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Hicks v. Lindsey Management Co. Inc.

United States District Court, E.D. Arkansas, Jonesboro Division

February 11, 2019

JORDAN HICKS, individually and on behalf of all others similarly situated PLAINTIFF
v.
LINDSEY MANAGEMENT CO., INC., and SCOTT ROGERSON DEFENDANTS

          ORDER

          Kristine G. Baker United States District Judge

         Plaintiff Jordan Hicks brings this proposed collective action against defendants Lindsey Management Co. (“Lindsey Management”) and Scott Rogerson, the president and chief financial officer of Lindsey Management. Mr. Hicks alleges that Lindsey Management erroneously calculated his and other similarly situated employees' overtime rate of pay under 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. Before the Court is Mr. Hicks's motion for conditional certification, for disclosure of contact information, and to send notices (Dkt. No. 8). Lindsey Management responded in opposition to the motion (Dkt. No. 13), and Mr. Hicks replied (Dkt. No. 14). For the reasons that follow, the Court grants in part and denies in part Mr. Hicks's motion for conditional certification, for disclosure of contact information, and to send notices (Dkt. No. 8).

         I. Background

         Mr. Hicks is a former hourly-paid employee of Lindsey Management, headquartered in Fayetteville, Arkansas (Dkt. No. 1, ¶¶ 12, 16). Mr. Hicks alleges that, during his employment, he was responsible for maintenance, repair, and general upkeep of Lindsey Management's apartment complexes (Id., ¶ 27). He asserts that he and all other hourly-paid employees who lived on- premises were classified as hourly employees and paid an hourly rate (Id., ¶ 29). Mr. Hicks asserts that he regularly worked in excess of 40 hours per week (Id., ¶ 28). According to Mr. Hicks, he and other hourly-paid employees who lived on-premises were given a rent discount and were paid one and a half times their base hourly rate for each hour they worked over 40 hours in a work week (Id., ¶¶ 30, 31). However, Mr. Hicks alleges that Lindsey Management did not include all forms of compensation, such as the rent discounts given to Mr. Hicks and other hourly-paid employees who lived on-premises, in its regular rate of pay when calculating the overtime rate of pay (Id., ¶ 32). In his present motion, Mr. Hicks seeks conditional certification of the following collective: “[a]ll hourly employees who lived on-premises, received a rent credit, and who worked more than [40] hours in any week since July 24, 2015” (Dkt. No. 8, ¶ 3).

         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 Court of Appeals 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. Hicks 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 McChesney v. Holtger Bros., Inc., No. 4:17-cv-824, 2019 WL 118408, at *2 (E.D. Ark. Jan. 7, 2019); 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).

         “‘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 2016) (alteration in original) (quoting Robinson v. Tyson Foods, Inc., 254 F.R.D. 97, 99 (S.D. Iowa 2008)). Mr. Hicks'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, 1217 (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)).

         In a sworn affidavit, Mr. Hicks contends that he worked as an hourly-paid employee for Lindsey Management from August 2017 until July 2018 and lived on-premises during that time (Dkt. No. 8-7, ¶ 4). Mr. Hicks alleges that his duties included performing maintenance, repair, and general upkeep at the apartment complex where he lived (Id., ¶ 6). In addition to his hourly wage, Mr. Hicks received a monthly rent credit from Lindsey Management while he lived on-premises (Id., ¶ 7). Mr. Hicks alleges that he personally observed the work of other hourly-paid employees and talked to them about their job duties (Id., ¶ 9). He further alleges that Lindsey Management communicated to him that some of his duties were also the duties of other hourly-paid employees who lived on-premises (Id.). Mr. Hicks asserts that, due to the nature of the job, hourly-paid employees who live on-premises have been and are often required to work more than 40 hours per week and that it is common for an hourly-paid employee who lives on-premises to work more than 40 hours (Id., ¶ 10). According to Mr. Hicks, he and other hourly-paid employees who lived on-premises received a monthly rent credit and were paid overtime wages of one and one half times their regular hourly rate for all the hours they worked in excess of 40 hours (Id., ¶ 11). He contends that the company policy for reducing rent applied to maintenance workers, leasing consultants, maintenance supervisors, property managers, and assistant property managers (Id., ¶ 13). Mr. Hicks avers that Lindsey Management did not include the rent credit when it calculated the overtime premium for its hourly-paid employees who worked more than 40 hours per week and lived on-premises (Id., ¶ 14). Mr. Hicks admits that he does not know the exact number of people who were subject to Lindsey Management's policy of calculating overtime premiums, but he estimates that there are at least 200 other class members (Id., ¶ 15). He believes that at least some other hourly-paid employees who live or lived on-premises would be interested in participating in this lawsuit (Id., ¶ 16). He asserts that Lindsey Management owns and operates multiple apartment complexes throughout Arkansas as well as in other states (Id., ¶ 5).

         In addition to his own sworn affidavit, Mr. Hicks provides a sworn affidavit by Crystal Lovette (Dkt. No. 8-8). In the affidavit, Ms. Lovette alleges that she was employed by Lindsey Management from November 2017 to July 2018 as an hourly-paid employee who lived on-premises (Id., ¶ 4). Ms. Lovette alleges that she worked as a leasing consultant and was responsible for showing and leasing apartments as well as maintaining the leasing office at the apartment complex where she lived and that her duties included greeting and assisting residents and guests, showing and leasing apartments, and maintaining the leasing office at the complex (Id., ¶¶ 6, 8). She claims that she was paid an hourly wage and received a monthly rent credit while she lived on-premises (Id., ¶ 7). Ms. Lovette alleges that she personally observed the work of other hourly-paid employees who lived on-premises and talked to them about their job duties (Id., ¶ 9). She further alleges that Lindsey Management communicated to her that some of her duties were also the duties of other hourly-paid employees who lived on-premises (Id.). Ms. Lovette asserts that, due to the nature of the job, hourly-paid employees who live on-premises have been and are often required to work more than 40 hours per week and that it is common for an hourly-paid employee who lives on-premises to work more than 40 hours (Id., ¶ 10). According to Ms. Lovette, she and other hourly-paid employees who lived on-premises received a monthly rent credit and were paid overtime wages of one and one half times their regular hourly rate for all the hours they worked in excess of 40 hours (Id., ¶ 11). She contends that the company policy for reducing rent applied to maintenance workers, leasing consultants, maintenance supervisors, property managers, and assistant property managers (Id., ¶ 13). Ms. Lovette avers that Lindsey Management did not include the rent credit when it calculated the overtime premium for its hourly-paid employees who worked more than 40 hours per week and lived on-premises (Id., ΒΆ 14). Ms. ...


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