KOLASA v. BOS SOLUTIONS, INC.

Filing 95

ORDER adopting Report and Recommendation 72 as the Opinion of the Court; overruling Defendant's Objections 74 ; and granting 45 Plaintiff's Motion to Certify Class; this matter is referred back to Chief Magistrate Judge Kelly to enter any appropriate orders to facilitate the provision of notice to prospective members of the collective action and to conduct further proceedings, as necessary (details more fully stated in said Order). Signed by Judge Nora Barry Fischer on 7/10/2018. (bdk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DENNIS KOLASA, individually and on
behalf of all other similarly situated,

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Plaintiff,
v.
BOS SOLUTIONS, INC.,
Defendants.

Civil Action No. 17-1087
Judge Nora Barry Fischer
Chief Magistrate Judge Maureen P.
Kelly

ORDER OF COURT
AND NOW, this day of 10th day of July, 2018, after Plaintiff filed the abovecaptioned class and collective action against Defendant, (Docket No. [1]), Defendant filed an
Answer to the Complaint, (Docket No. [8]), and Plaintiff filed a Motion to Certify Class Pursuant
to 29 U.S.C. § 216(b), (Docket No. [45]), and Brief in Support, (Docket No. [46]), to which
Defendant filed a Response in Opposition, (Docket No. [62]), Plaintiff filed a Reply, (Docket
No. [65]) and Defendant filed a Sur-Reply, (Docket No. [66]), and after a Report and
Recommendation was filed by Chief United States Magistrate Judge Kelly on May 10, 2018
recommending that Plaintiff’s Motion be granted, (Docket No. [72]), and granting the parties
until May 24, 2018, to file written objections thereto, and upon consideration of the objections
filed by Defendant on May 24, 2018 (Docket No. [74]), Plaintiff’s Response in Opposition filed
on June 8, 2018, (Docket No. [76]), and Defendant’s Reply filed on June 15, 2018, (Docket No.
[89]), and upon independent review of the record and consideration of the Chief Magistrate
Judge Kelly’s Report and Recommendation, (Docket No. [72]), which is adopted as the opinion
of this Court,
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IT IS HEREBY ORDERED that Defendant’s Objections [74] are OVERRULED.
In so holding, the Court acknowledges the parties’ dispute as to whether the present objections
should be reviewed under the de novo standard on dispositive matters or the lesser “clearly
erroneous or contrary to law” on nondispositive pretrial matters but need not resolve this issue as
the Court would affirm under the de novo standard. (See Docket Nos. 74; 76; 89). To this end,
having carefully considered such objections in light of the record, this Court agrees with the
recommended disposition as Chief Magistrate Judge Kelly rightly concluded that Plaintiff met
his burden of making a modest factual showing that the proposed plaintiffs are similarly situated
sufficient to support conditional certification at this juncture. Contrary to Defendant’s objections
that Chief Magistrate Judge Kelly misinterpreted and/or failed to apply the legal principles
articulated by this Court in Hodzic v. Fedex Package System, Inc., 2016 WL 6248078 (W.D. Pa.
Oct. 26, 2016) and McLaughlin v. Seneca Resources Corp., 2018 WL 623499 (W.D. Pa. Jan. 30,
2018), the Court finds the Report and Recommendation to be consistent with both of those
decisions based on the record evidence presented at this juncture of the case. Indeed, neither
Hodzic nor McLaughlin support the relief requested by Defendant, i.e., a denial of the motion for
conditional certification. The Court further notes twenty-three additional individuals have filed
opt-in notices since the Report and Recommendation was filed which further buttresses the
Opinion of the Court that this matter should be conditionally certified. (See Docket Nos. 73; 7781; 83-85; 88; 90-94). All told, Defendant’s objections are overruled.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Conditional Certification
[45] is GRANTED and the following class is conditionally certified pursuant to 29 U.S.C. §
219(b):
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ALL CURRENT AND FORMER SOLIDS CONTROL
TECHNICIANS EMPLOYED BY, OR WORKING ON
BEHALF OF BOS SOLUTIONS, INC. WHO WERE
CLASSIFIED AS INDEPENDENT CONTRACTORS AND
PAID ON A DAY RATE BASIS AND NOT PAID
OVERTIME DURING THE LAST THREE (3) YEARS.
ACCORDINGLY, IT IS FURTHER ORDERED this matter is referred back to
Chief Magistrate Judge Kelly to enter any appropriate orders to facilitate the provision of notice
to prospective members of the collective action and to conduct further proceedings, as necessary.

s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record.
Chief Magistrate Judge Maureen P. Kelly

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