Sharp v. MECCA Campus School, Inc. et al

Filing 38

ORDER granting 25 Motion to Certify Class. Signed by Magistrate Judge Charmiane G. Claxton on 5/11/2017. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ASHLEY SHARP, on behalf of herself
and those similarly situated,
Plaintiff,
v.

Case 2:16-cv-02686-cgc

MECCA CAMPUS SCHOOL, INC. and
CHARLES POGUE, individually,
Defendants.

ORDER ON MOTION TO CERTIFY CLASS

Before the Court is Plaintiff’s Motion to Certify Class. (Docket Entry “D.E.” #25). The
parties have consented to the jurisdiction of the United States Magistrate Judge. (D.E. #29). For the
reasons set forth herein, Plaintiff’s Motion is hereby GRANTED.
I. Introduction
On August 24, 2016, Plaintiff Ashley Sharp (“Sharp”), an hourly paid bus driver, filed her
Complaint against Defendants Mecca Campus School, Inc. (“Mecca”) and Charles Pogue (“Pogue”)
alleging unpaid overtime compensation in violation of the Fair Labor Standards Act, as amended,
29 U.S.C. § 216(b) (the “FLSA”). On August 26, 2016, ten individuals in addition to Sharp filed
Consents to Join Collective Action—Eric Moragne, Shaniki Brown, David Denton, Callie Edwards,
Tasha Liggins, Sheila Mans, Sherronda McAdams, Sheena Puryear, Demeka Rounds, and Annette
Johnson.
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The Sharp Complaint is virtually identical to the Complaint and Amended Complaint filed
in this Court by Tasha Liggins (“Liggins”), on behalf of herself and those similarly situated, on
September 16, 2015. See Tasha Liggins v. Mecca Campus School, Inc., No. 2:15-cv-02247-STAcgc. In the Liggins case, six individuals in addition to Liggins filed Consents to Join Collective
Action—Shaniki Brown, David Denton, Callie Edwards, Sheila Mans, Sheena Puryear, and Danny
Watson. The Liggins case was dismissed with prejudice on June 3, 2016 for failure to comply with
the Court’s order to submit a mediation certificate and stipulation of dismissal, and a judgment was
entered.
On November 30, 2016, Sharp filed the instant Motion to Certify Class. Sharp seeks to
conditionally certify the collective action, compel production regarding potential opt-in plaintiffs,
authorize notice to all similarly situated employees, and toll the statute of limitations. Specifically,
Sharp proposes that the representative class consists of all current and former bus drivers and bus
monitors that worked for Defendants at any time within the last three years who were not properly
compensated overtime wages. On March 14, the Court entered an Order to Show Cause to
Defendants to respond within fourteen days as to why the Motion to Certify Class should not be
granted. On March 27, 2017, Defendants responded that they had notified Plaintiff’s counsel via email on February 21, 2017 that they “would not file an objection to the Motion to Certify Class but
could not agree to it either.” Defendants stated that they “[r]egrettably . . . failed to notify the Court
of such position.” Defendants do note, though, that multiple opt-in plaintiffs in this case were also
plaintiffs in the Liggins case, which has already been dismissed with prejudice by this Court.
II. Analysis
The FLSA provides, in pertinent part, the following on pursuing collective actions:
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An action to recover the liability [for unpaid minimum wages or unpaid overtime
compensation] . . . may be maintained against any employer . . . in any Federal or
State court of competent jurisdiction by any one or more employees for and in behalf
of himself or themselves and other employees similarly situated. No employee shall
be a party plaintiff to any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in which such action is
brought.
29 U.S.C. § 216(b). The two key requirements of Section 216(b) are that the plaintiffs must be
similarly situated and that all plaintiffs must signal in writing their affirmative consent to participate
in the action. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (citing HoffmannLa Roche, Inc. v. Sperling, 493 U.S. 165, 167-68 (1989)).
Certification of a FLSA collective action is a two-phase process. Comer, 454 F.3d at 546;
O’Brien, 575 F.3d at 583. “The first takes place at the beginning of discovery,” and any certification
is “conditional and by no means final.” Comer, 454 F.3d at 546 (internal quotations omitted). The
court should rely upon the pleadings and any filed affidavits in determining if conditional
certification is appropriate. James Allen Frye v. Baptist Memorial Hospital, No. 2:07-cv-02708SHM-cgc, 2010 WL 3862591, at *2 (W.D.Tenn. Sept. 27, 2010). At this stage, a plaintiff must only
“make a modest factual showing” that “his position is similar, not identical” to the positions held by
the other proposed opt-in plaintiffs. Comer, 454 F.3d at 546 (citations omitted).

