United States District Court, W.D. Arkansas, Fayetteville Division
MICHELLE WARNER, individually and on behalf of all others similarly situated PLAINTIFF
LITTLE JOHN TRANSPORTATION SERVICES, INC.; CHRISTOPHER DALE; and STEVEN DALE DEFENDANTS
OPINION AND ORDER
HOLMES, III U.S. DISTRICT JUDGE
the Court are Plaintiff Michelle Warner's motion (Doc.
24) for conditional certification of a collective action,
brief (Doc. 25) in support, and other supporting documents.
Defendants filed a response (Doc. 31) opposing conditional
certification. For the reasons set forth below,
Plaintiff's motion will be granted.
on the pleadings before the Court, Little John Transportation
Services, Inc. (“Little John”) is a corporation
that procures and transports freight. Little John has
locations in Russellville, Arkansas, Springdale, Arkansas,
and Houston, Texas. Since 2015, Plaintiff has worked as an
Agent at Little John's Springdale location. Agents are
primarily responsible for procuring freight customers and
organizing the freight's shipment. Agents are personally
responsible for the shipments they organize and must
troubleshoot any issues that arise. As a result, Little John
policy requires that Agents always be available while the
freight is in transit. Plaintiff contends that Agents
routinely work in excess of forty hours per workweek because
of this policy. However, Agents are not eligible to receive
overtime compensation for these hours because Little John
classifies Agents as “exempt” from receiving
overtime compensation under the Fair Labor Standards Act.
Plaintiff contends that because Agents are willfully
misclassified as “exempt, ” Little John's
policy violates the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (the “FLSA”) and the
Arkansas Minimum Wage Act, Ark. Code Ann. §§
11-4-201 et seq. (the “AMWA”). Plaintiff seeks
conditional certification of her FLSA claim as a collective
action pursuant to 29 U.S.C. § 216(b), authorization to
issue notice to putative class members, and approval of the
proposed notice and consent-to-join forms (Doc. 24-3).
FLSA allows named plaintiffs to sue [their employer]
‘for and in behalf of . . . themselves and other
employees similarly situated.'” Bouaphakeo v.
Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014)
(quoting 29 U.S.C. § 216(b)). This type of suit-a
collective action-is distinguishable from a class action
certified under Federal Rule of Civil Procedure 23, as it
requires that plaintiffs use the opt-in mechanism under 29
U.S.C. § 216(b) for joining a putative class of
plaintiffs rather than the opt-out procedures in Rule 23.
Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th
Cir. 1975). The FLSA gives the Court “the requisite
procedural authority to manage the process of joining
multiple parties in a manner that is orderly, sensible, and
not otherwise contrary to statutory commands or the
provisions of the Federal Rules of Civil Procedure.”
Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170
(1989). “The court has a responsibility to avoid the
stirring up of litigation through unwarranted solicitation of
potential opt-in plaintiffs, but the district court should,
in appropriate cases, exercise its discretion to facilitate
notice to potential plaintiffs.” Bouaphakeo v.
Tyson Foods, Inc., 564 F.Supp.2d 870, 890 (N.D. Iowa
2008) (citing Severtson v. Phillips Beverage Co.,
137 F.R.D. 264, 267 (D. Minn. 1991); Hoffman-La
Roche, 493 U.S. at 169) (internal quotations omitted).
certification of a collective action will depend on whether
the named plaintiffs are similarly situated to the putative
class. The Supreme Court has hinted that the rules for
joining similarly situated plaintiffs are similar to the
rules of joinder under Federal Rule of Civil Procedure 20(a).
See Epic Systems Corp. v. Lewis, ___ U.S.___, 138
S.Ct. 1612, 1636 n.3 (2018) (indicating that “similarly
situated” FLSA plaintiffs may be joined in the same
action under Federal Rule of Civil Procedure 20(a), which
requires that their claims arise out of the same transaction
or occurrence and involve common questions of law or fact).
Neither § 216(b) nor the Eighth Circuit Court of Appeals
has defined when “other employees [are] similarly
situated” so that collective action certification and
authorization of notice is appropriate. Davenport v.
Charter Comms., LLC, 2015 WL 164001, at *4 (E.D. Mo.
Jan. 13, 2015). District courts within the Eighth Circuit
have historically utilized a two-stage approach for
collective action certification under § 216(b). See
e.g., Resendiz-Ramirez v. P & H Forestry,
L.L.C., 515 F.Supp.2d 937, 940 (W.D. Ark. 2007)
(“The Court is convinced that the more prudent approach
is to use the two-stage certification analysis that is used
by a majority of courts, including a majority of district
courts in the Eighth Circuit.”). Nothing in Eighth
Circuit or United States Supreme Court precedent requires
district courts to utilize this approach; rather,
“[t]he decision to create an opt-in class under §
216(b), like the decision on class certification under Rule
23, remains soundly within the discretion of the district
court.” Bouaphakeo, 564 F.Supp.2d at 891
(citing Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d
1208, 1219 (11th Cir. 2001)). The Court will follow the
historical approach because, if satisfied, it demonstrates
that Plaintiff's claims and claims of the putative class
involve the same transaction or occurrence and common
questions of law and fact.
the two-stage approach to certifying a collective action,
Resendiz-Ramirez, 515 F.Supp.2d at 941, when named
plaintiffs move for certification of a collective
action-typically early in the discovery process-a court
considers whether Plaintiffs and putative class members were
victims of a common decision, policy, or plan of the employer
that affected all class members in a similar manner.
