United States District Court, D. Colorado
ORDER
Kristen L. Mix, United States Magistrate Judge.
This
matter is before the Court on Plaintiffs' unopposed
Request for Written Order on Ruling Granting Pathway
Defendants' Motion to Decertify
[#303][1] (the “Motion for Written
Ruling”); on Plaintiffs' Motion to Certify
Order Granting Decertification [Dkt. 304] for Interlocutory
Appeal Pursuant to 28 U.S.C. § 1292(b) [#306]
(the “Motion to Certify Appeal”); and on
Plaintiffs' Second Motion for Use of Permissive
Joinder Standard for Collectivization, or in the Alternative,
Motion for Conditional Certification of Collective
Action-Liability Only [#307] (the “Motion to
Certify Collectivization”). Defendants filed Responses
[#319, #320] in opposition to the latter two Motions, and
Plaintiffs filed Replies [#322, #323]. The Court has reviewed
the pertinent briefs, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion for Written
Ruling [#303] is GRANTED, and the Motion to
Certify Appeal [#306] and the Motion to Certify
Collectivization [#307] are DENIED.
A.
The Motion for Written Ruling
On
February 21, 2019, the Court orally granted Defendants'
Motion to Decertify 29 U.S.C. § 216(b) Collective Action
[#275] (the “Motion to Decertify”) in this Fair
Labor Standards Act (“FLSA”) case. See
Minutes [#304]. At that hearing, the Court invited
either party to request a written ruling on that motion in
order to more fully explain the Court's reasoning (and,
as noted by Plaintiffs, to provide a more concrete basis for
an appeal). Plaintiffs subsequently filed the present Motion
for Written Ruling [#303], which the Court grants as follows.
1.
Timing
In
their Response to the Motion to Decertify [#275], Plaintiffs
strenuously argue that “[a]ny motion to decertify must
be brought at the close of discovery and prior to
trial” by citing to Thiessen v. General Electric
Capital Corporation, 267 F.3d 1095, 1105 (10th Cir.
2011). See [#285] at 2; see also Id.
(citing Lysyj v. Milner Distribution All., Inc., No.
13-cv-01930-RM-MJW, 2014 WL 273214, at *3 (D. Colo. Jan. 24,
2014) (“In the second stage, which comes at the
conclusion of discovery . . ., the court . . . determine[s]
whether the case can proceed as a class action.”);
Boldozier v. Am. Family Mut. Ins. Co., 375 F.Supp.2d
1089, 1092 (D. Colo. 2005) (“At the conclusion of
discovery, the Court makes a second determination . . .
.”)).
Defendants
correctly point out that neither Thiessen nor the
two district court cases cited by Plaintiffs, Lysyj
and Boldozier (which both explicitly rely on
Thiessen), hold that a motion to decertify must be
made at the close of discovery, or even prior to trial.
Reply [#288] at 7. Defendants also point to a
handful of federal courts and other legal authority which has
addressed this issue. Id. at 4-5 (citing Chavez
v. IBP, Inc., No. CV-01-5093-RHW, 2005 WL 6304840, at *2
(E.D. Wash. May 16, 2005) (noting in a post-bench trial
ruling on a motion to decertify that a collective action
under § 216(b) is “preliminary until final
judgment is issued, and [is] subject to modification prior to
a decision on the merits”); Johnson v. Big Lots
Stores, Inc., 561 F.Supp.2d 567, 571-72 (E.D. La. 2008)
(holding in a post-bench trial ruling on a motion to
decertify a collective action under § 216(b) that
“further consideration of the certification issue is
warranted in light of the more fully developed factual record
presented at trial” and noting that the court has an
“ongoing obligation to monitor the propriety of
certification in light of factual developments”);
Roussell v. Brinker Int'l, Inc., No. H-05-3733,
2008 WL 2714079, at *16 (S.D. Tex. July 9, 2008) (noting in a
pre-trial ruling that the court could entertain a motion to
decertify after trial if the evidence demonstrated that the
plaintiffs were not similarly situated); Defs.' Exs.
A-B [#288-1; #288-2]: Brown v. Dolgencorp,
Inc., Civ. No. 7:02-cv-0673 (N.D. Ala. Aug. 7, 2006)
(decertifying a collective action mid-trial); William F.
Allen, Defending Employers In Complex Wage And Hour
Litigation, Aspatore, 2012 WL 5900370, at *11 (2012)
(stating that “[a] court may also decertify a
collective action during or after trial”); William C.
