Binks et al v. Grand Canyon Education

Filing 51

MEMORANDUM DECISION AND ORDER-granting 19 Motion to Certify Class; Motions terminated: 19 Plaintiff's MOTION to Certify Class Collective Action and Authorization to Send Notice filed by Jason C. Binks, N. Kevin Jolley. See order for details. Signed by Judge David Sam on 9/28/11. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
JASON C. BINKS, et al.,

)

Plaintiffs,

Case No.

2:10CV00571 DS

)

vs.

)
MEMORANDUM DECISION
AND ORDER

GRAND CANYON EDUCATION INC.,
Defendant.

)
)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
I.

INTRODUCTION

Defendant Grand Canyon Education, Inc., d/b/a/ Grand Canyon
University (“GCU”), a private educational institution offering
online courses, employed Plaintiffs Jason C. Binks and N. Kevin
Jolley as Enrollment Counselors (“EUs”) at its Utah facility.
uses its ECs to recruit and enroll students.

GCU

Plaintiffs allege

that they, and other similarly situated former ECs at the Utah
facility, were required to work more than forty hours a week but
were

not

paid

for

overtime,

in

violation

of

the

Fair

Labor

Standards Act.
Plaintiffs have moved the Court to conditionally certify their
Fair Labor Standards Act claim as a collective action and authorize
them to send notice to putative class members.

II.
A.

DISCUSSION

Standard for Certification

Under the FLSA, an employee may bring a collective action on
behalf of “similarly situated” employees. 29 U.S.C. § 216(b). The
Tenth Circuit has approved a two-step approach to determine whether
putative class members are similarly situated. Thiessen v. General
Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001), cert.
denied, 536 U.S. 934 (2002). First, a court must determine whether
a collective action should be certified for notice purposes.

For

this “conditional certification,” a court “require[s] nothing more
than substantial allegations that the putative class members were
together the victims of a single decision, policy , or plan.” Id.
1102

(internal

quotation

marks

and

citations

standard at this stage is a lenient one.

omitted).

The

Id. at 1103.

At the second stage, often on a motion by the defendant to
decertify, a court may revisit the issue of class certification
under a stricter standard, examining such factors as “‘(1)the
disparate

factual

and

employment

settings

of

the

individual

plaintiffs; (2)the various defenses available to defendant which
appear

to

procedural

be

individual

considerations;

to

each

and

plaintiff;

(3)fairness

(4)whether plaintiffs

and

made the

filings required by the [FLSA] before instituting suit.’” Id.
(citation omitted).

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B.

Substantial Allegations

In their Complaint, Plaintiffs allege that GCU willfully and
intentionally violated the FLSA in the the following ways: (1) ECs
were given quotas for such things as phone calls and enrollments,
which GCU knew could not be performed in 40 hours a week; (2) ECs
were consistently required to work in excess of 40 hours a week to
try and meet their quotas; (3) GCU discouraged and or prevented
ECs from entering overtime hours on their time sheets by having
managers repeatedly tell ECs that they were not to record overtime
hours on their time sheets and that they would be disciplined and
even fired if they tried to submit time sheets with overtime hours;
(4) ECs feared disciplinary reprisals if they submitted their
overtime hours; and (5) GCU did not pay ECs for their overtime
hours.

See e.g. Compl. at ¶¶ 17-25, 27 and 40-44.

In support of their allegations, Plaintiffs submit their own
Declarations and those of other former ECs attesting: (1) that they
all were required to meet common enrollment standards and goals
that were impossible to meet working 40 hours a week; (2) that they
were subject to discipline by GCU if they failed to meet those
common enrollment standards and goals and were encouraged to work
more than 40 hours a week if necessary: (3)that they regularly
worked more than 40 hours a week in order to try and meet those
goals and to keep their jobs, but that overtime hours were rarely
approved (4)that they were told by GCU managers that they could

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only report 40 hours on their time cards and that they would not be
paid for overtime hours.

See Binks Decl., Jolley Decl., Voeks

Decl., Linde Decl., M. Rasmussen Decl., Smart Decl., Roundy Decl.,
Kaczmarek Decl., Sommers Decl., Hyatt Decl., Smith Decl., Harper
Decl., A. Rasmussen Decl., Hall Decl., Nelson Decl., and Simper
Decl.
Defendant’s arguments opposing certification are viewed by the
Court as

generally

premature

at

this

notice

stage,

and more

appropriately raised at the second stage on a motion to decertify
after full discovery.

Thiessen, 267 F.3d at 1102-03.

Applying the standard for conditional certification which
“require[s] nothing more than substantial allegations that the
putative class members were together the victims of a single
decision, policy, or plan” Thiessen, 267 F.3d at 1102 (internal
quotation marks and citations omitted), the Court concludes that
Plaintiffs, by the allegations of their Complaint and the filed
Declarations,
certification.

have

satisfied

their

burden

for

conditional

The Court, therefore, will conditionally certify

the class.
C.

Notice

Because of the passage of time since Plaintiff’s first filed
their proposed form of Notice of Collective Action, as well as
because Plaintiffs have indicated that they are not adverse to
modifying the Notice in view of Defendant’s objection, Counsel are

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directed to meet and confer to see it they can stipulate to an
acceptable form of notice and consent form.
to

agree,

counsel

supplemental

for

proposed

Plaintiffs

notice

and

are

consent

If counsel are unable
directed
form

to

to
be

file

a

sent

to

prospective class members. Defendant may file any objection to the
form of notice within ten days of the filing of Plaintiffs’
proposed notice and consent.
III.

CONCLUSION

For the reasons stated, as well as generally for those set
forth

by

Plaintiffs

in

their

pleadings,

their

Motion

for

Certification and Authorization to Send Notice (Doc. # 19) is
granted, except that Plaintiffs are to file with the Court a new
proposed form of notice and consent as directed herein.
IT IS SO ORDERED.
DATED this 28th day of September, 2011.
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

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