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Ostrander v. Customer Engineering Services, LLC

United States District Court, D. Colorado

February 21, 2019

ROBERT OSTRANDER, individually, and on behalf of all others similarly situated, Plaintiff,



         This matter comes before the Court on Plaintiffs’ Renewed Unopposed Motion and Memorandum in Support of Approval of Settlement [Docket No. 115]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND

         On July 13, 2015, plaintiff Robert Ostrander filed this action individually and on behalf of all others similarly situated, alleging that defendants Customer Engineering Services, LLC, James Fox, and Mary Fox violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Docket No. 1. Plaintiff worked for defendants as a technical service representative (“TSR”) from November 2011 to September 2014. Id. at 2, ¶ 5. Plaintiff alleges that defendants classified him as a non-exempt employee under the FLSA and paid him an hourly rate. Id. at 3, ¶ 14. He further asserts that defendants failed to compensate him and members of the putative class for all overtime hours worked by encouraging plaintiff and class members to work before and after their scheduled shifts, and by automatically deducting a half hour of pay for meal breaks each day, regardless of whether breaks were actually taken. Id. at 3-4, ¶¶ 16, 19-20.

         On January 19, 2016, plaintiff moved to conditionally certify the action as a collective action under the FLSA. Docket No. 26. The Court granted the motion on September 14, 2016, conditionally certifying a class of .

[a]ll individuals who were employed, or are currently employed, by the defendants, including subsidiaries or affiliated companies, as technical service representatives, tech support representatives, TSRs or any other similarly titled position at any time from three (3) years prior to July 13, 2015 to the entry of judgment in this action who give their consent, in writing, to become party plaintiffs.

Docket No. 48 at 16, ¶ 1. The Court further approved plaintiff’s proposed Notice of Collective Action. Id., ¶ 2.

         Following receipt of the court-authorized notice, 68 individuals joined the collective action as opt-in plaintiffs. Docket No. 115 at 2. Of those 68 individuals, 47 had claims arising within the statutory period. Id.[1] The parties began settlement negotiations on April 11, 2017 before Magistrate Judge Michael E. Hegarty. See Docket No. 89. On April 19, 2017, the parties reached a settlement on all claims. Id. On June 5, 2017, the parties jointly moved for a court order approving the settlement agreement and dismissing the action without prejudice, pending defendants’ remittance of the settlement funds. Docket No. 96 at 1. The Court denied the motion without prejudice on March 5, 2018, finding that the parties had failed to (1) request collective action certification; (2) provide any evidence that the 47 opt-in members of the collective action were given notice of the proposed settlement agreement and an opportunity to object; and (3) provide sufficient information to support plaintiffs’ counsel’s requested fee award. See Docket No. 112. Plaintiffs filed a renewed, unopposed motion for final settlement approval on June 4, 2018. Docket No. 115.

         II. ANALYSIS

         In a lawsuit brought by employees against their employer to recover back wages under the FLSA, any proposed settlement between the parties must be presented to the court for a determination of whether the settlement is fair and reasonable. Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982). This requirement effectuates the “prime purpose” of the FLSA, which is to “aid the unprotected, unorganized and lowest paid of the nation’s working population . . . who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n.18 (1945).

         A. Final Class Certification

         The FLSA permits an employee or employees to bring an action “[on] behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Courts apply a two-stage approach to determining whether plaintiffs are “similarly situated” for purposes of FLSA collective action certification. Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). First, a court makes an initial determination as to whether plaintiffs are similarly situated for purposes of sending notice to putative class members. Id. at 1102. At the “notice” stage, a court applies a fairly lenient standard, requiring only “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. at 1102 (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). After discovery, a court makes a second determination about whether putative class members are similarly situated. See Id. at 1102-03. In deciding whether to certify a collective action at this stage, courts apply a stricter standard and consider several factors, including: “(1) [the] disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to [the] defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Id. at 1103 (quoting Vaszlavik, 175 F.R.D. at 678). Final class certification is generally required before a court may approve a collective action settlement. See Whittington v. Taco Bell of Am., Inc., No. 10-cv-01884-KMT-MEH, 2013 WL 6022972, at *2 (D. Colo. Nov. 13, 2013) (quoting Peterson v. Mortg. Sources, Corp., 2011 WL 3793963, at *4 (D. Kan. Aug. 25, 2011)).

         Plaintiff contends that the requirements for final collective action certification are satisfied because (1) opt-in plaintiffs all worked as technical service representatives for defendants, performing the same job duties; (2) defendants paid plaintiffs under the same allegedly unlawful payment scheme; and (3) defendants’ defenses apply equally to all plaintiffs. Docket No. 115 at 4. The Court agrees that opt-in plaintiffs are similarly situated for purposes of final certification. In his complaint, plaintiff alleged that he and other members of the putative collective had similar job titles, job descriptions, and job duties. Docket No. 1 at 5, ¶ 30. These allegations are supported by declarations from Mr. Ostrander and opt-in plaintiff Donald Parker. Both individuals state that their primary job duties were to maintain and repair printers for customers of Customer Engineering Services (“CES”). See Docket No. 26-3 at 2, ¶ 3 (declaration of Robert Ostrander); Docket No. 26-5 at 2, ¶ 3 (declaration of Donald Parker); see also Docket No. 26-6 (TSR position description). They also describe similar work schedules, with days beginning at home before the start of their scheduled shifts and half-hour meal breaks frequently spent driving to the next service call or responding to messages from CES. See Docket No. 26-3 at 2-4, ¶¶ 7-13; Docket No. 26-5 at 2-4, ¶¶ 6-7, 10-14. Based on these declarations and other evidence submitted by plaintiff, the Court previously found that all members of the putative collective were subject to the same two compensation policies at issue in this lawsuit: defendants’ commuter policy, under which defendants deducted thirty minutes of commute time from the start and end of TSRs’ scheduled shifts; and defendants’ lunch break policy, which required TSRs to log a thirty-minute lunch break even if no break was taken. See Docket No. 48 at 7-9.[2]Given the uniform application of defendants’ compensation policies, defendants’ principal defenses – that the unpaid time was “non-compensable under federal law, de minimis and/or unknown” to defendants, Docket No. 19 at 6-7; Docket No. 115 at 7 – also apply equally to all members of the putative collective. Finally, fairness and procedural considerations support final certification. Collective actions allow plaintiffs to pool their resources to litigate claims they might otherwise be unable to pursue. Moreover, the parties’ settlement in this case will only affect the rights of those individuals who have affirmatively opted in to the lawsuit. See Davis, 292 F. Supp. 3d at 1171-72 (citing plaintiffs’ ability to pool their resources and the limited effect of the settlement as fairness and procedural considerations supporting final certification).

         For the foregoing reasons, the Court will grant final collective action certification.

         B. ...

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