Beattie v. Ttec Healthcare Solutions, Inc.

          ORDER

          RAYMOND P. MOORE JUDGE

         This 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 arbitration.

         I. BACKGROUND

         Plaintiffs 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.

         II. ANALYSIS

         A. Motion for Conditional Certification

         Plaintiffs 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.)

         The 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).

         Defendants 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 arbitration agreement.”).

         Defendants 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.^[1]

         Defendants' 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.

         B. Motion to Stay

         This order moots Defendants' motion to stay briefing on Plaintiffs' motion for conditional certification.

         C. ...