Perry et al v. Hardeman County Goverment et al

Filing 380

ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTION FOR DECERTIFICATION ORDER TO FILE MEDIATION STATUS REPORT 307 . Signed by Judge S. Thomas Anderson on 5/8/24. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______________________________________________________________________________
PATRICK PERRY et al.,

)
)
Plaintiffs,
)
v.
)
No. 1:19-cv-01106-STA-cgc
)
HARDEMAN COUNTY GOVERNMENT et al., )
)
Defendants.
)
______________________________________________________________________________
ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS’ MOTION FOR
DECERTIFICATION
ORDER TO FILE MEDIATION STATUS REPORT
______________________________________________________________________________
This is an action for violations of the overtime pay, compensatory time, and anti-retaliation
provisions of the Fair Labor Standards Act (“FLSA”). Before the Court is Defendants Hardeman
County Government, the Hardeman County Commission, the Hardeman County Sheriff’s Office,
Mayor Jimmy Sain, and Sheriff Jimmy Doolen’s Motion for Decertification (ECF No. 307).
Plaintiffs, who are current and former deputies, dispatchers, and jailers employed by the Hardeman
County Sheriff’s Office, have responded in opposition. The parties have also filed supplemental
briefing. The Court held a hearing on the Motion on April 3, 2024. For the reasons set forth
below, Defendants’ Motion is GRANTED in part, DENIED in part.
BACKGROUND
On May 29, 2019, seven Plaintiffs filed the original Complaint in this case, alleging various
violations of the FLSA. Three Plaintiffs were investigators employed at the Hardeman County
Sheriff’s Office (Patrick Perry, Justin Bryant, and Cody Naylor), and three were sheriff’s deputies
(Chris Wilkerson, Michael Hatch, and Ethan Vasquez). Plaintiff Cheri Baker was a dispatcher
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employed jointly by Hardeman County Government, the Hardeman County Sheriff’s Office, the
Hardeman County Emergency Communication District, and the City of Bolivar. As a dispatcher,
Baker was subject to a 40-hour workweek. Compl. ¶ 129. All other Plaintiffs were considered
law enforcement and therefore subject to a 43-hour workweek. 1 Id. All seven Plaintiffs alleged
that Defendants had not paid them for all hours of overtime worked, had not correctly calculated
their hourly rate of pay, and had altered timesheets submitted by Plaintiffs. Id. ¶¶ 97-101. All
seven Plaintiffs alleged that they received compensatory time in lieu of overtime but that
Defendants had not correctly calculated the amount of compensatory time which they were owed.
Id. ¶¶ 105-112. Beyond these two claims, the original Complaint alleged that Defendants violated
the FLSA in a number of different ways at different times.
For example, the investigators alleged they were misclassified as exempt employees and
had never been properly paid for hundreds of hours of off-the-clock work. Id. ¶¶ 102-103. Two
Plaintiffs, Chris Wilkerson and Michael Hatch, resigned their positions with Hardeman County in
2018. Id. ¶¶ 71, 82, 119. According to Wilkerson and Hatch, Defendants failed to pay them for
all compensatory time, vacation time, and holiday time they were owed at the time of their
resignations. Id. ¶¶ 117-122. The other five Plaintiffs alleged Defendants adopted a new work
week in January 2019, at which time Defendants began to miscalculate Plaintiffs’ pay. Id. ¶¶ 113116. Finally, Deputy Ethan Vasquez alleged that Defendants did not properly pay him for time he

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Defendants later sought judgment as a matter of law on the 43-hour work week adopted
for Hardeman County employees classified as law enforcement. See Defs.’ Mot. for Summ. J. July
21, 2023 (ECF No. 308). Plaintiffs responded in opposition on that point, even though the
Complaint contained the allegations about the department’s 43-hours workweek. Before the Court
had issued a ruling, Defendants withdrew their motion for summary judgment.
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spent traveling to perform duties in the National Guard in violation of Tenn. Code Ann.§ 8–33–
101 et seq. Id. ¶¶ 123-28.
Plaintiffs sought relief for themselves and on behalf of all other similarly situated
employees of the Hardeman County Sheriff’s Office. After the Court held a scheduling conference
and approved the parties’ plan for discovery, Plaintiffs filed an unopposed motion for leave to
amend their pleadings (ECF No. 27), in which Plaintiffs requested leave of court to file an amended
complaint naming 22 new Plaintiffs, all Hardeman County deputies and dispatchers. The Court
granted the request, and Plaintiffs filed an Amended Complaint (ECF No. 29) on October 11, 2019.
The Amended Complaint added 22 new Plaintiffs, not just deputies and dispatchers but also a jailer
employed by the Hardeman County Sheriff’s Office. All told, the Amended Complaint named 21
deputies, seven dispatchers, and one jailer as Plaintiffs.
The Amended Complaint also expanded Plaintiffs’ allegations about each of the “specific
mechanisms” by which Defendants had violated the FLSA. Am. Compl. ¶ 132 (ECF No. 29).
First, Plaintiffs alleged Defendants arbitrarily changed deputies, dispatchers, and jailers from
hourly employees to salaried employees in March 2019, even though none of them are exempt
from the FLSA’s overtime requirements, and by doing so, failed to pay these employees for all
hours worked. Id. ¶¶ 133-153. Plaintiffs next allege that prior to 2019 Defendants scheduled
dispatchers and jailers to work 48 hours one week and 36 hours the following week, without paying
overtime for hours worked during the 48-hour workweeks. Id. ¶¶ 154-175 (dispatchers), ¶¶ 176190 (jailers). The Amended Complaint also restated Plaintiffs’ allegations about Defendants’
failure to pay all compensatory, vacation, and holiday pay due upon an employee’s resignation.
Id. ¶¶ 191-217. In one of its new theories of relief, the Amended Complaint went on to allege that
Defendants had failed to pay deputies who worked the second or third shift for time spent attending
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annual in-service training. For those deputies, who were not identified in the Amended Complaint,
Defendants required them to work their regular shift and then attend eight hours of in-service
training, meaning those deputies worked a total of 80 hours for that week without any overtime
pay. Id. ¶¶ 218-230. Finally, Plaintiffs expanded on their allegations of off-the-clock work and
realleged their claim about Defendants’ failure to pay Deputy Vasquez for his travel time to
National Guard duty.
Against the backdrop of these pleadings, Plaintiffs filed a motion to conditionally certify
the case as an FLSA collective action (ECF No. 66) on March 3, 2020. Plaintiffs identified the
following category of Hardeman County employees as persons similarly situated to Plaintiffs:
All persons who have worked for Hardeman County Government as a
sheriff deputy, jailer or dispatcher at any time in the three years prior to the filing
of the complaint in this case and were required to work a 48-hour week without
compensation at the rate of time and one half for all hours worked over 40 in a work
week. Those who have had their overtime incorrectly calculated, who have not
been paid for overtime worked, who have worked off the clock without being paid,
those who were required to attend pre-shift and post-shift briefings without being
paid, and those who were not paid their accrued compensatory, holiday and
vacation time that [sic] time of termination of employment.
Defendants filed a written response in opposition (ECF No. 101) to Plaintiffs’ motion to certify.
However, when the parties appeared before the United States Magistrate Judge for a hearing on
the motion, Defendants withdrew their opposition. Minute Entry, June 26, 2020 (ECF No. 104).
The Magistrate Judge entered a written order granting the motion for conditional certification on
June 30, 2020. In her order, the Magistrate Judge stated that Plaintiffs should “provide a more
definite statement of the classes and subclasses to be included” in the collective action and directed
the parties to submit a proposal for “classes and subclasses.” Order Granting Pls.’ Mot. to Certify
2, June 30, 2020 (ECF No. 106).

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On August 14, 2020, the parties submitted a joint proposal (ECF No. 110), defining eight
“sub-classes” of Hardeman County employees: (1) those who did not receive correct overtime pay
(all Plaintiffs); (2) all deputies, dispatchers, and jailers who did not receive pay for pre-shift
briefings starting May 29, 2016; (3) all employees who had not received proper accrued
compensatory, vacation, and holiday time upon their termination after October 2018; (4)
dispatchers and jailers who had worked 48-hour workweeks each pay period without overtime
starting in March 2019; (5) all deputies who were changed from hourly to salaried employees and
had not been paid for 3 hours during those weeks starting in March 2019; (6) deputies and jailers
who had not been paid for off the clock work starting in May 29, 2016; (7) all employees who
were not paid correctly between October 1, 2016, and July 31, 2017; and (8) all deputies who did
not receive overtime pay for in-service training. Even though the parties submitted this proposal
for classes and sub-classes, no further action was taken on their proposal.
One more procedural aspect of the case of significance bears emphasis here. Prior to
conditional certification of the case as a collective action, Plaintiffs filed two motions to amend
their pleadings and add more claims, essentially supplemental claims concerning conduct
occurring since they had filed the original Complaint. The Court denied the requests, coming as
they did after the deadline for amending the pleadings. Several months later some Plaintiffs and
other Hardeman County employees who were not parties to this case filed two separate suits of
their own.
In a Complaint dated June 9, 2021, and docketed as civil action no. 1:21-cv-01087,
Brandon Allen, Cheri Baker, Justin Bryant, Jenny Duke, Crystal Ervin, Lauren Hampton, Jackie
Kelley, Pearlie Long, Martha Lowrance, Cody Naylor, Patrick D. Perry, Toni Pierce, Cathie
Sprayberry, Martha Jane Vickers, and Alisha Young alleged violations of the FLSA and claims
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under state law against Hardeman County and Jimmy Sain in his individual capacity and in his
official capacity as Mayor of Hardeman County. And in a separate Complaint dated June 28, 2021,
and docketed as civil action no. 1:21-cv-01098, Jonathan Luttrell, Brandon Allen, Joshua Allen,
Justin Bryant, Jeff Hill, Deitrick Mason, and Patrick Perry alleged more FLSA violations and
claims under state law against Hardeman County and Mayor Sain.
Before the Court could set scheduling conferences in either of the new cases, the parties in
the case at bar and the parties in case no. 1:21-cv-01087 filed joint motions to consolidate the three
actions. The Court granted the joint motions and consolidated cases 1:21-cv-01087 and 1:21-cv01098 with the case at bar for all further proceedings. The Court also granted Plaintiffs in all three
cases leave to file a single “Master Complaint” to set forth all of the allegations made in the three
cases in a single pleading. Upon the filing of the Master Complaint (ECF No. 228) on December
1, 2021, the Court subsequently dismissed cases 1:21-cv-01087 and 1:21-cv-01098, finding that
the claims in each of the companion cases were redundant to the claims asserted in the Master
Complaint.
The Master Complaint named 67 current and former employees of Hardeman County as
Plaintiffs and Hardeman County Government, the Hardeman County Commission, the Hardeman
County Sheriff’s Office, Mayor Sain (in both an individual and official capacity), and Hardeman
County Sheriff John Doolen as Defendants. Master Compl. ¶ 6. The Master Complaint alleged
on behalf of all Plaintiffs (deputies, dispatchers, and jailers) FLSA claims for unpaid overtime
based on Mayor Sain’s decision to convert all Plaintiffs from hourly pay to salary in March 2019.
Id. ¶¶ 91-114. With respect to deputies only, the Master Complaint alleged that the Hardeman
County Sheriff’s Office required deputies to work off the clock to complete paperwork before
leaving for the day. Id. ¶¶ 115-122. With respect to investigators (four Plaintiffs), the Master
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Complaint alleged that investigators routinely worked off the clock without proper overtime pay.
Id. ¶¶ 123-136. With respect to deputies who worked the second or third shifts, the deputies did
not receive overtime pay for time spent on annual in-service training, one week during the year
when the deputies attended mandatory training for eight hours and worked their regular 8-hour
shifts. Id. ¶¶ 137-151.
The Master Complaint also included FLSA violations that denied overtime pay to
dispatchers and jailers. The Master Complaint alleged two types of violations affecting these
groups of employees and in largely similar ways. First, Plaintiffs restated certain allegations about
dispatchers and jailers who were regularly scheduled to work 48 hours per week and did not receive
overtime pay. Id. ¶¶ 167-177 (dispatchers); id. ¶¶ 184-191 (jailers). Defendants also required
dispatchers to be at their posts 15 minutes before their shift began and jailers to be at their posts
15 to 30 minutes prior to a shift change but without paying these employees for their pre-shift time.
Id. ¶¶ 178-183 (dispatchers); id. ¶¶ 192-197 (jailers).
Beyond the policies affecting whole categories of employees, the Master Complaint also
restated allegations from the previous pleadings about other FLSA violations. Defendants had
miscalculated accrued compensatory, vacation, and holiday time for employees and thereby denied
employees, 17 Plaintiffs in all, who had resigned their jobs the full amount of pay they were owed
at the time their employment with Hardeman County ended. Id. ¶¶ 198-221. 2 The Master
Complaint also made allegations specific to the Plaintiffs in case no. 1:21-cv-01087 and only for
certain pay periods in 2021. According to the Master Complaint, Jonathan Luttrell, Brandon Allen,
Joshua Allen, Justin Bryant, Jeff Hill, Deitrick Mason, and Patrick Perry, did not receive correct
2

