Hubbard et al v. General Dynamics

Filing 87

ORDER denying 69 Motion to Certify Class Signed by District Judge Keith Starrett on 7/2/2019 (lm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

LACRYSTAL HUBBARD, et al.,
v.

PLAINTIFFS
CIVIL ACTION NO. 2:18-CV-91-KS-MTP

GENERAL DYNAMICS INFORMATION
TECHNOLOGY, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Conditional Certification of a Collective
Action Class [69] filed by Plaintiffs, LaCrystal Hubbard and Krisha D. Hollingsworth. Defendant,
General Dynamics Information Technology, Inc. (“GDIT”), has responded [80, 81] and Plaintiffs
replied [84]. Having reviewed the parties’ submissions and the record in this cause, as well as the
relevant legal authorities, and otherwise being fully advised in the premises, the Court finds that
the motion is not well taken and will be denied.
I.

BACKGROUND
GDIT has operated contact centers at thirteen locations throughout the United States

pursuant to different government contracts. [81] at p. 2. One such contact center was located in
Hattiesburg, Mississippi. Id. The primary focus of this contact center was to support the Centers
for Medicare & Medicaid Services (“CMS”) with the Federally Facilitated Marketplaces and
Medicare Program by taking calls from customers about these programs. Id. GDIT provided these
services through a contract known as Contact Center Operations (“CCO”). Id. At the call centers
GDIT employed CCO agents, including Customer Service Representatives (“CSR”), Internal

Support Group (“ISG”) employees, Quality Specialists, Instructors/Trainers, and Supervisors to
support the contract and the customer. Id.
Plaintiffs,

LaCrystal

Hubbard

(“Hubbard”)

and

Krisha

D.

Hollingsworth

(“Hollingsworth”), former employees of GDIT in various capacities, filed this lawsuit against
GDIT as individuals and on behalf of others similarly situated, for alleged violations of the Fair
Labor Standards Act, 29 U.S.C. §§ 201, et seq.
A.

Allegations of the Amended Complaint and FLSA Violations

In their Amended Complaint, Plaintiff Hubbard alleges 1 that she and others “similarly
situated” worked over 40 hours in one week for one or more weeks while employed at GDIT, and
GDIT did not compensate them on a routine basis and failed to compensate them at the proper rate
for their overtime. [37] ¶¶ 10, 12. Plaintiffs allege that “Hubbard and others similarly situated
worked approximately 10-20 overtime hours each week depending on the individual and the
circumstances.” [37] ¶ 13. Allegedly, the
nature of the work performed during the overtime hours included work that was the
responsibility of the employee at their regular rate of pay as well as work that was
the responsibility of others who were paid at higher rates of pay. Often the purpose
of the overtime was for employees to complete their daily duties and meet daily
quotas . . . Failure to work overtime in order to meet said quotas resulted in
disciplinary measures being taken against the employee.
[37] ¶ 14.
In their “Collective Action General Allegations,” Plaintiff Hubbard alleges that she brings
the action on behalf of herself and “all persons who previously worked or currently work for GDIT
at customer service call centers who were not paid an overtime premium at a rate not less than one
and one-half (1½) times the regular rate at which they are employed for all hours in excess of forty

1

Although there are two named Plaintiffs, most of the allegations mention only Hubbard.

2

(40) hours in a work week.” [37] at ¶ 19 (emphasis added). Plaintiffs then allege that Plaintiff
Hubbard is factually similarly situated to the collective action members she seeks to represent and
that she is “personally aware that other persons who worked for Defendant GDIT were subject to
the same practices and policies instituted by Defendant GDIT of requiring the putative collective
action Plaintiffs to work more than 40 hours in a single week and failing to pay them an overtime
premium . . . .” [37] at ¶¶ 21, 22 (emphasis added). Plaintiff Hubbard also alleges that they worked
“more than forty (40) hours each week, completing tasks that went beyond de minimis activities.”
[37] ¶ 23. Finally, Plaintiffs allege that they and others have held multiple positions at GDIT that
were misclassified as being exempt from overtime pay and were denied overtime pay as a result
of such misclassification. [37] at ¶ 25.
In the allegations particularly relating to alleged violations of the FLSA, Plaintiff Hubbard
alleges that she and others were non-exempt and subject to the “FLSA as it pertains to whether or
not Plaintiff Hubbard and others similarly situated were entitled to minimum wage and overtime
pay for all hours over forty (40) hours worked in a given week.” [37] ¶ 36. She goes on to allege
that they are entitled to overtime pay and have not received it and that GDIT violated the FLSA by
misclassifying her and others as exempt employees. [37] at ¶¶ 37-39.
B.

Procedural History and Summary of Arguments

Plaintiffs filed this action on May 24, 2018. [1]. There were a number of notices from optin plaintiffs filed early on in this matter. [8-18]. GDIT filed a Motion to Dismiss as to portions of
the Plaintiffs’ claims [21], and the Court dismissed Counts II and III with prejudice [34].
Following a case management conference on September 6, 2018, the Court entered an Initial Case
Management Order allowing for a few months of discovery prior to the Plaintiffs having to file
their Motion for Conditional Certification on or before the deadline of December 3, 2018 [36]. On

