Young v. Act Fast Delivery of West Virginia, Inc. et al

Filing 290

MEMORANDUM OPINION AND ORDER that The Omnicare Defendants' 249 MOTION for Decertification be DENIED and the collective action be CERTIFIED. Signed by Judge Irene C. Berger on 2/20/2018. (cc: attys; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
ERIC YOUNG,
Plaintiff,
v.

CIVIL ACTION NO. 5:16-cv-09788

ACT FAST DELIVERY OF
WEST VIRGINIA, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
The Court has reviewed The Omnicare Defendants’ Motion for Decertification (Document
249) and Memorandum of Law in Support (Document 250), the Plaintiffs’ Response in Opposition
to Omnicare’s Motion for Decertification (Document 257), and all attached exhibits. For the
reasons stated herein, the Court finds that the motion for decertification should be denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court set forth in great detail the factual background and procedural history of this
action in its Memorandum Opinion and Order (Document 260) granting the Plaintiffs’ partial
motion for summary judgment. The Court incorporates the factual background and procedural
history contained in that opinion and provides the following brief summary necessary to address
this motion.

The Plaintiff, Eric Young, initiated this action by filing a Collective Action

Complaint (Document 1) in this Court on October 17, 2016. In his complaint, Mr. Young alleged
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that the Defendants improperly classified him and other delivery drivers as independent
contractors and failed to pay them the appropriate minimum wage and overtime pay. On February
6, 2017, the Plaintiff moved for conditional class certification of the matter as a Fair Labor
Standards Act (FLSA) collective action on behalf of himself and all other similarly situated
delivery drivers who had been employed by the Defendants. In its Memorandum Opinion and
Order (Document 145), the Court found that the Plaintiff had submitted sufficient evidence to
show that a potential class of similarly situated employees existed and granted conditional
certification and notice. On January 3, 2018, the Court granted partial summary judgment on
behalf of the Plaintiffs, finding that the Omnicare Defendants jointly employed the Plaintiffs for
the purposes of the FLSA.
The Defendants now seek to have the conditional class decertified, and filed their motion
requesting such action on December 13, 2017. The Plaintiffs responded on December 27, 2017,
and the motion is therefore ripe for review.
APPLICABLE LAW
The FLSA permits employees with claims for unpaid minimum wages or unpaid overtime
compensation to bring actions against the employer on behalf of themselves and similarly situated
employees. 29 U.S.C. § 216(b). Affected employees must give consent in writing to become
parties to an FLSA collective action. Id. Courts may facilitate notice to potential plaintiffs.
Purdham v. Fairfax Cty. Pub. Sch., 629 F. Supp. 2d 544, 547 (E.D. Va. 2009). “The ‘notice’
stage of an FLSA collective action is also known as the ‘conditional certification’ stage,” and
typically takes place early in litigation before the completion of discovery. Id. It is during this
stage that the district court determines “‘whether the plaintiffs have demonstrated that potential
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class members are similarly situated,’ such that court-facilitated notice to the putative class
members would be appropriate.” Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md. 2010)
(quoting Camper v. Home Quality Mgmt. Inc., 200 F.R.D. 516, 519 (D. Md. 2000)). It is the
plaintiff’s burden to demonstrate that a potential class of similarly situated individuals exists, and
the plaintiff must produce some factual evidence in support of conditional certification.
Purdham, 629 F. Supp. 2d at 548. The standard is “fairly lenient” at the conditional certification
stage. MacGregor v. Farmers Ins. Exch., Civil No. 2:10–cv–03088, 2012 WL 2974679, *1 –2
(D.S.C. July 20, 2012) (quoting Anderson v. Cagle's, Inc., 488 F.3d 945, 953 (11th Cir.2007).
After the close of discovery, a defendant may move to decertify the class. “At that point,
the court makes a factual determination as to whether the class is truly ‘similarly situated.’” Id.
at 547. Here, the “court engages in a more stringent inquiry to determine whether the plaintiff
class is [in fact] ‘similarly situated’ in accordance with the requirements of [Section] 216, and
renders a final decision regarding the propriety of the proceeding as a collective action.” Butler
v. DirectSAT USA, LLC, 47 F.Supp.3d 300, 306 (D.Md. 2014) (quoting Dorsey v. TGT Consulting,
LLC, 888 F.Supp.2d 670, 686 (D.Md. 2012). However, “[s]imilarly situated does not mean
identical.” Butler, 47 F.Supp.3d at 306. The plaintiffs generally bear the burden of proving to
the court that the FLSA claims are similarly situated, and the district court has broad discretion in
determining whether the class should be decertified Id. at 307. “If the court determines under
this heightened standard that the plaintiffs are ‘similarly situated,’ the collective action proceeds
to trial.” Rehberg v. Flowers Baking Co. of Jamestown, LLC, No. 3:12-CV-00596-MOC, 2015
WL 1346125, at *15 (W.D.N.C. Mar. 24, 2015).