In their initial brief in response to Defendants’ Motion for Decertification, Plaintiffs
now indicate that all but 15 Plaintiffs have resigned their positions with Hardeman County.
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pay for overtime they worked during the period between May 21, 2021, and June 18, 2021. Id. ¶¶
152-166. In its longest series of factual allegations, Master Complaint alleged that Mayor Sain
had retaliated against several Plaintiffs over their participation in this litigation. Id. ¶¶ 222-296.
The Master Complaint finally restated the allegations about Defendants improperly denying
Deputy Ethan Vasquez pay for his time spent traveling for military duty with the National Guard
in January 2019. Id. ¶¶ 297-303.
The discovery process in this case has been protracted, to say the least. The Court need
not review each of the depositions noticed by the parties, the modifications to the discovery
deadlines granted by the Court, or the motion practice over discovery disputes. Discovery now
appears to be largely complete, though the parties conducted depositions as recently as March 29,
2024, and again on May 1, 2024. See Pls.’ Notice of Grantham Dep. Apr. 18, 2024 (ECF No.
369); Pls.’ Notice of Hensley Dep. Apr. 24, 2024 (ECF No. 372); Pls.’ Notice of Bell Dep. Apr.
24, 2024 (ECF No. 373).
In their Joint Motion to Decertify the Collective Action, Defendants argue that
decertification of the collective action is warranted because the named Plaintiffs are not similarly
situated to the opt-in Plaintiffs. The named Plaintiffs and opt-in Plaintiffs work in different jobs
with dissimilar responsibilities. Rather than identifying some single payroll policy applicable to
all Plaintiffs, Plaintiffs have alleged a number of FLSA violations. Even for Plaintiffs who worked
as deputies, the proof shows that these deputies had a variety of duties and reported to different
supervisors. Deputies’ work schedules were different than dispatchers and jailers. The only
common policy identified by Plaintiffs, that Defendants did not pay all Plaintiffs overtime, is too
vague to justify collective action.

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Plaintiffs see matters differently. In their view, Plaintiffs now consist of all 67 current and
former Hardeman County employees named as Plaintiffs in the Master Complaint. Each of these
Plaintiffs signed a consent form to signify his or her agreement to act as a “party plaintiff.” After
the Magistrate Judge granted the motion for conditional certification, 17 Hardeman County
employees opted into the case as members of the collective action “pursuant to the motion for
conditional certification.” Pls.’ Resp. in Opp’n 4 (ECF No. 313). Focusing on the actual duties
of each type of job represented among the “party plaintiffs” (deputy, dispatcher, and jailer),
Plaintiffs contend that the 17 opt-in parties are similarly situated. The only meaningful distinction
among all Plaintiffs is their various grades of pay. Plaintiffs argue then that decertification is not
warranted and that trial should proceed collectively on the claims of all Plaintiffs.
After the parties had briefed the Motion, the Court entered an order on September 20, 2023,
directing them to file supplemental briefing. Specifically, the Court found that Plaintiffs in
opposing decertification had not submitted any evidence to show how they were similarly situated
or how the Court might define subclasses of Plaintiffs whose claims could be tried together.
Plaintiffs filed their supplemental brief (ECF No. 352) on February 23, 2024. Plaintiffs state in
their supplement that while they do not oppose decertification and the dismissal of each individual
Plaintiff’s claims without prejudice, such a process would not be the best use of judicial resources.
Decertification would only result in Plaintiffs filing scores of new suits to press their claims.
Instead, Plaintiffs propose six subclasses in which certain Plaintiffs with similar claims can
proceed to trial collectively on their causes of action: dispatchers, patrol deputies who worked the
first shift, patrol deputies who worked the second and third shifts, deputy investigators,
correctional officers, and correctional officer sergeants. Plaintiffs argue that each has alleged and
can prove largely identical claims and are therefore appropriate for collective action. Plaintiffs
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add that one Plaintiff Tim Welch worked as the only maintenance worker at the jail. Plaintiffs
also argue that Defendants illegally retaliated against some Plaintiffs after they filed suit for FLSA
violations. Plaintiffs contend that the better course is the certification of subclasses of similarly
situated Plaintiffs who can proceed collectively in one trial.
Defendants filed their supplemental brief (ECF No. 356) on March 8, 2024. Defendants
continue to argue that decertification is required based on the factual distinctions among Plaintiffs
and the nature of their claims. For example, rather than trying the claims of all deputies, Plaintiffs
propose trying the claims of deputies who worked the first shift and then the claims of deputies
who worked the second and third shifts. Plaintiffs’ proposal underscores the disparate nature of
the claims alleged by the deputies. The claims of maintenance worker Tim Welch are simply
unique to him because he is the only Plaintiff who worked in maintenance. And the retaliation
claims alleged by some Plaintiffs are individualized and not similar enough for collective
treatment. Even if the Court accepted the subclasses proposed by Plaintiffs, the facts show that
the claims of the members of the subclasses are distinct. For instance, Defendants assert that not
all dispatchers allege that Defendants incorrectly calculated their comp time. Other Plaintiffs will
have claims covered by different time periods, either because of the unique statute of limitations
for the claims alleged by that Plaintiff or because different Plaintiffs had different tenures with
Hardeman County. Many Plaintiffs had such widely differing duties and work schedules that they
cannot prove a common violation of the FLSA. For these reasons Defendants argue that Plaintiffs
have failed to carry their burden to prove similarity, requiring the decertification of the collective
action.

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JURISDICTION
The Court has subject-matter jurisdiction in this case under 28 U.S.C. § 1331(a). Plaintiffs
allege that Defendants failed to pay them correct overtime and compensatory time in violation of
29 U.S.C. § 207. 29 U.S.C. § 207(k) (permitting a public agency like Hardeman County to pay
employees “in lieu of overtime compensation, compensatory time off at a rate not less than one
and one-half hours for each hour of employment for which overtime compensation is required by”
§ 207). A subset of Plaintiffs allege that Defendants also withheld payment for their accrued comp
time when they resigned or retired from their jobs with the County, a separate violation of the
FLSA. § 207(o)(4) (“An employee who has accrued compensatory time off authorized to be
provided under paragraph (1) shall, upon termination of employment, be paid for the unused
compensatory time . . . .”). Plaintiffs also allege that Defendants withheld accrued comp time and
vacation and holiday pay from a subset of former county employees in retaliation for their
participation in this lawsuit and thereby violated the anti-retaliation provision of the FLSA. §
215(a)(3)). Section 216(b) of the FLSA permits Plaintiffs to bring a collective action for these
violations. §216(b) (allowing FLSA collective actions “to recover the liability prescribed in the
preceding sentences”). Plaintiffs’ FLSA allegations make this a civil action arising under the laws
of the United States. § 1331(a) (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
The Court has supplemental jurisdiction over other claims alleged in the pleadings under
Tennessee law pursuant to 28 U.S.C. § 1367. A federal court may exercise supplemental
jurisdiction over claims it does not otherwise have jurisdiction to hear independently. Exxon Mobil
Corp. v. Allapattah Servs., 545 U.S. 546, 559, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005).
Supplemental jurisdiction is available where there is at least one claim over which the court has
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subject-matter jurisdiction and the supplemental claim constitutes part of the same “case or
controversy.” 28 U.S.C. § 1367(a). In this case, the Master Complaint alleges that Plaintiff Ethan
Vasquez seeks pay for time he spent traveling to report for military duty in the Tennessee National
Guard. Master Compl. ¶¶ 297-303 (ECF No. 228). According to Vasquez, Defendants’ failure to
pay violated Tenn. Code Ann. § 8–33–101 et seq., which protects public employees who take
leaves of absence to perform their duties as reservists. The Master Complaint also includes a
reference to the Tennessee Public Protection Act. Master Compl. ¶ 52 (see heading accompanying
the section “Second Cause of Action”). “[T]he Tennessee Public Protection Act (TPPA) protects
employees who refuse to participate in or refuse to remain silent about illegal activities at their
workplace.” Gammons v. Adroit Med. Sys., Inc., 91 F.4th 820, 829 (6th Cir. 2024) (quoting Tenn.
Code Ann. § 50–1–304(b) (cleaned up)). 3
Finally, some Plaintiffs allege that Defendants withheld accrued holiday and vacation pay
when those Plaintiffs left their jobs with Hardeman County, not in retaliation for activity protected
by the FLSA but simply as a matter of policy. See Compl. ¶¶ 71, 82, 117-122 (alleging that
Plaintiffs Chris Wilkerson and Michael Hatch resigned their positions with Hardeman County in
2018 and did not receive payment for all compensatory time, vacation time, and holiday time they
were owed at the time of their resignations); Baker Dep. 76:8-18 (PageID 3672) (“In
October/November 2018, Mayor Sain made the decision to no longer pay deputy, jail, and dispatch
employees for their accrued compensatory, holiday, and vacation time at the time of termination
3

