CHARLES WHITE, on his own behalf and others similarly situated, Plaintiffs,
NTC TRANSPORTATION, INC., et al., Defendants.
SHARION AYCOCK, District Judge.
This cause is before the Court on Defendants' Motion for Decertification . The Court previously granted Plaintiff's Motion for Conditional Class Certification and Court-Authorized Notice . Upon due consideration of the motion, responses, rules, and authorities, the Court finds Defendants' Motion for Decertification is not well taken and shall be DENIED.
Certification and Decertification Standard
The Fair Labor Standards Act (FLSA) requires covered employers to compensate nonexempt employees at a statutorily-mandated minimum wage and at overtime rates when they work in excess of forty hours per week. 29 U.S.C. § 207(a). If an employee is not paid minimum wage or unlawfully denied overtime, section 16(b) of the FLSA permits him to bring suit against his employer "for and in behalf of himself... and other employees similarly situated." Id. at § 216(b). "No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id . Thus, § 216(b) actions follow an "opt-in" procedure, rather than an "opt-out" procedure. See Mooney v. Aramco Servs. Co. , 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other grounds by Desert Palace v. Costa , 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). Although the Fifth Circuit has expressly refused to endorse a singular method for district courts to use when determining whether a collective action should be certified in FLSA actions, the majority of district courts have applied the Lusardi v. Xerox Corp. , 118 F.R.D. 351 (D.N.J. 1987), approach. Lusardi advises a two-step certification analysis: (1) the notice stage, and (2) the "opt-in, " "merits, " or decertification stage.
In the notice stage, the Court, using a "fairly lenient standard, " determines whether a conditional class should be certified. Mooney , 54 F.3d at 1214. This decision is within the district court's discretion and is not mandatory. See Songer v. Dillon Resources, Inc. , 569 F.Supp.2d 703, 705-06 (N.D. Tex. 2008) (citing Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). The notice stage typically occurs early in the litigation, and it is usually based on the pleadings and any attached affidavits. Mooney , 54 F.3d at 1214. To satisfy his burden, the plaintiff must provide competent evidence to show that a similarly situated group of potential plaintiffs exists. Id . "At the notice stage, courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination.'" Mooney , 54 F.3d at 1214 n.8 (citing Sperling v. Hoffman-La Roche, Inc. , 118 F.R.D. 392, 407 (D.N.J. 1988)). Relevant factors to guide the Court are "whether potential plaintiffs were identified, whether affidavits of potential plaintiffs were submitted, and whether evidence of a widespread plan was submitted." Songer , 569 F.Supp.2d at 707 (citing H & R Block, Ltd v. Housden , 186 F.R.D. 399, 400 (E.D. Tex. 1999)).
The Court can decertify' the class following discovery when the Court has more information to achieve a factual determination on the similarly situated question. See Ray v. Motel 6 Operating, Ltd. Pshp. , 1996 WL 938231 at *2 (D. Minn. Mar. 18, 1996). At the decertification stage, the Court is required to "look beyond the pleadings and affidavits, " and make its determination "in light of all information gathered during the post-opt-in discovery." Gallender v. Empire Fire & Marine Ins. Co., 2007 WL 325792 at *2 (S.D.Miss. Jan. 31, 2007). The term "similarly situated" is not defined by the FLSA and courts continue to search for a meaning when reviewing collective actions. See Acevedo v. Allsup's Convenience Stores, Inc. , 600 F.3d 516, 519 (5th Cir. 2010) ("[W]e have not adopted any of the varying approaches for determining whether employees' claims are sufficiently similar to support maintenance of a representative action."). Courts following the Lusardi approach have looked to several factors in determining whether a conditionally certified class should be decertified and "generally look to whether the proposed class members are similarly situated with respect to their job requirements and with regard to their pay provisions." Gatewood v. Koch Foods of Miss., LLC, 2009 WL 8642001 at *13 (S.D.Miss. Oct. 20, 2009) (internal quotations omitted).
