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Galloway v. Chugach Government Services, Inc.

United States District Court, District of Columbia

June 28, 2017

CAROLYN GALLOWAY, et al., Plaintiffs,
v.
CHUGACH GOVERNMENT SERVICES, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge.

         This matter is before the Court on Plaintiffs' Motion for Conditional Approval of a Collective Action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). See Dkt. 17. Although Plaintiffs' factual proffer tests the limits of what is minimally necessary to justify conditional approval, the Court nonetheless concludes that they have made the requisite “modest factual showing.” That said, the Court will limit the collective action to persons bringing claims that have accrued within the three years preceding the date the person joins the suit. See 29 U.S.C. §§ 255(a), 256(b). The Court, accordingly, will GRANT in part and DENY in part the motion to conditionally approve this collective action. The Court will further order that the parties confer regarding the appropriate form of the notice to be sent to the prospective opt-in plaintiffs.

         I. BACKGROUND

         Plaintiffs Carolyn Galloway, Desiree McKeiver, and Carlette Ososanya were all employees of Defendant Chugach Government Services, Inc. (“Chugach”), where they worked as “Residential Advisors.” Am. Compl. ¶¶ 5-7; accord Dkt. 18 at 3 n.1. Residential Advisors “oversee[] and assist[] the residents in the Potomoc Job Corps dormitories.” Am. Compl. ¶ 9. Plaintiffs estimate that “approximately 20 individuals” work in identical or similar positions, id. ¶ 8, and that “35 [to] 40 people” may have held that job title since June 2012, see Status Conference Transcript (Sept. 13, 2016) (statement of Plaintiffs' counsel).

         Chugach allegedly failed to pay Residential Advisors overtime wages. Three alleged “polic[ies] and practice[s]” are to blame. Am. Compl. ¶ 34. First, Chugach allegedly required Residential Advisors to work through meal breaks (often three to five times per week) but deducted one hour's pay per shift regardless of whether the employee actually received a break. Id. ¶¶ 11-16. Second, as often as four to five days each week, Chugach allegedly required Residential Advisors to work 20-30 minutes beyond their scheduled shifts without pay while they waited for their replacement. Id. ¶¶ 17-21. And, third, Chugach allegedly required Residential Advisors “regularly” to work more than five eight-hour shifts per week (not including the deducted hour for meal breaks) without paying overtime wages. Id. ¶¶ 10, 22-29.

         Ososanya attests to these practices. See Dkt. 17-2 (Ososanya Aff.). She declares that, between approximately June 2012 and April 2015, Chugach “regularly required [her] to work through [her] meal breaks” and “to remain at [her] work location at the end of [her] shift until [her] replacement arrived, ” but failed to compensate her for that time. Id. ¶¶ 2, 4-5; accord Am. Compl. ¶ 7. She further declares that she “regularly worked in excess of 40 hours per week” without receiving overtime pay. Ososanya Aff. ¶ 3. And, most significantly for present purposes, she declares that she “know[s] many Resident[ial] Advisors” whom Chugach also “required to work through their meal breaks and [to] remain at their work locations until their replacement[s] arrived, ” and whom Chugach also failed to pay overtime wages. Id. ¶ 6.

         Asserting claims under the FLSA and the D.C. Minimum Wage Act (“DCMWA”), [1]Galloway brought this suit against Chugach on June 23, 2015. Dkt. 1. Two months later, she amended the complaint to add McKeiver and Ososanya as plaintiffs. Dkt. 7. The Court thereafter denied Chugach's motion to dismiss the amended complaint for failure to state a claim. Galloway v. Chugach Gov't Servs., Inc., 199 F.Supp.3d 145, 153 (D.D.C. 2016). Plaintiffs have now moved for conditional certification of a “collective action.” Dkt. 17. Pursuant to the parties' stipulation, no discovery has occurred. Dkt. 16.