Resendiz-Ramirez v. P & H Forestry, LLC, 515
F.Supp.2d 937, 940-41 (W.D. Ark. 2007). While the burden of
proof is relatively low, “some identifiable facts or
legal nexus must bind the claims so that hearing the cases
together promotes judicial efficiency.” Jost v.
Commonwealth Land Title Ins. Co., 2009 WL 211943, at *2
(E.D. Mo. Jan. 27, 2009) (quotations omitted). Some factors
that may be considered by district courts making this
determination include: (1) whether everyone worked in the
same location; (2) whether they held the same job title; (3)
whether the alleged violations occurred during the same time
period; (4) whether all workers were subjected to the same
policies and practices, and whether those policies and
practices were established in the same manner by the same
decision maker; and (5) the extent to which the acts
constituting the alleged violations are similar. See
Watson v. Surf-Frac Wellhead Equip. Co., 2012 WL
5185869, at *1 (E.D. Ark. Oct. 18, 2012). If notification is
deemed appropriate, the class is conditionally certified for
notice and discovery purposes and the action proceeds as a
representative action. Croft v. Protomotive, Inc.,
2013 WL 1976115, at *1 (W.D. Ark. May 13, 2013) (citing
Resendiz-Ramirez, 515 F.Supp.2d at 940).
raise several arguments against conditional certification.
First, Defendants argue that Plaintiff has failed to show
that there are other similarly situated plaintiffs that want
or intend to join this action. The plain language of 29
U.S.C. § 216(b) does not extend any numerosity
requirement to a FLSA action. The statute permits “one
or more employees” to represent “other employees
similarly situated. 29 U.S.C. § 216(b). Here, Plaintiff
seeks to represent at least two other Agents who she claims
are similarly situated. The Court's analysis at this
stage is simply to determine whether Ms. Warner is similarly
situated to the putative class.
Defendants offer several arguments as to the merits of
Plaintiff's case. Specifically, Defendants argue that
Plaintiff fails to allege facts that demonstrate she is
required to work over forty hours a week as a result of the
policy. As support, Defendants submitted an affidavit of
Chris Dale representing that Plaintiff averaged only 32.74
hours per week over the past 25 weeks. (Doc. 31-1, p. 1,
¶ 3). The Court does not make findings of fact or
credibility determinations with respect to contradictory
evidence submitted by the parties at this stage. Loomis
v. CUSA, LLC, 257 F.R.D. 674, 676 (D. Minn. 2009).
Additionally, Defendants argue that Plaintiff is not
similarly situated to other freight brokers because Agents
are not “engaged to be waiting, ” but rather
“waiting to be engaged.” (Doc. 31, p. 5). This
legal position has no relevance at this early stage of the
case where discovery has been limited. As discussed, the
Court is concerned only with whether notice is appropriate
and therefore need not address a merits-based argument until
the second stage. Resendiz-Ramirez, 515 F.Supp.2d at
the factors listed above, the Court finds that under the
lenient standard applicable to this notice stage of
certification, Plaintiff has met her burden to demonstrate
that she is similarly situated with other putative class
members. Plaintiff alleges that she worked at Little John as
a salaried Agent at the Springdale location. Though not all
putative members work at the Springdale location, all
putative members are current or former Agents of Little John.
Defendants acknowledge that all Agents are classified as
“exempt” and therefore are not eligible for
overtime pay. Plaintiff identifies a policy that requires
Agents to remain available while the freight they procure is
in transit. As a result of the policy, Plaintiff alleges that
she and other putative plaintiffs regularly work over forty
hours per week without overtime compensation. The policies
and classification practices appear to apply uniformly to all
Agents regardless of location. The allegations therefore
arise out of the same transaction or occurrence and involve
common questions of law and fact. Plaintiff has met her
burden of establishing that she is similarly situated to all
other Agents, and she has made substantial factual
allegations supporting her claim of FLSA violations for
overtime compensation. Accordingly, the Court will
conditionally certify this action for the purposes of
providing notice to putative members.
the class definition, Plaintiff requests that the Court
conditionally certify and approve notice for the following
class: current or former salaried “Freight
Broker” or “Agent” employees of Little John
Transportation Services, Inc. (“Little John”) at
any time during the three years prior to their filing of a
Consent to Join Collective Action Form (Consent Form).
Defendant makes no objection to this class designation.
provides no explanation or distinction between an
“Agent” and “Freight Broker, ” but
merely notes that Agents are sometimes referred to as
“Freight Brokers.” (Doc. 24, p. 4, ¶ 9). In
some documents filed before the Court, Plaintiff represents
that she works as an Agent, but she claims to work as a
Freight Broker in others (Doc. 1, p, 2, ¶ 5; Doc. 24-2,
p. 1, ¶ 3). Similarly, Defendants admit in their answer
that Plaintiff works as an Agent yet refer generally to
Freight Brokers throughout their response. (Doc. 22, p. 2,
¶ 5). Because both parties use the terms
“Agent” and “Freight Broker”