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Sutherland v. Centurion Security, L.L.C.

United States District Court, W.D. Arkansas, Fayetteville Division

October 2, 2019

RYAN SUTHERLAND, individually and on behalf of all others similarly situated PLAINTIFF



         Before 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 herein.

         I. Background

         Plaintiff 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.

         Since 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. 11-3).

         II. Discussion

         A. Conditional Certification

         “The 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).

         Ultimately, 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.

         Under 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).

         Defendants 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.

         The 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.

         Next, 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 policy.

         Plaintiff 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 ...

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