United States District Court, W.D. Arkansas, Texarkana Division
GARY MIDDLETON, Individually and on Behalf of All Others Similarly Situated PLAINTIFF
HEMPSTEAD COUNTY, ARKANSAS DEFENDANT
O. Hickey, Chief United States District Judge.
the Court is Plaintiff Gary Middleton's Motion for
Conditional Certification, for Approval and Distribution of
Notice and for Disclosure of Contact Information. ECF No. 13.
Defendant Hempstead County, Arkansas, has filed a response.
ECF No. 15. Plaintiff has filed a reply. ECF No. 20. The
Court finds this matter ripe for consideration.
filed his complaint on August 1, 2018. ECF No. 1. Plaintiff
seeks relief pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201, et
seq., and the Arkansas Minimum Wage Act
(“AMWA”), Ark. Code Ann. §§ 11-4-201,
et seq. ECF No. 1, ¶ 1.
July 2014 through May 2018, Plaintiff was a detention officer
employed by the Hempstead County Sheriff's Department.
Plaintiff claims that Defendant failed to pay him, and others
similarly situated, proper overtime compensation. ECF No. 1,
¶¶ 2, 22, 30. Specifically, Plaintiff alleges that
Defendant “did not pay [him and others similarly
situated] . . . one and one-half (1.5) times their regular
rate for their overtime hours.” ECF No. 1, ¶ 33.
Plaintiff claims that he was an hourly-paid employee of
Defendant and “was routinely required to work in excess
of forty (40) hours per week” and “in excess of
171 hours in a 28-day work period.” ECF No. 1,
¶¶ 19, 29, 31.
states in his complaint that he brings his FLSA claim
individually and on behalf of “all Detention Officers,
Jailers, and similar detention center employees employed by
Defendant within the past three years.” ECF No. 1,
¶ 83. As for Plaintiff's AMWA claim, Plaintiff seeks
recovery individually and collectively, proposing to
represent the class of individuals defined as “all
Detention Officers, Jailers and similar detention center
employees employed by Defendant in Arkansas within the past
three years.” ECF No. 1, ¶ 92.
present motion, Plaintiff asks the Court to conditionally
certify, pursuant to the FLSA, the following class: all
non-patrol detention officers/jailers employed by Hempstead
County since August 1, 2015. Plaintiff also “requests a
period of ninety (90) days to distribute Notice and
Consent forms . . . and requests this Court to enter
an Order directing Defendant to provide the names, current
and/or last known mailing addresses, and cell phone numbers,
or alternatively email addresses, of potential opt-in
Plaintiffs no later than one (1) week after the date of the
entry of the Order granting this Motion.” ECF No. 13,
¶ 5. Plaintiff also seeks the Court's permission
“to provide the Notice to potential opt-in
Plaintiffs via text message and traditional U.S. mail”
and to “distribute a reminder postcard via traditional
U.S. mail and a follow-up text message.” ECF No. 13,
¶ 6. Alternatively, should the Court deny
Plaintiff's request for text messaging as a method of
distribution, Plaintiff requests that the Court approve the
use of email as a method of distribution. ECF No. 13, ¶
7. Finally, Plaintiff seeks Court approval to include a copy
of the complaint “as well as Defendant's Answer
thereto, if requested, along with the Notice.”
ECF No. 13, ¶ 8.
response, Defendant argues that Plaintiff's motion should
be denied because the proposed class definition does not
outline a “similarly situated” group as
contemplated by the FLSA. ECF No. 15, p. 3. Defendant also
takes the position that “the proposed notices to the
targeted group are unduly coercive and intrusive in method,
means, and manner” and thus Plaintiff's conditional
certification motion should be denied. ECF No. 15, p. 4-5.
Court is faced with two tasks. First, the Court must
determine whether conditional certification of the proposed
class is proper under the FLSA. Second, if the Court finds
such conditional certification proper, the Court must outline
the correct means of providing notice to potential class
members and set procedures by which a plaintiff may opt in.
FLSA allows for “similarly situated” employees to
proceed collectively to recover damages for violations of the
FLSA's overtime provisions. 29 U.S.C. § 216(b). The
Eighth Circuit has not explicitly defined what
“similarly situated” means in regard to the
propriety of class certification, but this Court, as well as
other district courts in the Eighth Circuit and numerous
Courts of Appeal, follow the two-tiered approach to FLSA
conditional class certification as established by Mooney
v. Aramco Service, 54 F.3d 1207 (5th Cir. 1995),
overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003). See,
e.g., Comer v. Wal-Mart Stores,
Inc., 454 F.3d 544 (6th Cir. 2006); Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d 1095 (10th Cir. 2001);
Resendiz-Ramirez v. P & H Forestry, LLC, 515
F.Supp.2d 937 (W.D. Ark. 2007); Parker v. Rowland
Express, Inc., 492 F.Supp.2d 1159, 1163-1169 (D. Minn.
2007); Davis v. NovaStar Mortgage, Inc., 408
F.Supp.2d 811 (W.D. Mo. 2005). Under this approach,
certification for collective action is divided into two
stages: (1) the notice stage and (2) the opt-in or merits
stage. Mooney, 54 F.3d at 1213-1214. During the
notice stage, the Court “makes a decision-usually based
only on the pleadings and affidavits which have been
submitted-whether notice should be given to potential class
members.” Id. at 1213. If the Court allows for
notification, the Court typically creates conditional
certification of a representative class and allows notice to
be sent to the potential opt-in plaintiffs. Id. at
second stage of the two-stage process, the Court determines
whether the class should be maintained through trial.
Id. Typically, the second stage is precipitated by a
motion to decertify by the defendant, which is usually filed
when discovery is largely complete. Id. If the Court
decides to decertify the class, the opt-in class members are
dismissed from the suit without prejudice and the case
proceeds only for the class representatives in their
individual capacities. Id.
Conditional Certification in the Present Case
this first stage of certification, the Court does not make
findings on legal issues or focus on whether there has been
an actual violation of the law. See Thiessen, 267
F.3d at 1106-07. Further, at this stage, the Court does not
make credibility determinations or resolve contradictory
evidence presented by the parties. See Grayson v. K Mart
Corp., 79 F.3d 1086, 1099 n.17 (11th Cir. 1996).
Instead, the Court determines whether, under the lenient
standard of the notice stage, the named plaintiffs, through
their pleadings and affidavits, have demonstrated that they
are “similarly situated” to the potential
collective action members. See 29 U.S.C. §
216(b); Thiessen, 267 F.3d at 1106-07. Although the
FLSA does not define the term “similarly situated,
” it typically requires a showing that the plaintiffs
and potential class members were victims of a common
decision, policy, or plan of the employer that affected all
class members in a similar fashion. See Thiessen,
267 F.3d at 1106-08; Kautsch v. Premier
Commc'ns, 504 F.Supp.2d 685, 689 (W.D. Mo. 2007).
Further, the “similarly situated” determination
requires only a modest factual showing; it does not require
the plaintiff and the potential class members to show that
they are identically situated. See Kautsch, 504
F.Supp.2d at 689-690. Numerous courts take the position that
conditional certification may be based solely on the
complaint and supporting affidavits. See,
e.g., Littlefield v. Dealer Warranty
Servs., LLC, 679 F.Supp.2d 1014, 1017 (E.D. Mo.
2010) (“In a typical case, the ...