United States District Court, D. Colorado
MICHAEL ORTEZ, individually and on behalf of all others similarly situated, Plaintiff,
UNITED PARCEL SERVICE, INC., an Ohio corporation, Defendant.
ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE S. KATO CREWS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Report and Recommendation
of United States Magistrate Judge S. Kato Crews (Doc. # 101),
wherein he recommends that this Court grant in part Plaintiff
Michael Ortez's Motion to Approve Hoffmann-La
Roche Notice to Potentially Aggrieved Employees
(“Hoffmann-La Roche Motion”) (Doc. # 42)
and deny Plaintiff's Motion to Equitably Toll FLSA
Statute of Limitations (“Equitable Tolling
Motion”) (Doc. # 45). The Recommendation is
incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b). Both parties have
filed Objections, challenging portions of the Recommendation.
(Doc. ## 102, 103.) Having thoroughly reviewed those
Objections, along with the underlying motions briefing,
pertinent record, and applicable law, the Court affirms and
adopts the Recommendation for the following reasons.
STANDARD OF REVIEW
Rule of Civil Procedure 72(b)(3) requires that this Court
review all issues that were properly objected to de
novo. In so doing, the Court “may accept, reject,
or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
Court is accorded “considerable discretion” with
respect to the treatment of unchallenged issues. Summers
v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). “In
the absence of timely objection, the district court may
review a magistrate [judge's] report under any standard
it deems appropriate.” Id.
was a seasonal employee of Defendant United Parcel Service,
Inc., a worldwide package delivery service. Plaintiff
contends that Defendant's “uniform policy and
practice” required he, and all other seasonal drivers,
to spend thirty minutes to one hour of uncompensated labor
preparing their delivery vehicles (i.e., loading, packing,
and organizing) prior to beginning their routes each day.
(Doc. # 48 at ¶¶ 36-37; 48-1 at ¶ 5.) Based
primarily on this allegation, Plaintiff brings a collective
action against Defendant under the Fair Labor Standards Act,
29 U.S.C. § 201 et seq. (“FLSA”). Plaintiff
also brings class action claims and two individual claims against
Defendant under Colorado state law.
instant motions request that the Court conditionally certify
a collective class of seasonal drivers under the FLSA,
approve Plaintiff's proposed Notice and Consent Forms,
and equitably toll the statute of limitations until the
opt-in period closes. The Court addresses each request in
CONDITIONAL COLLECTIVE CLASS CERTIFICATION
216(b) of the FLSA provides a unique procedural mechanism
allowing “collective” actions for minimum wage
and/or overtime violations. Such actions “may be
maintained against any employer . . . by any one or more
employees for and on behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. 216(b).
Unlike class actions under Rule 23 of the Federal Rules of
Civil Procedure, a “collective class” under the
FLSA includes only those individuals who expressly opt into
the class in writing. Id. 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, 493 U.S. at
170-72 (noting the court's “managerial
responsibility to oversee the joinder of additional parties
to assure that the task is accomplished in an efficient and
Tenth Circuit has approved the use of a two-step process for
determining whether putative employees are “similarly
situated” to the named plaintiff(s) for purposes of
§ 216(b). Thiessen v. Gen. Elec. Capital Corp.,
267 F.3d 1095, 1102-1105 (10th Cir. 2001). Only the first
stage is relevant here.
this stage, the court makes an initial, so-called
“notice” determination of whether the named
plaintiff and the proposed opt-in class members are
“similarly situated.” Id. at 1102-03;
see Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1213-14 (5th Cir. 1995). This “‘require[s]
nothing more than substantial allegations that the putative
class members were together the victims of a single decision,
policy, or plan.'” Thiessen, 267 F.3d at
1102 (quoting Vaszlavik v. Storage Tech. Corp., 175
F.R.D. 672, 678 (D. Colo. 1997)). “[A] court need only
consider the substantial allegations of the complaint along
with any supporting affidavits or declarations.”
Smith v. Pizza Hut, Inc., No. 09-CV-01632-CMA, 2012
WL 1414325 at *3 (D. Colo. Apr. 21, 2012) (citation omitted).
In making this preliminary decision, “the court does
not weigh evidence, resolve factual disputes, or rule on the
merits of plaintiffs' claims.” Id. The
standard at this notice juncture is a “fairly
lenient” one and usually results in conditional
certification. Thiessen, 267 F.3d at 1103
(describing the standard as “fairly lenient”);
Mooney, 54 F.3d at 1214 (“Because the court
has minimal evidence, [the notice-stage] determination . . .
typically results in ‘conditional certification' of
a representative class”).
Judge Crews recommends granting in part Plaintiff's
request to certify the collective class. Instead of
certifying “all seasonal drivers” statewide or
worldwide, Magistrate Judge Crews suggested that this Court
limit the collective geographically to seasonal drivers who
(1) worked at the “Centennial” location where
Plaintiff worked; (2) worked at the “Commerce
City” location, where one of Plaintiff's ...