United States District Court, D. Colorado
DAVID WARD, and LISA STUMMEIER, individually and on behalf of all others similarly situated, Plaintiffs,
EXPRESS MESSENGER SYSTEMS, INC. d/b/a ONTRAC, and J&B TRANSPORTATION, INC., Defendants.
ORDER ON MOTION FOR CONDITIONAL CERTIFICATION AS A
Y. Wang United States Magistrate Judge.
matter comes before the court on Plaintiffs David Ward and
Lisa Stummeier's (collectively, “Plaintiffs”)
Motion for Issuance of Notice Pursuant to 29 U.S.C. §
216(b) (“Motion” or “Motion for Conditional
Certification”), filed December 8, 2017. [#37].
Pursuant to the Order of Reference dated September 25, 2017
[#18], this civil action was assigned to the undersigned
Magistrate Judge for a decision on the merits. See
28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR
72.2. The court has carefully reviewed the Motion and
associated briefing, the entire case file, and the applicable
law, and concludes that oral argument will not materially
assist in the resolution of this matter. For the reasons
stated herein, the court GRANTS IN PART and DENIES IN PART
initiated this action on behalf of themselves and all other
similarly situated persons that are or were drivers for
Defendants Express Messenger Systems, Inc. d/b/a OnTrac
(“OnTrac”) and J&B Transportation, Inc.
“Defendants”) within the last three years and
classified as independent contractors. See generally
[#8]. OnTrac, a Delaware corporation, “provides
regional same-day and overnight package delivery services
within Arizona, California, Nevada, Oregon, Washington, Utah,
Colorado[, ] and Idaho.” [Id. at ¶¶
15, 19]; see also [#40-1 at ¶ 2]. J&B, a
Colorado corporation, “provides regional same-day and
overnight package delivery services for Ontrac's [sic]
customers within Colorado.” [#8 at ¶¶ 16,
20]; see also [#40-2 at ¶ 2]. J&B owns a
warehouse in Colorado Springs, Colorado, which is used to
receive and store OnTrac packages before sending those
packages out for delivery; J&B has expanded its
operations into New Mexico, Wyoming, and Minnesota.
See [#8 at ¶¶ 2; #37-7 at ¶ 3; #40-2
at ¶ 6]. Defendants allegedly “subcontract with
Regional Service Providers (RSPs), which in turn engage
drivers to provide delivery services to or on behalf of
OnTrac's customers.” [#8 at ¶ 22]; see
also [id. at ¶¶ 23-24]. Plaintiffs
allege Defendants “operate as joint employers” of
those drivers because Defendants exert “near-total
control over the manner in which drivers perform package
delivery services.” [Id. at ¶ 24];
see also [id. at ¶¶ 22-25,
David Ward (“Mr. Ward”), a Colorado resident,
allegedly performed delivery services for Defendants as an
independent contractor from approximately January 2011 to
January 2017 in Denver, Colorado. [#8 at ¶ 13; #37 at
¶¶ 2-3]. Plaintiff Lisa Stummeier (“Ms.
Stummeier”), also a Colorado resident, allegedly
delivered packages for Defendants as an independent
contractor through a company called R&O Transportation,
Inc. (“R&O”) from approximately August 2016
through May 2017 in Colorado Springs, Colorado. See
[#8 at ¶ 14; #37-7 at ¶¶ 2-3]. Plaintiffs
allege they, like all drivers for OnTrac and J&B, were
denied overtime compensation for hours worked in excess of
forty per week, and that based on their hours worked, the
flat fee they received per delivery, plus their out-of-pocket
expenses they did not receive the federally and Colorado
mandated minimum wage. See generally [#8].
initiated this action on August 21, 2017. See [#1].
Pertinent here, Plaintiffs assert that Defendants violated
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., for not paying Plaintiffs, or
any of its drivers, overtime compensation for hours worked in
excess of forty (“Claim I”) or the federally
mandated minimum wage (“Claim II”). See [#8
at ¶¶ 66- 89]. The undersigned held an initial
Scheduling Conference with the Parties on November 14, 2017.
See [#30]. At the Scheduling Conference, the Parties
agreed that discovery was not needed prior to a determination
regarding conditional certification of a collective action
and, thus, the court set a deadline by which Plaintiffs were
to file their Motion for Conditional Certification and set a
supplemental Scheduling Conference for March 13, 2018 [#30],
later reset for April 19, 2017 [#46].
filed the instant Motion for Conditional Certification on
December 8, 2018. See [#37]. Defendants have since
filed their Response, and Plaintiffs their Reply.
See [#40; #43]. The Motion for Conditional
Certification is now ripe for determination.
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)).
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 collective members 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.” Thiessen,
267 F.3d 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.”).
juncture, the “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). “[T]he 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). Thus, the standard for conditional certification is
a lenient one, which “typically results in class
certification.” Brown, 222 F.R.D. at 679.
Plaintiffs must still establish that they are similarly
situated. 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.”). Though 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). The court may deny conditional certification 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 ...