The same heading cites Tenn. Code Ann. § 50–2–103(h), a code section addressed to
meal breaks. § 50–2–103(h) (“[E]ach employee shall have a thirty-minute unpaid meal break if
scheduled to work six (6) hours consecutively, except in workplace environments that by their
nature of business provide ample opportunity to take an appropriate meal break.”). None of the
allegations in this portion of the Master Complaint address meal breaks or specifically allege a
violation of the TPPA.
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of employment.”). These claims sound in contract and state claims under Tennessee law, which
the Court has supplemental jurisdiction to consider pursuant to § 1367(a).
The Court would add that its decertification analysis is confined to Plaintiffs’ collective
claims for violations of the FLSA: unpaid overtime in violation of § 207, including claims for
incorrectly calculated comp time and unpaid comp time, and retaliation in violation of §215(a)(3).
To the extent that Plaintiffs seek collective relief as to other causes of action alleged in the Master
Complaint, Plaintiffs’ Tennessee law claims do not fall within the scope of the FLSA. Because
Plaintiffs’ claims for violations of Tennessee statutory law and breach of contract do not fall within
the scope of the FLSA’s private right of collective action, the Court will not certify a collective
action to pursue these claims.
STANDARD OF REVIEW
Section 207 of the FLSA prohibits employers from employing any employee “for a
workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half times
the regular rate at which he is employed.” 29 U.S.C. § 207(a). Section 207(k) governs employees
“in law enforcement activities (including security personnel in correctional institutions)” and alters
the maximum number of hours permitted in a workweek, depending on the length of the “work
period” adopted by the public agency. § 207(k). Law enforcement employees are entitled to
overtime if (1) their agency adopts “a work period of at least 7 but less than 28 days”; and (2) the
officer works more than 43 hours per week. 29 C.F.R. § 553.230; Brock v. City of Cincinnati, 236
F.3d 793, 811 (6th Cir. 2001) (“Under the regulations, the maximum number of hours an employer
can compensate law enforcement employees for at straight time is 43 hours per week if the
employer adopted a work period of either seven or fourteen days . . . .”). And the FLSA also
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permits a public agency to pay its employees “in lieu of overtime compensation, compensatory
time off at a rate not less than one and one-half hours for each hour of employment for which
overtime compensation is required by” § 207. 29 U.S.C. § 207(k).
Section 216(b) of the FLSA creates a private right of action for violations of § 207 and
permits “one or more employees” to recover unpaid overtime compensation by suing an employer
“for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. §
216(b). The Supreme Court has described FLSA cases brought on behalf of similarly situated
employees as “collective actions.” Morgan v. Sundance, Inc., 142 S.Ct. 1708, 1711 (2022)
(describing FLSA actions on behalf of similarly situated employees as a “collective action”); Tyson
Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 449, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016) (same);
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013)
(same); Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173, 110 S.Ct. 482 (1989) (same).
FLSA “collective actions permit individualized claims and individualized defenses, in
which aggrieved workers act as a collective of individual plaintiffs with individual cases.”
Canaday v. Anthem Cos., Inc., 9 F.4th 392, 403 (6th Cir. 2021) (citing Campbell v. City of Los
Angeles, 903 F.3d 1090, 1105 (9th Cir. 2018)) (emphasis in original). Unlike class members in
actions under Federal Rule of Civil Procedure 23, similarly situated employees join an FLSA
collective action by filing notice of their consent to join the action. § 216(b) (“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.”).
Traditionally, courts have followed a two-step “certification” process in FLSA cases of this
sort, first to give notice to similarly situated employees of the action and later to make a final
determination of whether the opt-in employees are in fact similarly situated. Monroe v. FTS USA,
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LLC, 860 F.3d 389, 397 (6th Cir. 2017) (“Courts typically bifurcate certification of FLSA
collective action cases.”); but see Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003,
1009 (6th Cir. 2023) (“[T]he term ‘certification’ has no place in FLSA actions.”) (citing Fischer
v. Fed. Express Corp., 42 F.4th 366, 376 (3d Cir. 2022)). At the first step, courts conditionally
“certify” the collective action by deciding whether the FLSA plaintiffs and the other employees
they seek to represent are similarly situated. At the second stage—“after all of the opt-in forms
have been received and discovery has concluded”—the court makes another “similarly situated”
determination (typically on motion of the defendant for decertification), Campbell, 903 F.3d at
1109, but under a “stricter standard because it occurs near the end of discovery.” Frye v. Baptist
Mem’l Hosp., Inc., 495 F. App’x 669, 671 (6th Cir. 2012) (citing Comer v. Wal–Mart Stores, Inc.,
454 F.3d 544, 547 (6th Cir. 2006)).
“Whether other employees are similarly situated for the purpose of joining an FLSA suit
typically depends on whether they performed the same tasks and were subject to the same
policies—as to both timekeeping and compensation—as the original plaintiffs were.” Clark, 68
F.4th at 1010 (citing Pierce v. Wyndham Resorts, Inc., 922 F.3d 741, 745-46 (6th Cir. 2019)). In
the Sixth Circuit, FLSA plaintiffs have the burden to prove similarity. O’Brien v. Ed Donnelly
Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald
Co. v. Gomez, 577 U.S. 153, 162, 136 S. Ct. 663, 193 L.Ed.2d 571 (2016) (citing Grayson v. K
Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)). The Sixth Circuit has described the burden at
the decertification stage as a “stricter standard,” which requires plaintiffs to come forward with
“more than just allegations and affidavits demonstrating similarity in order to achieve final
certification.” Frye, 495 F. App’x at 671; see also Monroe, 860 F.3d at 397 (“Once discovery has
concluded, the district court—with more information on which to base its decision and thus under
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a more exacting standard—looks more closely at whether the members of the class are similarly
situated.”); O’Brien, 575 F.3d at 586 (“Plaintiffs who do present evidence that they are similarly
situated to the lead plaintiffs should not be barred from the opportunity to be part of a FLSA
collective action, because the collective action serves an important remedial purpose.”) (emphasis
added). The Ninth Circuit has likened decertification to the summary judgment standard under
Rule 56. Campbell, 903 F.3d at 1117 (“Decertification, in the sense the term is typically used,
comes after relevant discovery is complete, and in that respect resembles a motion for summary
judgment.”) (collecting cases). In order to survive a motion for decertification, plaintiffs bringing
an FLSA collective action must introduce “substantial evidence” of similarity. Id. at 1117–18
(“[T]he district courts have gradually tended to coalesce around a standard they refer to as
‘substantial evidence.’”).
ANALYSIS
I. Full Decertification of the Collective Action
The primary issue presented is whether Plaintiffs have shown how they are similarly
situated and may therefore proceed to trial collectively on their FLSA claims. The Sixth Circuit
has “tacitly approved” consideration of the following factors to determine similarity: “factual and
employment settings of the individual plaintiffs, the different defenses to which the plaintiffs may
be subject on an individual basis, and the degree of fairness and procedural impact of certifying
the action as a collective action.” O’Brien, 575 F.3d at 584 (citing 7B Wright, Miller, & Kane,
Federal Practice & Procedure § 1807 n.65) (internal alterations omitted). Proof to establish a
common theory of an FLSA violation is also relevant. Id. at 585. “All these issues tend to be
factbound, meaning they depend on the specific facts pertaining to those employees.” Clark, 68
F.4th at 1010.
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The Court holds that Plaintiffs have not shown how all 84 Plaintiffs are similarly situated
as a whole, either to the original named Plaintiffs in the case or to each other. The initial pleading
named three patrol deputies, three investigators, and one dispatcher as parties to the collective
action. Since that time, the opt-in Plaintiffs included employees working in each of these roles but
also a school resource officer (Tommie Woods), a maintenance worker (Tim Welch), four
sergeants working as correctional officers, and 34 correctional officers employed as deputy jailers.
Many Plaintiffs no longer work for Hardeman County. The work schedules, terms and conditions
of employment, and actual duties performed by dispatchers, patrol deputies, investigators, and
correctional officers (as well as a maintenance worker and a school resource officer) are simply
too varied to allow Plaintiffs to proceed collectively as a monolithic whole.
It is true Plaintiffs allege how two different payroll policies adopted by Defendants resulted
in common violations of the FLSA. First, the Master Complaint alleges that former Hardeman
County Mayor Jimmy Sain announced in March 2019 that the County was converting sheriffs
deputies, deputy jailers, and dispatchers from hourly employees to salaried employees, a pay
practice which allegedly resulted in FLSA violations. Master Compl.¶¶ 109, 111. Second, the
Master Complaint alleges that Hardeman County regularly granted employees compensatory time
in lieu of overtime pay but did not correctly track it and then refused to pay employees for accrued
comp time if they left their jobs with the County. These allegations set out common theories of
FLSA violations but theories common only to specific groups of employees. Plaintiffs have not
alleged, much less shown, that the policies applied to all 84 Plaintiffs or why the application of
common payroll policies somehow overcomes the many differences among the various types of
Hardeman County Sheriff’s Office employees. Pierce, 922 F.3d at 747 (“A common policy cannot
overcome the factual differences between [different types of] employees . . . , which goes to
17

determining the heart of the claim (the total hours worked each week).”). Because all 84 Plaintiffs
are not similarly situated, a trial of all claims in a single collective action without some
differentiation among Plaintiffs and their claims would not be appropriate.
This conclusion does not end the Court’s decertification analysis. In recognition of the fact
that the Master Complaint alleges claims on behalf of certain categories of Hardeman County
employees, the Court will next consider whether partial certification and the creation of separate
subclasses would allow the Court to certify collective treatment for smaller groupings of Plaintiffs
who can satisfy the similarly situated test. Pierce, 922 F.3d at 747 (“At the least, the court should
have created a separate subclass for the [dissimilar] employees.”); O’Brien, 575 F.3d at 586 (“The
option of partial certification is important to consider, because it counters the argument that a
collective action must be totally decertified if some members are not similarly situated to the
others.”). Plaintiffs have proposed as much as part of their briefing on the decertification question.
The Court finds that the creation of well-defined subclasses of Plaintiffs pursuing similar theories
of relief will “yield efficient resolution in one proceeding of common issues of law and fact arising
from the same alleged discriminatory activity.” Clark, 68 F.4th at 1012 (quoting Hoffmann-La
Roche, 493 U.S. at 170) (internal quotation marks omitted).
Before reaching the merits of Plaintiffs’ proposed subclasses, the Court pauses to set out
what Plaintiffs must prove to make out their FLSA claims and address other issues that will have
bearing on the merits of Plaintiffs’ claims at trial.
A. Elements of Plaintiffs’ Overtime FLSA Claims
“An employee who claims that he was not paid [the correct] overtime rate ‘has the burden
of proving that he performed work for which he was not properly compensated.’” Viet v. Le, 951
F.3d 818, 822 (6th Cir. 2020) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687,
18

66 S.Ct. 1187, 90 L.Ed. 1515 (1946)). There is reason to doubt whether Hardeman County has
complete time records on which Plaintiffs can rely to prove up their overtime claims, despite the
County’s duty to maintain them. See 29 C.F.R. § 553.50 (requiring a public agency like a political
subdivision of a state to “maintain and preserve records containing the basic information and data”
regarding comp time).

Counsel for Defendants have acknowledged in hearings and status

conferences with the Court that they cannot locate all of the relevant employment documents.
Plaintiffs have recently filed a motion to compel (ECF No. 370) the production of personnel files
for 18 different Plaintiffs.
Nevertheless, in order to prove a defendant liable for the violation of the FLSA, the Sixth
Circuit has held that the employee’s own testimony can suffice to create a genuine issue of fact for
a jury to decide. Moran v. Al Basit LLC, 788 F.3d 201, 205 (6th Cir. 2015) (citing the Supreme
Court’s remark that in light of the remedial nature of the FLSA, the employee’s burden of proof
should not be “an impossible hurdle”) (quoting Anderson, 328 U.S. at 687, 66 S.Ct. 1187)).
“Generally speaking, if an employee describes a specific work schedule exceeding [the statutory
maximum for hours worked], courts have found the testimony sufficient. If, by contrast, the
employee testifies generically that the employee worked overtime without providing details to
support this claim, courts have found that the testimony falls short.” Viet, 951 F.3d at 823.
An employer who violates the overtime requirements of 29 U.S.C.§ 207 is liable for the
amount of unpaid overtime compensation and an equal amount as liquidated damages, “what
amounts to a possibility of double damages.” Acosta v. Min & Kim, Inc., 919 F.3d 361, 366 (6th
Cir. 2019) (citing 29 U.S.C. § 216(c)). The plaintiff has the burden to prove “an overtime wage
calculation to include (1) the regular rate, (2) a numerical multiplier of the regular rate, and (3) the
number of overtime hours.” Monroe, 860 F.3d at 415 (citing 29 U.S.C. § 207; 29 C.F.R. §
19

778.107). Liquidated damages for the violation of the FLSA’s overtime provision “are
compensation, not a penalty or punishment.” Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d
832, 840 (6th Cir. 2002). The Sixth Circuit has described liquidated damages in FLSA cases as
“the norm” and “mandatory.” Martin v. Ind. Mich. Power Co., 381 F.3d 574, 585 (6th Cir. 2004);
see also Solis v. Min Fang Yang, 345 F. App’x 35, 38–39 (6th Cir. 2009). A district court may
nevertheless deny liquidated damages where an employer proves that the failure to pay proper
overtime wages occurred in good faith and the employer “had reasonable grounds for believing
that his act or omission was not a violation of the [FLSA].” Min & Kim, 919 F.3d at 366 (citing
29 U.S.C. § 260). “Since an award of liquidated damages is left to the ‘sound discretion’ of the
court, it is to be granted, or denied, by the court, as opposed to the jury.” McClanahan v. Mathews,
440 F.2d 320, 322 (6th Cir. 1971) (citing Martin v. Detroit Marine Terminals, Inc., 189 F. Supp.
579 (E.D. Mich. 1960)).
B. Use of Representative Proof
Plaintiffs have not made testimony or other admissible evidence about all 84 Plaintiffs part
of the record. Plaintiffs have instead filed excerpts from the transcripts of depositions taken from
14 different Plaintiffs and written interrogatory responses given by 13 other Plaintiffs. In FLSA
collective actions, representative testimony given by less than all plaintiffs can make out proof of
FLSA violations. Monroe, 860 F.3d at 407 (“We have recognized that ‘representative testimony
from a subset of plaintiffs [can] be used to facilitate the presentation of proof of FLSA violations,
when such proof would normally be individualized.’”). “For the testifying [employees] to be
representative of the class as a whole, it is enough that [the employees] testified as to each means
of enforcement of the common, FLSA-violating policy.” Id. Likewise, representative proof can
make out an “estimate average of overtime worked” to arrive at damages. Id. at 411-412. “The
20

heart of the matter is whether the plaintiffs should be permitted to bring their claims of liability
and damages as a group based on representative, rather than personal, evidence.” Pierce, 922 F.3d
at 745-46 (citing 7B Charles Alan Wright et al., Federal Practice & Procedure § 1807 (3d ed.
2005)).
C. Statute of Limitations
Defendants have filed a motion in limine (ECF No. 320) addressed to the statute of
limitations issue. The parties are still in the process of briefing the motion. The correct limitations
period for each Plaintiff’s FLSA claims and damages will have material bearing on the issues
remaining for trial. The FLSA requires a plaintiff alleging a violation to “commence” suit “within
two years after the cause of action accrued.” 29 U.S.C. § 255; Walsh v. KDE Equine, LLC, 56
F.4th 409, 414 (6th Cir. 2022) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135, 108
S.Ct. 1677, 100 L.Ed.2d 115 (1988)). A plaintiff “commences” an FLSA suit by filing a complaint.
29 U.S.C. § 256. But when one or more plaintiffs bring a collective action for violations of the
FLSA, the suit “commences” for each “individual claimant” on the date when a complaint is filed
if (1) the claimant is “specifically named as a party plaintiff in the complaint” and (2) the
claimant’s “written consent to become a party plaintiff” is also filed with the Court. § 256(a). If
the claimant is not named in the complaint or he or she has not filed a written consent form, his or
her action “commences” “on the subsequent date” when he or she files a written consent. § 256(b);
see also Campbell, 903 F.3d at 1100 (“In an FLSA collective action, however, an opt-in plaintiff’s
action is deemed ‘commenced’ from the date her opt-in form is filed with the district court.”)
(citing 29 U.S.C. § 256).
If an employee can show that the employer’s violation of the statute was willful, the statute
of limitations is three years. Walsh, 56 F.4th at 414. To make such a showing, an FLSA plaintiff
21

