Middleton v. Hempstead County

          ORDER

          Susan O. Hickey, Chief United States District Judge.

         Before 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.

         I. BACKGROUND

         Plaintiff 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.

         From 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.

         Plaintiff 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.

         In the 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.

         In 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.

         II. DISCUSSION

         The 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.

         The 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 1214.

         At the 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.

         A. Conditional Certification in the Present Case

         During 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 ...