3

September 7, 2019, Plaintiffs filed an Amended Complaint [37]. In the ensuing months, there were
depositions, document exchanges, as well as written discovery taken. After being granted a brief
extension for filing this motion [66], Plaintiffs now seek conditional certification.
Plaintiffs seek to conditionally certify the following class:
All Hattiesburg, MS and Waco, TX General Dynamics Information Technology, Inc.
(“GDIT”) non-exempt employees who were denied overtime pay and/or straight time pay
as a result of policies, procedures, and customs and practice related to security and
recording time worked.
[69] at ¶ 4.
In support of their motion, Plaintiffs argue that Plaintiffs and other similarly situated nonexempt employees were denied overtime pay and/or straight pay as a result of GDIT’s policies and
practices: namely that both GDIT’s security procedures and GDIT’s time recording and time
reporting policies/custom and practice resulted in uncompensated time worked. [70] at pp. 5, 16.
Plaintiffs submitted numerous documents: GDIT’s CCO Secure Floor Policy [69-3]; the written
job description for a Quality Monitor [69-15]; HCSD Contact Center Non-Exempt Beginning and
End of Day Guideline for Use with ETS NETT [69-6]; excerpts from the depositions of Hubbard
[69-1] and Hollingsworth [69-2], and Joseph Doctor, the 30(b)(6) representative for GDIT [69-4,
5]; and declarations from the following individuals: Krisha Hollingsworth [69-7], Cedric Dallas
[69-8], Alexandra Disney [69-9], Kenya J. Polion-McNaire [69-10], Whitney Ware [69-12], Carl
E. Johnson [69-12], Betty Lee Young [69-12], and Rosa Belara Young [69-12]. Plaintiffs also
submitted a proposed notice to go to potential class members [69-13] and proposed notice of
consent to join [69-14].

4

GDIT denies liability for violations of FLSA and presents a host of arguments in opposition
to conditional certification. 2 In their opposition memorandum, GDIT asserts the following
arguments: (1) Plaintiffs cannot obtain conditional certification of claims that are not actionable 3
and that the class to be certified is not supported by the allegations of the Amended Complaint;
(2) Plaintiff Hubbard is not yet a party to the collective action and therefore not a proper class
representative; 4 (3) Plaintiffs cannot show that they are similarly situated; (4) Plaintiffs have not
shown sufficient interest in joining in the lawsuit; 5 (5) Some potential opt-in plaintiffs are not
viable parties. [81]. GDIT also submitted a host of documentary evidence for the Court’s
consideration in determining whether Plaintiffs have carried their initial burden for issuing notice
to a potential class of aggrieved employees. [80] Ex. 1-27.
II.

DISCUSSION
A.

General Background of the FLSA

Enacted in 1938, the FLSA established a minimum wage and a rate for overtime
compensation for each hour worked in excess of forty (40) hours in each workweek. 29 U.S.C. §§
206(a)(1), 207(a)(3). An employer who violates these provisions may be held civilly liable for

2
The Court finds that many of these arguments are premature to the extent they address the merits of the claims.
Given the Court’s denial of conditional certification, GDIT is free to raise these issues in a subsequent dispositive
motion on the named Plaintiffs’ claims.
3
GDIT cites to a Fourth Circuit case in support of its contention that when claims fail as a matter of law, certification
is not appropriate. [81] at p. 11 (citing In re Family Dollar FLSA Litig., 637 F.3d 508 (4th Cir. 2011)). However, the
Family Dollar case involved an appeal of a grant of summary judgment on FLSA claims, and in affirming that
decision, the Fourth Circuit simply found it unnecessary to address whether the district court properly refused to certify
the action as a collective action. Id. at 519. There have been no motions for summary judgment in this case, and the
Court declines to engage in the summary judgment type of analysis GDIT seeks at this stage. This argument is better
made when addressing the merits of the case becomes appropriate.
4
LaCrystal Hubbard subsequently filed her Notice of Consent to Join as Opt-in Plaintiff on January 14, 2019 [82].
5
The Court will not address this argument because the contention that there are too few potential plaintiffs to permit
conditional certification is not relevant as there is no numerosity requirement for conditional class certification under
§ 216(b). See Townsend v. Central Pony Express, Inc., No. SA–17–cv–00552–OLG 2018 WL 2432962, at *3 n.5
(W.D. Tex. Jan. 26, 2018) (citing Cantu v. Vitol, Inc., No. H–09–0576, 2009 WL 5195918, at *5 (S.D. Tex. Dec. 21,
2009); Roberson v. Danny Ontiveros Trucking, No. 08–0552, 2008 WL 4809960, at *4–5 (E.D. Cal. Nov. 3, 2008).

5

backpay, liquidated damages, and attorney's fees. 29 U.S.C. § 216(b). However, the FLSA did not
define “work” or “workweek.”
As a result, as explained in the case of IBP, Inc. v. Alvarez, the United States Supreme
Court interpreted those terms broadly, defining “work” as “physical or mental exertion (whether
burdensome or not) controlled or required by the employer and pursued necessarily and primarily
for the benefit of the employer and his business.” 546 U.S. 21, 25 (2005) (citations omitted).
Similarly, the high court defined “the statutory workweek” to “includ[e] all time during which an
employee is necessarily required to be on the employer's premises, on duty or at a prescribed
workplace.” IBP, 546 U.S. at 25 (citations omitted). When such expansive definitions were
applied, courts issued rulings that found the time spent traveling between mine portals and
underground work areas and the time spent walking from timeclocks to work benches was
compensable as part of the workweek. Id. at 26. (citations omitted). These decisions flooded the
courts with litigation, and Congress responded by enacting the Portal–to–Portal Act. Id.
The Portal–to–Portal Act exempted employers from liability on future claims for two
categories of work-related activities, which had been previously been treated as compensable
under the case law: walking on the employer’s premises to and from the actual place of
performance of the principal activity of the employee, and activities that were preliminary and
postliminary to that principal activity. Id. at 27. Part III of the Portal–to–Portal Act entitled “Future
Claims,” provides in relevant part:
(a) Except as provided in subsection (b) [which covers work compensable by
contract or custom], no employer shall be subject to any liability or punishment
under the Fair Labor Standards Act of 1938, as amended, ... on account of the
failure of such employer to pay an employee minimum wages, or to pay an
employee overtime compensation, for or on account of any of the following
activities of such employee engaged in on or after the date of the enactment of this
Act—