Jhaveri-Weeks, Austin Webbert, Class Actions Under Rule
23 and Collective Actions Under the Fair Labor Standards Act:
Preventing the Conflation of Two Distinct Tools to Enforce
the Wage Laws, 23 Geo. J. on Poverty L. & Pol'y
233, 245 n. 77 (2016) (“Defendants may also move for
decertification at or after trial.”).
While
none of the legal authority provided by Defendants is
binding, the Court finds it persuasive given that neither the
parties nor the Court has found any case holding that a
motion to decertify a collective action must be
brought at the close of discovery and may not be
brought post-trial. To be sure, such a motion made
post-discovery, as opposed to post-trial, would certainly
help streamline the proceedings in a collective action under
many, if not most, circumstances, as Plaintiffs allude.
Regardless, given the above non-binding authority, and in the
absence of any legal authority directly to the contrary, the
Court finds that Defendants' Motion to Decertify [#275]
was timely filed.
2.
Decertification
29
U.S.C. § 216(b) permits an FLSA claim to be
“maintained against any employer . . . by any one or
more employees for and in behalf of himself or themselves and
other employees similarly situated.” The Court uses a
two-step process to determine whether the plaintiffs are
“similarly situated.” Thiessen v. Gen Elec.
Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2011). As
is relevant here, at the second step, “the trial court
conducts a ‘stricter' analysis to decide whether
the collective it initially approved is indeed composed of
similarly-situated individuals.” Oldershaw v.
DaVita HealthCare Partners, Inc., No.
15-cv-01964-MSK-NYW, 2019 WL 427650, at *2 (D. Colo. Feb. 4,
2019). The three major factors to be considered by the Court
are: (1) “any disparate factual and employment settings
among the individual plaintiffs;” (2) “the
various defenses available to the defendant that might be
individual as to each plaintiff;” and (iii)
“‘fairness and procedural
considerations'.” Id. (quoting
Thiessen, 267 F.3d at 1103).
a.
Plaintiffs' Disparate Factual and Employment
Settings
Regarding
the first factor, the Court is concerned about the
individualized factual considerations that must be analyzed
in reaching conclusions about damages. Plaintiffs'
damages formula, as demonstrated by Plaintiffs' Trial
Exhibit 136, involves three factors: (1) the number of hours
worked by each Plaintiff, (2) the minimum wage, and (3) the
amount actually paid each Plaintiff by Defendants. The
formula takes the number of hours worked by each Plaintiff
(1), multiples that by the minimum wage (2), and then
subtracts the amount actually paid to each Plaintiff (3) to
calculate the alleged amount of unpaid minimum wages owed to
each Plaintiff. However, determination of two of these
factors, (1) and (3), must be made on an individualized
basis.
First,
the number of hours worked by each Plaintiff each week
requires an individualized calculation unless the
Court accepts Plaintiffs' position that each Plaintiff
regularly worked 70 hours per week. However, the evidence
presented at trial demonstrates the implausibility of this
proposition. For example, as Defendants point out, the owner
settlement statements[2] show wide variances in the numbers of
miles driven by each Plaintiff per week. See, e.g.,
Trial Ex. E at 80-81 (settlement statement for
Anthony Dennis showing 581 miles driven for the January 1,
2016 settlement period); id. at 122-23 (settlement
statement for Anthony Dennis showing 2, 950 miles driven for
the April 8, 2016 settlement period); Trial Ex. H5
at 74-75 (settlement statement for Julian LaFranks showing 1,
021 miles driven for the July 1, 2016 settlement period);
id. at 95-96 (settlement statement for Julian
LaFranks showing 3, 130 miles driven for the September 16,
2016 settlement period); Trial Ex. U4 at 225-26
(settlement statement for Paula Horion showing 691 miles
driven for the December 5, 2014 settlement period);
id. at 255-56 (settlement statement for Paula Horion
showing 4, 198 miles driven for the July 25, 2015 settlement
period). The widely-varying number of miles driven, as
reflected in the settlement statements, makes it impossible
to conclude that each Plaintiff averaged 70 hours of work per
week[3]
without examining the evidence as to each Plaintiff
individually, including, for example whether low-mileage
weeks were due to time when a Plaintiff's truck was under
maintenance or repair or time that a Plaintiff took off from
work.[4]
Further,
the evidence overwhelmingly established that most of
Plaintiffs' trucks needed maintenance and/or repair, and,
depending on the precise circumstances surrounding the
maintenance/repair, that time may not always be included in
compensable weekly working time. See, e.g.,
Trial Tr. Vol. I [#276] at 199-200 (Becky Austin
testifying that she would sometimes be present at the repair
shop, sometimes be at a hotel, and sometimes be at home while
truck repairs were underway); id. at 128-30, 133
(Frank Merrill testifying that he was not claiming time at
home when the truck was in repair (although he would check in
at least briefly every day) but that he was claiming time
away from home when the truck was in repair); Trial Tr.