Many courts look to the following factors in evaluating whether plaintiffs are similarly situated: "(1) 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 . (citing Thiessen v. Gen. Elec. Capital Corp. , 267 F.3d 1095, 1103 (10th Cir. 2001)). Importantly, the standard for collective actions is not that plaintiffs are identically situated but rather only that they are similarly situated. Id . (citing Hipp v. Liberty Nat'l Life Ins. Co. , 252 F.3d 1208, 1219 (11th Cir. 2001) (Plaintiffs "need show only that their positions are similar, not identical, to the positions held by the putative class members.")).
Though heightened at the decertification stage, the "similarly situated" requirement of § 216(b) is still considerably less stringent than the commonality requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure. O'Brien v. Ed Donnelly Enter., Inc. , 575 F.3d 567, 584 (6th Cir. 2009) (citing Grayson v. K Mart Corp. , 79 F.3d 1086, 1096 (11th Cir. 1996)). "If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives-i.e. the original plaintiffs-proceed to trial on their individual claims." Mooney , 54 F.3d at 1214.
Discussion and Analysis
NTC Transportation, Inc. ("NTC") is a transportation company that provides various services including, but not limited to, non-emergency passenger transportation, shuttle service, and package delivery. Defendants Jackie and Evelyn Netterville own and operate NTC. Plaintiff Charles White was an hourly-paid driver employed by NTC. He seeks to bring this FLSA suit on behalf of himself and those similarly situated. The Court previously granted Plaintiff's Motion for Conditional Class Certification and Court-Authorized Notice , finding that Plaintiff had met the "fairly lenient" standard of the notice stage of certification. The Court conditionally certified the following class for the purposes of discovery and authorized the Plaintiff to give notice of the lawsuit to potential class members:
[A]ll hourly paid non-emergency medical transport drivers who worked for Defendants NTC Transportation, Jackie Netterville and Evelyn Netterville during the past three years and who were not paid for all of the compensable time spent working for Defendants, including but not limited to, time spent in Defendants' vehicles waiting for patients to complete their appointments and time spent working through an automatically deduced one hour lunch.
In addition to the named Plaintiff Charles White, ninety Plaintiffs have opted-in to this lawsuit to date. In moving the Court to decertify the class, Defendants argue that application of the recognized factors to the instant facts reveals Plaintiffs are not similarly situated. In particular, Defendants argue that Plaintiffs' employment settings are factually disparate and that they have failed to prove they are similarly situated because they have not produced substantial evidence of a single decision, policy, or plan that affected them all in the same manner. Additionally, Defendants contend that they would be prevented from meaningfully defending against a collective action because the issue of liability is so highly individualized and that fairness and efficiency considerations favor decertification. The Court addresses each of these arguments in turn.
A. Individual Plaintiffs' Factual and Employment Settings
It is clear from the record that Plaintiffs' factual and employment settings are not so disparate as to warrant decertification of the collective action. Though Defendants argue that Plaintiffs worked at different office locations, during different periods of time, and traveled different daily routes transporting different patients, the record evidence does not show that there were any significant differences in Plaintiffs' duties or overall employment settings. Each Plaintiff held the same position, performed the same duties, and was subject to the same policies and procedures regardless of location or time period. Pursuant to the Court authorized notice, all Plaintiffs were drivers for NTC whose primary duties were to pick up, transport, and drop off non-emergency Medicaid medical patients. All drivers began each shift by reporting to their home base to pick up a vehicle and a schedule. During the course of their shifts, all drivers were required to keep logs of pick-ups and drop-offs, as well as to report their starting and ending times and whether the driver was considered "up" or "down." All drivers were paid by the hour and received a paycheck every two weeks. Thus, Plaintiffs' employment settings were sufficiently similar to proceed collectively.
Defendants also argue that Plaintiffs raise a variety of different legal claims. Based upon the damages information provided in discovery, Defendants contend that some Plaintiffs are asserting violations of the FLSA's minimum wage requirement while others are asserting overtime violations and still others are asserting both types of claims. However, Plaintiffs maintain they were uniformly subjected to several policies which gave rise to FLSA violations and that variations ...