Fairley v. Knights' Marine and Industrial Services, Inc. et al
Filing
43
ORDER granting 3 Motion to Conditionally Certify Class; granting 3 Motion for Court-Approved Notice to Potential Plaintiffs. (Whitsitt, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ARTHUR L. FAIRLEY, on behalf of
himself and those similarly situated
v.
PLAINTIFF
CAUSE NO. 1:15CV47-LG-RHW
KNIGHTS’ MARINE AND INDUSTRIAL
SERVICES, INC., DAVID KNIGHT, and
BRIAN KNIGHT
DEFENDANTS
ORDER GRANTING MOTION TO CONDITIONALLY CERTIFY
COLLECTIVE ACTION AND FOR COURT APPROVED
NOTICE TO POTENTIAL PLAINTIFFS
BEFORE THE COURT is the Motion [3] to Conditionally Certify Collective
Action and For Court Approved Notice to Potential Plaintiffs, filed by Plaintiff
Arthur Fairley in this Fair Labor Standards Act case. The Motion has been fully
briefed by the parties. Having considered the parties’ submissions and the
applicable law, the Court is of the opinion that Fairley has shown that he is entitled
to conditional certification of this case as a collective action, and that he should be
permitted to provide notice of the collective action to potential opt-in plaintiffs.
BACKGROUND
Fairley was employed by Knights’ Marine and Industrial Services, Inc. as a
pipefitter for approximately eight months in 2013. (Pl. Mot. Ex. A 1, ECF No. 3-1).
He contends that when he was hired, he was promised hourly pay of twenty-four
dollars. His actual pay, however, was divided into twelve dollars per hour for wages
and twelve dollars per hour for per diem. Overtime was compensated at the rate of
eighteen dollars per hour, but there was no change to the per diem rate. (Id. at 1,
2). Because overtime pay was calculated based on twelve dollars per hour rather
than the twenty four dollars per hour he was promised, he contends his overtime
pay was less than the one-and-a-half times base pay required by the FLSA. Fairley
states that he spoke with many of his co-employees, who indicated they were paid in
the same manner. He now requests that the Court conditionally certify this FLSA
action as a collective action, and, further, that the Court provide for notice to
potential plaintiffs. Knights’ Marine argues that certification should be denied on
the basis of the first-to-file rule, and because Fairley has not submitted sufficient
evidence to support certification.
THE LEGAL STANDARD
The FLSA requires covered employers to compensate nonexempt employees
at overtime rates when they work in excess of forty hours per week. See 29 U.S.C. §
207(a). Under certain circumstances, the FLSA permits an employee to bring suit
against an employer “for and on behalf of himself . . . and other employees similarly
situated.” 29 U.S.C. § 216(b). “Plaintiffs who desire to join in a ‘collective action’
must ‘opt in’ to the case and be bound by a judgment, unlike plaintiffs in a [Federal
Rule of Civil Procedure 23] class action, who must essentially ‘opt out.’” Harris v.
Hinds Cnty., No. 3:12-cv-00542-CWR-LRA, 2014 WL 457913, at *1 (S.D. Miss. Feb.
4, 2014). “If the [c]ourt decides to conditionally certify the class, putative class
members are given notice, an opportunity to opt in to the litigation, and adequate
time for discovery.” Id. at *2. Conditional certification under the FLSA “does not
produce a class with an independent legal status, or join additional parties to the
2
action. The sole consequence of conditional certification is the sending of courtapproved written notice to employees, who in turn become parties to a collective
action only by filing written consent with the court . . . .” Genesis Healthcare Corp.
v. Symczyk, 133 S. Ct 1523, 1530 (2013) (internal citation omitted).
“District courts have discretion in determining whether to order courtsupervised notice to prospective plaintiffs.” Harris, 2014 WL 457913, at *1 (citing
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). In doing so, courts
in this Circuit employ the method set forth in Lusardi v. Xerox Corp., 975 F.2d 964
(3d Cir. 1992). See Harris, 2014 WL 457913, at *2.
The Lusardi approach relies on the pleadings and any affidavits submitted.
Harris, 2014 WL 457913, at *2. A plaintiff “must make a minimal showing that (1)
there is a reasonable basis for crediting the assertions that aggrieved individuals
exist, (2) that those aggrieved individuals are similarly situated to the plaintiff in
relevant respects given the claims and defenses asserted, and (3) that those
individuals want to opt in to the lawsuit.” Id. (citation and quotation marks
omitted). “The lenient standard requires at least a modest factual showing
sufficient to demonstrate that the plaintiff and potential plaintiffs together were
victims of a common policy or plan that violated the law.” Id. (citation and
quotation marks omitted). The Court should “deny plaintiffs’ right to proceed
collectively if the action arises from circumstances purely personal to the plaintiff,
and not from any generally applicable rule, policy, or practice.” Id. (citation and
quotation marks omitted).
