United States District Court, D. Colorado
MICHAEL ORTEZ, individually and on behalf of all others similarly situated, Plaintiff,
UNITED PARCEL SERVICE, INC., Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
TO APPROVE HOFFMANN-LA ROCHE NOTICE [ECF. #42] AND
PLAINTIFF'S MOTION FOR EQUITABLE TOLLING [ECF.
Kato Crews United States Magistrate Judge.
Judge S. Kato Crews This matter is before the Court on the
Motion to Approve Hoffmann-La Roche Notice to
Potentially Aggrieved Employees (“Hoffmann-La
Roche Motion”) [ECF. #42] and the Motion to
Equitably Toll FLSA Statutes of Limitations (“Equitable
Tolling Motion”) [ECF. #45] both filed by Michael Ortez
(“Plaintiff”) on February 5, 2018 and February
12, 2018, respectively. The motions were referred to this
Court pursuant to Judge Christine M. Arguello's Order
Referring Case dated May 22, 2017 [ECF. #4] and the Memoranda
dated February 6, 2018 [ECF. #43] and February 15, 2018 [ECF.
Court has reviewed the motions, related briefing, and the
Second Amended Complaint [ECF. #48]. The Court considers these
filings as well as applicable case law, statutory law, and
the Federal Rules of Civil Procedure. Now being fully
informed, the Court RECOMMENDS that the Hoffmann-La
Roche Motion be GRANTED IN PART, and the Equitable
Tolling Motion be DENIED.
Court exercises jurisdiction over these motions pursuant to
28 U.S.C. § 1331.
Plaintiff's Second Amended Complaint [ECF. #48], he
brings a collective action against his former employer,
United Parcel Service, Inc. (“Defendant”), under
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”). Plaintiff alleges that Defendant
violated the FLSA by failing to pay him and other hourly,
seasonal employees, the federal minimal wage for all hours
they worked. Plaintiff also brings class action claims and
two individual claims against Defendant under Colorado state
is a worldwide package delivery service. It employs
“hundreds” of seasonal employees in Colorado
during the holiday season, including seasonal driver/package
handlers, or “seasonal drivers.” Plaintiff
alleges that he and other similarly situated individuals,
were employed by Defendant as seasonal drivers between the
2016 holiday season and the present.
to Plaintiff, Defendant's “uniform policy and
practice” requires all seasonal drivers to spend 30
minutes to one hour of uncompensated labor preparing their
delivery vehicles (i.e., loading, packing, and organizing)
prior to beginning their routes each day. [ECF. #48
¶¶36-37; 48-1 ¶5.] Plaintiff asserts that he
was terminated by Defendant after confronting his supervisor
and Human Resources about the unpaid “prep time”
after Defendant paid him for only two of three weeks of work
in December 2016. [See ECF. #48 ¶¶39-44.]
agreement of the parties, the FLSA statutes of limitations
were temporarily tolled for prospective opt-in plaintiffs
from September 6, 2017 to January 12, 2018, so the parties
could participate in a settlement conference. [ECF. ##29, 34,
45 p.2.] The parties were unable to come to a resolution
during the settlement conference. A Scheduling Order was
entered by Magistrate Judge Michael E. Hegarty on January 22,
2018. [ECF. #40.] The parties are still relatively early in
the discovery process.
216(b) of the FLSA allows collective actions for minimum wage
and/or overtime violations. 29 U.S.C. § 216(b). Under
the statute, “a covered employer must pay its employees
for the time that it employs them.” Peterson v.
Nelnet Diversified Solutions, LLC, No. 17-cv.-01604-NYW,
2018 WL 3470604 at *3 (D. Colo. Apr. 25, 2018). 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))
collective action “may be maintained against any
employer . . . by any one or more employees for and in behalf
of himself and themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). The trial court is
tasked with determining who is “similarly
situated” for purposes of a § 216(b) claim in a
“manner that is orderly, sensible, and not otherwise
contrary to statutory commands or the provisions of the
Federal Rules of Civil Procedure.” Hoffmann-La
Roche Inc. v. Sperling, 493 U.S. 165, 170-72 (1989)
(noting the court's “managerial responsibility to
oversee the joinder of additional parties to assure that the
task is accomplished in an efficient and proper
manner”); see also Thiessen v. Gen Elec. Capital
Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (noting that
the FLSA does not define “similarly situated”).
Tenth Circuit approved a two-step certification process for
determining whether putative plaintiffs meet the similarly
situated statutory requirement known as the “ad
hoc” approach. See Thiessen v. General
Electric Capital Corp., 267 F.3d 1095, 1105 (10th Cir.
2001). Under this approach, the trial court makes an initial
“notice stage” determination conditionally
certifying the putative class of similarly situated
plaintiffs. Id. at 1102. After granting conditional
certification, notice and consent forms may be approved by
the trial court for dissemination to putative plaintiffs,
informing them of the litigation and giving instructions for
how to join the action. See Hoffmann-La Roche, 493
U.S. at 170. During the second stage, after discovery has
concluded and often upon motion to decertify, the court
evaluates 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.
threshold matter, Defendant argues that the styling of
Plaintiff's Hoffmann-La Roche Motion eliminates
any basis for judicial action because it would have the Court
authorize notice without first addressing the issue of
conditional certification. [ECF #75.] The Court disagrees.
initially filed a “motion for Conditional
Certification” on August 4, 2017. [ECF. #17.] After
Honorable Chief Judge Marcia S. Krieger's decision in
Johnson v. Colorado Seminary, No.
1:17-cv-02074-MSK-KMT, ECF. #31 (D. Colo. Nov. 20, 2017),
Plaintiff filed this Motion, attempting to “conform
with the law enunciated” therein, and subsequently
replacing his motion for Conditional Certification. [ECF. #42
at pp. 3-4.] Although the Court disagrees with
Plaintiff's assertion that the Johnson decision
changed the procedure of the ad-hoc approach, it
recognizes its “managerial ...