United States District Court, D. Colorado
IDALY MARTINEZ on her own behalf and on behalf of all others similarly situated, Plaintiff,
RIAL DE MINAS, INC., RIAL DE MINAS II, INC., RIAL DE MINAS III, INC., RIAL DE MINAS IV, INC., JUAN LUEVANOS, MARIA LUEVANOS, and, MELISSA LUEVANOS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge
matter is before the Court on the parties' Joint
Motion to Adopt Parties' Stipulation of Preliminary
Certification of a Fair Labor Standards Act § 216(b)
Class and a Fed.R.Civ.P. 23 Class and for Court-Authorized
Notice to Class Members [#28] (the
“Motion”). Pursuant to 28 U.S.C. § 636(b)(1)
and D.C.COLO.LCivR 72.1(c), the Motion was referred to this
Court for appropriate disposition. The Court has reviewed the
Motion [#28], the entire case file, and the applicable law,
and is sufficiently advised in the premises. For the reasons
set forth below, the Court respectfully
RECOMMENDS that the Motion [#28] be
initiated this putative class action lawsuit against
Defendants Rial de Minas, Inc., Rial de Minas II, Inc., Rial
de Minas III, Inc., Rial de Minas IV, Inc., Juan Luevanos,
Maria Luevanos, and Melissa Luevanos (collectively
“Defendants”). Am. Compl. [#23] at 1.
Plaintiff alleges that Defendants deleted hours worked from
employees' paychecks and refused to pay employees
overtime wages in violation of the Fair Labor Standards Act
(the “FLSA”) and the Colorado Minimum Wage Act
(the “CMWA”). Id. at ¶¶ 1-3;
29 U.S.C. § 201 et seq.; Colo. Rev. Stat.
§ 8-6-101 et seq. Plaintiff's Amended
Complaint [#23] contains two claims for relief: (1) an FLSA
claim for failure to pay overtime premiums; and (2) a CMWA
claim for failure to pay overtime premiums. Am.
Compl. [#23] at 8-9.
parties jointly seek preliminary certification of an FLSA
§ 216(b) collective action for settlement purposes
regarding the FLSA claim, as well as certification of a
Fed.R.Civ.P. 23 class for settlement purposes regarding the
CMWA claim. Motion [#28] at 1-2. The parties also
request authorization for a class administrator to distribute
notice to potential class members to notify them of their
right to opt-in to the FLSA collective action and their right
to opt-out of the Rule 23 class. Id.
FLSA Collective Action A. Standard
FLSA permits collective actions where allegedly aggrieved
employees are “similarly situated.” 29 U.S.C.
§ 216(b). The determination of whether employees are
similarly situated occurs in two stages: (1) a preliminary
“notice” stage, and then (2) a second
determination, at the end of discovery, under a stricter
standard. Torres-Vallejo v. Creativexteriors, Inc.,
220 F.Supp.3d 1074, 1091 (D. Colo. 2016).
standard for preliminary certification, at the initial notice
stage, is lenient and plaintiffs are required to show
“nothing more than substantial allegations that the
putative class members were together the victims of a single
decision, policy, or plan.” Thiessen v. Gen. Elec.
Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)
(internal quotation marks omitted); see also Turner v.
Chipotle Mexican Grills, Inc., 123 F.Supp.3d 1300, 1309
(D. Colo. 2015) (recognizing that preliminary certification
should follow a “permissive joinder standard” and
“presumptively allow workers bringing the same
statutory claim against the same employer to join as a
in an FLSA collective action requires potential plaintiffs to
affirmatively opt-in to the proceeding. Abdulina v.
Eberl's Temp. Servs., Inc., No. 14-cv-00314-RM-NYW,
2015 WL 12550929, slip op. at *3 (D. Colo. April 27, 2015).
Once plaintiffs satisfy the preliminary certification
standard, the Court may approve notice to be sent to all
individuals who may be eligible to participate in the
collective action. Torres-Vallejo, 220 F.Supp.3d at
Collective Action Requirements
parties seek preliminary certification of an FLSA collective
action for the purpose of notifying potential plaintiffs and
providing them the opportunity to opt-in. Motion
[#28] at 3. Preliminary certification of an FLSA collective
action is determined under a lenient, permissive standard and
conditional certification is routinely allowed.
Abdulina, 2015 WL 12550929, at *4 (stating that
“[c]onditional certification has been denied only where
the complaint was wholly conclusory in nature, the supporting
affidavit relied on hearsay from unidentified sources, and
the nature of the violation was rendered ambiguous by the
particular circumstances of the only named plaintiff”).
stipulate to Plaintiff's assertion that Defendants'
“employees who worked between August 1, 2013, and the
present are similarly situated” for the purposes of
preliminary collective action certification. Motion
[#28] at 4. Plaintiff further maintains that she and other
hourly employees were all subject to Defendants' common
policy of deleting hours worked from employees' paychecks
and failing to pay overtime wages. Am. Compl. [#23]
at 8. Additionally, Plaintiff submitted declarations from two
former employees of Defendants, attesting to the same
allegations that Defendants deleted hours worked from
employees' paychecks and did not pay employees overtime.
Decl. of Ramirez [#28-1] at 1; Decl. of
Arceo [#28-2] at 1.
on the foregoing, the Court finds that Plaintiff has alleged
sufficient facts to demonstrate that preliminary
certification is appropriate at this stage and respectfully
recommends conditionally certifying an FLSA
collective action. See Abdulina, 2015 WL 12550929,
parties ask the court to approve the distribution, by a class
administrator, of proposed notice forms to potential opt-in
plaintiffs for the FLSA collection action. Motion
[#28] at 1, 13. The parties are in agreement about the
proposed forms of notice and stipulate that potential opt-in
plaintiffs will be notified by first-class U.S. Mail, in both
English and Spanish, and that there will be a 60-day opt-in
period for potential class members to return the opt-in forms
to Plaintiff's counsel. Id. at 13-14.
proposed notice and consent form appears to be fair and
accurate. SeeAbdulina, 2015 WL 12550929,
at *7. In light of this, the Court respectfully
recommends that the proposed notice and