“must prove that the employer ‘knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the statute.’” Id. (quoting McLaughlin, 486 U.S. at 133, 108 S.Ct. 1677).
The question of whether an employer willfully violated the FLSA is a question of fact for the
factfinder. Id. at 416 (citing Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 967 (6th Cir.
1991)). And as in any case, a statute of limitations is an affirmative defense. Fed. R. Civ. P. 8(c);
Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012).
With this framework in mind, the Court turns now to consider the subclasses proposed by
Plaintiffs and whether Plaintiffs have carried their burden to show how the members of each
subclass are similarly situated.
II. Hardeman County Dispatchers
Plaintiffs argue that the first subclass to which the Court should grant partial certification
is a subclass of dispatchers. Plaintiffs have identified the following 13 dispatchers who are part of
the collective action and would be grouped into a separate subclass for trial: (1) Cheri Baker, (2)
Jenny Duke, (3) Lauren Hampton, (4) Cristen Hill, (5) Jackie Kelley, (6) Pearlie Long, (7) Toni
Pierce, (8) Crystal Ervin, (9) Tina Howell, 4 (10) Martha Lowrance, (11) Cathie Sprayberry, (12)
Jane Vickers, and (13) Alisha Young. The dispatcher subclass alleges that Defendants failed to
pay them overtime and violated the FLSA in the following ways: (a) they were required to work
one 48-hour week during every two-week pay period and were not paid overtime for the hours
worked over 40; (b) they were required by Captain Dana Knight to be at their posts at least 15 to
30 minutes prior to their scheduled shifts; (c) they were required to complete training videos off
the clock for certification; (d) when they received comp time, it was incorrectly calculated at one
4

Tina Howell filed her consent form on September 1, 2020, prior to the filing of the Master
Complaint. However, Howell was not named as a Plaintiff in the Master Complaint.
22

hour of comp time for every hour of overtime worked; (e) they were not paid their accrued comp
time when they left their County employment; 5 and (f) their overtime was not calculated correctly
throughout their employment. In support of the claims alleged by the members of this subclass,
Plaintiffs have filed excerpts from the depositions of Cheri Baker and Jenny Duke. Baker Dep.
May 17, 2021 (ECF No. 352-3); Duke Dep. May 17, 2021 (ECF No. 352-4). Plaintiffs have also
produced Baker’s responses to written interrogatories (ECF No. 352-17) as well as interrogatory
responses from Toni Pierce (ECF No. 352-18) and Cathie Sprayberry (ECF No. 352-19).
Defendants have filed responses to written interrogatories from Tina Howell (ECF No. 356-1).
Based on the representative proof introduced by Plaintiffs, the Court holds that Plaintiffs
have satisfied the “stricter standard” and shown that the members of the dispatcher subclass are
similarly situated. Frye, 495 F. App’x at 671; Monroe, 860 F.3d at 397. First, the factual and
employment setting of each dispatcher, “considering issues such as location, job duties,
supervision, and salary,” shows the dispatchers are similarly situated. Frye v. Baptist Mem’l
Hosp., No. 07-2708-SHM, 2010 WL 3862591, at *3 (W.D. Tenn. Sept. 27, 2010) (citing Wilks v.
Pep Boys, No. 3:02–0837, 2006 WL 2821700, at *3 (M.D. Tenn. Sept. 26, 2006). Hardeman
County dispatchers worked 12-hour shifts, either 6:00 a.m. to 6:00 p.m. or 6:00 p.m. to 6:00 a.m.
5

Those dispatchers who are no longer employed with the County allege the County failed
to pay them for all accrued comp time and holiday and vacation pay at the conclusion of their
employment in retaliation for their participation in this lawsuit. Pierce Interrog. Resp. 12-13
(PageID 3807-3808); Sprayberry Interrog. Resp. 8 (PageID 3820). Plaintiffs have also alleged
that Mayor Sain eliminated the dispatchers’ jobs as part of a reorganization of the County’s
dispatch and 911 system. Both the County’s refusal to pay accrued comp time and alleged
retaliation against the dispatchers implicate the dispatchers’ rights under the FLSA. 29 U.S.C. §
207(o)(4) (“An employee who has accrued compensatory time off authorized to be provided under
paragraph (1) shall, upon termination of employment, be paid for the unused compensatory time .
. . .”); § 215(a)(3) (prohibiting an employer from “discriminat[ing] in any other manner” against
an employee who complains of violations of the FLSA). The Court discusses Plaintiffs’ retaliation
claims in more detail below.
23

During a two-week pay period, dispatchers worked four 12-hour shifts during one week and three
12-hour shifts during the other. All dispatchers reported to the same supervisor Captain Dana
Knight during the relevant timeframe. The dispatchers “performed the same tasks and were subject
to the same policies—as to both timekeeping and compensation.” Clark, 68 F.4th at 1010.
The dispatchers have also introduced evidence of common theories about how Defendants
violated the FLSA. O’Brien, 575 F.3d at 585. For example, Cheri Baker testified in her deposition
that she was not paid for overtime worked during the weeks in which she like all the other
dispatchers was scheduled to work four 12-hour shifts, that is, 48 hours. Baker Dep. 44:2-20
(PageID 3663); id. at 61:18-21 (PageID 3665); Duke Dep. 42:13-22 (PageID 3675). Under
Department of Labor regulations interpreting the FLSA, “a single workweek” is the “standard and
[does] not permit averaging of hours over 2 or more weeks.” 29 C.F.R. § 778.104. Paying
dispatchers a flat rate of pay for both workweeks, regardless of the number of hours worked, would
constitute an FLSA violation.
The dispatchers have further shown Captain Knight required them to report 15 to 30
minutes early for their scheduled shifts for a pre-shift briefing. Baker Dep. 66:15-22 (PageID
3668); id. at 67:7-21 (PageID 3669); 68:8-22 (PageID 3670); Duke Dep. 63:2-23 (PageID 3678).
The regulations define “compensable hours or work” to include “all of the time during which an
employee is on duty on the employer’s premises or at a prescribed workplace, as well as all other
time during which the employee is suffered or permitted to work for the employer,” including “all
pre-shift and post-shift activities which are an integral part of the employee’s principal activity or
which are closely related to the performance of the principal activity, such as attending roll call . .
. .” 29 C.F.R. § 553.221(b). This practice too could show that Defendants violated the Act.

24

And there is proof that Defendants not only failed to pay dispatchers for all hours worked
but also incorrectly calculated their overtime hours, granting them one hour of comp time in lieu
of overtime pay but not the time-and-a-half required by the FLSA. Baker Dep. 71:7-18 (PageID
3671); Duke Dep. 65:15-19 (PageID 3679). The FLSA allowed Hardeman County to use comp
time as a substitute for overtime pay under certain conditions but always “at a rate not less than
one and one-half hours for each hour of employment for which overtime compensation is required
by” § 207. 29 U.S.C. § 207(o)(1).
The 13 Plaintiffs who fit within the proposed subclass of dispatchers are substantially
similar as to each of these common theories of relief, with one exception. Defendants have argued
that not all dispatchers have alleged precisely the same FLSA claims. For example, two Plaintiffs
Cheri Baker and Toni Pierce allege they were not paid for all hours worked during spans of time
when the County used a semi-monthly accounting method for payroll and that the County
continued to miscalculate overtime when it transitioned from semi-monthly pay periods to biweekly pay periods in 2016 and 2017. Tina Howell does not allege a similar claim, presumably
because she did not begin with Hardeman County until 2018. Plaintiffs who fit within other
subclasses of Hardeman County employees allege similar claims about pay practices dating to
2016 and 2017.
The Court finds that the dispatchers are not similarly situated as to this claim. The alleged
violation concerning Hardeman County’s semi-monthly accounting method impacted only those
deputies who were employed with the department in 2016. And the allegation about the County’s
move from semi-monthly accounting to bi-weekly pay periods would have applied only to deputies
employed from later 2016 to 2017. In order to have a timely claim based on conduct occurring
more than two years before the original Plaintiffs filed suit, the dispatchers must show how the
25

payroll practices affected them as a group. Only Plaintiffs (1) who worked for the department in
2016, (2) who opted into the collective action no later than 2019, and (3) who can avail themselves
of the FLSA’s three-year statute of limitations for willful violations of the law can bring this
specific claim. The Court concludes then that Plaintiffs have not shown why the dispatchers as a
group are similar with regard to payroll policies dating back to 2016.
The Court would also highlight an evidentiary issue related to the dispatchers’ claims for
watching training videos without receiving overtime. According to the proof, Captain Knight
required dispatchers to complete annual certification videos at home and off the clock. For
example, Toni Pierce spent five hours per year during each year she was employed as a Hardeman
County dispatcher watching videos off the clock. Pierce Interrog. Resp. 12-13 (PageID 38073808). But Pierce also gave evidence that for 26 weeks out of the year she worked less than 40
hours per week. Id. at 7-8 (PageID 3802-3803). The problem is Pierce has not shown she worked
in excess of 40 hours and was therefore entitled to overtime during the specific work periods in
which she was required to watch the videos. See also Sprayberry Interrog. Resp. 12 (PageID
3824). There is a question then over whether the practice related to take-home training videos
resulted in a violation of the FLSA. But that will be a fact question for a jury to decide at trial.
Defendants have not sought judgment as a matter of law on the issue and will have the opportunity
to cross-examine any witness who testifies on this subject as well as the chance to present their
own evidence on the point. For purposes of the decertification analysis, Plaintiffs have shown that
Captain Knight required the dispatchers to complete the annual training without pay and that the
dispatchers were similarly situated in this regard.
A second factor relevant to the decertification issue is whether Defendants have
individualized defenses to the dispatchers’ claims. O’Brien, 575 F.3d at 585. Defendants have not
26

actually addressed this factor. Defendants have highlighted the fact that not all dispatchers had
the same tenure with the department. Defendants’ point, perhaps, shows that each dispatcher may
have a different measure of damages based on the different statute of limitations applicable to each
Plaintiff’s FLSA claim.

In other words, Defendants may have affirmative defenses to the

individual claims of the dispatchers. However, Defendants have not shown that any specific
defense would make collective treatment of the dispatchers’ claims unmanageable. This factor
does not weigh against certification of the dispatchers’ claims (or the claims of any of the other
subclasses defined here).
The third factor requires the Court to determine whether collective treatment serves the
purposes of the FLSA, an enactment which Congress intended to be “broadly remedial and
humanitarian.” Donovan v. Brandel, 736 F.2d 1114, 1116 (6th Cir. 1984)). That includes a
balancing of the lower cost of litigation for individual plaintiffs, the judicial economy achieved
through the use of collective action, and any prejudice or procedural unfairness to the defendant.
Id. (citing Hoffman–La Rouche, 493 U.S. at 170). “The very point of the ‘similarly situated’
inquiry is to determine whether the merits of other-employee claims would be similar to the merits
of the original plaintiffs’ claims—so that collective litigation would yield efficient resolution in
one proceeding of common issues of law and fact arising from the same alleged discriminatory
activity.” Clark, 68 F.4th at 1012 (quoting Hoffmann-La Roche, 493 U.S. at 170) (internal
quotation marks omitted).
The Court finds that collective treatment of the dispatchers’ FLSA claims is consistent with
the purposes of the FLSA and will achieve the best use of judicial resources. Decertification would
result in the Court empaneling more than one jury and the parties incurring additional litigation
costs, all to try what appear to be factually and legally similar issues to decide the dispatchers’
27

claims for relief. A single trial of the dispatchers’ claims as a collective will be the best use of
resources for the Court and the parties. For each of these reasons, the Motion for Decertification
is GRANTED in part, DENIED in part as to the subclass of dispatchers.
The Court finds that the dispatchers are similarly situated as to the following FLSA claims:
(a) they were required to work one 48-hour week during every two-week pay period and were not
paid overtime for the hours worked over 40; (b) they were required by Captain Dana Knight to be
at their posts at least 15 to 30 minutes prior to their scheduled shifts; (c) they were required to
complete training videos off the clock for certification; (d) when they received comp time, it was
incorrectly calculated at one hour of comp time for every hour of overtime worked; and (e) their
overtime was not calculated correctly throughout their employment. Therefore, the Court grants
partial certification to the subclass of dispatchers to proceed collectively on these claims at trial.
III. Hardeman County Sheriff’s Deputies – Patrol
The second subclass proposed by Plaintiffs is a subclass of Hardeman County Sheriff’s
Deputies. Plaintiffs have identified the following 12 deputies who worked the first shift, typically
8:00 a.m. to 4:00 p.m., as patrol deputies and who would be grouped into a separate subclass for
trial: (1) Brandon Allen, (2) James Frazier, (3) Randle Grantham, (4) Michael Hatch, (5) Jeffrey
Hill, (6) Keith Hogwood, (7) Logan Howell, (8) Vincent Hunt, (9) Mike Kennamore, (10) Jaime
Medina, (11) Brian Vandiver, and (12) Tommie Woods. Plaintiffs have also proposed a separate
subclass for patrol deputies who worked the second and third shifts. Plaintiffs explain that the
claims of all patrol deputies are identical, except second and third shift deputies were not
compensated for additional off-the-clock work specific to their shift including in-service training,
obtaining warrants, and making court appearances. The following 16 deputies worked second and
third shift: (1) Josh Allen, (2) Ed Avery, (3) Greg Brown, (4) Scott Brown, (5) Chris Deming, (6)
28

Nicholas Ellison, (7) Wesley Estes, (8) James Graham, (9) Ryan Herndon, (10) Chris Hopkins,
(11) Courtney Howell, (12) Ethan Howell, (13) Jonathan Luttrell, (14) David Nabors, (15) Ethan
Vasquez, and (16) Chris Wilkerson.
Plaintiffs argue that Defendants failed to pay all patrol deputies overtime and violated the
FLSA in the following ways: (a) they were required by Chief Billy Davis to attend pre-shift and
post-shift briefings before and after their shifts; (b) when the deputies did receive comp time, it
was incorrectly calculated at one hour of comp time for every hour of overtime worked; (c) they
were not paid their accrued comp time, holiday, and vacation pay when they left the County’s
employment; 6 (d) they were not paid for all overtime worked; (e) their overtime was not correctly
calculated throughout their employment; (f) they were required to stay and complete all
reports/paperwork off the clock before leaving; (g) they responded to calls while off duty because
of understaffing of deputies; and (h) beginning in March 2019, Hardeman County Mayor Sain
refused to pay deputies for all hours worked between 40 and 43. As evidentiary support for these
claims, Plaintiffs have furnished excerpts from the depositions of Michael Hatch (ECF No. 3528) and David Nabors (ECF No. 352-12).

