United States District Court, District of Columbia
P. MEHTA UNITED STATES DISTRICT JUDGE
the court are two motions filed by Plaintiffs: (1) a Motion
for Conditional Certification and Issuance of Notice; and (2)
a Conditional Motion to Toll Limitations Period for Putative
Collective Members. See Pls.' Mot. for
Conditional Cert. and Issuance of Notice, ECF No. 14
[hereinafter Pls.' Mot. for Conditional Cert.]; Pls.'
Conditional Mot. to Toll, ECF No. 15. In the interest of
efficiently resolving these motions, the court does not
recite the pertinent facts and assumes the parties'
awareness of them. Moreover, the court does not engage in a
long recitation of the law. Instead, the court is guided by
the comprehensive survey of the applicable legal principles
set forth in Stephens v. Farmers Restaurant Group,
291 F.Supp.3d 95 (D.D.C. 2018), and Ayala v. Tito
Contractors, 12 F.Supp.3d 167 (D.D.C. 2014). For the
reasons that follow, the court grants both Motions.
Motion for Conditional Certification
court finds that conditional certification is warranted
because Plaintiffs have shown that potential opt-in
plaintiffs “may be” similarly situated
to the named plaintiffs with regard to the alleged violations
of the Fair Labor Standards Act (“FLSA”).
Ayala, 12 F.Supp.3d at 170 (quoting Myers v.
Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)).
Plaintiffs' burden is “not high, ” and they
have satisfied it by demonstrating that they were subject to
a common plan or policy that violated the law. Id.;
accord Stephens, 291 F.Supp.2d at 105. In this case,
the commonality is that the named and potential opt-in
plaintiffs routinely worked more than 40 hours a week as
drivers for companies that contracted with Defendant Medical
Transportation Management, Inc., to supply non-emergency
medical transportation (“NEMT”) to Medicaid
patients in the District of Columbia and that Defendant, as
an “employer” under the FLSA, did not pay them an
effective minimum wage or overtime wages for their work.
These claims, supported by sworn affidavits from Plaintiffs
and one opt-in plaintiff, are sufficient at this stage to
conditionally certify the proposed class. See Vasquez v.
Grunley Constr. Co., No. 15-cv-2106 (GMH), 2016 WL
1559131, at *2-3 (D.D.C. April 18, 2016); Ayala, 12
F.Supp.3d at 171; Castillo v. P&R Enters., 517
F.Supp.2d 440, 446 (D.D.C. 2007); see also Hunter v.
Sprint Corp., 346 F.Supp.2d 113, 119 (D.D.C. 2004)
(stating “that class members in a collective action
‘must share more than a common allegation that they
were denied overtime or paid below the minimum wage. The
class members must put forth a common legal theory
upon which each member is entitled to relief.'”
(citation omitted) (emphasis added)).
sure, there are differences within the proposed class of
plaintiffs, but those differences are not sufficient to
defeat conditional certification. First, as Defendant points
out, even among the named plaintiffs, the transportation
companies by whom Plaintiffs were directly employed used
varying compensation systems. Def.'s Opp'n to Mot.
for Conditional Class Cert., ECF No. 33 [hereinafter
Def.'s Opp'n], at 6-7. But such uniformity is not a
prerequisite to conditional class certification. See
Ayala, 12 F.Supp.3d at 172 (rejecting as a basis to deny
conditional class certification that the defendants'
“pay policies are dictated by the individual contractor
for each project and do not operate as a uniform
scheme”); see also Stephens, 291 F.Supp.3d at
106 (stating that “defendants cannot defeat conditional
certification by pointing to immaterial variations in how the
improper policies alleged by the plaintiff were
Defendant contends that at least one transportation company
uses drivers for purposes other than NEMT work, and that all
providers are free to perform such other work. See
Def.'s Opp'n at 8. But even if true, that speaks to
the damages that would be available to a particular plaintiff
and does not defeat conditional certification. See
Stephens, 291 F.Supp.3d at 111.
Defendant offers an affidavit from the Quienton Shields,
Director of Transportation at MBI Logistics, LLC, a
transportation company that contracts with Defendant, who
attests that “MBI has always paid its drivers at least
the federal minimum wage.” Def.'s Opp'n, Decl.
of Quienton Shields, Ex. B, ECF No. 33-2, ¶ 7.
Shields's declaration, however, is too vague to rebut the
statements submitted by Plaintiffs. Shields does not say, for
instance, whether MBI pays its drivers time-and-a-half wages
for overtime, as required by the FLSA. See 29 U.S.C.
§ 207(a). In any event, even if the court assumes that
MBI is fully compliant with the FLSA, the fact that one of
many transportation companies adheres to federal wage
standards does not, by itself, warrant the denial of
conditional certification. Cf. Stephens, 291
F.Supp.3d at 105 (stating that a defendant cannot
“thwart conditional certification merely by
contradicting plaintiffs' claims, ” even with
voluminous evidence that no violation occurred).
Defendant places great weight on Dinkel v. MedStar
Health, Inc., 880 F.Supp.2d 49 (D.D.C. 2012), a case in
which the district court granted in part and denied in part
the plaintiffs' motion for conditional certification.