6

(1) walking, riding, or traveling to and from the actual place of performance of the
principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or
activities, which occur either prior to the time on any particular workday at which
such employee commences, or subsequent to the time on any particular workday at
which he ceases, such principal activity or activities.
which occur either prior to the time on any particular workday at which such
employee commences, or subsequent to the time on any particular workday at
which he ceases, such principal activity or activities.
29 U.S.C. § 254(a).
As mentioned, the FLSA requires covered employers to pay a minimum wage to employees
and overtime compensation to non-exempt employees for hours they have worked in excess of the
defined maximum hours. 29 U.S.C. §§ 206, 207(a). Claims against employers who have violated
either the minimum wage or the overtime compensation requirements under 29 U.S.C. § 216(b)
are typically called wage and hour claims.
In some cases, despite the exemptions in the Portal-to-Portal Act, employees continue to
seek recovery under the FLSA for certain preliminary and postliminary work activities that would
seem to be exempted under the Portal-to-Portal Act by arguing that these activities are
compensable because they are “an integral and indispensable part of the principal activities.” See,
e.g., Steiner v. Mitchell, 350 U.S. 247, 256 (1956). Examples of such claims are those for having
to don and doff specialized protective gear, see Steiner and IBP, Inc. v. Alvarez, 546 U.S. 21
(2005), and having to participate in postliminary security screenings, see Integrity Staffing
Solutions, Inc. v. Busk, 574 U.S. 27 (2014).

7

B.

Legal Standard for Certification of Collective Action

The FLSA permits a court to order an action to proceed as a collective action on behalf of
others similarly situated. The statute provides:
An action ... may be maintained ... 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). Thus, unlike a class action filed under Federal Rule of Civil Procedure 23(c),
a collective action under § 216(b) provides for a procedure to “opt-in,” rather than “opt-out.”
Roussell v. Brinker Int'l, Inc., 441 Fed. Appx. 222, 225 (5th Cir.2011) (citing Sandoz v. Cingular
Wireless LLC, 553 F.3d 913, 916 (5th Cir. 2008)). District courts have discretion in deciding
whether and how to provide “timely, accurate, and informative” notice to prospective plaintiffs.
Hoffman–La Roche Inc. v. Sperling, 493 U.S. 165, 172 (1989).
1.

This Court utilizes the Lusardi approach.

In determining whether class certification is appropriate, the Fifth Circuit has not
specifically ruled on how to proceed nor has it specifically addressed the meaning of “similarly
situated” under the FLSA. Clarke v. Convergys Customer Management Group, Inc., 370 F. Supp.
2d 601, 604, (S.D. Tex. 2005). Notwithstanding, the majority of courts within this circuit have
adopted the Lusardi two-stage approach. 6 See, e.g., Santinac v. Worldwide Labor Support, 107 F.
Supp. 3d 610, 614 (S.D. Miss. 2015) (using Lusardi approach); Vanzzini v. Action Meat Distribs.,
Inc., 995 F. Supp. 2d 703, 719 (S.D. Tex. 2014) (same); Harris v. Hinds County, No. 3:12-cv-542,

6

This District has previously noted that “[t]he Lusardi method is recognized as ‘the favored approach by courts in
the Fifth Circuit.’” Harris v. Hinds County, No. 3:12-cv-542, 2014 WL 457913, at *2 (S.D. Miss. Feb. 4, 2014). The
other approach was set forth in Shushan v. University of Colorado, 132 F.R.D. 263 (D. Colo. 1990), which utilized a
Rule 23 class action certification analysis. See Mooney, 54 F.3d at 1214.

8

2014 WL 457913, at *2 (S.D. Miss. Feb. 4, 2014) (same); Mateos v. Select Energy Servs., LLC,
977 F. Supp. 2d 640, 643 (W.D. Tex. 2013) (same); Tice v. AOC Senior Home Health Corp., 826
F. Supp. 2d 990, 994 (E.D. Tex. 2011) (same); Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D.
447, 449 (N.D. Tex. 2011) (same); Strickland v. Hattiesburg Cycles, Inc., No. 2:09-cv-174, 2010
WL 2545423 (S.D. Miss. June 18, 2010).
The two stages of the Lusardi approach are the “notice stage” and the “decertification
stage” or “merits stage.” See Mooney v. Aramaco Svcs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995); 7
Harris, 2014 WL 457913 at *2. The first step in the Lusardi approach is to decide whether to
issue notice to potential class members. See Mooney, 54 F.3d at 1213-14. At the notice stage, the
district court “determines whether the putative class members' claims are sufficiently similar to
merit sending notice of the action to possible members of the class.” Acevedo v. Allsup's
Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010). Such decision is solely within the
district court’s discretion and is not mandatory. See Strickland, 2010 WL 2545423 at *2.
Upon such conditional certification, the potential plaintiffs are given notice and the
opportunity to opt in. See Clarke, 370 F. Supp. 2d at 604. “The second stage occurs when and if
the defendant files a motion for decertification, ‘after discovery is largely complete and more
information on the case is available.’” Tzib v. Moore Feed Store, Inc., No. 3:14-cv-65, 2015 WL
2415530, at *3 (N.D. Miss. May 21, 2015) (quoting Case v. Danos and Curole Marine
Contractors, L.L.C., 2015 WL 1978653 (E.D. La. May 4, 2015). At the “merits stage,” the
defendant can challenge the class and the court must “again make a factual determination as to

7

Mooney involved claims under the ADEA, which in 29 U.S.C. §626(b) incorporated Section 216(b) of the FLSA
for collective actions. See 54 F.3d at 1213. The court discussed the competing Lusardi and Rule 23 approaches to
class certification, but found it “unnecessary to decide which, if either, of the competing methodologies should be
employed in making an ADEA class certification decision” and left that inquiry “for another day.” Id. at 1216.

9

whether the opt-in plaintiffs are similarly situated; however, the scrutiny applied in the second
state is much more rigorous than that of the notice stage.” Strickland, 2010 WL 2545423 at *2.
“Decertification scrutiny requires the Court to look beyond the pleadings and affidavits; instead
the Court must determine whether the potential plaintiffs are similarly situated in light of all the
information gathered during post-opt-in discovery.” Id.
2.