3
DISCUSSION
Fairley requests that the Court conditionally certify a representational class,
described as:
all current and former Pipefitters, Structural Welders, Pipe Welders,
Shipfitters, Electricians and Outside Machinists, who worked for
Defendants at any time within the last three (3) years, who worked
more than forty (40) hours in one or more workweeks, and who were
subjected to Defendants’ illegal practice of failing to include “per diem”
payments in the calculation of their regular rate (and overtime) each
week.
(Pl. Mem. 2, ECF No. 4). In support of his request for conditional certification,
Fairley provided his own affidavit, as well as affidavits from three other similarlysituated former employees of Defendants. Each of these affidavits is by a person
employed by Knights’ Marine in a position within the class description above, and
describes the same pay scheme.1 (See Pl. Mot. Ex. A, E, F, and G, ECF Nos. 3-1, 3-5,
3-6, and 3-7). Fairley states in his affidavit that he “spoke with many of my coemployees while working at Knights’ Marine and all indicated they were paid hourly
per diems, regardless of where they resided.” (Pl. Mot. Ex. A, ECF No. 3-1).
The Court find certification appropriate because Fairley’s Complaint and
affidavit, along with the affidavits of potential opt-in plaintiffs, provide a sufficient
factual showing that Fairley and the potential opt-in plaintiffs were victims of a
single decision, policy, or plan. See, e.g., Owens v. S. Hens, Inc., No. 2:07cv28-KSMTP, 2008 WL 723923, at *3 (S.D. Miss. Mar. 17, 2008).
1
Fairly also recently filed a similar affidavit by potential opt-in plaintiff Luy
Van Lu. (See ECF Nos. 36-1 and 40-1).
4
Knights’ Marine objects to conditional certification because a nearly identical
lawsuit was filed prior to this one, in which the issue of conditional certification of
essentially the same class is pending. St. Amant v. Knights’ Marine & Indus. Servs.,
Inc., No. 1:14cv174-HSO-RHW (S.D. Miss. Apr. 21, 2014). The Court declines to
withhold certification in this case based on the earlier filed case for a number of
reasons. First, multiple lawsuits are permissible under the FLSA. See Akins v.
Worley Catastrophe Response, LLC, 921 F. Supp. 2d 593, 603 (E.D. La. 2013)
(“[N]either the plain language of Section 216(b) of the FLSA nor the case law
precludes a second putative collective action.”). The Court is not required to take
any action simply because there are two lawsuits asserting the same FLSA rights,
although developments may make consolidation desirable at some point. Also, the
statute of limitations is a factor in a collective action, as “the statute of limitations
for a named plaintiff runs from the date that the plaintiff files the complaint, while
the limitations period for an opt-in plaintiff runs from the opt-in date.” Sandoz v.
Cingular Wireless LLC, 553 F.3d 913, 916 17 (5th Cir. 2008). Potential opt-in
plaintiffs should have the opportunity to assess their claims sooner rather than
later.
Knights’ Marine objects to consideration of the affidavits by potential opt-in
plaintiffs St. Amant, Hammond and Harris, because St. Amant and Hammond are
named plaintiffs in the earlier filed lawsuit against Knights’ Marine, and all three
have submitted affidavits in support of the motion to certify a collective action in
that case. (See St. Amant, No. 1:14cv174-HSO-RHW, Rebuttal Mem. Ex. 3,4, & 5,
5
ECF Nos. 41-3, 41-4, & 41-5). Regardless of other uses these affidavits may have
been put to, they describe the job classification and pay scheme at issue in this case.
The affidavits are therefore helpful and relevant to the certification question the
Court must address in this case. Disregard of the affidavits is not merited.
CONCLUSION
For the reasons set out above, Fairley has provided sufficient factual evidence
of a pay scheme affecting a class of Knights’ Marine employees. The request for
certification of this class will be granted, and plaintiff will be granted permission to
provide notice of this collective action to potential opt-in plaintiffs.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion [3] to
Conditionally Certify Collective Action and For Court Approved Notice to Potential
Plaintiffs, filed by Plaintiff Arthur Fairley is GRANTED, and that a collective
class is conditionally certified, consisting of all current and former Pipefitters,
Structural Welders, Pipe Welders, Shipfitters, Electricians and Outside Machinists,
who worked for Defendants at any time within the last three (3) years, who worked
more than forty (40) hours in one or more workweeks, and who received “per diem”
payments that were not included in the calculation of their regular rate (and
overtime) each week.
IT IS FURTHER ORDERED AND ADJUDGED that Defendants shall
provide to Plaintiff’s counsel a list of names and last known mailing addresses (in
electronic form) of all potential members of the collective class, as defined above,
within 28 days of the date of this Order.
6
IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff shall
provide his proposed “Notification” letter and proposed “Notice of Consent to Join”
form to all similarly situated employees.
SO ORDERED AND ADJUDGED this the 29th day of May 2015.
s\
Louis Guirola, Jr.
Louis Guirola, Jr.
Chief U.S. District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?