See Def.'s Opp'n at 13-15. Defendant argues
that Plaintiffs' averments that other drivers in the
proposed class were subject to wage practices violative of
the FLSA “are bald conclusory assertions devoid of any
factual context or specificity” and therefore, as in
Dinkel, are insufficient to meet their burden of
establishing a common practice. Id. at 15. In this
court's view, however, the court in Dinkel
demanded too much evidence at the conditional certification
stage. All that is required is a modest factual showing.
See Stephens, 291 F.Supp.3d at 105; Ayala,
12 F.Supp.3d at 170. Thus, Plaintiffs need not, as
Dinkel would seem to suggest, proffer non-hearsay
evidence establishing that drivers for every transportation
company with whom Defendant contracts were not paid in
accordance with the FLSA. Cf. Dinkel, 880 F.Supp.2d
at 54 (excluding two hospitals from the conditionally
certified class because there was no evidence presented that
those hospitals participated in the unlawful practice).
Instead, at this juncture, it is sufficient that the court
can reasonably infer based on pleadings and affidavits that
the failure to pay overtime is sufficiently widespread to
justify preliminary certification. Cf. Stephens, 291
F.Supp.3d at 106 (observing that “pure
speculation” is not sufficient to establish a common
policy or practice). Plaintiffs have met that low
burden. See, e.g., Decl. of Isaac Harris, ECF No.
20-1, ¶ 16 (asserting, based on conversations with other
drivers and declarant's industry experience, that drivers
with transportation companies that have contracted with
Defendant have or are not paid an effective minimum wage and
overtime wages); Decl. of Darnell Frye, ECF No. 14-4, ¶
14 (same); Decl. of Leo Franklin, ECF No. 14-5, ¶ 15
the court conditionally certifies a collective of all
individuals who provided transportation services under the
NEMT contracts between Defendant and the District of Columbia
at any time during the period from October 2, 2014, to the
Conditional Motion to Toll Limitations Period
court concurs with Plaintiffs that it is appropriate in this
case to toll the limitations period as of October 2, 2017,
the date on which Plaintiffs filed their conditional motion.
Plaintiffs have exhibited “reasonable diligence”
in pursuing their rights and those of putative
collective-action members. See Holland v. Florida,
560 U.S. 631, 653 (2010). The court also finds that
extraordinary circumstances warrant tolling the statute of
limitations as of October 2, 2017. After Plaintiffs filed
their Motion for Conditional Certification, the court
immediately stayed briefing on the motion until resolution of
Defendant's Motion to Dismiss, ECF No. 10. As
acknowledged at the hearing held on April 25, 2018, this
court has not previously presided over an FLSA collective
action and, when issuing the stay, did not understand that
the FLSA requires potential plaintiffs to affirmatively opt
into the action to avoid the time-barring of claims. The
court thus did not appreciate the limitations consequences of
allowing the Motion to Dismiss to remain unresolved for
months on end. In such circumstances, it would be patently
unfair to potential plaintiffs not to toll the limitations
period as of the date Plaintiffs sought relief. Accordingly,
the court exercises its discretion and equitably tolls the
limitations period for putative collective members from
October 2, 2017, until 90 days after the notice has issued.
Plaintiffs' Proposed Notice
Plaintiffs' proposed Notice, the court views Defendant as
having largely waived its objections, as those concerns are
relegated to a footnote. See Def.'s Opp'n at
17-18 n. 5; Stephens, 291 F.Supp.3d at 119
(observing that courts are not required to address arguments
“raised only cursorily in a footnote” (internal
citation and quotation marks omitted)). In any event,
evaluating the outstanding issues raised as compared to
Plaintiffs' revised notice, see ECF No. 37-1,
the court agrees with Plaintiffs that, in light of the
transient nature of potential plaintiffs, serving notice by
text message is appropriate. See, e.g., Bhumithanarn v.
22 Noodle Market Corp., No. 14-cf-2625, 2015 WL 4240985,
at *5 (S.D.N.Y. July 13, 2015). The two proposed text
messages only modestly infringe on privacy interests. Such
limited intrusion is justified to give potential plaintiffs
notice of possible wage claims. Plaintiffs, however, should
take care to ensure that, if a potential plaintiff opts in
before the date of the reminder text message, that such
plaintiff not receive the follow-on text message. Defendant
therefore shall provide to Plaintiffs within 14 days a
computer-readable database of all current and former NEMT
drivers who have worked for Defendant or have worked for
transportation companies under Defendant's contracts with
the District of Columbia for the three years prior to October
2, 2017. That database shall include drivers' names,
transportation company employers, last-known mailing and
e-mail addresses, mobile telephone numbers, dates of
employment, and birth dates.
respect to disclosure of social security numbers, the court
is reluctant to compel such disclosure, even on a limited
basis, at this time. Although no doubt true that some
potential plaintiffs will have changed mailing addresses,
thereby frustrating communication by that means, Plaintiffs
have not shown that potential plaintiffs are likely also to
have changed their mobile phone numbers and e-mail addresses.
In this modern age, an electronic communication is likely to
be as effective, if not more so, than a snail-mail notice.
The court does not, however, deny Plaintiffs' request at
this juncture. Rather, Plaintiffs will have to demonstrate
that alternative methods of direct ...