“[T]his

determination is made using a fairly lenient standard, and typically results in conditional certification
of a representative class.” Id. (citations omitted); see also White v. MPW Indus. Srvs., 236 F.R.D.
363, 366-67 (E.D.Tenn. Mar. 21, 2006) (citing cases). “To require more at this stage of the litigation
would defeat the purpose of the two-stage analysis.” White, 236 F.R.D. at 368.
The second phase of an FLSA collective action is typically precipitated by a motion for
decertification, White, 236 F.R.D. at 366 (quoting Mooney v. Aramco Srvs. Co., 54 F.3d 1207, 12133

14 (5th Cir. 1995)), and it does not occur until “after all of the opt-in forms have been received and
discovery has concluded,” Comer, 454 F.3d at 546. At this point, “trial courts examine much more
closely the question of whether particular members of the [collective action] are, in fact, similarly
situated.” Id. Because “the court has much more information [upon which] to base its decision”
during the second phase, it employs a “stricter standard” for final certification. Id.
The FLSA does not define “similarly situated.” O’Brien, 575 F.3d at 584. The United States
Court of Appeals for the Sixth Circuit has also not defined “similarly situated” but has concluded
that the consideration of whether violations are alleged to have occurred at “about the time and place
and approximate manner is a starting point for understanding what similarly situated means.” Id.
at 585 (internal quotations omitted). However, the court cautioned that requiring causes of action
to accrue at about the same time and place in the approximate manner of the named plaintiff “is more
demanding than what the statute requires.” Id. Further, the court stated that “it is clear that plaintiffs
are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that
policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” Id.
Yet while such a policy is one manner of demonstrating that the plaintiffs are similarly situated,
“showing a unified policy of violations is not required” for class certification. Id. at 584 (internal
quotations omitted). Employees may also be similarly situated if the claims are “unified by common
theories of defendants’ statutory violations,” although this is also not a requirement. Id. at 585
(concluding that proposed opt-in plaintiffs were similarly situated because the claims alleged two
common means of violating the FLSA—“forcing employees to work off the clock and improperly
editing time-sheets.”).

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In the instant case, Defendants have not contested any aspect of Plaintiff’s proposed
conditional certification or notice to putative class members. Sharp avers that her claims are typical
of the claims of the approximately thirty former and current similarly situated bus drivers and bus
monitors who were employed by Defendants. In support, Sharp provides the Declarations of opt-in
Plaintiffs Eric Moragne (“Moragne”), Annette Johnson (“Johnson”), and Sherronda McAdams
(“McAdams”), who state that they worked as bus drivers and monitors over forty hours per week but
were paid their usual hourly pay for hours worked beyond forty hours per week in violation of the
FLSA. (Mot. to Certify, Exhs. A, B & C ¶¶ 5-12). Moragne, Johnson, and McAdams also stated
that, during their employment, they personally observed and discussed with other bus drivers and
bus monitors who performed the same or similar duties and worked similar hours but were not paid
overtime compensation.

(Id. ¶ 14).

Moragne, Johnson, and McAdams further claim that

Defendants’ failure to pay proper overtime wages was one of their “pay policies” because they
classified bus drivers and bus monitors as “independent contractor[s].” (Id. ¶¶ 13-14).
Accordingly, based upon the foregoing, the Court concludes that Plaintiff has met her burden
to conditionally certify a class of all current and former bus drivers and bus monitors who worked
for Defendants at any time within the last three years and were not compensated at a rate of at least
time-and-one-half their regular pay for all hours worked in excess of forty hours in a given
workweek. Therefore, the Court orders that Defendants provide Plaintiff with a list of all putative
class members’ names, addresses, telephone numbers, and e-mail addresses to effectuate notice.1
1

Plaintiff also requested all putative class members’ social security numbers to be able to
search the national change of address database to ensure the most up-to-date physical address.
Plaintiff has neither shown that she is unable to provide notice via their address, telephone
number, and/or e-mail on file, nor has she cited support that full social security numbers should
be provided. Other courts have not permitted production of even the last four digits of social
security numbers upon conditional certification. See Swigart v. Fifth Third Bank, 276 F.R.D.
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The Court concludes that Plaintiff’s proposed Notice (Mot. to Certify, Exh. D) is accurate and may
be mailed and e-mailed and that a reminder notice postcard may be sent. As the three-year statute
of limitations is alleged to be applicable, and Defendants’ have not contested the scope of the notice,
the Court will allow notice to all bus monitors and bus drivers employed by Defendants during the
three-year period preceding the Court’s ruling on the instant Motion. The Court permits putative
class members ninety days to return their consent to join forms to opt in to the case. Over no
objection, the Court will allow the statute of limitations to toll from November 4, 2016, which was
the date of the filing of the instant motion, until the date of the entry of this Order.
Finally, although Plaintiff’s Motion for Conditional Certification is granted, the Plaintiffs to
the Liggins action have already brought their FLSA claims, which were dismissed with prejudice.
Accordingly, the Liggins plaintiffs, including Shaniki Brown, David Denton, Callie Edwards, Tasha
Liggins, Sheena Puryear, and Sheila Mans, who have already opted in to the present action, shall not
be permitted to be part of this collective action.
III. Conclusion
For the reasons set forth herein, Plaintiff’s Motion to Certify Class is GRANTED.

DATED this 11th day of May, 2016.

s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE

210, 215 (S.D. Ohio 2011). Thus, the Court declines to require Defendants to produce social
security numbers of the putative class members.
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