United States District Court, W.D. Arkansas, Fayetteville Division
RYAN SUTHERLAND, individually and on behalf of all others similarly situated PLAINTIFF
CENTURION SECURITY, L.L.C., and PROFESSIONAL SECURITY, INC. DEFENDANTS
OPINION AND ORDER
HOLMES, III U.S. DISTRICT JUDGE
the Court are Plaintiff Ryan Sutherland's motion (Doc.
11) for conditional certification, brief in support (Doc.
11-1), and other supporting documents. Centurion Security,
LLC and Professional Security, Inc.
(“Defendants”) filed a response (Doc. 14)
opposing conditional certification. Plaintiff filed a reply
to Defendants' response (Doc. 18). For the reasons set
forth below, Plaintiff's motion will be granted as stated
seeks conditional certification to provide notice to all
former and current security guards for Defendants Centurion
Security, LLC, and Professional Security, Inc.
(“PSI”). Plaintiff alleges Defendants, acting as
a jointly owned entity, provide security services in Arkansas
and Oklahoma. Centurion Security, LLC provides service in
Northwest Arkansas and PSI provides service to Western
Arkansas and Eastern Oklahoma. Defendants point out Centurion
Security, LLC has never operated or had any employees.
According to Defendants, Centurion Security, LLC was created
solely to preserve the name Centurion Security following
PSI's 2008 purchase of the Centurion Security Company.
PSI fully integrated the Centurion Security Company into PSI.
However, PSI registered Centurion Security as a fictitious
name and does business in Northwest Arkansas as Centurion
Security. Therefore, Defendant alleges Plaintiff was an
employee of PSI, not Centurion Security, L.L.C.
2017, Plaintiff has worked as a security guard for
Defendants. Security guards employed by Defendants provide
security services to Defendants' customers. Plaintiff
contends that security guards worked between thirty minutes
and an hour before and after their scheduled shift times
because the outgoing security guard was required to have a
shift-change conference with the incoming security guard. As
a result of the shift-change conferences, guards worked in
excess of forty hours per workweek and Defendant did not
provide overtime compensation. Plaintiff contends that
because security guards were not paid overtime compensation,
Defendants have violated 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 his 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. 11-2, Doc.
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, 515 F.Supp.2d at 940-41. 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 two arguments against conditional certification. First,
Defendants argue that Plaintiff lacks personal knowledge
sufficient to testify to the existence of similarly situated
plaintiffs and, therefore, Plaintiff's reliance
“solely [on] his own affidavit” does not satisfy
the conditional certification burden. Defendants argue
Plaintiff did not have personal knowledge of the diverse
locations and operations security guards worked because
Plaintiff only worked at seven of the eighty different client
locations. Defendants also argue that Plaintiff does not have
personal knowledge regarding the work or overtime of other
employees and Plaintiff's allegations do not demonstrate
a policy that, by itself, implicates overtime.
Court disagrees. Plaintiff's affidavit states Defendants
did not provide overtime compensation for security guards who
worked more than forty hours a week because of shift-change
conferences. This affidavit is based on Plaintiff's
personal knowledge derived from his employment as a security
guard and interactions with other security guards. The
decision to certify a class is typically determined
“based solely on the affidavits presented by
plaintiffs.” See Buford v. Superior Energy Servs.,
LLC, 2018 WL 6441097, *4 (E.D. Ark. June 1, 2018)
(internal citations and quotations omitted). Plaintiff has
presented sufficient evidence of a similarly situated class
based on his personal knowledge. See Chime v. Peak
Security Plus, Inc., 137 F.Supp.3d 183, 202 (E.D.N.Y.
2015) (finding the “focus of the court's inquiry is
not on the defendant's evidence, but on whether the
plaintiffs have made their requisite showing”).
Although Defendants attempt to demonstrate Plaintiff's
lack of personal knowledge, the Court does not make
credibility determinations or findings of fact at this stage.
See Id. (“Defendant's challenges are . . .
premature . . . [and] defendant's attacks on
plaintiffs' affidavits and other evidence raise questions
as to whether plaintiffs could prevail under a more stringent
standard and . . . survive a decertification motion”
(internal quotation and citation omitted)); Pressler v.
FTS USA, LLC, 2010 WL 1904974, at *4 (W.D. Ark. May 12,
2010). It is not necessary for Plaintiff to allege a formal
policy that failed to provide overtime. See Chime,
137 F.Supp.3d at 201-02.
Defendants argue there is no evidence that Plaintiff and
other proposed class members were victims of a common,
unlawful policy or practice that ties their claims together
into a collective action that can be commonly litigated.
Defendants state there is neither a document showing the
policy of not paying guards overtime nor is there testimonial
evidence based on personal knowledge that there was such a
only needs to show security guards were required to work
overtime without adequate compensation and Plaintiff has done
so here. Plaintiff's testimony, based on experience and
discussions with other guards, is that guards were required
to work up to 30 minutes before and after a shift and were
not paid overtime. Plaintiff's affidavit
is based on his personal knowledge of the de facto policy
gained as Defendants' employee. See Simons v. Valspar
Corp., 2011 WL 1363988, *3 (D. Minn. Apr. 11, 2011)
(holding plaintiffs, as employees, can gain personal
knowledge of employer's polices ...