United States District Court, D. Colorado
BRETT STALLINGS, individually and as on behalf of all others similarly situated, Plaintiff,
ANTERO RESOURCES CORP. Defendant.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge.
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.
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].
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,
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
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
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
The Fair Labor Standards Act
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.
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).
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
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) ...