United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge.
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.
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'
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.
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.
claims under the FLSA and the D.C. Minimum Wage Act
(“DCMWA”), 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.
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).
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)).
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.
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).
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 ...