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Burke v. Management & Training Corp.

United States District Court, N.D. Mississippi, Oxford Division

July 24, 2017

TIMOTHY BURKE, on behalf of himself and all other similarly situated current and former employees PLAINTIFF



         Presently 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 rule.

         Factual and Procedural Background

          Defendant Management & Training Corporation (“MTC”) currently operates three correctional facilities within the state of Mississippi.[1] 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.

         Burke 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 plaintiffs.

         Legal Standard

         Pursuant 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).

         Although 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)).

         “In 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)).


          Conditional Certification

          Burke 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 safety lieutenants.

         To 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.

         Relevant 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).

         In 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 ...

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