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While neither the FLSA nor the Fourth Circuit have articulated a specific standard
regarding decertification of an FLSA class, “district courts in this circuit . . . have considered three
factors relating to similarity upon a motion to decertify: 1) the disparate factual and employment
settings of the individual plaintiffs; 2) the various defenses available to defendant which appear to
be individual to each plaintiff; and 3) fairness and procedural considerations.” Id.
DISCUSSION
The Omnicare Defendants move the Court to decertify the conditional class because the
named Plaintiff testified during his deposition that the terms of his independent contract agreement
were negotiable.

Thus, Omnicare argues that whether each putative class member was an

independent contractor requires a separate and individual inquiry, refuting the claim that the
Plaintiffs are similarly situated such that an FLSA class is appropriate. The Plaintiffs counter that
minor written changes by the named Plaintiff to his independent contractor agreement are not
sufficient to overcome the similarities between the purported class members such that the class
should not be decertified, and that the three factors to be weighed by the Court all fall in favor of
the Plaintiffs.
The Court finds that the motion for decertification should be denied. In its argument for
decertification, Omnicare relies nearly entirely on the fact that the named Plaintiff made written
changes to his independent contractor agreement. That he made some written changes, however,
does not sufficiently overcome the similarities in job duties, working conditions, and terms of
employment, especially given the Court’s previous ruling that the Omnicare Defendants are joint
employers of the Plaintiffs for FLSA purposes. Further, as evidenced by the Plaintiffs in their
memorandum in opposition, none of the putative class members’ independent contractor
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agreements were edited with written changes in the way Omnicare describes Mr. Young’s
agreement. (See, Pls.’ Resp. in Opposition, Exhibit B.) The only remaining issue is that of
damages, and edits to the named Plaintiff’s contract does not overcome the similar situations of all
putative Plaintiffs regarding the damages owed them by Omnicare.
Moreover, review of each of the three factors previously mentioned counsels denial of the
motion. With respect to disparate factual and employment settings, all of the potential Plaintiffs
signed the same form independent contractor agreement and were treated in the same or similar
manner regarding their compensation as delivery drivers. As the Court previously found in
granting summary judgment, many of the contractual provisions found in Act Fast’s independent
contractor agreement were in place at the behest of Omnicare based on what it required from the
independent delivery service. Omnicare provides no facts to dispute that the employment settings
among the Plaintiffs were identical.
Second, neither Omnicare nor Act Fast have raised any Plaintiff-specific defenses
throughout litigation, and Omnicare fails to present any for argument here. In its own motion for
summary judgment, Omnicare argued that it was not an employer of the Plaintiffs at all, but that
all Plaintiffs were independent contractors solely employed by Act Fast. Even in the current
motion, Omnicare argues that there could be potential differences in each of the independent
contractor agreements because the terms were negotiable, not that there are Plaintiff-specific
defenses. Finally, the procedural and fairness concerns also weigh in favor of litigating the
remaining damages issue at one time. It would be an unnecessarily burdensome task and an
enormous waste of resources to undertake separate damages trials for more than 200 putative
Plaintiffs. Clearly, the procedural and fairness considerations weigh in favor of class certification.
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The Plaintiffs have met their burden of showing that they are similarly situated such that
litigation as a collective action is appropriate. The Omnicare Defendants’ motion to decertify the
class should be denied.
CONCLUSION
WHEREFORE, after thorough review and careful consideration, the Court ORDERS that
The Omnicare Defendants’ Motion for Decertification (Document 249) be DENIED and the
collective action be CERTIFIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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February 20, 2018