The Plaintiff’s burden at the notice stage

Because this case is presently in the notice stage, we look particularly at what the Plaintiff
must show with regard to being similarly situated. 8 The standard at this stage is not particularly
stringent, but “it is by no means automatic.” Lima v. Int’l Catastrophe Solutions, Inc., 493 F. Supp.
2d 793, 798 (E.D. La. 2007). As this Court has noted, because the request for certification typically
comes early in the litigation, it is usually based on the pleadings and attached affidavits with no
discovery having been conducted. Strickland, 2010 WL 2545423 at *2; McKnight, 756 F. Supp.2d
at 802. However, in this case, there has been more, including depositions, written discovery and
some document production. The fact that some discovery has been conducted does not change the
Plaintiffs’ burden. See McKnight, 756 F. Supp. 2d at 802. However, this Court will consider that
fact when determining whether Plaintiffs have met their burden after having been afforded some
time for discovery.
Without specific direction from the Fifth Circuit regarding the particular showing needed
at this stage in an FLSA setting, courts often rely on the Fifth Circuit’s recitation of the Lusardi
approach in the case of Mooney v. Aramaco Services Co., supra, noting that “[a]t the notice stage,
‘courts appear to require nothing more than substantial allegations that the putative class members

8

“The plaintiffs bear the burden of proof on all issues pertinent to the instant motion.” Conerly v. Marshall Durbin
Co., No. 2:06-cv-205, 2007 WL 3326836 at *8 (S.D. Miss. Nov. 6, 2007).

10

were together the victims of a single decision, policy, or plan infected by discrimination.” Lima,
493 F. Supp. 2d at 798 (citing Mooney, 54 F.3d at 1214 n. 8). Because Mooney was decided in the
ADEA context, it mentions discrimination, but “discrimination” is irrelevant under the FLSA.
Thus, a better statement of the standard in the FLSA setting is that “[p]laintiffs 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.” Gaffers v. Sitel
Worldwide Corp., No. 3-16-0128, 2016 WL 3137726 at *2 (M.D. Tenn. June 6, 2016) (citing
Watson v. Adv. Distrib. Servs., LLC, 298 F.R.D 558, 561 (M.D. Tenn. 2014)); see also Harris,
2014 WL 457913 at *2 (“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.”); O’Brien v. Ed Donnelly Enters., Inc., No. 2:04-cv-85, 2006 WL
3483956 at *3 (S.D. Ohio Nov. 30, 2006) (“Plaintiffs must demonstrate that the Defendants had a
common policy or plan in violation of the FLSA that negatively impacted the original and opt-in
Plaintiffs.”)
Some courts, including this one, have also found that at the notice stage, in addition to the
foregoing, that “a plaintiff must make a minimal showing that (1) there is a reasonable basis for
crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are
similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and
(3) those individuals want to opt in to the lawsuit.” See, e.g., Santinac, 107 F. Supp. 3d at 615;
McKnight, 756 F. Supp. 2d at 801; Harris, 2014 WL 457913, at * 2; Morales v. Thang Hung Corp.,
No. 4:08–2795, 2009 WL 2524601, at *2 (S.D. Tex. Aug.14, 2009). This lenient standard requires
at least a “modest factual showing” that the plaintiffs are “similarly situated” to the other
employees named in the proposed class. Harris, 2014 WL 457913, at * 2; Vargas v. HEB Grocery

11

Co., LP, No. SA-12-CV-116-XR, 2012 WL 4098996, at *2 (W.D. Tex. Sept. 17, 2012) (citing
Realite v. Ark Rests. Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998)); see also Pedigo v. 3003 S.
Lamar, LLP, 666 F. Supp. 2d 693, 698 (W.D. Tex. 2009).
In wage and hour cases, this means the proposed class must be “similarly situated in terms
of job requirements and similarly situated in terms of payment provisions.” Mathis v. Stuart
Petroleum Testers, Inc., No. 5:16-CV-094-RP, 2016 WL 4533271, at *2 (W.D. Tex. Aug. 29,
2016) (citing Pedigo, 666 F. Supp. 2d at 698); Harris, 2014 WL 457913, at * 2 (explaining that
the positions compared need not be identical but similar with respect to job requirements and pay
provisions). A plaintiff must show that the proposed class members “performed the same basic
tasks as part of their employment and were subject to the same pay decisions, policies, or
practices.” Mathis, 2016 WL 4533271, at *2 (citing Tice v. AOC Senior Home Health Corp., 826
F. Supp. 2d 990, 996 (E.D. Tex. 2011)). Employees need not be “similarly situated in each and
every aspect of their employment,” but rather there must be simply “some identifiable facts or
legal nexus” binding together the claims “so that hearing the cases together promotes judicial
efficiency.” Id. (internal quotations omitted). The ultimate purpose of the similarly situated inquiry
is to determine whether “hearing the cases together promotes judicial efficiency.” McKnight, 756
F. Supp. 2d at 801.
C.

Analysis

Plaintiffs seek to conditionally certify the following class:
All Hattiesburg, MS and Waco, TX General Dynamics Information Technology, Inc.
(“GDIT”) non-exempt employees who were denied overtime pay and/or straight time pay
as a result of policies, procedures, and customs and practice related to security and
recording time worked.
[69] at ¶ 4.

