which looked like the ones
already filed before the Court in this case, not the proposed format. For consistency,
for future notices after the date of this Order, Plaintiffs must modify the proposed optin form to instead reflect the format and content of the original opt-in notices filed
with the Complaint.
III.

CONCLUSION/ORDER
Because the opt-in notices provided by Plaintiffs otherwise follow established

precedent,
Accordingly,
IT IS ORDERED that Defendants’ Motion to Strike Opt-In Consents (ECF No.
20) is DENIED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: July 29, 2022

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