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Stallings v. Antero Resources Corp.

United States District Court, D. Colorado

March 12, 2018

BRETT STALLINGS, individually and as on behalf of all others similarly situated, Plaintiff,


          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Plaintiff Brett Stallings's (“Plaintiff” or “Mr. Stallings”) Expedited Motion for Conditional Certification and Notice to Putative Class Members (“Motion” or “Motion for Conditional Certification”), filed November 27, 2017. [#23]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated August 11, 2017 [#6], and the Memorandum dated November 28, 2017 [#24]. Having reviewed the Motion and associated briefing, the applicable case law, and the entire docket, this court concludes that oral argument will not materially assist in the resolution of this matter. For the reasons stated herein this court respectfully RECOMMENDS that the Motion for Conditional Certification be GRANTED IN PART and DENIED IN PART.


         The following facts are drawn from the operative Complaint and are taken as true for the purposes of the instant Motion. Mr. Stallings is a former employee of Defendant Antero Resources Corporation (“Defendant” or “Antero”), having worked as a Solids Control Operator (“SCO”) and Pipeline Inspector (“PI”) from “approximately January 2014 until October 2015.” [#1 at ¶ 7, 42; #23-2 at ¶ 2]. Antero is a Colorado corporation engaged in “natural gas produc[tion] in the Marcellus and Utica shale fields in Ohio and West Virginia.” [#32 at 2]; see also [#1 at ¶ 9, 16]. Plaintiff alleges while working as a SCO and PI Antero improperly classified him and all other SCOs and PIs as independent contractors. See [#1 at ¶ 4, 7-8, 42; #23-2 at ¶ 2]. In doing so, Antero did not pay Mr. Stallings, or any SCO or PI, overtime compensation for hours worked in excess of forty hours per week. See [#1 at ¶¶ 3, 7-8, 17, 46, 51, 56-57; #9 at ¶ 46; #23-2 at ¶¶ 8, 13-15, 17]; cf. [#32-1 at ¶¶ 4-5, 7; #32-2 at ¶ 6]. Instead, Antero subjected such workers to its “day-rate system” under which Antero paid them “a flat amount for each day worked, ” regardless of the number of hours worked per day and/or week. See [#1 at ¶¶ 4, 17, 46, 50, 56-57; #9 at ¶ 18; #23-2 at ¶¶ 3, 13]. Mr. Stallings further alleges that he did not receive a guaranteed salary or weekly compensation, he received compensation only for the days actually worked. See [#1 at ¶¶ 18, 56; #9 at ¶ 18; #23-2 at ¶¶ 3, 7].

         Plaintiff then initiated this matter, asserting violations of section 7 of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207, against Antero. See generally [#1]. Plaintiff alleges Defendant improperly classifies SCOs and PIs as independent contractors to avoid paying such workers overtime compensation for hours worked in excess of forty hours per week. See [id. at ¶ 51]. Plaintiff brings this claim on behalf of himself and all similarly situated SCOs and PIs, and seeks “overtime wages under the FLSA in an amount equal to 1.5 times their rate of pay, plus liquidated damages, attorney's fees, and costs.” [Id. at ¶ 53]. Antero filed its Answer to Plaintiff's Complaint on September 12, 2017. [#9].

         The court entered a Scheduling Order in this matter, setting November 13, 2017 as the deadline by which Plaintiff was to file his Motion for Conditional Certification, if any; June 18, 2017 as the discovery deadline; and July 20, 2018 as the deadline by which Antero was to file its Motion to Decertify the Collective Action, if any. See [#15; #16]. Following a two-week extension, Plaintiff filed the instant Motion on November 27, 2017. [#23]. Mr. Stallings requests conditional certification for the following potential opt-in plaintiffs:[1]

All current and former Solids Control Operators and Pipeline Inspectors employed by, or working on behalf of, Antero Resources Corp., who were classified as independent contractors and paid a day-rate, at any time from [the date three years back from the date that any Court-approved Notice and Consent form is distributed to potential class members], [] to present.

[Id. at 4 (brackets added) (footnote omitted)]. Plaintiff avers that such workers are similarly situated for purposes of conditional certification. See generally [#23].

         Antero opposes conditional certification, arguing that Mr. Stallings fails to provide substantial allegations that he and putative collective action members are similarly situated, given that the job duties and responsibilities under the umbrella categorizations of SCO and PI differ significantly. [#32]. In particular, Antero contends that, with respect to the SCOs, it engages other companies to manage the waste disposal process, and that it did not employ or engage individuals as SCOs. [#32 at 2-3]. Antero argues, in the alternative, that any collective action that is conditionally certified must be narrowed in scope or divided into subclasses. [#32 at 2]. The Motion for Conditional Certification is now ripe for Recommendation.