12

Again, at this stage the Court is only concerned with whether the potential plaintiffs in this
class are similarly situated. See Lynch v. United Svcs. Auto. Ass'n, 491 F. Supp. 2d 357, 368
(S.D.N.Y. 2007) (“At this procedural stage, the court does not resolve factual disputes, decide
substantive issues going to the ultimate merits, or make credibility determinations.”)
Unfortunately the Plaintiffs focus almost exclusively on the merits of the case and spend virtually
their entire brief arguing how the security measures and issues timekeeping resulted in
uncompensated time, which is premature. 9 See Longcrier v. HL–A Co., 595 F. Supp. 2d 1218,
1240–41 (M.D. Ala. 2008) (“To the extent [the parties] would now argue the merits of the case,
such debates are premature and inappropriate.”) Consequently, their burden at this notice stage is
lost in the fray. Both parties’ arguments as to the merits of the claims are best left for another day.
For now, as it pertains to the current relevant analysis, GDIT provides some, but Plaintiffs do
absolutely no analysis to show the Court how these plaintiffs are similarly situated, even with an
extremely low burden. The Court will now address these various standards and explain how,
regardless of which particular of the standard is used, Plaintiffs have failed to satisfy their burden.
1.

A Custom, Policy, or Plan that Violated the FLSA

As previously noted, one standard at the notice stage “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.” Harris, 2014 WL 457913 at *2 (citation
omitted). Plaintiffs seek to certify a class of individuals who were subject to a security screening
and timekeeping policies that resulted in overtime pay and/or straight time pay. GDIT argues that
certification should be denied because Plaintiffs should be held to their pleadings, and these claims

9

Indeed, Plaintiffs spend 11½ pages of their memorandum arguing that the security procedures are an indispensable
part of the principal activities of the employees’ jobs and another 6 ½ pages arguing that the timekeeping practices
resulted in uncompensated time. [70] at pp. 5-16; 16-22.

13

were not pled. Plaintiffs argue in reply that they are not required to provide that much detail,
claiming that in Paragraphs 19, 20, and 36 the Plaintiffs claim minimum wage and overtime pay,
which is sufficient. The Court agrees with the Defendant.

a.

Plaintiffs did not plead that security or timekeeping policies
resulted in straight time/overtime pay.

Defendants cite to cases from the District of Columbia and the Middle District of Florida
for the proposition that the proposed class must match the allegations in the complaint. [81] at p.
12 (citing Stephens v. Farmers Rest. Group, 291 F. Supp. 3d 95 (D.D.C. 2018); Herra v. U.S. Serv.
Indus., Inc., 2013 WL 1610414 (M.D. Fla. Apr. 15, 2013). The Court finds these cases persuasive,
and in its discretion finds that certifying a class that was never pled would result in unfair prejudice
to the Defendant because GDIT has been unable to test the sufficiency of such a pleading. Again,
Plaintiffs seek to certify a class who were denied overtime pay and/or straight pay as a result of
GDIT’s policies relating to security and recording time worked. There are no allegations in the
Amended Complaint that would support such a class of plaintiffs.
First, Plaintiffs never alleged any claim for “straight time.” 10 The Amended Complaint
contains no allegations regarding a violation of the FLSA for GDIT’s failure to comply with the
minimum wage requirements or failing to pay “straight time.” Reviewing the allegations of the
Amended Complaint as a whole, it is clear that the only alleged FLSA violation stems from an
alleged failure to pay overtime. See supra at Section I(A); [37] at ¶¶ 9, 10, 12, 13, 14, 19, 22, 23,
25, 38. Contrary to Plaintiffs’ assertions, Paragraphs 19, 20, and 36 do not support any claim for a

10

The Court declines to address at this time whether “straight time” is even compensable under the FLSA.

14

minimum

wage

or

“straight

time”

claim,

particularly

not

with

regard

to

any

policy/procedure/custom and certainly not due to security screenings or timekeeping procedures.
Paragraphs 19, 20, and 36 merely include the words “unpaid wages” and “minimum wage,” 11 but
there are no factual allegations that allege that Plaintiffs were not paid a minimum wage.
Second, as for the overtime violations, there are no allegations of any policies, procedures,
and customs and practice relating to security or timekeeping procedures purportedly resulting in
uncompensated overtime. The only mention of a “policy” is when Plaintiffs allege that GDIT
instituted a policy of requiring the Plaintiffs to work more than 40 hours a week and failing to pay
them the proper overtime rate. [37] at ¶ 22. Plaintiffs particularly alleged that the nature of the
overtime work was the employee’s regular work as well as work that was the responsibility of
others who were paid a higher rate and that the purpose of the overtime work was to “complete
their daily duties” and “meet daily quotas.” [37] at ¶ 14. This theory of overtime recovery is not
even mentioned in the class sought to be certified. Not one declarant mentions having to meet
quotas.
Plaintiffs have changed course completely and now seek either straight pay or overtime
compensation for various tasks performed off the clock and due to having to go through security
screenings. None of this was pled in the Amended Complaint. In fact, in their Reply, Plaintiffs
admit that it was only during the course of this initial discovery period that they learned of what
they believe to be compensable work that was “integral and indispensable to the job duties
Plaintiffs, and others, were hired to perform” that went unpaid. [85] at p.1. It begs the question—
what was the original basis for the collective action?

11

Paragraph 36 alleges that Plaintiffs were “subject to the provisions of the FLSA as it pertains to whether or not . . .
[Plaintiffs] were entitled to minimum wage and overtime pay for all hours over forty (40) hours worked in a given
week.” [37]. This does not support any common policy that resulted in a minimum wage/straight time violation.

15

Third, not only does the Amended Complaint fail to mention any particular plan or policy
relating in any way to security procedures or procedures for recording time, but also there are no
allegations to support a theory regarding “integral and indispensable work.” Apparently, Plaintiffs
are now attempting to bring a claim for those preliminary and postliminary activities that are
typically excluded under the Portal-to-Portal Act, when GDIT was never on notice of such a claim.
To now proceed with a collective action on this new theory would be patently unfair to GDIT. See
Stephens, 291 F. Supp. 3d at 115. Accordingly, because the proposed class goes beyond the scope
of the allegations of the Amended Complaint, in its discretion, the Court finds that the motion shall
be denied. See Herrera v. United States Serv. Indus., Inc., No. 2:12-cv-258, 2013 WL 1610414
(M.D. Fla. 2013) (denying certification when neither the description of group of employees to be
certified nor the alleged FLSA violations matched those described in the Complaint). 12
b.