         II. LEGAL STANDARD

         The FLSA permits employees denied overtime pay to sue “[o]n behalf of . . . other employees similarly situated.” 29 U.S.C. § 216(b). Such suits, termed “collective actions, ” differ fundamentally from class actions under Federal Rule of Civil Procedure 23. Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1529 (2013). Whereas Rule 23 judgments often bind all absent class members, see Fed. R. Civ. P. 23(c)(3), the only persons bound by a collective action are those who file “consent in writing to become . . . a party, ” § 216(b). Rule 23's procedural safeguards-including the numerosity, commonality, and typicality requirements-are therefore inapposite. Ayala v. Tito Contractors, 12 F.Supp.3d 167, 169 (D.D.C. 2014); see Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129, 1136 (D. Nev. 1999) (“The § 216(b) requirement that plaintiffs consent to the suit serves essentially the same due process concerns that certification serves in a Rule 23 action.”). Instead, the only prerequisite to a collective action is the one enumerated in the statute: that each employee who opts in be “similarly situated.” Blount v. U.S. Sec. Assocs., 945 F.Supp.2d 88, 92 (D.D.C. 2013).

         District courts enjoy “considerable discretion” to decide whether and how collective actions should proceed and to fashion procedures for “joining similarly situated employees in a manner that is both orderly and sensible.” Dinkel v. MedStar Health, Inc., 880 F.Supp.2d 49, 52 (D.D.C. 2012) (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)). That discretion permits courts, “in appropriate cases, ” to “facilitat[e] notice to potential plaintiffs.” Hoffman-La Roche Inc., 493 U.S. at 169-71. Neither the Supreme Court nor the D.C. Circuit have defined “similarly situated” or prescribed any specific collective action procedures, but “[c]ourts in this Circuit and others have settled on a two-stage inquiry.” Dinkel, 880 F.Supp.2d at 52 (collecting cases) (citing Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)).

         The first stage consists of the Court's determination whether to facilitate notice to potential opt-in plaintiffs, who might otherwise go unaware of the pending action. Dinkel, 880 F.Supp.2d at 52. Plaintiffs typically propose a “class” of persons to be notified, comprising employees who “may be ‘similarly situated' to the named plaintiffs” and who therefore may be eligible to opt in. Ayala, 12 F.Supp.3d at 170. Certainty is not the standard; courts require only a “modest factual showing” that the “named and potential plaintiffs together were victims of a common policy or plan that [allegedly] violated the law.” Id. (alteration and internal quotation marks omitted). Once the Court is satisfied that “‘similarly situated' plaintiffs do in fact exist, ” Dinkel, 880 F.Supp.2d at 52, the Court may “conditionally certify” the lawsuit as a collective action. In practical terms, this means that the Court “may facilitate notice of the collective action to [the] potential plaintiffs, ” Blount, 945 F.Supp.2d at 92, and that “[t]he action proceeds throughout discovery as a representative action for those [plaintiffs] who opt-in, ” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008). Importantly, although “conditional class certification” is a convenient shorthand for this procedure, the FLSA “does not actually ‘create a class of plaintiffs, '” Myers, 624 F.3d at 555 n.10 (quoting Morgan, 551 F.3d at 1259). The eligibility of each employee who “opts in” must still be assessed at the second stage.

         The second, more demanding stage takes place after discovery, “at which time the defendant may move to decertify the class based on the evidentiary record developed during the discovery period.” Blount, 945 F.Supp.2d at 93. The Court, armed with a more complete factual record, then resolves the ultimate question required by the statute: “whether each plaintiff who has opted in . . . is in fact similarly situated to the named plaintiffs.” Dinkel, 880 F.Supp.2d at 53 (citation omitted). This determination is flexible, ad hoc, and “soundly within the discretion of the district court.” Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001); see also, e.g., Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012); O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584-85 (6th Cir. 2009); Morgan, 551 F.3d at 1261-62. “Relevant factors include (but are not limited to): whether the plaintiffs are employed in the same corporate department, division, and location; whether they advance similar claims; whether they seek substantially the same form of relief; and whether they have similar salaries and circumstances of employment.” Zavala, 691 F.3d at 536-37. “Plaintiffs may also be found dissimilar based on the existence of individualized defenses.” Id. at 537. The answer depends “not . . . on any single factor in isolation, but on a variety of factors.” 7B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1807 (3d ed. updated Apr. 2017).

         III. ANALYSIS

         This case is at the first stage of the certification process. Plaintiffs propose to notify “[a]ll persons . . . employed by Chugach . . . [as] ‘Residential Advisor[s]' at any time since June 23, 2012, who[m] [Chugach] failed to pay overtime compensation for all hours worked in excess of 40 . . . in [a] given pay period[].” Dkt. 19-1 at 1. They ask that the Court (1) “conditionally certify” this action as a collective action; (2) order that Chugach provide the names, addresses, and email addresses of each ...


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