         I. The Fair Labor Standards Act

         The FLSA governs the payment of minimum wages and overtime compensation between an employer and its employees. See29 U.S.C. §§ 206-207. Under the statute, a covered employer must pay its employees for the time that it employs them; and the FLSA generally requires covered employers to compensate employees for work in excess of forty hours in a work week. See 29 U.S.C. §§ 206(a), 207(a). The required overtime compensation is one and one-half times an employee's “regular rate” of pay. 29 U.S.C. § 207(e). The FLSA defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The FLSA “defines the verb ‘employ' expansively to mean ‘suffer or permit to work.'” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (quoting 29 U.S.C. § 203(g)).

         Section 216(b) of the FLSA authorizes private individuals to recover damages for violations of minimum wage and overtime provisions. It provides in relevant part that “[a]n action to recover the liability [for unpaid overtime compensation, retaliation and liquidated damages] may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). The FLSA thus provides plaintiffs the opportunity to proceed collectively, which allows “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (interpreting the ADEA, which explicitly incorporates the collective action provisions of the FLSA). Plaintiffs who wish to participate in an FLSA collective action must opt in to the action. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”). See also In re American Family Mutual Insurance Co. Overtime Pay Litigation, 638 F.Supp.2d 1290, 1298 (D. Colo. 2009).

         II. Conditional Certification

         In Thiessen v. General Electric Capital Corp., the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) approved a two-step process, known as an ad hoc approach, for determining whether putative opt-in plaintiffs are similarly situated to the named plaintiff. 267 F.3d 1095, 1105 (10th Cir. 2001). Pursuant to this approach, the trial court determines at the initial “notice stage” whether the plaintiff has asserted “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. at 1102. During the second stage in the ad hoc approach, after discovery has concluded and often prompted by a motion to decertify, the court applies a stricter standard to determine whether the action should continue as a collective action. In particular, the court must evaluate the “disparate factual and employment settings of the individual plaintiffs; the various defenses available to defendant which appear to be individual to each plaintiff; fairness and procedural considerations; and whether plaintiffs made [any required filings] before instituting suit.” Id. at 1103 (citing Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). Numerous courts in this District have followed this ad hoc approach in determining whether plaintiffs can move forward collectively under the FLSA. See, e.g., Baldozier v. American Family Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005); but see Turner v. Chipotle Mexican Grill, Inc., 123 F.Supp.3d, 1300, 1309 (D. Colo. 2015) (rejecting the two-step process in favor an approach that allowed “workers bringing the same statutory claim against the same employer to join as a collective, with the understanding that individuals may be challenged and severed from the collective if the basis for their joinder proves erroneous.”).[2]

         The ad hoc approach is a case-by-case determination. Thiessen, 267 F.3d at 1105. Even in light of factually similar cases, Mr. Stallings bears the burden of setting forth substantial allegations that he and the other SCOs and PIs in this action are similarly situated for the purpose of conditional certification. See Eagle v. Freeport-McMoran, Inc., No. 2:15-cv-00577-MV-SMV, 2016 WL 7494278, at *2 (D.N.M. Aug. 3, 2016) (“Conditional certification in the notice stage . . . is by no means automatic.”). At this “notice stage, ” the court may rely on the allegations of the complaint and any supporting affidavits filed by the plaintiff. Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 680 (D. Kan. 2004). See also Smith v. Pizza Hut, Inc., No. 09-CV-01632-CMA-BNB, 2012 WL 1414325 (D. Colo. Apr. 21, 2012). Further, “the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Bradford v. Logan's Roadhouse, Inc., 137 F.Supp.3d 1064, 1072 (M.D. Tenn. 2015) (citation and internal quotation marks omitted). Although this burden is “modest, it is not non-existent, and it cannot be satisfied simply by unsupported assertions.” Korenblum v. Citigroup, Inc., 195 F.Supp.3d 475, 480 (S.D.N.Y. 2016) (citations and internal quotation marks omitted). Courts deny conditional certification in instances where the complaint is wholly conclusory in nature, the supporting affidavit relies on hearsay from unidentified sources, and the nature of the violation is rendered ambiguous by the particular circumstances of the only named plaintiff. See, e.g., Saarela v. Union Colony Protective Servs., Inc., No. 13-cv-01637-MSK-MJW, 2014 WL 3408771 (D. Colo. July 14, 2014) ...

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