Plaintiff still failed to show that potential plaintiffs together
were victims of a common policy or plan that violated the law.

Regardless of the disparity between the proposed class/claims and the allegations of the
Amended Complaint, even under these unpled new theories of liability, Plaintiffs still fail to carry
their burden to show that others are similarly situated with regard to the security screening and
timekeeping procedures.
i.

Security screening

Because the Plaintiffs have clearly alleged only overtime violations, even if the security
screening was a policy that allegedly resulted in uncompensated overtime, what is conspicuously
missing from each of the declarations submitted is any assertion that either of these policies
resulted in uncompensated overtime. Plaintiff Hollingsworth and Cedric Dallas both averred that

12

This case is particularly persuasive because the Eleventh Circuit has also adopted the Lusardi two-stage approach
described in Mooney v. Aramaco Services Company. See Herrera, 2013 WL 1610414, at *1.

16

failure to follow security protocols would subject an employee to discipline and possibly
termination, but never state that it resulted in uncompensated overtime. [69-7]; [69-8]. The
declarants make no mention of working overtime at all. It is not enough to simply show there was
some common policy in place, such as a security screening—it must result in an FLSA violation.
Having to work overtime as a result of complying with this policy could arguably be implied if the
declarants at least had stated that they were full-time, 40-hour-a-week employees, but not one
makes such a statement. 13 In fact, they make no mention of their employee status or allege a lack
of overtime compensation at all.
Furthermore, the Court cannot assume that any of the declarants are full-time employees
because there has been evidence submitted that CSRs can be, indeed GDIT claims that many are,
part-time. 14 If these declarants are indeed part-time, then there would be no overtime violation,
and they would be looking to recover simply for work they claim should be uncompensated, which
again goes beyond the claims in the Amended Complaint and not proper. What is more, the
declarants do not address whether they are non-exempt or exempt but misclassified, which is
important given that Amended Complaint makes a FLSA misclassification claim. Thus, Plaintiffs
have failed to establish that they are similarly situated or even fall into the class seeking to be
conditionally certified because they fail to establish a common policy relating to security
procedures that violates the FLSA.

13
Interestingly, Hollingsworth is the only one who provides any estimate of the time necessary to go through the
security screening, and she states that it takes approximately 3-4 minutes. [69-2] 75:1-4. Plaintiffs would have to all
be full-time employees, getting exactly 40 hours consistently, for 3-4 minutes a day to result in any overtime, and even
then, it would only be nominal. The named Plaintiffs do not aver, or in any way make any showing that they are fulltime, 40-hour-a-week employees, nor do any of the potential plaintiffs except for Betty Lee Young and Rosa Belara
Young in their affidavits [69-12], the latter of whom GDIT claims was never a GDIT employee. [80-1] at ¶ 6.
14
Plaintiff testified she led a team of part-time CSRs.[80-10] 42:7-14. GDIT’s Joseph Doctor avers that most CSRs
do not work full-time. [80-2] ¶ 13.

17

ii.

Timekeeping Procedures

With regard to timekeeping, the declarations submitted again fail to establish a coherent
common policy or plan that resulted in FLSA violations. In their memorandum, Plaintiffs readily
acknowledge that GDIT has written policies for beginning and end of day activities which told
employees how to enter their time. Id. (citing to [69-5], a GDIT document titled “HCSD Contact
Center Non-Exempt Beginning and End of Day Guideline for Use with ETS NETT Employee
View”). This written policy mandates that the “first work activity of the day” is the act of pressing
“CTRL+ALT+DEL” on the computer and at the end of a shift to restart the computer to ensure
that it is powered on for the next shift. Id. Per the policy, employees are to log out and “record all
time worked and the estimated time it takes to complete the end of shift activities.” [70] at p. 17;
[69-5] (emphasis added). 15
Unfortunately for Plaintiffs they have failed to identify any common policy to the contrary,
any directive from GDIT to violate the policy, or any widespread practice of GDIT of its changing
employee time worked to deduct for any particular activity. Instead, the declarations vary with
regard to the allegations of timekeeping. It does not appear that the policy itself results in overtime
but rather the unique scenarios that can arise due to other circumstances. For example, several
employees noted that if technical problems or computer updates occurred, it would keep them
longer than anticipated. [69-9] Disney Dec.; [69-10] McNair Dec.; [69-11] Ware Dec. 16 Technical
problems and computer updates are random occurrences that do not stem from a GDIT policy,
practice or decision. Plaintiffs point out that Hubbard testified that some computers would be
15

Interestingly, neither of the named Plaintiffs or nor any potential plaintiff/declarant accounts for how they would
incur overtime if they are allowed to estimate the time it takes to complete their end-of-shift activities.
16
The exact claim is: “Employees were required to wait until the computer restarted before they left, and this often
resulted in additional uncompensated time if the computer experienced any technical problems or updates had to be
installed.” [69-9, 10, 11].

18

completely shut down and would require rebooting before they could be used. [70] at p. 17. This
is a single allegation not common to all plaintiffs and is merely a random occurrence that again
does not stem from a GDIT policy, procedure, or decision.
Plaintiffs also claim that Hubbard testified she and other employees were told to only
submit the amount of time they clocked on their phones and were told to take time off their time
sheets. [70] at p. 18. However, upon review of the testimony, Hubbard actually testified vaguely
that “they told us that we couldn't clock time before we logged into the phone. . . . The only time
that we can clock is when we're at our desk and actively monitoring. And we can only be in that
clock on that phone for eight hours and nothing past that. And if we did, they made us take that
time out of our time sheet. And there were repeated e-mails sent to us telling us to take that time
out of our time sheet.” [69-1] at 70-71. While it appears Hubbard is trying to articulate a GDIT
policy regarding timekeeping, without getting into the merits of whether it is a sufficient FLSA
violation claim, the bottom line is there is not one declarant who claims that they were told to take
time out of their time sheet. The emails Hubbard testified to were not submitted. Thus, there does
not appear to be a common plan or policy in this regard that warrants conditional class certification.
In addition, Hubbard claims that she did trainings off the clock and would be stopped by
co-workers and asked question relating to work prior to her logging on to her phone. [70] at p. 18;
[69-1] 72:9-25; 110:17-25. Again, these are not situations common to all potential plaintiffs such
that they were all victims of a common policy, particularly that resulted in an FLSA violation.
Hubbard simply complains that she did not get paid for it. She testified she got paid for the training
if she was clocked into her phone and did the training during that time. [69-1] 110:5-16. She just
would not get paid if she performed her training while off the clock, and she does not claim that