Plaintiffs have also filed responses to written

6

For deputies who are no longer with Hardeman County, the proof shows that Hardeman
County refused to pay all accrued time owed when a deputy separated from county employment.
Herndon Interrog. Resp. 9 (PageID 3857); see also id. at 15 (PageID 3863) (stating that he is owed
272.5 hours of comp time). The original Complaint alleges that Michael Hatch and Chris
Wilkerson left the department in 2018. The Amended Complaint also alleges the same claim on
behalf of Greg Brown, Scott Brown, Chris Deming, Ryan Herndon, Chris Hopkins, Courtney
Howell, David Nabors, and Ethan Vasquez.
Other than these deputies, Plaintiffs have not shown which members of the patrol deputies
subclass are no longer with Hardeman County and which deputies allege that Defendants have
refused to make payment for accrued comp time in retaliation for Plaintiffs’ filing this lawsuit.
The Court will address the issue of accrued comp time as well as Plaintiffs’ claims of retaliation
below.
29

interrogatories completed by Ed Avery (ECF No. 352-22), Randle Grantham (ECF No. 352-20),
and Ryan Herndon (ECF No. 352-21). For their part, Defendants have filed responses to written
interrogatories from Ethan Howell (ECF No. 356-2), Courtney Howell (ECF No. 356-3), Tommie
Woods (ECF No. 356-4), Craig Collins (ECF No. 356-5), Logan Howell (ECF No. 356-6), and
Ethan Vasquez (ECF No. 356-7).
Based on the representative proof introduced by Plaintiffs, the Court holds that Plaintiffs
have shown that the subclass of patrol deputies is similarly situated under the “stricter standard”
at the decertification stage, though only in part. Frye, 495 F. App’x at 671. First, the factual and
employment setting of each patrol deputy, “considering issues such as location, job duties,
supervision, and salary,” shows the deputies are similarly situated, regardless of their shift. Frye,
2010 WL 3862591, at *3. The patrol deputies shared a largely common factual and employment
setting. The deputies had similar duties (patrol), worked similar schedules, reported to the same
command structure, and were paid as hourly employees. Nabors Dep. 18:7-9 (PageID 3747);
Hatch Dep. 18:7-19 (PageID 3702); Herndon Interrog. Resp. 4 (PageID 3852).
Additionally, the patrol deputies largely allege common theories of how Defendants
violated the FLSA. For example, Plaintiffs have submitted proof that sheriff’s department
leadership required deputies to report 15 to 30 minutes before their shifts for a pre-shift briefing
and then to stay late for the briefing for the shift that followed theirs. Hatch Dep. 28:7-19 (PageID
3704); id. at 34:14-35:2 (PageID 3707-3708); Nabors Dep. 15:3-10, 23-25 (PageID 3745); Avery
Interrog. Resp. 4 (PageID 3872). The FLSA defines “compensable hours of work” to include “preshift and post-shift activities” like “roll-call” under certain circumstances. 29 C.F.R. § 553.221(b).
The patrol deputies have also shown that they were scheduled to work 43-hour workweeks and
were not paid for hours 41 through 43, either overtime or straight time, after March 2019. Avery
30

Interrog. Resp. 4 (PageID 3872); Herndon Interrog. Resp. 7 (PageID 3855). 7 This proof would
make out a violation of the FLSA. 29 C.F.R. § 553.221(b) (“Compensable hours of work generally
include all of the time during which an employee is on duty on the employer’s premises or at a
prescribed workplace, as well as all other time during which the employee is suffered or permitted
to work for the employer.”). And there is evidence Hardeman County incorrectly calculated patrol
deputies’ comp time at one hour of comp time for every hour of overtime worked, not time and a
half. Hatch Dep. 33:14-34:9 (PageID 3706-3707); Herndon Interrog. Resp. 8 (PageID 3856). As
the Court has already noted, the FLSA allowed Hardeman County to use comp time instead of
overtime but at a rate of time and a half for each hour of overtime worked. 29 U.S.C. § 207(o)(1);
29 C.F.R. §§ 553.20(a), 553.231(a).
Defendants question whether each deputy in the proposed subclass shares all of the same
theories of Defendants’ FLSA liability. Defendants cite discovery materials in which some
deputies do not address all of the common theories on which Plaintiffs seek certification of the
patrol deputy subclass. For instance, Defendants challenge Plaintiffs’ allegations about the
department requiring deputies to answer calls off duty due to staffing issues. The Court tends to
agree that Plaintiffs have not actually met the stricter standard to demonstrate how the patrol
deputies are similar in this particular aspect of their employment. Plaintiffs have not shown
through their representative proof that all deputies were required to work this kind of overtime.

7

Plaintiffs allege that Michael Hatch and Chris Wilkerson left their employment with
Hardeman County in 2018. Clearly, a payroll practice adopted by the County in 2019 had no
impact on deputies who were no longer employed by the County. The Court finds that Hatch and
Wilkerson are not similarly situated to the other patrol deputies in this regard. As a result, the
Court is not certifying the subclass of deputies to include Hatch and Wilkerson. Because Hatch
and Wilkerson were original Plaintiffs in the case, they will have the opportunity to try their claims
individually.
31

See E. Howell Interrog. Resp. (ECF No. 356-2). And the deputies who did give evidence on this
point did not actually provide any estimates for the amount of unpaid overtime they worked by
responding to calls when they were off duty. See Vasquez Interrog. Resp. (ECF No. 356-7);
Herndon Interrog. Resp. (ECF No. 352-21); but see C. Howell Interrog. Resp. (ECF No. 356-3)
(stating that she responded to calls once or twice a month). There is also evidence to suggest that
not all patrol deputies were required to be on call to respond but only deputies who were issued
take-home vehicles by the department. None of the evidence proves that all deputies worked
overtime due to understaffing. In light of the somewhat vague and imprecise nature of the proof,
the Court declines to certify this issue for collective treatment at trial.
Defendants next argue that not all deputies in the proposed subclass shared the same type
of patrol duties. Defendants have shown that Plaintiff Tommie Woods worked as a school resource
officer and claims unpaid overtime for working at school events after hours, though the discovery
materials filed by Defendants do not indicate during what time period Deputy Woods performed
those duties. Woods Interrog. Resp. 7 (ECF No. 356-4, PageID 4125). Plaintiffs have included
Woods in their proposed subclass of patrol deputies but without submitting any evidence about
Woods’ actual duties. The fact that Woods worked a completely different detail (school safety)
suggests that his employment with Hardeman County and his FLSA claims are factually distinct
from the other deputies in this subclass. 8 The Court concludes that Plaintiffs have not carried their
burden to show why Tommie Woods is similar to other patrol deputies.

8

The same discovery materials cited by Defendants show that Deputy Woods asserts
claims for some of the same FLSA violations as other patrol deputies, like not being paid for preshift briefings and being paid for 40 hours of work when the deputy actually worked 43 hours.

32

Defendants argue that Plaintiffs have not shown that all patrol deputies in the proposed
subclass were affected by the same payroll policies, a restatement of Defendants’ argument in
opposition to the certification of the dispatcher subclass. Just like the dispatchers, some deputies
allege that Hardeman County miscalculated overtime in 2016 when the County used a semimonthly accounting method for payroll and that the County continued to miscalculate overtime
when it transitioned from semi-monthly pay periods to bi-weekly pay periods in 2016 and 2017.
E.g. C. Howell Interrog. Resp. 8 (PageID 4106); Herndon Interrog. Resp. 7 (PageID 3855). But
other deputies like Ethan Howell who was not hired until 2018 would obviously have no claim
based on a county payroll policy predating their tenure. For reasons the Court has already
addressed in its discussion of the subclass of dispatchers, the Court finds that the deputies are not
similarly situated as to this claim.
Finally, Defendants argue that not all members of the proposed subclass of patrol deputies
allege similar FLSA violations. Some seek unpaid overtime for the calculation of their comp time
at an incorrect rate while others do not assert this specific theory of relief. Some allege that they
were required to stay and complete end-of-shift reports off the clock. The written discovery
responses submitted by Ethan Vasquez (ECF No. 356-7), for example, do not address this kind of
overtime claim at all. 9 The Court finds that Defendants’ argument here is less persuasive. There
is no dispute the FLSA applies to both claims. 29 C.F.R. § 553.221(b) (including time spent
“writing up and completing tickets or reports” in the definition of “compensable hours of work”).
Plaintiffs have shown that Hardeman County did not consistently calculate comp time at the

9

Defendants also argue that Logan Howell did not make such a claim in his written
discovery responses. Defendants’ statement is factually inaccurate. See L. Howell Interrog.
Resp. 14 (PageID 4160).
33

correct rate and that department leadership expected deputies to complete their paperwork at the
end of the shift, off the clock. Accepting the proof as representative of all patrol deputies, Plaintiffs
have shown deputies worked overtime on paperwork, though deputies provided somewhat
different estimates of just how much time they spent on this task. See Hatch Dep. 39:13-25
(PageID 3710) (“a minimum of three hours”); Avery Interrog. Resp. 4 (PageID 3872) (two hours
per week on paperwork); see also id. at 7-8 (PageID 3875-76); Herndon Interrog. Resp. 15 (PageID
3863) (1.5 hours per week); but see id. at 13 (PageID 3861) (four hours per week). But these
distinctions are differences in degree, not differences in kind.
The Sixth Circuit has held that FLSA plaintiffs can be similarly situated even if “proof of
a violation as to one particular plaintiff does not prove that the defendant violated any other
plaintiff’s rights under the FLSA” and where the proof is “inevitably individualized and distinct.”
O’Brien, 575 F.3d at 585. Each deputy’s time estimate is just that; an estimated average of time
spent working without pay. The representative proof discharges Plaintiffs’ burden to show they
worked overtime without proper pay. Plaintiffs will still have the ultimate burden to prove how
much time deputies typically worked completing paperwork. For their part, Defendants will have
the chance to cross-examine any witness about estimates of this sort and call witnesses of their
own to rebut the representative proof by showing that a member of the subclass did not experience
the same practice. None of this shows the patrol deputies were not similarly situated in this aspect
of their employment.
Having determined that Plaintiffs have met the first factor and shown that the patrol
deputies are similarly situated, the Court also finds that Plaintiffs have met the second and third
factors for partial certification of the patrol deputy subclass. The “different defenses to which the
plaintiffs may be subject on an individual basis” do not counsel against certification of the patrol
34

deputy subclass. O’Brien, 575 F.3d at 584. Defendants have essentially pointed out that not all
county policies affected all patrol deputies to the same degree because each deputy started his
employment with the County (and others ended their county employment) at different times. Just
as in most FLSA collective actions, a different limitations period will apply to each deputy’s FLSA
claims, depending on when the deputy opted into the collective action. 29 U.S.C. § 256(a) & (b).
Just like the subclass of dispatchers, the subclass of patrol deputies will be susceptible to
individualized statute of limitations defenses. Defendants’ point does not show, however, that the
deputies were not similarly situated in their employment or subject to the same policies which
allegedly resulted in violations of the FLSA. And just as with the dispatcher subclass, Defendants
have not shown that the availability of individualized defenses to each deputy’s claims requires
decertification.
At trial Plaintiffs will need to show and the jury will need to make an individual assessment
of each patrol deputy’s damages, focusing on the statute of limitations for the deputy’s FLSA claim
to determine when an alleged violation occurred, the number of overtime hours worked during the
limitations period, and the deputy’s applicable rate of pay.

