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Ward v. Express Messenger Systems, Inc.

United States District Court, D. Colorado

April 3, 2018

DAVID WARD, and LISA STUMMEIER, individually and on behalf of all others similarly situated, Plaintiffs,


          Nina Y. Wang United States Magistrate Judge.

         This 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 the Motion.


         Plaintiffs 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. (“J&B”) (collectively, “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, 27-32].

         Plaintiff 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].

         Plaintiffs 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”).[1] 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].

         Plaintiffs 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.


         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).

         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 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.”).[2]


         At this 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.

         But 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 ...

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