United States District Court, D. Colorado
MATTHEW PRIM, individually and on behalf of all others similarly situated, Plaintiff,
ENSIGN UNITED STATES DRILLING, INC., Defendant.
A. BRIMMER United States District Judge.
matter before the Court is the parties' Unopposed Motion
for Approval of FLSA Settlement and Stipulation of Dismissal
of Lawsuit with Prejudice [Docket No. 33]. Plaintiff and
defendant request that the Court approve their settlement of
plaintiff's claims brought pursuant to the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201
September 30, 2015, plaintiff filed his complaint,
individually and on behalf of all others similarly situated,
alleging that defendants violated the FLSA. Docket No. 1.
Plaintiff was employed by defendant and worked in an oilfield
as an hourly employee. Id. at 2, ¶ 7. Plaintiff
and other employees received bonuses as a component of their
compensation including “Safety Bonuses and/or
Performance Bonuses.” Id., ¶ 8. Defendant
excluded these bonuses from calculations of plaintiff's
and other employees' regular rate of pay, and therefore
failed to pay plaintiff and the putative class members
overtime at the rate required by the FLSA. Id. at
2-3, ¶ 9.
February 15, 2017, plaintiff filed the instant motion seeking
approval of the settlement between the parties and dismissal
of this lawsuit with prejudice. Docket No. 33.
suit by employees against their employer to recover back
wages under the FLSA, the parties must present any proposed
settlement to the district court for review and a
determination of whether the settlement agreement is fair and
reasonable. See Lynn's Food Stores, Inc. v. United
States, 679 F.2d 1350, 1353 (11th Cir. 1982). Requiring
court approval of FLSA settlements effectuates the purpose of
the statute, which is to “protect certain groups of the
population from substandard wages and excessive hours . . .
due to the unequal bargaining power as between employer and
employee.” Brooklyn Sav. Bank v. O'Neil,
324 U.S. 697, 706 (1945).
Final Class Certification
FLSA provides that an employee or employees may bring an
action “[on] behalf of himself or themselves and other
employees similarly situated.” 29 U.S.C. § 216(b).
Courts determine whether plaintiffs are “similarly
situated” for purposes of FLSA collective action
certification in two stages. Thiessen v. GE Capital
Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). A
court's initial certification comes at the notice stage,
where courts use a fairly lenient standard to determine
whether plaintiffs are similarly situated for purposes of
sending notice to putative class members. Id. at
1102. In this case, plaintiff did not request initial
certification. See Docket No. 24. After discovery, a
court makes a final class certification using a stricter
standard. See Thiessen, 267 F.3d at 1102-03. In
order to approve a settlement prior to a final collective
action ruling, “the Court must make some final class
certification finding.” Whittington v. Taco Bell of
Am., Inc., No. 10-cv-01884-KMT-MEH, 2013 WL 6022972, at
*2 (D. Colo. Nov. 13, 2013) (citing Peterson v. Mortgage
Sources, Corp., 2011 WL 3793963, at *4 (D. Kan. Aug. 25,
deciding whether to certify a collective action, courts
consider several factors, including: (1) the disparate
factual and employment settings of individual plaintiffs; (2)
various defenses available to defendant which appear to be
individual to each plaintiff; and (3) fairness and procedural
considerations. See Thiessen, 267 F.3d at 1103.
motion makes no reference to collective action certification,
fails to provide any facts demonstrating the similarities of
the proposed class, and does not discuss any of the factors
the Court should consider in certifying a class. See
Thiessen, 267 F.3d at 1103 (enumerating the relevant
factors for certification of an opt-in class). Instead,
plaintiff states that the parties dispute whether the class
members are similarly situated. Docket No. 33 at 8.
Accordingly, on April 14, 2017, the Court ordered plaintiff
to file supplemental briefing with the Court addressing the
propriety of some final class certification. Docket No. 37.
1, 2017, plaintiff filed supplemental briefing in support of
the parties' motion for settlement approval. Docket No.
38. In the supplement, plaintiff argues that the Court should
apply a more lenient “notice stage” standard in
determining whether certification is appropriate.
Id. at 5. Plaintiff claims that some certification
is appropriate because “Ensign employed non-exempt
hourly workers who it paid certain non-discretionary bonuses
to, including safety and performance bonuses.”
initial matter, the Court disagrees that the notice stage
standard should be applied to make some final class
certification determination. If this were the case, there
would be no need for the Court to consider class
certification prior to approving a settlement if an initial
notice had been approved. See Whittington, 2013 WL
6022972, at *3 (applying the Thiessen factors and
discussing evidence discovered after the initial class
certification was approved). Regardless, under either the
notice stage standard or some heightened standard, plaintiff
has not provided information sufficient to make any
determination as to class certification.
cites three items as evidence of defendant's policy of
failing to incorporate certain non-discretionary bonuses to
its employees. Docket No. 38 at 5-6. First, plaintiff points
to the opt-in forms submitted by plaintiff and two other
employees. Docket Nos. 1-1, 19, 20. The opt-in forms
reference “unpaid overtime” but do not define the
bonuses at issue or ...