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Ortez v. United Parcel Service, Inc.

United States District Court, D. Colorado

August 16, 2018

MICHAEL ORTEZ, individually and on behalf of all others similarly situated, Plaintiff,
v.
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. #45]

          S. Kato Crews United States Magistrate Judge.

         Magistrate 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. #49].

         The Court has reviewed the motions, related briefing, and the Second Amended Complaint [ECF. #48].[1] 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.

         JURISDICTION

         The Court exercises jurisdiction over these motions pursuant to 28 U.S.C. § 1331.[2]

         BACKGROUND

         In 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 law.

         Defendant 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.

         According 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.]

         By 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.

         LEGAL STANDARD

         Section 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))

         A 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”).

         The 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.

         ANALYSIS

         As a 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.

         Plaintiff 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 ...


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