United States District Court, D. Colorado
ROBERT OSTRANDER, individually, and on behalf of all others similarly situated, Plaintiff,
CUSTOMER ENGINEERING SERVICES, LLC, JAMES N. FOX, and MARY FOX, Defendants.
A. BRIMMER, UNITED STATES DISTRICT JUDGE.
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.
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,
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.
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. 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.
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
Final Class Certification
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)).
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.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).
foregoing reasons, the Court will grant final collective