19

she was required to do so. 17 There are also no other potential plaintiffs that claim they are stopped
by co-workers and asked questions prior to logging in. In any event, while being asked questions
may be frequent for Hubbard, it is a purely random occurrence and not one that emanates from any
GDIT policy, procedure, or decision.
Plaintiffs claim that other employees suffered from the same uncompensated time worked.
However, other potential plaintiffs present a host of varying scenarios. For example, Carl E.
Johnson claims that he is “personally aware of GDIT’s practice and procedure of lowering
performance scores for employees taking breaks at what GDIT deemed to be inappropriate times”
and that he often stayed on the phone and continued to take calls after his shift ended, which
resulted in uncompensated time worked.” [69-12]. First, lowering performance scores has nothing
to do with pay violations. Second, Johnson does not indicate why he stayed on the phone and
continued to take calls, that he was ordered to do so, or that GDIT management was aware he was
doing so. Similarly, Betty Lee Young and Rosa Belara Young claimed to be required to take calls at
the end of her shift that resulted in uncompensated time, yet neither explains who or what required
them to do so. [69-12]. The named Plaintiffs never made such claims, and these three are the only
three that mention taking additional calls.
There are even more varied claims. Three opt-in plaintiffs make claims, but not the same
claims, about bathroom breaks. Alexandria Disney declares that on frequent occasions if her
bathroom break went beyond four minutes, her supervisor would log her out of her phone which

17

The only other employee to discuss training is McNair, who claims employees were required to complete their
training at the beginning of their shift, before the allotted time for taking calls. She often would not finish her training
during this time due to assisting other CSRs. In order to finish her training, she was instructed on multiple occasions
to log out of her phone and timekeeping system and then complete the training after her shift, which she was not paid
for. [69-10]. It appears that if she were to complete the training at the beginning of the shift, she would have been
paid, but she “often” would not finish because she was “assisting other CSRs.” Id. Again, this not a GDIT policy,
practice, or decision that allegedly violated FLSA and resulted in widespread unpaid overtime as a result.

20

resulted in uncompensated time. [69-9]. Betty Young and Rosa Belara Young claim that they are
aware of GDIT’s practice of docking time from paychecks for staying in the bathroom longer than
the time allowed by GDIT management. [69-12]. There are complaints about GDIT’s calculation
of holiday pay, as well as not being assigned a specific work station and having to spend time
trying to find an open phone and computer to use. [69-9]; [69-11].
All of these circumstances are simply too individualized to warrant a collective action. As
the Plaintiffs clearly acknowledge in the Amended Complaint, the alleged FLSA overtime
violations depend on the individual and the circumstances. [37] at ¶ 13 (emphasis added). Likewise
in their Memorandum, Plaintiffs assert that “the Plaintiffs and other similarly situated employees
were subject to the same policies, procedures, and custom and practice which lead to employees
working uncompensated time in the form of straight pay and/or overtime pay, depending on the
circumstances of the employees’ hours worked.” [70] at p. 22 (emphasis added). When the
determination of an FLSA violation depends on each individual’s circumstances, it does not
warrant a collective action. See Harris, 2014 WL 457913 at *2 (quoting England v. New Century
Fin. Corp., 370 F. Supp. 2d 504, 508 (M.D. La. 2005); see also Tolentino v. C & J Spec–Rent
Servs. Inc., 716 F. Supp. 2d 642, 647 (S.D. Tex. 2010) (explaining that if the court finds that the
action arises from circumstances purely personal to the plaintiffs, and not from any generally
applicable rule, policy, or practice, it may deny the conditional certification). In its discretion, the
Court finds there are too diverse and unique circumstances to warrant certification for timekeeping
procedures.

21

c.

Cases Plaintiffs rely on are factually distinguishable.

In support of their motion, Plaintiffs rely on the cases of Beasley v. GC Services, LP and
Clark v. Convergy’s Customer Management Group, Inc., which are both “call center” cases. 18
However, neither of these cases assist Plaintiffs’ cause because, although those cases also involve
allegations relating to timekeeping policies, it is the factual evidence that is lacking in this case.
In Beasley, the plaintiffs came forward with substantial allegations that they and the other
members of the proposed collective action were required to perform certain work without getting
paid for it. 270 F.R.D. 442, 444 (E.D. Mo. 2010). The court found the plaintiffs had adequately
alleged that they and the other employees they sought to represent were required to perform similar
work without pay and had adequately described the work in sufficient detail so that others may be
identified and notified. Id. at 444-445. That is not the case here.
Plaintiff Hubbard did not even submit a declaration, and the deposition excerpts do not
establish how she is similarly situated to other employees regarding any work she allegedly was
not paid for. She complains about not being paid overtime as a quality monitor and goes on to
complain about tasks she does not get paid for, namely walking through security and being stopped
by other employees to ask her questions. There is no comparison of her work or situation to
others.[69-1]. Plaintiff Hollingsworth’s declaration does nothing to compare herself to the other
employees either. The excerpts submitted from her deposition also do not attempt to explain, much
less establish, how she is similarly situated to any other employee. [69-2]. Neither Hubbard or
Hollingsworth discuss in detail any timekeeping policies, nor do they aver that they are subject to

18

Plaintiffs also mention Faust v. Comcast Cable Communications Management, LLC, 2011 WL 5244421 (D. Md.
2011) but only with regard to arguing the merits of an anticipated defense by GDIT. [70] at p. 20. Such argument is
premature at this stage.

