United States District Court, D. Arizona
Honorable G. Murray Snow, United States District Judge.
before the Court is Plaintiff Vickie Guanzon's Motion for
Conditional FLSA Collective Action Certification and Notice.
(Doc. 19). For the following reasons, the Motion is granted
in part and denied in part.
Vixxo Corporation is a facilities management company
servicing various retail stores and restaurants throughout
the United States and Canada. (Doc. 1 at ¶ 12). Vixxo
operates multiple service centers throughout the country to
respond to its clients' needs. These service centers are
located in Arizona, California, Texas, Illinois, Indiana,
Florida, Connecticut, and possibly other states. (Doc. 1 at
Vickie Guanzon worked as a Customer Service Team Lead at
Vixxo's Arizona location between April 2015 and August
2016. (Doc. 1 at ¶ 4). Vixxo has a company policy that
all Team Leads are salaried employees and are exempt from
receiving overtime pay under the Fair Labor Standards
Act's (“FLSA”) administrative or executive
exemptions. (Doc. 18 at 4; Doc. 27 at 14). Ms. Guanzon
alleges that her position required her to answer phone calls
from Vixxo clients, resolve the client's issue according
to Vixxo protocols, and provide updates to the clients and
Vixxo sales representatives. (Doc. 1 at ¶ 14).
Considering her responsibilities, Ms. Guanzon further alleges
that Vixxo wrongfully classified the Team Lead position as
exempt from overtime compensation. (Doc. 1 at ¶ 15). She
claims that she regularly worked more than forty hours per
week, and Vixxo is obligated under FLSA to pay her overtime.
(Doc. 1 at ¶ 4).
Team Lead, Mark Fagen, signed a declaration that he worked as
a Team Lead in Vixxo's Arizona office between January
2015 and April 2016. (Doc. 19-4 at ¶ 3). Like Ms.
Guanzon, Mr. Fagen claimed that he primarily answered phone
calls from Vixxo clients, followed a specific protocol to
resolve the issue, and reported any developments to the
client and Vixxo sales representatives. (Doc. 19-4 at ¶
6). Mr. Fagen similarly claimed that Vixxo paid him a base
salary and never paid overtime, even though he regularly
worked more than forty hours per week. (Doc. 19-4 at ¶
4). He also testified from experience and direct observation
that other Team Leads in the Arizona office also responded to
client calls according to the same protocol, regularly worked
more than forty hours per week, and never received overtime
compensation. (Doc. 19-4 at ¶¶ 11-13). Mr. Fagen
believes that Team Leads in other Vixxo locations have
similar experiences, although he does not have personal
knowledge of this fact. (Doc. 19-4 at ¶ 4).
Guanzon presented the court with job descriptions for
Customer Service Team Leads in other Vixxo offices. In Los
Angeles, the Team Lead is described as “the primary
liaison” between the client and Vixxo facility
maintenance. (Doc. 19-2). The listed responsibilities include
interacting with clients and contractors, reviewing rates,
and monitoring services. (Doc. 19-2). Five other branches in
Maryland, Indiana, and Texas describe the Team Lead position
in nearly identical terms. (Doc. 19-5). The Arizona branch
where Ms. Guanzon and Mr. Fagen worked also described the
Team Lead position in these same words. (Doc. 19-5).
April 18, 2017, Ms. Guanzon filed a putative collective
action complaint claiming relief under FLSA. (Doc. 1). She
subsequently requested this Court to certify a conditional
collective action under 29 U.S.C. § 216(b).
employee may bring an FLSA collective action on behalf of
herself and other employees who are “similarly
situated.” 29 U.S.C. § 216(b). However, neither
the statute nor the Ninth Circuit defines the phrase
“similarly situated.” To determine whether
employees are similarly situated under FLSA, District courts
within the Ninth Circuit generally follow a two-step
approach. Colson v. Avnet, Inc., 687 F.Supp.2d 914,
925 (D. Ariz. 2010). At the first step, courts conditionally
certify a collective action if the plaintiff presents
“substantial allegations that the putative class
members were together the victims of a single decision,
policy, or plan.” Id. (citing Thiessen v.
Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.
2001)) (other citations omitted). If the plaintiff meets this
burden, the potential members of the collective action are
notified and presented the opportunity to opt-into the
lawsuit. Colson, 687 F.Supp.2d at 925. At the second
step, which takes place after notification and discovery,
defendants may move to decertify the class, and the Court
revisits the question of whether the class members are
similarly situated. Id. The second step applies a
much stricter standard than the initial notification step.
plaintiffs bring motions for conditional certification prior
to significant opportunities for discovery, and because
potential - members to the collective action must opt-in,
plaintiff's burden for conditional certification is
light. Prentice v. Fund for Public Interest Research,
Inc., 2007 WL 2729187, at *2 (N.D. Cal. Sept. 18, 2007).
This fairly lenient standard in the Ninth Circuit typically
results in conditional certification. Shaia v. Harvest
Mgmt. Sub LLC, 306 F.R.D. 268, 272 (N.D. Cal. 2015).
“All that need be shown by the plaintiff is that some
identifiable factual or legal nexus binds together the
various claims of the class members in a way that hearing the
claims together promotes judicial efficiency and comports
with the broad remedial policies underlying the FLSA.”
Wertheim v. State of Arizona, 1993 WL 603552, at *1
(D.Ariz. Sept. 30, 1993). Plaintiffs may not, however, rely
on mere allegations, but must provide some factual basis that
potential plaintiffs are similarly situated. See
Shaia, 306 F.R.D. at 272; Velasquez v. HSBC Fin.
Corp., 266 F.R.D. 424, 427 (N.D. Cal. 2010). Further, at
this initial notification stage, “the Court is
concerned only with whether a definable group of similarly
situated plaintiffs exists.” Warren v. Twin
Islands, LLC, 2012 WL 346681 at *2 (D. Idaho Feb. 2,
2012). Thus, in determining whether to conditionally certify
a proposed class for notification purposes only, courts do
not review the underlying merits of the action.
Colson, 687 F.Supp.2d at 926.
Guanzon has met the lenient standard for notifying potential
class members about opting into the class. First, Ms. Guanzon
has presented a sufficient factual or legal nexus to support
her allegation that Vixxo Team Leads are similarly situated,
especially considering the limited opportunities for
discovery up to this point. Based on Ms. Guanzon's
complaint, Mr. Fagen's declaration, Vixxo's three job
descriptions in its Response, and the five job postings in
various Vixxo locations, Team Leads are primarily responsible
for answering clients' phone calls and resolving
clients' issues. Further, Vixxo admits that it uniformly
exempts all Team Leads from FLSA protections. Together, these
facts sufficiently substantiate Ms. Guanzon's claims that
Team Leads are the subjects of a Vixxo policy that exempts
them from overtime pay. Although Vixxo claims that different
Team Leads working in different locations for different
clients are not similarly situated, this claim is not
supported by the identical language ...