29 C.F.R. § 778.107 (requiring an

FLSA plaintiff to prove “an overtime wage calculation to include (1) the regular rate, (2) a
numerical multiplier of the regular rate, and (3) the number of overtime hours”). The different
statutes of limitations applicable to the patrol deputies’ claims do not preclude certification of the
subclass.
The Court finally finds that collective action on the patrol deputies’ FLSA claims “would
yield efficient resolution in one proceeding of common issues of law and fact arising from the
same alleged discriminatory activity.” Clark, 68 F.4th at 1012. Therefore, the Court will grant
certification to a subclass of the following patrol deputies: (1) Brandon Allen, (2) James Frazier,
35

(3) Randle Graham, (4) Jeffrey Hill, (5) Keith Hogwood, (6) Logan Howell, (7) Vincent Hunt, (8)
Mike Kennamore, (9) Jaime Medina, (10) Brian Vandiver, (11) Josh Allen, (12) Ed Avery, (13)
Greg Brown, (14) Scott Brown, (15) Chris Deming, (16) Nicholas Ellison, (17) Wesley Estes, (18)
James Graham, (19) Ryan Herndon, (20) Chris Hopkins, (21) Courtney Howell, (22) Ethan
Howell, (23) Jonathan Luttrell, (24) David Nabors, and (25) Ethan Vasquez.
The Court finds that these patrol deputies are similarly situated and should proceed to trial
collectively as to the following FLSA claims: (a) they were required by Chief Billy Davis to attend
pre-shift and post-shift briefings; (b) when the deputies did receive comp time, it was incorrectly
calculated at one hour of comp time for every hour of overtime worked; (c) they were not paid for
all overtime worked; (e) their overtime was not correctly calculated throughout their employment;
(f) they were required to stay and complete all reports/paperwork off the clock before leaving; and
(g) beginning in March 2019, Hardeman County Mayor Sain refused to pay deputies for all hours
worked between 40 and 43. Therefore, the Motion for Decertification is GRANTED in part,
DENIED in part as to the subclass of patrol deputies.
IV. Hardeman County Sheriff’s Deputies – Patrol Second and Third Shifts
The third subclass proposed by Plaintiffs consists of Hardeman County Sheriff’s Deputies
who worked the second shift (4:00 p.m. to midnight) or third shift (midnight to 8:00 a.m.), as patrol
deputies. Plaintiffs have identified the following 16 deputies who are part of the collective action
and would be grouped into this separate subclass for trial: (1) Josh Allen, (2) Ed Avery, (3) Greg
Brown, (4) Scott Brown, (5) Chris Deming, (6) Nicholas Ellison, (7) Wesley Estes, (8) James
Graham, (9) Ryan Herndon, (10) Chris Hopkins, (11) Courtney Howell, (12) Ethan Howell, (13)
Jonathan Luttrell, (14) David Nabors, (15) Ethan Vasquez, and (16) Chris Wilkerson. Plaintiffs
argue that the second and third shift patrol deputies’ claims are identical to the claims of the first
36

shift deputies with the addition of one claim: they were not compensated for off-the-clock work
specific to their shift such as in-service training, warrants, and court appearances. In support of
these claims, Plaintiffs have filed responses to written interrogatories completed by Ed Avery
(ECF No. 352-22) and Ryan Herndon (ECF No. 352-21) as well as excerpts from the deposition
of David Nabors (ECF No. 352-12).
Based on Plaintiffs’ representative proof concerning this proposed subclass, the Court finds
Plaintiffs have not met the “stricter standard” to show the second and third shift patrol deputies
were similarly situated. First, Plaintiffs have not shown how this subclass of patrol deputies was
substantially similar as far as their claims for in-service training in 2017 and 2018. According to
discovery responses submitted by two of the deputies in the proposed subclass, deputies working
these shifts were not paid for 40 hours of in-service training in 2017 and 2018. See Herndon
Interrog. Resp. 7 (PageID 3855), 13 (PageID 3861); see also Avery Interrog. Resp. 7 (PageID
3875). But the third representative, David Nabors, testified that he started his employment with
the County in 2019. Nabors Dep. 18:3-6 (PageID 3747). It may be the case that Nabors is the
only member of the proposed subclass who was not employed with the department in 2017 and
2018. But Plaintiffs have not shown whether Nabors is just an outlier or whether evidence offered
by Herndon and Avery on in-service training is actually representative of the other deputies
grouped into this subclass. Without more, Plaintiffs have not shown how these deputies were
similarly situated as to in-service training.
Likewise, Plaintiffs have not shown that the deputies were similarly situated as to
performing off-the-clock work to obtain warrants. The time required for this off-the-clock work
seems to have varied from pay period to pay period and among the different deputies. Avery
estimated that he spent a total of 15 hours over the course of his entire tenure waiting to get
37

warrants issued at the clerk of court’s office. Avery Interrog. Resp. 8 (PageID 3877). Herndon
provided no specific estimate. Herndon Interrog. Resp. 8 (PageID 3856). Nabors just stated that
if he needed a warrant issued, he might work an additional 45 minutes at the end of third shift.
Nabors Dep. 60:16-24 (PageID 3749). The Court would add that the deputies who worked second
and third shift also claim they were required to stay after their shifts to complete regular end-ofshift paperwork, and the Court has already certified a subclass of deputies, which includes the
second and third shift deputies, pursuing that claim collectively. Plaintiffs have not shown through
their representative proof just how much additional time the second and third shift deputies had to
work to obtain warrants beyond completing their other paperwork. Therefore, Plaintiffs have not
submitted enough evidence to show why the second and third shift deputies should be allowed to
proceed collectively on this specific claim.
This just leaves the second and third shift deputies’ claims for attending court. Herndon
estimated he had to attend court one or two times per month, or a total of 48 hours during his tenure
with Hardeman County. Herndon Interrog. Resp. 13 (PageID 3861); see also id. at 15 (PageID
3863) (stating 48 hours total over course of tenure). Avery stated that he also attended court twice
a month but did not estimate a total number of hours he spent in court without being paid properly.
Avery Interrog. Resp. 8 (PageID 3876). Nabors did not mention time attending court at all. By
its very nature, court time could vary greatly, depending on the nature of the proceeding and the
officer’s role in the case. Taken as a whole, the proof about deputies attending court off the clock
is not as detailed or thorough as the proof presented to support some of Plaintiffs’ other common
theories of relief. At most, Plaintiffs have shown deputies worked intermittently or sporadically
attending court outside of their normally scheduled shifts. Therefore, the Court finds that Plaintiffs
have not offered “substantial evidence” to show the proposed subclass is similar and have not met
38

the higher standard for certification as a collective action. Campbell, 903 F.3d at 1117–18.
Therefore, Defendants’ Motion for Decertification is GRANTED as to these claims.
V. Hardeman County Deputy Investigators
The next subclass proposed by Plaintiffs is made up of Hardeman County Sheriff’s
Deputies who worked as investigators. Plaintiffs have identified the following five deputies who
are part of the collective action and would be grouped into this separate subclass for trial: (1) Justin
Bryant, (2) Craig Collins, (3) Greg Moore, (4) Cody Naylor, and (5) Patrick Perry.

The

investigator subclass alleges that Defendants failed to pay them overtime and violated the FLSA
in the following ways: (a) their compensatory time was incorrectly calculated at one hour of comp
time for every hour of overtime worked; (b) they were not paid their accrued time when they left
Defendant’s employment; 10 (c) Their overtime was not calculated correctly throughout their
employment; and (4) beginning in March 2019 County Mayor Sain refused to pay deputies for all
hours worked between hours 40 and 43. In support of these claims, Plaintiffs have submitted
excerpts of deposition testimony given by Greg Moore (ECF No. 352-11) and Patrick Perry (ECF
No. 352-13). Plaintiffs have also filed responses to written interrogatories completed by Justin
Bryant (ECF No. 352-23) and Cody Naylor (ECF No. 352-24).
The Court finds that Plaintiffs have not shown why the five Plaintiffs who worked as
investigators should proceed to trial collectively on their FLSA claims. First, the factual and
employment settings of each investigator are not entirely similar. Patrick Perry testified he was
10

Only Cody Naylor has shown that he has left his job with Hardeman County and was
denied his accrued comp, vacation, and holiday pay, though without stating that the County acted
in retaliation for his filing this lawsuit. The Court addresses this claim as part of its discussion of
Plaintiffs’ allegations that Defendants retaliated against some of them by denying them their
accrued comp time and holiday and vacation pay at the end of their employment with the
department.
39

promoted to investigator in September 2016. Perry Dep. 24:1-5 (PageID 3756). But nothing in
Perry’s testimony specifies the nature of his duties, the types of cases he worked, or exactly how
much overtime he put in as an investigator. Perry described the number of hours as “countless.”
Greg Moore testified that he was promoted to investigator sometime in 2012 or 2013 and then
became Chief Deputy in 2018. Moore Dep. 18:20-19:7 (PageID 3731-32). Moore’s FLSA claims
are confined to the period between 2016 and 2018, prior to his promotion to Chief Deputy. Id. at
70:5-11 (PageID 3737). Moore testified that from September 2016 to April 2017, he and Justin
Bryant worked double shifts of eight hours each, three to four times per week as part of their work
on narcotics investigations. Moore Dep. 71:12-24 (Page 3738); id. at 75:8-20 (PageID 3739); see
also Bryant Interrog. Resp. 8 (PageID 3887). Moore continued to work doubles from April 2017
to October 2017 but typically only two days a week after Cody Naylor became an investigator in
April 2017. Moore Dep. 75:16-20 (PageID 3739). This proof suggests that each investigator
shared certain kinds of responsibilities, though not for exactly the same kinds of cases or for the
same lengths of time.
What is more, the investigators allege somewhat distinct types of FLSA violations rather
than a common theory of Defendants’ liability. The investigators agree that Hardeman County did
not pay them overtime as a matter of policy. Moore Dep. 24:9-24 (PageID 3733); Perry Dep. 32:68 (PageID 3757); id. at 40:22-24 (PageID 3759); Bryant Interrog. Resp. 8 (PageID 3887).
Department leadership told investigators upfront they were classified differently and would not
get overtime. Each investigator has also given proof that Mayor Sain’s policy of not paying
department employees for hours worked over 40 but less than or equal to 43 in a week applied to
investigators. Perry Dep. 133:22-24 (PageID 3772); id. at 66:16-19 (PageID 3762); id. at 68:6-11
(PageID 3763); Bryant Interrog. Resp. 8 (PageID 3887). Beyond that, the investigators allege
40

unique and distinct types of FLSA violations. For example, Justin Bryant alleges that Defendants
incorrectly calculated his comp time, Bryant Interrog. Resp. 8 (PageID 3887), that he worked 156
hours off-the-clock responding to emergency calls after hours, id. at PageID 3888, and that his
work on an FBI task force required the department to pay him overtime for hours worked over 40
hours in a seven-day period. Id. Cody Naylor makes similar claims about working after hours
calls (141 hours total) and the FBI task force. Naylor Interrog. Resp. 8 (PageID 3907). On the
other hand, Naylor has also offered proof about not being paid for pre-shift or post-shift briefings,
for attending in-service training, completing paperwork at the end of his shifts, and for making
court appearances. Id. at 13-14 (PageID 3912-13). 11
Putting aside these distinctions among the investigators, Plaintiffs have not introduced
evidence to support each of the theories of liability on which they seek final certification on behalf
of the subclass of investigators. Only Justin Bryant has given testimony about the County
incorrectly calculating comp time at one hour of comp time for every hour of overtime worked, a
claim somewhat at odds with the investigators’ allegation the County denied them overtime
altogether. Bryant Interrog. Resp. 8 (PageID 3887). Considering all of the proof submitted by
Plaintiffs, the Court concludes that Plaintiffs have not introduced “substantial evidence” of the
investigators’ similarity, at least not to such a degree that collective action on their claims is
warranted. Insofar as one or more deputies have shown some areas of similarity or factual overlap,
certification based on the few common features of their employment will not necessarily result in

11

Naylor’s proof includes what seems to be claims like those of patrol deputies as well as
those from his tenure as an investigator. Naylor appears to have worked as a deputy from May
2014 to August 2016 and then as a sergeant from August 2016 to April 2017, when he received a
promotion to investigator. Naylor Interrog. Resp. 5 (PageID 3904).

