United States District Court, D. Colorado
PHILLIP NELSON, individually and on behalf of all others similarly situated, Plaintiff,
FEDEX GROUND PACKAGE SYSTEM, INC. d/b/a FedEx Home Delivery, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge.
civil action comes before the court on Plaintiff Phillip
Nelson's (“Plaintiff” or “Mr.
Nelson”) Motion for Approval of
Hoffman-LaRoche [sic] Notice (“the
Motion” or “Motion for Conditional
Certification”) [#18, filed July 30, 2018]. The Motion
is before the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b), the Order Referring Case dated July 16,
2018 [#16], and the Memorandum dated September 24, 2018
[#31]. Defendant FedEx Ground Package System, Inc.
(“Defendant” or “FedEx”) filed a
Response on September 10 [#30], and Plaintiff filed a Reply
brief on September 24 [#32]. On December 5, 2018 Plaintiff
filed a Notice of Supplemental Authority [#47], directing
this court's attention to the decision in a similar case
in Massachusetts: Roy v. FedEx Ground Package System,
Inc., 3:17-cv-30116-KAR, 2018 WL 6179504 (D. Mass. Nov.
27, 2018). The Parties then engaged in further briefing
regarding application of Roy. [#51; #53]. The Motion
is now fully briefed and ready for decision. The court has
carefully considered the Motion and related briefing, the
entire case file, and the applicable case law. For the
following reasons, it is respectfully
RECOMMENDED that the Motion for Conditional
Certification be DENIED.
AND PROCEDURAL BACKGROUND
Phillip Nelson filed this action under the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq., (the
“FLSA”); the Colorado Wage Claim Act, §
8-4-101, et seq; and the Colorado Minimum Wage Act,
C.R.S. § 8-6-101, et seq., as implemented by
the Colorado Minimum Wage Order, on June 5, 2018. [#1].
Plaintiff is a delivery driver who worked for Harmony
Express, Inc. (“Harmony Express”), an independent
service provider (“ISP”) in the broader FedEx
distribution network that makes deliveries to individual
recipients, i.e., the final phase of a package's
shipment. [Id. at ¶ 2, 7]. FedEx's
business model relies on the use of ISPs, who in turn hire
drivers like Plaintiff, to deliver packages to customers, and
to this end FedEx utilizes standardized operating agreements
with ISPs. [Id. at ¶¶ 7-8].
relationship between FedEx and an ISP is deep and
comprehensive, with the former directing nearly every
operational detail of the latter's business.
[Id. at ¶¶ 8-37]. Although nominally
employees of the ISP, Plaintiff and other such employees had
nearly every detail of their working life dictated by FedEx,
including hiring and firing standards, training protocols,
employee uniforms and signage for the vehicles, delivery
schedules, and pickup windows. [Id.]. Plaintiff and
other ISP employees carried electronic scanners owned
directly by FedEx that they used to scan the packages and log
them into FedEx's network. [Id. at ¶ 18].
In addition to giving weekly safety briefings, FedEx managers
conduct periodic “ride-alongs” to review driver
performance and ensure FedEx protocols are followed.
[Id. at ¶¶ 21-22]. While the court does
not accept that this constitutes a co-employer or joint
venture relationship as Plaintiff maintains [id. at
¶¶ 2, 7], the factual allegations establish a close
working relationship where FedEx dictates most if not all
relevant practices by the ISPs and drivers like Mr. Nelson.
FedEx is the only client of, and exclusive source of income
for, Harmony Express. [Id. at ¶ 10]
course of performing this work for Harmony Express, Plaintiff
was not paid for hours he worked in excess of forty per week
or twelve per day. [Id. at ¶ 36]. This
non-payment forms the basis of this litigation and the
putative collective class. Plaintiff has provided
declarations from other ISP drivers (and putative opt-in
Plaintiffs) to support this contention and in support of the
Shad Newton has worked for over ten different ISPs in his
professional career and states that “the pay formula is
the same for drivers” and is “basically
universal” from his experience. [#18-1 at ¶¶ 3,
4]. Mr. Newton states that drivers in Colorado are subject to
the same overtime and employment scheme that fails to
compensate them for overtime hours. [Id. at
¶¶ 11-12]. Declarant Nick Parks makes a similar
declaration, alleging that he works at an unnamed ISP in Fort
Collins, Colorado and has not been paid an overtime rate
despite working overtime hours. [#18-2 at ¶¶ 2, 9].
