United States District Court, D. Colorado
DIOGENES ALDAMA, individually and on behalf of all similarly situated individuals, Plaintiff,
FAT ALLEY, INC., and ROBERT E. O’DELL, Defendants.
ORDER GRANTING PLAINTIFF’S MOTION FOR
CONDITIONAL COLLECTIVE ACTION CERTIFICATION
William J. Martínez, United States District Judge.
Diogenes Aldama brings this action against Fat Alley, Inc.
(also known as “Oak” or “the New Fat Alley,
” and referred to below as “Oak/New Fat
Alley”) and Robert E. O’Dell (together,
Defendants”) for alleged violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
201 et seq., and similar Colorado state laws. (ECF
No. 1 ¶¶ 3–5, 13.) Aldama alleges that he was
employed as a restaurant worker at Oak/New Fat Alley, and
Defendants failed to pay him overtime wages as required by
the FLSA and Colorado state law.
before the Court is Plaintiff’s Motion for Conditional
Collective Action Certification (the “Motion”).
(ECF No. 3.) In their Response to the Motion, Defendants
stipulated that collective action certification is
appropriate under the FLSA, but raised objections to the
collective action definition, the form of notice, and the
method of notice. (ECF No. 34.) In his Reply, Plaintiff
agreed to revise the proposed notice, but objected to
Defendant’s revised collective action definition and
proposed limitations on the notice procedures. (ECF No. 35.)
For the reasons explained below, the Court certifies the
collective action and approves the notice form and procedure,
as modified by the Court.
following facts are drawn from Plaintiff’s Complaint.
(ECF Nos. 1 & 3.)
alleges that he and his fellow restaurant workers at Oak/New
Fat Alley regularly worked more than 40 hours each workweek
and, during “festival season” in Telluride,
worked more than twelve hours per day. (ECF No. 1 ¶ 14.)
He claims that he normally worked 60 hours per week (twelve
hours per day, five days a week) and that Defendants hid his
overtime hours by issuing two-week paychecks showing 80 hours
of work and paying him cash at his regular rate for overtime.
(Id. ¶ 15.) Plaintiff also claims that during
festival season, he worked approximately 75 hours per week
(fifteen hours per day, five days per week) and was paid for
his overtime hours off the books at his regular rate.
(Id. ¶ 16.) According to the Complaint,
Defendants refused to pay any of their hourly employees
overtime wages for overtime hours worked, and instead paid
them in the same way they paid Plaintiff. (Id.
¶ 14.) Plaintiff spoke to several other hourly
employees, who confirmed that they were paid in a manner
similar to Plaintiff. (Id. ¶ 20.) Plaintiff
filed this lawsuit on February 22, 2019.
FLSA permits collective actions where the allegedly aggrieved
employees are “similarly situated.” 29 U.S.C.
§ 216(b). Whether employees are similarly situated is
judged in two stages: a preliminary or “notice
stage” (at issue here) and then a more searching,
substantive stage, usually after the close of discovery.
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1102–03, 1105 (10th Cir. 2001). At the notice stage, a
plaintiff requires “nothing more than substantial
allegations that the putative [collective action] members
were together the victims of a single decision, policy, or
plan.” Id. at 1102 (internal quotation marks
omitted); see also Boldozier v. Am. Family Mut. Ins.
Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005) (applying
Thiessen in the FLSA context). The standard for
certification at this stage is a lenient one. See
Thiessen, 267 F.3d at 1103; Williams v.
Sprint/United Management Co., 222 F.R.D. 483, 485 (D.
plaintiff meets this standard, the Court may order the
defendant to provide contact information for employees that
may be eligible to participate in the collective action, and
may approve a form of notice to be sent to all of those
individuals. See Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 169–74 (1989). Such notice is usually
required because, unlike class actions under Federal Rule of
Civil Procedure 23, collective actions under the FLSA require
a party to opt in rather than opt out. See 29 U.S.C.
§ 216(b) (“No employee shall be a party plaintiff
to any [collective] 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.”).
Obviously, current or former employees cannot opt in if they
do not know about the pending action.
Collective Action Certification
do not contest that conditional collective action
certification under the FLSA is appropriate. (ECF No. 34 at
3.) Plaintiff alleges that he personally was not paid
overtime, and that Defendants failed to properly pay other
hourly employees for overtime hours worked. These allegations
are sufficient to establish that the potential collective
action members were subject to “a single decision,
policy, or plan” giving rise to their claims. See
Thiessen, 267 F.3d at 1103.
Defendant’s non-opposition to conditional collective
action certification, and upon independent review, the Court
finds that Plaintiff has made allegations sufficient to meet
the lenient standard for FLSA collective action
certification. See Thiessen, 267 F.3d at 1103.
asks the Court to define the collective class as “All
hourly employees who worked on or after February 22,
2016.” (ECF No. 3 at 2.) Defendants argue that the
definition is overbroad because Oak/New Fat Alley
“changed its pay policy on February 1, 2019, and now
pays all hourly employees the applicable overtime rate for
overtime hours via the employees’ paycheck.” (ECF
No. 34 at 3.) Thus, Defendants argue, those who began working
at Oak/New Fat Alley after February 1, 2019, are not
similarly situated to Plaintiff. Defendants do not, however,
offer any evidentiary support that they changed their pay
practices on February 1, 2019. The quotation above is merely
attorney argument, which is not evidence. Absent some
evidence to contradict Plaintiffs’ well-pled
allegations, the Court will not limit the collective action
definition in the manner Defendants request. Accordingly, the
Court will conditionally certify the collective action as