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Ortez v. United Parcel Service, Inc.

United States District Court, D. Colorado

September 11, 2018

MICHAEL ORTEZ, individually and on behalf of all others similarly situated, Plaintiff,
UNITED PARCEL SERVICE, INC., an Ohio corporation, Defendant.



         This 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[1] 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.


         Federal 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 instructions.” Id.

         The 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.


         Plaintiff 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[2] and two individual claims against Defendant under Colorado state law.

         The instant motions request that the Court conditionally certify a collective class of seasonal drivers under the FLSA, [3] 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 turn.


         A. LAW

         Section 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 proper manner”).

         The 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.[4]

         During 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”).

         B. ANALYSIS

         Magistrate 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 ...

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