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Aguilar v. Management & Training Corp.

United States District Court, D. New Mexico

January 27, 2017

MARISELA AGUILAR, et al., Plaintiffs,
MANAGEMENT & TRAINING CORPORATION, doing business as MTC, Defendant.



         On September 26, 2016, Plaintiffs filed their “First Amended Opposed Motion and Memorandum in Support of Judicially Supervised Notice Under 29 U.S.C. § 216(b)” (“Motion”). ECF No. 55. On October 12, 2016, Defendant filed its “Response to Plaintiffs' First Amended Opposed Motion and Memorandum in Support of Judicially Supervised Notice Under 29 U.S.C. § 216(b)” (“Response”). ECF No. 64. Plaintiffs filed their Reply on October 26, 2016. ECF No. 69. The Court ordered additional briefing [ECF No. 79], with which Plaintiffs complied on November 28, 2016. ECF No. 84. With that filing, Plaintiffs' Motion became ripe for ruling.[1] Having reviewed the record, the parties' briefing, and extant case law, the undersigned recommends that Plaintiffs' Motion be GRANTED IN PART and DENIED IN PART. The Court's reasoning follows below.


         Defendant Management and Training Corporation (“MTC”) provides guards for the Otero County Prison Facility (“the Prison”) near Chaparral, New Mexico. Pls.' Mot. 4, ECF No. 55. At the time Plaintiffs' Motion was filed, Plaintiffs were twenty-six current or former employees of MTC who worked at the Prison between January 2013 and the present.[2] Id. On January 22, 2016, Plaintiffs filed this action[3] alleging violations of wage and overtime laws under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-19 (2012), and the New Mexico Minimum Wage Act (“NMMWA”), N.M. Stat. Ann. §§ 50-4-19 to 50-4-30 (2016).[4] In their Amended Complaint [ECF No. 10], Plaintiffs allege that they “were not paid for certain time worked for [Defendant], resulting in Plaintiffs not being paid statutory overtime and base compensation as required by law.” Pls.' Am. Compl. 2, ECF No. 1. In addition, Plaintiffs assert that they “have actual knowledge that [Defendant] employed other employees in the same or similar positions, and paid them pursuant to the same improper practices.” Id. at 7.

         In support of their claim, Plaintiffs have attached eight declarations, each from a currently or formerly-named Plaintiff. Each declaration details the declarant's claims as well as facts supporting a collective action. See Pls.' Mot. Exs. B-I. Generally, the declarations describe two categories of alleged FLSA violations. First, Plaintiffs allege they are not paid for time on duty gathering and securing equipment and passing through prison security areas. Pls.' Reply 2, ECF No. 69. By their estimation, this time is “integral and indispensable” to their core function as prison guards, and therefore compensable. Id. See Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (holding that activities performed either before or after the regular work shift are compensable under the FLSA if they are an integral and indispensable part of the employees' principal activities). Secondly, Plaintiffs contend “that MTC utilizes a timekeeping practice that persistently works in favor of MTC and against the prison guards; specifically, MTC almost always rounds off in its favor to reduce payment for the time worked by Plaintiffs.” Pls.' Reply 2.

         Through the instant Motion, Plaintiffs seek conditional certification of a collective action under 29 U.S.C. § 216(b)[5] for Defendant's alleged violations of 29 U.S.C. § 207.[6] Pls.' Mot. 1-17. Furthermore, they propose a collective consisting of “[a]ll current and former [p]rison [g]uards who worked for MTC at any time between January 21, 2013[, ] and the present.” Id., Ex. A at 1. According to Plaintiffs, employees in this proposed collective are similarly situated “with respect to their job requirements and with [respect] to their pay provisions, ” Pls.' Mot. 11, and “have been and continue to be required to perform preliminary and post-liminary work activities that should be, but have not been, compensated as work time by MTC.” Id. at 9. Lastly, Plaintiffs ask the Court to toll the applicable statute of limitations during the pendency of their Motion. Id. at 15-17.

         Defendant urges the denial of Plaintiffs' Motion. It reasons that “[n]o collective should be certified, even conditionally, because Plaintiffs based their case on a misapprehension of the FLSA and the Portal-to-Portal Act, [7] and Plaintiffs are not similarly situated with the potential class members or themselves.” Def.'s Resp. 2, ECF No. 64. Additionally, Defendant alleges that Plaintiffs “do not cite or attach any actual MTC policy, no[r] do they allege or establish a common employer practice.” Id. at 3-4. Finally, Defendant urges this Court not to toll the statute of limitations, as “[t]he two bases for equitable tolling in the Tenth Circuit are absent in this case.” Id. at 7.


         Under section 216(b) of the FLSA, an individual employee or group of employees may bring claims against their employer on behalf of employees who are “similarly situated” to them. 29 U.S.C. § 216(b). Unlike “opt-out” class actions under Federal Rule of Civil Procedure 23, collective actions under the FLSA require affirmative consent by a current or former employee to join the class. See Id. (“No employee shall be a party plaintiff to any such 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.”). In other words, any putative plaintiffs who wish to join an FLSA collective action must affirmatively “opt-in” to do so.