22

any particular GDIT written policies or procedures. Based on the lack of detail and comparison in
this case, Beasley does not support Plaintiffs’ attempt to conditionally certify a class.
Similarly in the Clarke case, those plaintiffs made detailed allegations regarding the
allegedly unlawful policies at issue, namely that the defendant’s policy systematically deprived
the plaintiffs of overtime pay for off-the-clock work. 370 F. Supp. 2d 601, 606 (S.D. Tex. 2005).
The plaintiffs in that case had sufficiently sought notice as to a single job category, on a single
floor, at a single facility for employees who were all hourly, non-exempt employees, and most
importantly, the court found, all potential plaintiffs were alleged to have been subject to the same
practices and to have performed the same type of unpaid job tasks. Id. That is not the case here.
Here, there are numerous job categories represented. Most of the declarants are CSRs,
although none describe their job duties. 19 The named Plaintiffs held numerous job titles, none of
which during the relevant time period was a CSR, 20 and performed varying job tasks. None of the
potential plaintiffs claim to be subject to the same FLSA violating policy. In fact, none claim an
FLSA violation at all. What is more, with regard to this particular class, there has been no evidence
submitted by any employee who can attest to being subject to any FLSA violating policy or

19
Alexandria Disney, Kenya McNair, Whitney Ware, and Betty Lee Young, and were all CSRs. [69-9, 10, 11, 12].
Rosa Belara Young’s affidavit states she worked as a CSR, but her declaration states she was a temporary CSR. [6912]. Cedric Dallas states only that he was an employee. [69-8]. Carl E. Johnson states he was a supervisor. [69-12].
20
Plaintiffs have submitted no evidence as to what their job titles and duties were. In the deposition excerpt submitted
by Plaintiffs, Hubbard states only that she worked at GDIT from June 2013-June 2017—not what her title was. [691] 19:1-4. GDIT, however, introduced testimony and documentation that in the past three years since May 2015
(assuming without deciding that three years is the appropriate look back period), Hubbard was a Quality Specialist,
classified as exempt from October 2013 to December 2015 when she became an acting Supervisor, where she
supervised a team of CSRs. [80-11] 45:16-18; 64:10-30; 50:16-51:13. She then returned to being a Quality Specialist
in March 2016, which had been converted to an hourly position, which was the last position she held. [80-15]; [8011] 65:15-21; 80:20-24; [80-16]. GDIT also presented evidence regarding Hollingsworth’s employment. She initially
began as a CCO CSR, but in August 2014 she moved to ISG, providing support to CSRs and handling escalated phone
calls. [80-10] 36:3-37:18. In October 2016, she became an acting supervisor and oversaw a team of CSRs. [80-10]
39:24-40:7; 41:1-7; 1:23-43:17. In June 2017, she went back to ISG, but soon became a Trainer/Instructor, where she
stayed until late 2017 when she returned again to ISG, which was the last position she held. [80-10] 44:8-45:5;[8010] 48:4-50:2; 15:22-16:1.

23

procedure at the Waco facility. As such, Clarke does not support Plaintiffs’ attempt to seek
conditional certification.
2.

Other Standards

Considering the foregoing analysis, Plaintiffs fail to establish that certification is warranted
under any of the other standards as well. As mentioned, some courts have found that “a plaintiff
must make a minimal showing that (1) there is a reasonable basis for crediting the assertion that
aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in
relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in
to the lawsuit.” See, e.g., Santinac, 107 F. Supp. 3d at 615; McKnight, 756 F. Supp. 2d at 801;
Harris, 2014 WL 457913, at * 2 Even under this standard, particularly with regard to the second
prong, Plaintiffs request for certification fails. There is simply no comparison of the named
Plaintiffs to the opt-in plaintiffs. As thoroughly explained above, given the claims asserted in the
Amended Complaint, there is an insufficient factual showing that the plaintiffs were all subject to
the same conditions that resulted in uncompensated overtime pay. There are misclassification
claims asserted in the Amended Complaint, but no one claims to have been misclassified as
exempt.
The result is the same with regard to the articulated standard in wage and hour cases. As
noted, in these types of cases to be “similarly situated” for elective certification purposes the
proposed class plaintiffs must be “similarly situated in terms of job requirements and similarly
situated in terms of payment provisions.” Mathis v. Stuart Petroleum Testers, Inc., No. 5:16-CV094-RP, 2016 WL 4533271, at *2 (W.D. Tex. Aug. 29, 2016). Plaintiffs never address how they
are similarly situated to the other GDIT employees at either the Hattiesburg or the Waco locations.
As noted above, not one declarant indicates whether they are hourly, exempt or non-exempt, full-

24

time or part-time, or what their job requirements are. 21 As can be seen from the facts set forth in
footnotes 19 and 20 above, the named Plaintiffs did not hold the same positions, and neither of
them held the same position as the opt-in plaintiffs. Accordingly, Plaintiffs fail to make the
minimal factual showing that would warrant conditional certification under this standard as well.
III.

CONCLUSION
Based on the foregoing, the Court concludes that Plaintiffs are inappropriately seeking

certification of a class that does not match the allegations of the Amended Complaint, and
therefore, the Court denies certification on that basis. Additionally, following a thorough analysis,
the Court further concludes that Plaintiffs have failed to meet their burden of proof under any of
the lenient standards at this notice stage. Accordingly, it is hereby ORDERED that the Plaintiffs’
Motion to Certify Collective Action Class [69] is DENIED.
SO ORDERED AND ADJUDGED this 2nd day of July 2019.

/s/ Keith Starrett _____________________
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

21

Except for the Youngs. See supra n. 13.

25