United States District Court, D. Colorado
SONDRA BEATTIE, individually and on behalf of all other similarly situated individuals, and FRANCIS HOUSTON, JR., individually and on behalf of all other similarly situated individuals, Plaintiffs,
TTEC HEALTHCARE SOLUTIONS, INC., and TTEC HOLDINGS, INC., Defendants.
RAYMOND P. MOORE JUDGE
matter is before the Court on Plaintiffs' motion for
conditional certification (ECF No. 54), Defendants'
motion to stay (ECF No. 68), and Defendants' motion to
compel arbitration (ECF No. 71). For the reasons given below,
the Court grants the motion for conditional certification,
denies as moot the motion to stay, and grants in part and
denies in part without prejudice the motion to compel
Beattie and Houston filed this lawsuit as a collective and
class action, alleging, among other things, violations of the
Fair Labor Standards Act (“FLSA”). Numerous other
Plaintiffs have opted in to the lawsuit by filing consents to
join (ECF Nos. 5, 25, 32-34, 38-50, 56, 58, 61-63, 65, 67,
69, 73-76, 78, 80, 81). On May 21, 2019, this Court granted
Defendants' motion to compel arbitration with respect to
Plaintiffs Beattie and Houston, while allowing the case to
proceed with respect to the other Plaintiffs. (ECF No. 66.)
Plaintiffs' motion for conditional certification (ECF No.
54) was filed before that order. After the order, Defendants
filed a motion to stay briefing on the issue of conditional
certification (ECF No. 68). There was no ruling on the motion
to stay, and Defendants later filed a response to the motion
for conditional certification (ECF No. 72). Plaintiffs filed
a response to Defendants motion to stay (ECF No. 70) and a
reply (ECF No. 77). In addition, Defendants filed a motion to
compel arbitration with respect to seventy-eight opt-in
Plaintiffs (ECF No. 71), and Plaintiffs filed a response (ECF
No. 79). The Court now addresses these motions in turn.
Motion for Conditional Certification
seeks conditional certification of a proposed class
consisting of “[a]ll current and former Customer
Service Representatives who worked for Defendants at any of
their call center facilities at any time on or after December
3, 2015 up through and including judgment.” (ECF No. 54
at 1.) Proposed notice and consent forms are attached to
their motion. (ECF No. 54-2.)
Court applies a two-stage process to determine whether
putative collective action members are similarly situated for
purposes of 29 U.S.C. § 216(b). See Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir.
2001). At this initial “notice” stage, Plaintiffs
need only provide “substantial allegations that the
putative class members were together the victims of a single
decision, policy, or plan.” Id. at 1102
(quotation omitted). The Court has “wide discretion to
notify potential opt-in plaintiffs. Hoffman-La Roche Inc.
v. Sperling, 493 U.S. 165, 169 (1989).
do not argue that the opt-in Plaintiffs are not similarly
situated, and the Court finds Plaintiffs have made
substantial allegations that the putative class members were
victims of a single decision, policy, or plan.
Defendants' sole argument against conditional
certification is that the opt-in Plaintiffs' arbitration
agreements mandate dismissal of Plaintiffs' motion. But,
as this Court recently concluded in another case,
“[t]he fact that claims not presently before the Court
may be ordered to arbitration at a later date does not
require that notice be withheld from potential members of the
collective under the FLSA's long-established procedures
for doing so, merely because some members signed an
arbitration agreement.” Judd v. Keypoint Gov't
Sols., Inc., No. 18-cv-00327-RM-STV, 2018 WL 7142193, *6
(D. Colo. Dec. 4, 2018). The same reasoning applies here. The
fact that some Plaintiffs will be compelled to arbitrate
their claims individually does establish grounds for denying
them notice. See Id. at *5 (“Neither the FLSA
nor the Tenth Circuit require that notice be withheld from
potential class members merely because they signed an
also object that if conditional certification is granted,
notice should be sent only to employees who worked for them
in the three-year period preceding the Court's order
instead of the three-year period preceding the filing of the
complaint. In response, Plaintiffs argue that this case is a
candidate for equitable tolling because of briefing on the
arbitration issue. The Court agrees with Defendants on this
point. In the Tenth Circuit, equitable tolling is granted
sparingly, and Plaintiff has not shown that Defendants
engaged in “active deception” by seeking to
compel arbitration in this case. Impact Energy Res., LLC
v. Salazar, 693 F.3d 1239, 1246 (10th Cir. 2012).
Indeed, with today's order, they have succeeded in
compelling fifty-seven Plaintiffs to arbitrate their claims.
Therefore, Defendants are required to provide contact
information for only those employees who worked for them as
customer service representatives at any time from July 3,
2016, to July 3, 2019.
additional objections to the form and method of notice lack
merit. The Court sees no reason why Plaintiffs should be
limited to providing notice by regular mail. Defendants are
directed to disclose telephone numbers and e-mail addresses
of each putative collective action member, and Plaintiffs may
provide notice by e-mail and text message as well as by
regular mail. Defendants cite no authority in support of
their contentions that Plaintiffs should be prohibited from
communicating with potential collective action members,
through its website or by other means, that the consent form
is overbroad, or that the reference to “unpaid overtime
pay” is improper. And because the case is being
litigated on a contingency basis, the Court also rejects
Defendants' argument that potential plaintiffs need to be
made aware that there is a possibility that they may be
liable for Defendants' costs of litigation. Therefore,
the Court approves Plaintiffs' proposed notice.
Motion to Stay
order moots Defendants' motion to stay briefing on
Plaintiffs' motion for conditional certification.