41

any greater efficiency or warrant collective treatment. Therefore, the Motion for Decertification
is GRANTED as to the subclass of investigators.
VI. Hardeman County Correctional Officers
The largest subclass proposed by Plaintiffs is made up of Hardeman County Correctional
Officers who worked at the Hardeman County Jail. Plaintiffs have identified the following 38
correctional officers and sergeants who are part of the collective action and would be grouped into
this separate subclass for trial: (1) Quinterius Allen, (2) Tavishia Anderson, (3) Elvis Armour,12
(4) Ashley Banks, (5) Lindsey Bolton, (6) Billy Bricker, (7) Leonard Brown, (8) James Callahan, 13
(9) Lauren Chism, (10) Gloria Coble, (11) Martha Daniel, (12) Joselyn Hall, (13) Christopher
Hannis, (14) Jerald Jacobs, (15) Chasity Lewis, (16) Woodson Long, (17) Chasity Mathews, (18)
Jason McCord, (19) Carol McElhone, (20) Chris McKinney, (21) Brandon McKinnie, (22)
Sharnett McNeal, (23) Curtavious Neal, (24) Parris Parks, (25) Antron Parram, (26) Tia Peoples,
(27) Devante Phinnessee, (28) Gina Pittman, (29) Fonta Polk, (30) Letrece Robinson, (31) Victoria
Rouse, (32) Arthur Schultz, (33) Keviante Simmons, (34) Trina Smith, (35) Megan Sterling, (36)
Judy Wiggins, (37) Stephanie Wilson, 14 and (38) Chadriques Wooden.
12

Plaintiffs filed a motion to substitute party (ECF No. 336) on behalf of Elvis Armour,
showing that Mr. Armour had passed away. The Court granted the motion and substituted Mr.
Armour’s sister Linda Armour Green in her capacity as administrator ad litem as a party in place
of Mr. Armour. Order Granting Pls.’ Mot. to Substitute Feb. 2, 2024 (ECF No. 344).
13

Plaintiffs filed a motion to substitute party (ECF No. 335) on behalf of James Callahan,
showing that Mr. Callahan had passed away. The Court granted the motion and substituted Mr.
Callahan’s surviving spouse Patricia Callahan in her capacity as administrator ad litem as a party
in place of Mr. Callahan. Order Granting Pls.’ Mot. to Substitute Feb. 2, 2024 (ECF No. 343).
14

Plaintiffs filed a motion to substitute party (ECF No. 337) on behalf of Stephanie Wilson,
showing that Mrs. Wilson had passed away. The Court granted the motion and substituted Mrs.
Wilson’s son Ronald Wilson in his capacity as administrator ad litem as a party in place of Mrs.
Wilson. Order Granting Pls.’ Mot. to Substitute Feb. 2, 2024 (ECF No. 345).
42

The proposed subclass of correctional officers alleges that Defendants failed to pay them
overtime and violated the FLSA in the following ways: (a) they were required to work one 44- or
48-hour workweek during each two-week pay period and were not paid overtime for the hours
worked over 40; (b) they were required to be at their post at least 15 to 30 minutes prior to their
shift; (c) their compensatory time was incorrectly calculated at one hour of comp time for every
hour of overtime worked; (d) they were not paid their accrued time when they left Defendant’s
employment; 15 and (e) they were required to stay and complete all reports/paperwork, off the
clock, before leaving. In support of these claims, Plaintiffs have submitted excerpts of the
deposition testimony given by Carol McElhone (ECF No. 352-10) and Judy Wiggins (ECF No.
352-16). Plaintiffs have also filed responses to written interrogatories submitted by Judy Wiggins
(ECF No. 352-25), Billy Bricker (ECF No. 352-26), Carol McElhone (ECF No. 352-27), and Trina
Smith (ECF No. 352-28).
The Court holds that through this representative proof, Plaintiffs have shown that the
subclass of correctional officers is similarly situated under the “stricter standard” for
decertification motions. Frye, 495 F. App’x at 671. First, the factual and employment setting of
each correctional officer, “considering issues such as location, job duties, supervision, and salary,”
shows the correctional officers are similarly situated. Frye, 2010 WL 3862591, at *3. Correctional
officers worked in the same setting (the jail), performed similar duties (correctional supervision of
inmates), and were paid as hourly employees. The proof shows that correctional officers worked
12-hour shifts, 7:00 a.m. to 7:00 p.m. or 7:00 p.m. to 7:00 a.m., for four days out of one week and
15

Just as it has in its discussion of the other subclasses, the Court notes this claim on behalf
of the subclass of correctional officers. Plaintiffs have not specified which correctional officers
are no longer employed with the Hardeman County Sheriff’s Office. The Court will address below
Plaintiffs’ allegations concerning the County’s decision to deny them their accrued time.
43

then 12-hour shifts for three days out of the following week. McElhone Dep. 16:14-24 (PageID
3724); Bricker Interrog. Resp. 7 (PageID 3945).
The correctional officers also assert common theories of Defendants’ liability under the
FLSA. For weeks when the correctional officers worked over 40 hours, they did not receive
overtime. Like other categories of sheriff’s department employees, the correctional officers were
expected to be on duty 15 to 30 minutes before their shifts for a pre-shift briefing. McElhone Dep.
28:11-29:14 (PageID 3726-27); Wiggins 20:3-21 (PageID 3780); Bricker Interrog. Resp. 12
(PageID 3950); 29 C.F.R. § 553.221(b). According to Plaintiffs, correctional officers did not
receive the correct time and a half rate for comp time, when they received it at all. McElhone Dep.
19:14-24 (PageID 3725); Bricker Interrog. Resp. 7-8 (PageID 3945-46). And like patrol deputies,
correctional officers were required to stay after their shifts ended to complete paperwork. Wiggins
Interrog. Resp. 13 (PageID 3932) (two hours per week); but see id. at PageID 3933 (one hour per
week); Bricker Interrog. Resp. 13 (PageID 3951) (1.5 hours per week); McElhone Interrog. Resp.
14 (PageID 3971) (three hours per week); Smith Interrog. Resp. 12 (PageID 3988) (two hours per
week). 16

16

The Court noted in its discussion of the claims alleged by the dispatcher subclass that
the dispatchers’ representative proof showed that dispatchers worked less than 40 hours per week
for 26 weeks out of the year. Plaintiffs had not shown that the dispatchers completed off-the-clock
training videos during the specific weeks in which they allegedly worked over 40 hours without
correct overtime. Some of the same reasoning applies to the correctional officers and their claims
for time spent completing paperwork at the end of their shifts. During workweeks when the
correctional officers worked less than 40 hours, it is possible their time working on end-of-shift
paperwork would not have actually resulted in compensable overtime. After all, the representative
proof shows deputies performed this work for only a small number of hours each week.
Nevertheless, that is a question of fact, and Defendants have not sought judgment as a matter of
law on this point. Suffice it to say, Plaintiffs have carried their burden to show that department
leadership expected correctional officers to stay after their shifts ended to complete paperwork and
that the correctional officers were similarly situated in this regard.
44

Defendants once more argue that not all Plaintiffs in the proposed subclass of correctional
officers have introduced evidence to prove all of the same theories of Defendants’ FLSA liability.
Just as with the patrol deputies, not all correctional officers have given proof to substantiate all of
the common theories on which Plaintiffs seek certification. For example, Defendants cite written
discovery responses from Gloria Coble, Elvis Armour, and Chadriques Wooden, none of which
mention Hardeman County’s policy of incorrectly calculating comp time at a rate of time and a
half. But as the Court noted in its discussion of the patrol deputy subclass, Plaintiffs have
introduced proof that the County consistently miscalculated comp time at the wrong rate,
regardless of which job an employee worked at the sheriff’s department. Plaintiffs made this
specific allegation going all the way back to the original Complaint in 2019. Compl. ¶¶ 105-112
(ECF No. 1). Plaintiffs retain the ultimate burden to prove their claims that Defendants required
them to work overtime without correct pay. Otherwise, this is a matter Defendants can raise on
cross-examination or by calling their own witnesses to challenge the representative proof offered
by Plaintiffs.
On the other hand, Defendants have shown that the correctional officers are dissimilar as
to one narrow aspect of their claims for overtime. Like some members of the dispatchers and
patrol deputies subclasses, some correctional officers allege that Hardeman County miscalculated
overtime in 2016 and 2017 when the County transitioned from semi-monthly pay periods to biweekly pay periods. E.g. Jacobs Interrog. Resp. 7 (PageID 4244); Bricker Interrog. Resp. 7
(PageID 3945). For reasons the Court has already explained in its discussion of the subclass of
dispatchers and subclass of patrol deputies, Plaintiffs have not shown that all correctional officers
would have been impacted by this payroll practice and certainly not in similar ways. The
difference is not simply one of degree, for example based on different statutes of limitations, but
45

an entirely different kind of pay practice and theory of Defendants’ FLSA liability. Therefore, the
Court finds that the correctional officers are not similarly situated in this specific respect.
Overall, the Court concludes that Plaintiffs have carried their heightened burden to show
that the correctional officers are similarly situated in most aspects of their employment and share
common theories about how Defendants violated the FLSA claims. Defendants have not shown
why the availability of any individualized defenses should preclude final certification of the
correctional officers subclass. And the Court finds that collective action on the correctional
officers’ FLSA claims “would yield efficient resolution in one proceeding of common issues of
law and fact arising from the same alleged discriminatory activity.” Clark, 68 F.4th at 1012.
Therefore, the Court will create a subclass of the following correctional officers: (1) Quinterius
Allen, (2) Tavishia Anderson, (3) Elvis Armour through his administrator ad litem, (4) Ashley
Banks, (5) Lindsey Bolton, (6) Billy Bricker, (7) Leonard Brown, (8) James Callahan through his
administrator ad litem, (9) Lauren Chism, (10) Gloria Coble, (11) Martha Daniel, (12) Joselyn
Hall, (13) Christopher Hannis, (14) Jerald Jacobs, (15) Chasity Lewis, (16) Woodson Long, (17)
Chasity Mathews, (18) Jason McCord, (19) Carol McElhone, (20) Chris McKinney, (21) Brandon
McKinnie, (22) Sharnett McNeal, (23) Curtavious Neal, (24) Parris Parks, (25) Antron Parram,
(26) Tia Peoples, (27) Devante Phinnessee, (28) Gina Pittman, (29) Fonta Polk, (30) Letrece
Robinson, (31) Victoria Rouse, (32) Arthur Schultz, (33) Keviante Simmons, (34) Trina Smith,
(35) Megan Sterling, (36) Judy Wiggins, (37) Stephanie Wilson through her administrator ad litem,
and (38) Chadriques Wooden.
The Court finds that the correctional officers are similarly situated as to the following
FLSA claims: (a) they were required to work one 44- or 48-hour workweek during each two-week
pay period and were not paid overtime for the hours worked over 40; (b) they were required to be
46

at their posts at least 15 to 30 minutes prior to their shift; (c) their compensatory time was
incorrectly calculated at one hour of comp time for every hour of overtime worked; and (d) they
were required to stay and complete all reports/paperwork, off the clock, before leaving. Therefore,
the Motion for Decertification is GRANTED in part, DENIED in part as to the subclass of
correctional officers.
VII. Correctional Officer Sergeants
Plaintiffs seek certification as to one small subset of correctional officers who held the rank
of sergeant. The following Plaintiffs fit within this proposed subclass: (1) Billy Bricker, (2) Carol
McElhone, (3) Trina Smith, and (4) Judy Wiggins. The correctional officer sergeants allege all of
the same FLSA claims as the other correctional officers. They allege just one additional claim that
Defendants did not properly pay them for on-call time and time they spent answering phone calls
from the jail to address issues that arose after hours. Plaintiffs have shown that the sergeants
performed the work and have given time estimates for how much of this unpaid overtime they
performed. Wiggins Interrog. Resp. 8 (no time estimate, “on call every day” and “routinely”); id.
at 12-13 (1.5 hours per week); McElhone Interrog. Resp. 14 (PageID 3971) (1 hour per week);
Smith Interrog. Resp. 13 (PageID 3988) (1.5 hours per week). The Court finds that Plaintiffs have
met their stricter burden for final certification and shown that the four correctional officer sergeants
were similarly situated in this aspect of their employment. The Court will therefore certify the
claim of this subclass for collective treatment at trial. Therefore, the Motion for Decertification is
DENIED as to these claims.
VIII. Accrued Compensatory Time, Vacation, and Holiday Pay
As the Court has noted in its discussion of the subclasses, several Plaintiffs are no longer
employed with Hardeman County and allege the County refused to pay them for accrued comp
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time and vacation and holiday pay at the time of their separation from county employment. The
FLSA entitles employees to an award of accrued comp time. 29 U.S.C. § 207(o)(4) (“An employee
who has accrued compensatory time off authorized to be provided under paragraph (1) shall, upon
termination of employment, be paid for the unused compensatory time . . . .”). As part of their
briefing of the decertification issue, Plaintiffs state that all but 15 Plaintiffs are no longer employed
with Hardeman County. A recent motion filed by Plaintiffs names 54 of the Plaintiffs who are no
longer employed with the department. See Pls.’ Mot. to Compel Apr. 19, 2024 (ECF No. 370)
(seeking the production of separation letters issued to 54 Plaintiffs and containing the amount of
accrued time owed to each Plaintiff at the conclusion of their tenures).
The pleadings suggest that Plaintiffs have two distinct theories about the County’s refusal
to pay out accrued time to employees leaving county service. Plaintiffs initially alleged the County
withheld payment as a matter of policy. See Compl. ¶¶ 117-122 (alleging that Defendants failed
to pay Chris Wilkerson and Michael Hatch their accrued pay at the time of their resignations in
2018); Am. Compl. ¶¶ 191-217 (ECF No. 29) (alleging the same claim on behalf of “Greg Brown,
Scott Brown, Carol Danford McElhone, Christopher Deming, Jenny Duke, Michael Hatch, Ryan
Herndon, Chris Hopkins, Courtney Howell, Martha Lowrance, David Nabors, Thomas Cody
Naylor, Ethan Vasquez, and Chris Wilkerson”); Master Compl. ¶ 215 (naming Greg Brown, Scott
Brown, Carol Danford McElhone, Christopher Deming, Jenny Duke, Nick Ellison, James Frazier,
James Graham, Michael Hatch, Ryan Herndon, Chris Hopkins, Courtney Howell, Martha
Lowrance, David Nabors, Thomas Cody Naylor, Ethan Vasquez and Chris Wilkerson); Baker Dep.
76:8-18 (PageID 3672) (“In October/November 2018, Mayor Sain made the decision to no longer

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pay deputy, jail, and dispatch employees for their accrued compensatory, holiday, and vacation
time at the time of termination of employment.”). 17
Plaintiffs have not actually sought final certification of their FLSA claims for accrued comp
time as a separate subclass for collective action. Cf. Jt. Proposal for Subclasses Aug. 14, 2020
(ECF No. 110) (seeking conditional certification for all employees who had not received accrued
comp, vacation, and holiday time upon their separation from county employment after October
2018). Rather, Plaintiffs have proposed that the Court consider the comp time claims as part of
the collective action for each subclass of different types of employees, even though not every
member of the subclass has left his or her job with the County or alleges that the County has
refused to pay out accrued comp time and holiday and vacation pay. Because only Plaintiffs who
have left their county jobs are actually similarly situated as to their claims for accrued comp time,
the Court finds that the better course would be to create a subclass just as to this claim.
Therefore, the Court will create a subclass of the following former Hardeman County
employees: Greg Brown, Scott Brown, Carol Danford McElhone, Christopher Deming, Jenny
Duke, Nick Ellison, James Frazier, James Graham, Michael Hatch, Ryan Herndon, Chris Hopkins,
Courtney Howell, Martha Lowrance, David Nabors, Thomas Cody Naylor, Ethan Vasquez and
Chris Wilkerson. Master Compl. ¶ 215. The subclass is limited only to employees (1) who allege
a claim for accrued comp time and (2) who have alleged in the pleadings that the County refused
to pay them for accrued comp time as a matter of policy.