Declarant Edward Lopez states that he worked in an
unspecified Colorado terminal-presumably for another ISP that
may or may not be the same as Mr. Parks's ISP-and he was
never paid overtime. [#18-3 at ¶¶ 3, 9]. Mr. Lopez
states that he “had discussions with many drivers over
the course of [his] tenure with FedEx, and without exception,
[he] never encountered a driver that received an overtime
rate.” [Id. at ¶ 10].
30, 2018 Plaintiff filed this Motion for Approval of
Hoffman-LaRoche [sic] Notice [#18] with the attached
affidavits discussed above. Plaintiff seeks conditional
collective action certification for “[a]ll current or
former Colorado FedEx drivers from June 5, 2015 to
present.” [Id. at 4]. Defendant opposes this
argues that conditional certification is not warranted at
this stage because, however light the burden, Plaintiff has
failed to make substantial allegations that the putative
class was subject to a single policy, decision, or plan that
resulted in the harm, and additionally the putative class is
not similarly situated. See generally [#30].
Defendant argues that Plaintiff has failed to demonstrate
that the putative class is similarly situated because there
are scores of ISPs in the State of Colorado and Plaintiff
does not make substantial allegations that all drivers
working for these independent entities are subject to a
commonly applicable compensation policy. [Id. at
contends that nowhere in the Motion for Conditional
Certification does Plaintiff make an allegation that he and
others were subject to a single policy, decision, or plan
that resulted in the harm at issue, i.e., the lack of
overtime. [Id. at 11] (“The complaint, in
fact, contains no allegations regarding any commonly
applicable compensation policy.” (emphasis in
original)). Instead, Plaintiff's and affiants'
numerous allegations pertain to the extent of control FedEx
exerts over ISPs, without alleging facts to establish that a
single policy or decision of FedEx resulted in any sort of
commonly applicable pay structure. [Id. at 11-12].
leaving the factfinder to connect the dots and assume that
ISPs who failed to pay overtime to their drivers did so as
the result of this control, and further that this control may
be characterized as a single decision, policy, or plan.
[Id. at 12-13]. But FedEx maintains separate
contracts with each of the many ISPs in its network, and thus
the pay structure available to the drivers “is not the
result of a single decision, policy, or plan, but of
the many separate decisions, policies, or plans made and
implemented by individual ISPs.” [Id.]
(emphasis in original).
further objects to conditional certification on the basis
that the FLSA overtime requirements will not apply to all ISP
drivers, as at last some drivers qualify for exemptions from
overtime requirements under Motor Carrier Act
(“MCA”) exemptions. Defendant paints a complex
legal and factual landscape, arguing that the MCA will exempt
those Plaintiffs who work for “motor carriers”
under the MCA and those whose work duties directly affect the
safety of vehicles in interstate commerce. [Id. at
14]. These exceptions are themselves subject to exceptions if
the employee drives a light or heavy vehicle. [Id.].
Concluding whether a driver is entitled to overtime payment
under the FLSA is a difficult, fact-specific exercise that
may be subject to any number of potential defenses or legal
FLSA governs the payment of minimum wages and overtime
compensation between an employer and its employees.
See 29 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.
FLSA, § 216(b) authorizes private individuals to recover
damages for violations of minimum wage and overtime
provisions. It provides 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 Am. Family Mut. Ins. Co. Overtime Pay Litig.,
638 F.Supp.2d 1290, 1298 (D. Colo. 2009).
Thiessen v. General Electric Capital Corp., the
United States Court of Appeals for the Tenth Circuit
(“the Tenth Circuit”) approved a two-step process
for determining whether putative class 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. 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). A court may not ...