Baltazar Eduardo Barrera, on behalf of himself and others similarly situated, Plaintiff,
US Airways Group, Inc., a Delaware corporation; and U.S. Airways, Inc., a Delaware corporation, Defendants.
BRIDGET S. BADE, Magistrate Judge.
Plaintiff Baltazar Eduardo Barrera (Plaintiff) has filed a motion for preliminary collective action certification and court supervised notice of a pending collection action, pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act (FLSA). (Doc. 39.) Plaintiff asks the Court to conditionally certify a collective action based on allegations of underpayment of overtime wages to security guards. ( Id. ) Defendant U.S. Airways, Inc. (U.S. Airways) opposes the motion. (Doc. 44.) For the reasons set forth below, the Court grants Plaintiff's motion.
I. Plaintiff's Claims
From approximately August 2009 through May 2012, Plaintiff worked for Defendant U.S. Airways as a security guard. (Doc. 1 at 3.) Plaintiff's "primary duty was to provide security at multiple buildings owned by U.S. Airways." ( Id. at 4.) Plaintiff performed tasks such as: "walking around the areas and confirming that only authorized personnel were in secured areas"; admitting employees and visitors to buildings; answering internal and external phone calls; monitoring fire panels and video monitors; and completing daily reports. (Doc. 1 at 4). When performing his work, Plaintiff was not required to "board, inspect, maneuver, operate, manipulate, control, alter, repair, handle, steer, direct, guide or otherwise interact with any aircraft." ( Id. ).
Plaintiff asserts that while he was employed by U.S. Airways, he "regularly worked over forty (40) hours per week." (Doc. 1 at 5). Plaintiff was sometimes, but not always, paid time and a half for hours he worked in excess of forty hours in a week. ( Id. ) Plaintiff claims that Defendant's failure to pay him all his claimed overtime wages was a willful violation of the FLSA, and he seeks to recover unpaid overtime for three years. Plaintiff filed an FLSA collective action complaint on behalf of himself and all other similarly situated employees. (Doc. 1 at 1.) Since the filing of the complaint, two individuals have "opted in" as plaintiffs. The opt-in plaintiffs are Donald Vitale Jr. and Susan S. Jovanovic. (Docs. 5, 20.)
II. Procedures for Certifying FSLA Collective Actions
Under the FLSA, covered employees are entitled to overtime wages at a rate of one-and-one-half times their regular rate for hours worked in excess of forty hours per week, unless an exemption applies. See 29 U.S.C. § 207. Under Title 29 U.S.C. § 216(b), an employee may bring an action on behalf of himself and other similarly situated employees to recover unpaid overtime wages. "In order to make certain that potential collective class members are notified of the action and their right to take part, the courts may authorize the issuance of notice by the named plaintiff in an FLSA action to all other putative class members." Bollinger v. Residential Capital, LLC, 761 F.Supp.2d 1114, 1119 (W.D. Wash. 2011).
Unlike class actions brought under Rule 23 of the Federal Rules of Civil Procedure, individuals who wish to join a collective action must affirmatively opt-in to the class by filing a written consent with the court. See 29 U.S.C. § 216(b) (an employee cannot be a plaintiff "unless he gives his consent in writing to become such a party and such consent is filed in the court").
"The district court has discretion to determine whether a collective action is appropriate." Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 481 (E.D. Cal. 2006) (citing Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004)). To certify a collective action under the FLSA, the court must determine whether plaintiff and the potential opt-in members are "similarly situated" within the meaning of § 216(b). Romero, 235 F.R.D. at 481. The FLSA does not define the term "similarly situated" and the Ninth Circuit has not construed this term. Wood v. TriVita, Inc., 2009 WL 2046048, at *2 (D. Ariz. Jan. 22, 2009).
Federal district courts have taken at least three different approaches to making a collective action determination: "(1) a two-tiered case-by-case approach [the ad hoc, two-tiered, or two-step approach], (2) the incorporation of the requirements of Rule 23 of the current Federal Rules of Civil Procedure, or (3) the incorporation of the requirements of the pre-1966 version of Rule 23 for spurious' class actions." Romero, 235 F.R.D. at 481 (citing Thiessen v. GE Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2011)). A majority of courts, including district courts within the Ninth Circuit, have adopted the two-tiered approach. Romero, 235 F.R.D. at 481-82; see also Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001); Stickle v. SCI Western Mkt. Support Ctr., 2009 WL 3241790, *2 (D. Ariz. Sept. 3, 2009); Hutton v. Bank of Am., 2007 WL 5307976, at *1 (D. Ariz. Mar. 31, 2007); Edwards v. City of Long Beach, 467 F.Supp.2d 986, 990 (C.D. Cal. 2006); Leuthold, 224 F.R.D. at 467. In this case, the Court will follow the two-tiered approach.
