McChesney v. Holtger Bros., Inc.

          ORDER

          Kristine G. Baker, United States District Judge.

         Before the Court is plaintiff Jacob McChesney's motion for conditional certification of collective action, for disclosure of potential opt-in plaintiffs' contact information, and to send court-approved notice (Dkt. No. 11). Mr. McChesney brings claims against defendant Holtger Bros., Inc. (“Holtger”) pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and the Arkansas Minimum Wage Act (“AMWA”), Ark. Code Ann. §§ 11-4-201 et seq. Holtger initially filed a response in opposition to Mr. McChesney's motion for conditional certification (Dkt. No. 14). Holtger then filed a motion for leave to file supplemental response to plaintiff's motion for conditional certification and to hold motion for conditional certification in abeyance (Dkt. No. 16). The Court grants Holtger's motion for leave to file supplemental response (Dkt. No. 16). The Court, in ruling on the pending motions, considered the supplemental response Holtger filed (Dkt. No. 19). Also before the Court is Mr. McChesney's motion to approve equitable tolling (Dkt. No. 17), to which Holtger responded in opposition (Dkt. No. 20). For the reasons that follow, the Court grants, in part, and denies, in part, Mr. McChesney's motion for conditional certification of collective action, for disclosure of potential opt-in plaintiffs' contact information, and to send court-approved notice (Dkt. No. 11). The Court grants Mr. McChesney's motion for equitable tolling (Dkt. No. 17).

         I. Background

         Mr. McChesney is a former hourly paid employee of Holtger (Dkt. No. 1, ¶¶ 8, 18). Mr. McChesney alleges that Holtger operates a “yard” in Pulaski County out of which he was based during his employment with Holtger (Id., ¶ 12). Holtger is a utility contractor licensed or performing work in Wisconsin, Michigan, Arkansas, Louisiana, Mississippi, Texas, Illinois, Iowa, Indiana, Florida, Massachusetts, Connecticut, Tennessee, Georgia, Arizona, Alabama, and New Mexico (Dkt. No. 19, at 2). Holtger maintains that Mr. McChesney worked for Holtger in Arkansas from August 2017 to July 2018, when he was terminated (Id.). Further, Holtger maintains that Mr. McChesney never worked for Holtger outside of Arkansas during his employment (Id., at 11).

         Mr. McChesney alleges claims under the FLSA and the AMWA. Specifically, Mr. McChesney contends that, between December 13, 2014, and December 13, 2017, Holtger failed to pay Mr. McChesney and other employees “their regular rate for all hours worked under 40 hours per week and overtime compensation in the amount of one and one-half times their regular rate of pay for all hours worked in excess of 40 in a week.” (Dkt. No. 1, ¶¶ 21-23). Mr. McChesney seeks conditional class certification of a collective action for his FLSA claims for “[a]ll current and former hourly-paid field workers employed by Defendant Holtger Bros., Inc. at any time since December 13, 2014.” (Dkt. No. 11, ¶ 2). Mr. McChesney has not moved for class certification on his AMWA claims.

         II. Analysis

         A. FLSA Conditional Certification

         Under the FLSA:

An action to recover the liability prescribed . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. 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.

29 U.S.C. § 216(b).

         Many district courts in the Eighth Circuit utilize a two-step approach in collective action cases. At the notice stage, the Court must determine, based on the pleadings and affidavits, whether notice should be given to potential class members. The key issue is whether the members of the proposed class are similarly situated. If the Court allows notification, then a representative class is conditionally certified, and Mr. McChesney will send notice to the putative opt-in plaintiffs. At the second stage, the Court determines whether to decertify the class once discovery is largely complete. Smith v. Frac Tech Services, Ltd., No. 4:09-cv-679, 2009 WL 4251017, at *2 (E.D. Ark. Nov. 24, 2009) (citation omitted). This Court has previously adopted this approach. See Watson v. Surf-Frac Wellhead Equip. Co., No. 4:11-cv-843, 2012 WL 5185869, at *1 (E.D. Ark. Oct. 18, 2012); Cruthis v. Vision's, No. 4:12-cv-244, 2013 WL 4028523, at *1-2 (E.D. Ark. Aug. 7, 2013). Although it appears from Holtger's supplemental response that the parties have conducted some discovery, neither party contends that discovery conducted to date has been substantial in scope or that discovery is largely complete. As such, the Court determines it does not have sufficient information to skip the initial “notice” step of FLSA certification and determines that the more lenient standard is appropriate at this conditional certification stage. See Fast v. Applebee's Int'l, Inc., 243 F.R.D. 360, 363 (W.D. Mo. 2007).

         “‘To establish that conditional certification is appropriate, the plaintiff[] must provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.'” Tegtmeier v. PJ Iowa, L.C., 208 F.Supp.3d 1012, 1018 (S.D. Iowa) (alteration in original) (quoting Robinson v. Tyson Foods, Inc., 254 F.R.D. 97, 99 (S.D. Iowa 2008)). Mr. McChesney's burden at the notice stage is lenient and may be met by making a “modest factual showing, ” typically by the submission of affidavits, that he and the putative class were victims of a common decision, policy, or plan of the employer that affected all class members in a similar fashion. Resendiz-Ramirez v. P & H Forestry, LLC, 515 F.Supp.2d 937, 941 (W.D. Ark. 2007) (citing Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1106-08 (10th Cir. 2001)). However, while this is a “lenient standard, . . . ‘more than mere allegations' are required.” Tegtmeier, 208 F.Supp.3d at 1018 (quoting Robinson, 254 F.R.D. at 99).

         “Typically, district courts will make the determination of whether to conditionally certify a class based solely on the affidavits presented by the plaintiffs.” Huang v. Gateway Hotel Holdings, 248 F.R.D. 225, 227 (E.D. Mo. 2008) (citation omitted). The Court can consider a variety of non-exclusive factors in determining whether employees are similarly situated. Such factors include: (1) whether the employees held the same job title; (2) whether they worked in the same geographic location; (3) whether the alleged violations occurred during the same time period; (4) whether the employees were subjected to the same policies and practices and, if so, whether the policies and practices were established in the same manner and by the same decision maker; and (5) the extent to which the acts constituting the alleged violations are similar. Stone v. First Union Corp., 203 F.R.D. 532, 542-43 (S.D. Fla. 2001) (citing Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001); Grayson v. K Mart Corp., 79 F.3d 1086, 1090, 1097-99 (11th Cir. 1996)). “The Court does not need to determine whether class members are actually similarly situated until the ‘merits stage' of the litigation, when defendants typically move to decertify the class.” Tinsley v. Covenant Care Servs., LLC, No. 1:14-cv-00026-ACL, 2015 WL 1433988, at *1 (E.D. Mo. Mar. 27, 2015) (emphasis in original) (citing Littlefield v. Dealer Warranty Servs., LLC, 679 F.Supp.2d 1014, 1016-17 (E.D. Mo. 2010)).

         To meet his burden, Mr. McChesney presents his sworn affidavit, in which he avers that

[f]ield workers, such as myself, arrive at Defendant's yard in Pulaski County around 6:30 in the morning, where we load up any items such as tools or materials we will need to perform our work on the work site each day. From the yard, we travel together in crews to the work sites in vehicles owned by Defendant. ...