United States District Court, N.D. Mississippi, Oxford Division
TIMOTHY BURKE, on behalf of himself and all other similarly situated current and former employees PLAINTIFF
MANAGEMENT & TRAINING CORPORATION DEFENDANT
B. BIGGERS, JR., UNITED STATES DISTRICT JUDGE
before the court is the plaintiff's motion for
conditional certification and notice to putative plaintiffs.
Upon due consideration of the motion, response, exhibits, and
supporting and opposing authority, the court is ready to
and Procedural Background
Defendant Management & Training Corporation
(“MTC”) currently operates three correctional
facilities within the state of Mississippi. The plaintiff,
Timothy Burke, is a former MTC employee who worked as a
Lieutenant at MTC's Marshall County facility. While an
MTC employee, Burke alleges that he was paid on a salary
basis, regularly worked in excess of forty hours a week, and
was not compensated for those excess hours.
commenced litigation on July 1, 2016, alleging that MTC
violated the Fair Labor Standards Act (“FLSA”) by
willfully misclassifying him as exempt from the statute's
overtime provisions. Burke seeks to institute this action on
behalf of himself, as well as others similarly situated.
Accordingly, he filed the instant motion to conditionally
certify this FLSA action as a collective action under 29
U.S.C. § 216(b) and to approve notice to putative
to the FLSA, covered employers are required to compensate
non-exempt employees for overtime when they work in excess of
forty hours per week. 29 U.S.C. § 207(a). Further, when
an employee is unlawfully denied overtime, section 16(b) of
the FLSA permits an employee to bring suit against an
employer “for and in behalf of himself . . . and other
employees similarly situated.” 29 U.S.C. § 216(b).
However, “no employee shall be a party plaintiff to any
such action unless he gives his consent in writing . . . and
such consent is filed in the court in which such action is
brought.” 29 U.S.C. § 216(b). Thus, the FLSA
follows an “opt in” format for collective
actions. LaChapelle v. Owens-Illinois, Inc., 513
F.2d 286, 288 (5th Cir. 1975).
the Fifth Circuit has yet to endorse a particular method for
determining whether a collective action should be certified
in FLSA suits, a majority of district courts apply the
Lusardi approach. Lusardi v. Xerox Corp.,
118 F.R.D. 351 (D.N.J. 1987). Under this approach,
certification is divided into two stages: (1) the notice
stage; and (2) the merits or decertification stage.
Santinac v. Worldwide Labor Support of Illinois,
Inc., 107 F.Supp.3d 610, 614 (2015) (citing Tice v.
AOC Senior Home Health Corp., 826 F.Supp.2d 990, 994
(E.D. Tex. 2011)).
the notice stage, a district court makes a decision, based on
the pleadings and any affidavits, whether to
‘conditionally' certify the collective action and
authorize notice to potential class members.”
Harris v. Hinds Cnty., 2014 WL 457913, at *2
(S.D.Miss. Feb. 4, 2014). “The second stage occurs when
and if the defendant files a motion for decertification,
‘after discovery is largely complete and more
information on the case is available.'” Tsib v.
Moore Feed Store, Inc., 2015 WL 2415530, at *3 (N.D.
Miss. May 21, 2015) (citing Case v. Danos and Curole
Marine Contractors, L.L.C., 2015 WL 1978653 (E.D. La.
May 4, 2015)).
seeks to certify the following class for this lawsuit:
All current and former employees holding the job title of
Lieutenant who worked for Management & Training
Corporation  from July 1, 2013, to the present, who were
paid on a salary basis, worked over 40 hours in any given
week and were not paid overtime, excluding only those
Lieutenants employed solely as training lieutenants,
investigative lieutenants, ARP lieutenants and fire and
demonstrate that conditional certification is warranted, a
plaintiff must provide competent evidence to show that a
group of similarly situated potential plaintiffs exists.
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 (2003). At the notice stage, the
court utilizes a “fairly lenient standard because of
the minimal evidence available at this stage.”
Harris, at *2. Thus, the plaintiff's
burden is low and “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.” Id. at 1214.
factors to guide the court are whether (1) potential
plaintiffs have been identified, (2) affidavits of potential
plaintiffs have been submitted, and (3) evidence of a
widespread plan has been submitted. Brown v. United
Furniture Industries, Inc., 2015 WL 1457265, at *6 (N.D.
Miss. March 30, 2015) (citing White v. NTC Transp.,
Inc., 2013 WL 5874566 (N.D. Miss. Oct. 31, 2013)).
Further, conditional certification is permissible despite
some level of heterogeneity, as the positions compared
“need not be identical, but similar” with respect
to “job requirements and with regard to  pay
provisions.” Aguilar v. Complete Landscultpure,
Inc., 2014 WL 2293842 (N.D. Tex. Oct. 7, 2004).
support of his motion, Burke has attached his affidavit, as
well as the affidavits of four other former MTC Mississippi
employees. According to the affidavits, each affiant held the
position of Lieutenant at a MTC facility located in
Mississippi; was classified as exempt from the FLSA's
overtime requirements; regularly and repeatedly worked in
excess of forty hours and was not paid for those excess
hours; did not clock in or out and was not aware of any
lieutenants clocking in or out; was paid on a salary basis;
had no ...