Under this approach, at the first, or the "notice stage, " the court determines whether the proposed class members are similarly situated employees and therefore should be notified about the pending action. See Hoffman-La Roche v. Sperling, 493 U.S. 165, 169 (1989). The court makes this determination based on the pleadings and any declarations that have been submitted. Hipp, 252 F.3d at 1217-18 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)). The plaintiff must demonstrate a reasonable basis for asserting that a proposed class of employees is similarly situated. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008). The plaintiff must show some "factual nexus which binds the named plaintiffs and the potential class members together as victims of a particular alleged policy or practice." Taylor v. Autozone, Inc., 2011 WL 2038514, at *1 (D. Ariz. May 24, 2011) (citations omitted). This is a lenient standard because the court has little evidence at this stage and "the usual result is conditional class certification." See Leuthold, 224 F.R.D. at 467.
Although the court does not make factual determinations at this first stage, "neither the remedial purpose of the FLSA, nor the interests of judicial economy, would be advanced if [the court] were to overlook facts which generally suggest that a collective action is improper." West v. Border Foods, Inc., 2006 WL 1892527, at *7 (D. Minn. Jul. 10, 2006). If the plaintiff demonstrates that the proposed class members are similarly situated, the court conditionally certifies the class and directs notice to the potential class members informing them of their right to join the collective action. After the notification period ends, the court proceeds to the second step of the certification process. See Stickle, 2009 WL 3241790, at *2 (discussing two-step certification process).
The second step of the certification process occurs at or close to the completion of discovery and is generally prompted by a defendant's motion for decertification. At that stage, "the court... makes a second determination, utilizing a stricter standard of similarly situated.'" Thiessen, 267 F.3d at 102-03 (the court reevaluates, usually prompted by a motion for decertification, the "similarly situated" question at a later stage, once discovery has produced sufficient information regarding the nature of the claims). At the second stage, the "court reviews several factors, including: (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be identical to each plaintiff; [and] (3) fairness and procedural considerations...." Id. at 1103. At all times, the plaintiff bears the burden of proving that he meets the "similarly situated" requirement. See Hipp, 252 F.3d at 1217. The court does not review the merits of the plaintiff's claims at either stage of the certification process. See Gieske v. First Horizon Home Loan Corp., 408 F.Supp.2d 1166 (D. Kan. 2006).
III. Determining Whether Proposed Class Members are "Similarly Situated"
Plaintiff seeks conditional certification of a class of "all current and former security guards" who worked for U.S. Airways at any time between October 24, 2009 and the present. (Doc. 39 at 1.) "At this stage, the court requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'" Wood, 2009 WL 204648, at *3 (quoting Thiessen, 267 F.3d at 1102); see also Hoffman, 982 F.Supp. at 261.
To establish that he is similarly situated to other potential plaintiffs, Plaintiff has submitted his declaration and the declarations of Susan Jovanovic and Donald Vitale Jr. (Doc. 39, attachments 2, 3, and 4.) The declarants state that they were security guards for Defendant, and that their main duties included "monitor[ing] foot traffic coming in and out of specified areas, checking that all employees have and are displaying a U.S. Airways Badge, " "answering phones and greeting guests or clients of U.S. Airways, " performing "foot patrol, " and "monitoring the Delivery Gate." (Barrera Decl. ¶¶ 3-5; Jovanovic Decl. ¶¶ 3-5;Vitale Decl. ¶¶ 3-5.)
They further state that (1) Defendant classifies all security guards as exempt employees, (2) they all consistently and regularly worked over forty hours per week, (3) they attended the same orientation program and received the same employee handbook upon their initial employment, (4) they were required to use U.S. Airways equipment and procedures, (5) they were required to wear a company uniform and ID badge at all times, (6) their hours were tracked in the same manner, (7) they received their schedules in the same manner, (8) Defendant determined their hours of work and their assignments, and (9) they were subject ...