Vol. II [#276] at 59-61 (Rodney Lacey testifying that,
regardless of whether he was on the road or staying at home
at night, he would be at the repair shop watching them work
the entire time the truck was in the shop). Thus, the
evidence varies widely regarding the amount of time each
Plaintiff's vehicle spent in maintenance/repair and
whether each Plaintiff waited while repairs were made (which
may be compensable time) or waited at home (which may be
non-compensable time).[5] See, e.g., Browne v. P.A.M.
Transport, Inc., No. 5:16-CV-5366, 2018 WL 5118449 (W.D.
Ark. Oct. 19, 2018) (holding that all hours spent “on
duty” are compensable, in the absence of agreement to
the contrary to the extent not barred by regulation).
In
addition, the Plaintiff drivers admitted to taking time off
of work, like most employees do in any typical job. See,
e.g., Trial Tr. Vol. I [#276] at 199 (Becky
Austin testifying that “everybody” takes time off
from driving); Trial Tr. Vol. III [#278] (Craig
Williams testifying that drivers could take time off when
they wanted). Some drivers also conceded that they may not
have worked 70 hours every week. See, e.g.,
Trial Tr. Vol. IV [#279] at 37 (Anthony Dennis
stating that it was “possible” that he did not
work 70 hours every single one of those weeks); id.
at 83-84 (Tami Potirala stating that most weeks, at least,
she worked 70 hours per week but could not confirm that for
all weeks).
Finally,
the amount actually paid to Plaintiff drivers requires
individualized considerations for some drivers who took
advances on pay and did not include those amounts in their
statements of the “amounts actually paid.”
See, e.g., Trial Tr. Vol. I [#276] at
138-39. Thus, considerations regarding the cash advances that
some Plaintiffs received must be made on an individual basis.
The
record citations provided above are not comprehensive;
rather, they merely illustrate the disparate factual
circumstances of each Plaintiff based on the evidence before
the Court. In short, given consideration of the settlement
statements, the records regarding number of miles driven,
issues surrounding where each Plaintiff spent time while a
vehicle was in repair, cash advances, and time off, the Court
finds that there are numerous individualized factual
considerations that must be analyzed in reaching the damages
determination, and therefore that this factor supports
decertification.
b.
Defendants' Individualized Defenses
Regarding
the second factor, Defendants first direct the Court's
attention to Blair v. TransAm Trucking, Inc., 309
F.Supp.3d 977, 1011 n.236 (D. Kan. 2018), an FLSA case in
which the leased-truck drivers were paid via settlement
statements, as occurred here. With respect to this factor,
the court held that the defendant was “entitled to
defend against each claim individually” by providing
“‘week-by-week, driver-by-driver'
evidence” on whether each plaintiff received the
minimum wage for each week. Id. at 1011-12. Because
this type of evidence could not “be offered on a
class-wide basis, ” the court there found that this
factor “weigh[ed] in favor of decertification.”
Id. at 1012.
Defendants
also cite Green v. Harbor Freight Tools USA, Inc.,
888 F.Supp.2d 1088, 1103-04 (D. Kan. 2012), in which the
defendant pointed to evidence “calling into question
the credibility of Plaintiffs' claims, including
Plaintiffs' . . . contradictory testimony and sworn
discovery responses.” In part because of this, the
court in Harbor Freight found that the
individualized defenses for each opt-in plaintiff weighed
against continued certification. In Scott v. Raudin
McCormick, Inc., No. 08-4045-EFM, 2010 WL 5093650, at *4
(D. Kan. Dec. 8, 2010), the court held: “Because the
analysis regarding class eligibility and damages are highly
fact-specific and individualized to each Plaintiff driver,
Defendants' defenses as to each Plaintiff are similarly
highly individualized. Defendants assert[ ] that a number of
the Plaintiffs have claimed they either received no pay for
overtime, some pay, or all pay to which they were
entitled.”
Defendants
have presented evidence at trial that at least some
Plaintiffs received statutory minimum wages for some
settlement periods at issue, and that some Plaintiffs'
testimony lacks credibility.[6] Defendants are entitled to
address these issues regarding each Plaintiff ...