17

In the alternative, the Master Complaint alleges Defendants have withheld accrued comp
time and holiday and vacation pay in retaliation for Plaintiffs’ filing this lawsuit. The Court will
address Plaintiffs’ claim for FLSA retaliation and prayer for damages representing unpaid accrued
comp time and vacation and holiday pay separately.

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To the extent that the Plaintiffs identified in the pleadings seek an award of accrued
vacation and holiday pay as well, Plaintiffs have not shown why collective action on this claim
would be proper. Strictly speaking, a claim for unpaid vacation or holiday pay (or for that matter
sick pay) does not constitute a violation of the FLSA. Plaintiffs have cited no authority, and the
Court is aware of none, for the proposition that an employer violates the FLSA’s minimum wage
or overtime provisions by failing to accurately track paid time off for vacation or holidays or by
failing to pay an employee for accrued vacation and holiday time at the end of the employee’s
tenure. What is more, the FLSA only permits collective action for specific violations of § 207.
See 29 U.S.C. § 216(b).
If anything, the claims for accrued vacation and holiday pay sound in Tennessee contract
law. But Plaintiffs have not alleged a hybrid class and collective action to press their state law
claims as a group. Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 510 (2d Cir. 2020)
(“Because FLSA and state law claims usually revolve around the same set of facts, plaintiffs
frequently bring both types of claims together in a single action using the procedural mechanisms
available under 29 U.S.C. § 216(b) to pursue the FLSA claims as a collective action and under
Rule 23 to pursue the state law claims as a class action under the district court’s supplemental
jurisdiction.”). To the extent that Plaintiffs allege Mayor Sain adopted a county policy of denying
employees their accrued vacation or holiday pay, Plaintiffs have not shown that the FLSA entitles
them to this pay. Therefore, the Court would decline to certify a collective action to recover unpaid
accrued vacation and holiday pay owed to these Plaintiffs.
IX. Retaliation
Plaintiffs finally seek certification for the collective retaliation claims of the dispatchers.
Before addressing the merits of the parties’ arguments and as the Court has already noted, the
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Master Complaint alleges a retaliation claim on behalf of Plaintiffs who have left their jobs with
the County and been denied their accrued comp time and vacation and holiday pay, all because of
Plaintiffs’ participation in this lawsuit. This allegation, alleged in the alternative to Plaintiffs’
general claim about not receiving accrued time as a matter of policy, would constitute a violation
of the FLSA’s anti-retaliation provision. To the extent that Plaintiffs seek compensation for
accrued comp time, vacation, and holiday pay as damages for Defendants’ alleged retaliation, the
FLSA arguably allows such an award. The FLSA gives the Court broad authority to order legal
and equitable remedies for an employer’s retaliation against an employee. § 216(b) (permitting a
court to award “legal or equitable relief as may be appropriate to effectuate the purposes of [the
FLSA]”).
But even assuming that these Plaintiffs seek pay for their accrued time off as one element
of damages caused by Defendants’ alleged retaliation, Plaintiffs have not shown why collective
action on such a claim is proper. In order to make a prima facie case of FLSA retaliation under 29
U.S.C. § 215, a plaintiff must prove four elements: (1) he or she engaged in a protected activity
under the FLSA; (2) his or her exercise of this right was known by the employer; (3) thereafter,
the employer took an employment action adverse to the plaintiff; and (4) there was a causal
connection between the protected activity and the adverse employment action. Caudle v. Hard
Drive Express, Inc., 91 F.4th 1233, 1237–38 (6th Cir. 2024) (citing Adair v. Charter Cnty. of
Wayne, 452 F.3d 482, 489 (6th Cir. 2006)). FLSA retaliation cases follow the McDonnell Douglas
framework, meaning “once the plaintiff establishes a prima facie case of retaliation, the burden
then shifts to the defendant to set forth a legitimate, non-discriminatory reason for the adverse
employment action.” Id. (citation omitted). The burden then shifts back to the plaintiff to prove
the defendant’s given reasons were pretext for retaliation. Id.
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Proof to establish acts of retaliation against dozens of Plaintiffs would be highly unique to
each individual member of such a subclass. Plaintiffs would specifically have to prove “a causal
connection between the protected activity and the adverse employment action.” Caudle, 91 F.4th
at 1238. Protected activity under the FLSA can take more than one form. The FLSA protects an
employee’s right to make both oral and written complaints about practices that violate the Act, as
long as the complaint is “sufficiently clear and detailed for a reasonable employer to understand
it, in light of both content and context, as an assertion of rights protected by the statute and a call
for their protection.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14, 131
S.Ct. 1325, 179 L.Ed.2d 379 (2011). Assuming Plaintiffs could show they all engaged in similar
protected activity like joining this lawsuit, each Plaintiff would also need to prove a causal
connection between that activity and the County’s refusal to pay out accrued time to departing
employees. Even if the County had refused to pay accrued time across the board, the County’s
refusal occurred at different times and under different circumstances. And for each Plaintiff,
Defendants would have the opportunity to offer non-discriminatory explanations for their
decisions. All of this tends to show that Plaintiffs with retaliation claims are not similarly situated
and that collective action on their individual claims would be difficult to manage from the
perspective of a workable trial procedure.
Certification of a subclass of Plaintiffs with retaliation claims would be problematic
enough.

Even if Plaintiffs could make out the County’s liability for retaliation through

representative proof, proof of damages would be even more specific and individualized to each
member of the subclass, requiring dozens of separate calculations for the amount of accrued time
and the correct rate of pay. 29 C.F.R. § 553.27(b) (making it mandatory for an employee to receive
payment for unused comp time “[u]pon termination of employment . . . at a rate of compensation
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not less than—(1) The average regular rate received by such employee during the last 3 years of
the employee’s employment, or (2) The final regular rate received by such employee, whichever
is higher”). In short, Plaintiffs have not carried their strict burden to show why collective action
for their retaliation claims is warranted in light of the many factual distinctions the claims present.
Therefore, the Court declines to certify collective action on behalf of Plaintiffs who are no longer
employed by Hardeman County on their retaliation claims regarding accrued comp time and
vacation and holiday pay.
This leaves the dispatchers’ claims for retaliation. Plaintiffs seek certification for the
retaliation claims alleged by the dispatcher subclass arising out of Hardeman County’s decision in
2021 to eliminate their positions. According to the Master Complaint, former Hardeman County
Mayor Jimmy Sain transferred responsibility for dispatch and 911 services from the sheriff’s
department to the Hardeman County Emergency Communications District in 2021. Master
Compl. ¶¶ 257-296. Plaintiffs allege Mayor Sain acted in retaliation against the dispatchers
employed by the Sheriff’s Office because of their lawsuit against the County.
Much of the same reasoning about the general retaliation claims of other Plaintiffs and the
problems with collective treatment of those claims apply to the dispatchers’ retaliation claims. The
more fundamental problem with proceeding to trial collectively on the dispatchers’ retaliation
claims is that Plaintiffs have not introduced “substantial evidence” to support the claim or shown
how the dispatchers were similarly situated. Plaintiffs have submitted a letter of termination dated
July 23, 2021 (ECF No. 352-2), informing dispatchers of their termination and inviting them to reapply for similar positions with the Emergency Communications District. Plaintiffs have also
made the responses to written interrogatories completed by Toni Pierce part of the record.
According to Pierce, “Jimmy Sain said that once he is over dispatch[,] all dispatchers in this lawsuit
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will be fired.” Pierce Interrog. Resp. 4 (PageID 3799). But Pierce resigned as a dispatcher in
January 2020, prior to the date of Mayor Sain’s letter informing dispatchers of their termination.
Id. at 8 (PageID 3803). Furthermore, Plaintiffs have not shown which dispatchers were affected
by Mayor Sain’s decision in 2021. Other than Pierce’s single statement and the letter itself,
Plaintiffs have relied on the allegations of the Master Complaint. This does not satisfy Plaintiffs’
stricter burden at the decertification stage. Frye, 495 F. App’x at 671 (requiring FLSA collective
action plaintiffs to go beyond “just allegations and affidavits” at the final certification stage).
Therefore, the Motion for Decertification is GRANTED as to Plaintiffs’ claims for retaliation and
the payment of accrued comp time and vacation and holiday pay.
CONCLUSION
Defendants’ Motion for Decertification is GRANTED in part, DENIED in part. The
Court declines to certify for collective action the claims of all 84 Plaintiffs as an undifferentiated
whole. The Court further finds that Plaintiffs have not carried their burden to show why collective
treatment for all members of the proposed subclasses or all claims alleged by the proposed
subclasses is warranted. The Court will, however, grant certification to specific subclasses of
Plaintiffs and the claims on which they share common theories of Defendants’ FLSA liability.
Therefore, the case will proceed as a collective action only as to the subclasses defined herein on
which the Court has granted certification.
A jury trial is currently set for June 24, 2024. Before the Court decides how to proceed
with the claims remaining for trial, the parties should address the possibility of another round of
mediation. Local Rule 16.3(c) gives the Court discretion to “order the parties to undergo any form
of ADR, including but not limited to mediation . . . .” Local R. 16.3(c). The parties previously
attempted mediation at more than one point in the case. In fact, the Court continued the previous
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trial setting (October 23, 2023) at the parties’ request and reset the trial for June 2024, in large part
to give the parties time to schedule another mediation. Order Continuing Tr. Date, Sept. 25, 2023
(ECF No. 326). Although the parties attended mediation in December 2023, counsel reported they
did not achieve the resolution of any claims or issues at that time. Pls.’ Status Rep. Feb. 13, 2024
(ECF No. 347); Defs.’ Status Rep. Feb. 14, 2024 (ECF No. 350). Defendants have indicated the
parties considered resuming mediation at a later time. Id.
In light of the Court’s order on partial decertification and the current posture of the case,
the parties are hereby ordered to confer and file a report, stating their respective positions on the
prospects for mediation to resolve their dispute, in whole or in part, including any and all of the
collective action claims certified herein, prior to trial and in any case no later than 60 days from
the entry of this order. Each party should support its position on the merits of an additional round
of mediation with a detailed statement of reasons providing as much specificity as possible. The
parties’ report on mediation is due within 14 days of the entry of this order.
Generally speaking, the decertification of an FLSA collective action results in the dismissal
without prejudice of all opt-in plaintiffs and a trial on the merits of the individual claims of the
original plaintiffs. Mickles on behalf of herself v. Country Club Inc., 887 F.3d 1270, 1276 (11th
Cir. 2018) (“If [the opt-in plaintiffs] are not similarly situated, the district court decertifies the
class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives (the
original plaintiffs) then proceed to trial on their individual claims.”) (cleaned up). This rule does
not apply so neatly in this case, however. The Court’s decertification is partial, in that the Court
is granting in part Defendants’ request for decertification but also granting partial certification of
certain subclasses as to some Plaintiffs and some claims. Rather than dismiss the claims that will
not continue as part of the case at this time, the Court will allow the parties to address the prospects
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of resolving those claims through mediation. Once the parties have been heard on the matter, the
Court will decide how best to proceed, including the trial of the collective action claims, the trial
of the claims of the original named Plaintiffs, and the proper disposition of any claims not certified
as part of the collective action for trial. Until then, all claims alleged in the Master Complaint,
including the claims not certified as part of the collective action for trial, remain as part of this
action, pending further orders of the Court.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: May 8, 2024.

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