Opinion
EP-05-CV-206-FM.
September 19, 2005
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR COLLECTIVE ACTION RECOGNITION
On this date, the Court considered "Plaintiffs' Motion for Collective Action Recognition" [Rec. No. 8] and "Defendant's Response to Plaintiffs' Motion for Collective Action Recognition" [Rec. No. 10] filed in the above numbered and styled cause. After carefully considering the arguments and authorities, the Court is of the opinion that "Plaintiffs' Motion for Collective Action Recognition" [Rec. No. 8] should be DENIED.
Plaintiffs' suit alleges Defendant violated the Fair Labor Standards Act (FLSA) by failing to pay them the correct amount of earned wages. On July 27, 2005, Plaintiffs filed the instant motion requesting the Court enter an order allowing the case to proceed as an opt-in collective action pursuant to § 216(b) of the FLSA. See 29 U.S.C. § 216(b). Plaintiffs' statement defining the class declares: "The collective is comprised of all current and former employees of Defendant who worked for Defendant at any time from June 1, 2002 . . . through the present and who were subjected to any of the unlawful pay or retaliation practices that the named Plaintiffs are complaining of in this case." [Rec. No. 8, pg. 2]. Unlike a class action filed under Federal Rule of Civil Procedure 23(c), a collective action under § 216(b) provides for a procedure to "opt-in," rather than "opt-out." See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212-13 (5th Cir. 1995).
Section 216(b) of the FLSA sets forth two core requirements to certify a collective action. Members of the putative class must be "similarly situated" and must provide "consent in writing . . . in the court in which such action is brought." 29 U.S.C. § 216(b). The Fifth Circuit has not specifically addressed the meaning of "similarly situated" in this context. However, courts have utilized two approaches to determine whether a plaintiffs are similarly situated and whether a case should proceed as a collective action. Mooney, 54 F.3d at 1213-16. The two-part approach, developed in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), requires the Court to decide whether the plaintiff has presented evidence that similarly situated plaintiffs exist. See also Mooney, 54 F.3d at 1213-15. The district court must decide, "usually based only on the pleadings and any affidavits which have been submitted," whether notice should be given to any potential plaintiffs. Id. at 1214. The decision "is made using a fairly lenient standard" and usually results in a conditional certification. Id. If the Court conditionally certifies the class, the case then proceeds through discovery as a representative action. Id. After the close of discovery, the defendant then files a motion for "decertification." Id. At this second stage, the Court makes a factual determination, using the information gained from discovery, on whether the putative class members are "similarly situated." Id. "If the class members are similarly situated, the district court allows the representative action to proceed to trial." Id. If not, the district court decertifies the class, dismisses without prejudice the opt-in plaintiffs, and allows the class representatives to proceed to trial on their individual claims. Id.
See Mooney, 54 F.3d at 1213 (writing "In other words, this line of cases, by its nature, does not give a recognizable form to an ADEA representative class, but lends itself to ad hoc analysis on a case-by-case basis.").
The alternative to the two-part test is to analyze the factors applicable to Rule 23 class action certification: numerosity, commonality, typicality, and adequacy of representation. See Shushan v. University of Colorado, 132 F.R.D. 263 (D.Colo. 1990). Our Circuit has expressly refused to endorse either method over the other. Mooney, 54 F.3d at 1216. Because the two-stage approach appears to be the method of analysis more generally accepted, the Court will analyze the instant motion under the two-part approach.
Plaintiffs describe themselves as "ditch riders, dispatchers, river team members, and/or maintenance workers." [Rec. No. 3, pg. 1]. It is alleged by Plaintiffs that Defendant violated the "FLSA by failing to pay Plaintiffs and other similarly situated employees, or former employees, for the hours worked by such employees in excess of forty (40) hours per week at a rate not less than one and one-half times the regular hourly rate at which such employees were compensated." [Rec. No. 3, pg 3]. Plaintiffs argue that a collective action of similarly situated Plaintiffs is the appropriate method for the fair and efficient adjudication of the controversy. In opposition, Defendant argues Plaintiffs have not met their burden and put forth allegations supported by evidence that there are similarly situated employees who should have the chance to opt-in. Defendant further argues that Plaintiffs' assertions, if taken as true, show that Plaintiffs in fact were not similarly situated because the different job titles identified by Plaintiffs "connote totally different duties, responsibilities, and working conditions." [Rec. No. 10, pg. 5]. Plaintiffs correctly cite to Mooney v. Aramco Services Co. for the proposition that the initial burden on plaintiffs is a lenient one and only a "modest factual showing" is required to meet this burden. 54 F.3d 1207, 1214 (5th Cir. 1995). However, this Court finds that Plaintiffs in the instant case have failed to even present a modest factual showing that Plaintiffs are "similarly situated."
The Court finds Plaintiffs have failed the first step of the two-step approach. While the Court recognizes the standard for satisfying the first step is "fairly lenient standard," the Plaintiff has failed to provide any evidence that others were similarly situated. Plaintiffs are required to make "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination." HR Block, 186 F.R.D. at 400 (quoting Mooney, 54 F.3d at 1214 n. 8). The evidence before the Court includes only unsupported assertions of violations that are not sufficient to meet Plaintiff's burden. No affidavits that would provide evidence that others are similarly situated was submitted by Plaintiffs. Plaintiffs produce only conclusory statements that do not even meet a "modest factual showing." Having found that the evidence presented by Plaintiffs fails to sufficiently demonstrate that "similarly situated" Plaintiffs exist, Plaintiffs' motion to certify a collective action under 29 U.S.C. § 216(b) is DENIED. IT IS THEREFORE ORDERED that "Plaintiffs' Motion for Collective Action Recognition" [Rec. No. 8] is DENIED.