         Section 216(b) does not define the term “similarly situated.” However, the Tenth Circuit has approved a two-step approach for determining whether plaintiffs in a proposed opt-in collective action are “similarly situated” for purposes of section 216(b). See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). Under this approach, a court makes an initial “notice stage” determination about whether a group of plaintiffs are similarly situated. Id. at 1102. “That is, the court determines whether a collective action should be certified for purposes of sending notice of the action to potential class members.” In re Bank of Am. Wage & Hour Emp't Litig., 286 F.R.D. 572, 576 (D. Kan. 2012). A court must certify a case conditionally as a collective action before plaintiffs may send notice to putative class members of their right to opt-in. Folger v. Medicalodges, Inc., No. 13-1203-MLB, 2014 WL 2885363, at *2 (D. Kan. June 25, 2014) (unpublished).

         For conditional certification at the notice stage, courts “‘require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'” Thiessen, 267 F.3d at 1102 (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). The plaintiff must establish a “reasonable basis” for his claim that there are other similarly situated employees. See Morgan v. Family Dollar Stores, 551 F.3d 1233, 1260 (11th Cir. 2008). “At the conditional certification stage, the Court does not weigh evidence, resolve factual disputes, or rule on the merits of the plaintiffs' claims.” Bryant v. Act Fast Delivery of Colo., Inc., No. 14-CV-00870-MSK-NYW, 2015 WL 3929663, at *2 (D. Colo. June 25, 2015) (unpublished). This is a “lenient standard, ” Baldozier v. American Family Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005), “which typically results in conditional certification of a representative class.” Renfro v. Spartan Computer Services, Inc., 243 F.R.D. 431, 432 (D. Kan. 2007).

         The second stage occurs after discovery is complete. See Thiessen, 267 F.3d at 1102-03. In the second stage, which often comes in the context of a defense motion to decertify the collective, the court applies a stricter standard of “similarly situated” to determine whether the case can proceed as a collective action. Id.

         III. ANALYSIS

         Plaintiffs' Motion obliges the Court to undertake two separate but related inquiries. First, the Court must determine if a collective should be conditionally certified to proceed. To do so, the Court examines whether Plaintiffs are similarly situated and whether they were the victims of a single decision, policy, or plan. Secondly, should the preceding examination yield a conditional collective, the Court then must review the notice proposed by Plaintiffs, weigh the objections propounded by Defendant, and approve a final form of notice. These analyses follow below.

         A. Putative Collective Members Are Similarly Situated and Victims of a Single Policy Decision, Policy or Plan

         As a threshold issue, the Court must determine whether Plaintiffs and putative members of the collective held similar positions. Plaintiffs ask the Court to conditionally certify a collective comprised of all “current or former employees of the Prison between January 2013 and the present.” Pls.' Mot. 4. By their account, the putative collective members are all similarly situated for purposes of the FLSA, in that they each:

(1) held the same or substantially similar position as a guard;
(2) worked on assignment by MTC at the same exact facility;
(3) were paid on an hourly basis and treated as non-exempt in the position as guards;
(4) worked under the same managers of MTC and/or under the direction of the same staff employed by the Prison;
(5) worked the same types of work hours and shifts;
(6) worked off-the-clock time that was compensable time under the FLSA and NMMWA, and for which they were not paid; and
(7) had their attendance and hours tracked and recorded by MTC.

Id. at 4-5.[8]

         In support of these contentions, Plaintiffs attach eight declarations of current or former guards at the Prison working for hourly wages.[9] The declarations also detail that each declarant worked similar shifts, had their time tracked by MTC, worked “off the clock” time for MTC for which the declarant was not compensated, and did so with the full knowledge of their MTC supervisors.[10] Although specifics vary between the declarations, they collectively buttress Plaintiffs' allegations that they were subject to two policies potentially prohibited by the FLSA: (1) they were required to spend time on duty inside the prison, without pay, before and/or after their shift, gathering and securing equipment and passing through prison security areas; and (2) MTC utilizes a timekeeping practice known as “rounding” that may work in favor of MTC and to the detriment of the guards, thereby depriving them of lawfully compensable labor. See Pls.' Reply 2; see generally Pls.' Mot. Exs. B-I.

         Defendant challenges Plaintiffs' attempt at certification. While Defendant effectively concedes that the declarants held similar positions, it expends considerable effort attempting to disprove that Plaintiffs were together the victims of a single decision, policy, or plan. Defendant asserts that “Plaintiffs do not cite or attach any actual MTC policy, nor do they allege or establish a common employer practice.” Def.'s Resp. 3-4. To support this assertion, Defendant catalogs discrepancies between the declarations, including such minutiae as: (1) whether a shift lieutenant is present each day when the declarants end their shift, urging them to clock out before performing extra work; (2) how two declarants claimed up to seventeen minutes of unpaid pre-shift work, while later describing their pre-shift activities as being two or three minutes or more; and (3) the failure of any declarants to support the allegation, contained in the First Amended Complaint [ECF No. 3], that they were not paid for escorting prisoners to medical appointments. Id. at 4-5. Based on these inconsistencies, Defendants claim “that Plaintiffs fail to establish that they and all other potential members of the collective are similarly situated as that concept is applied under the FLSA.” Id. at 6.

         In my view, Defendant's argument misses the forest for the trees. In deciding whether to conditionally certify an FLSA collective action, the Court does not decide the merits of the underlying claims or resolve factual disputes. See Bustillos v. Bd. of Cty. Comm'rs of Hidalgo Cty., 310 F.R.D. 631, 647 (D.N.M. 2015) (citing Thiessen, 267 F.3d at 1106-07). Thus, while Plaintiffs have established, through eight separate declarations, a reasonable basis[11] for believing that the declarants and putative collective members are similarly situated, Defendant has improvidently focused on attacking Plaintiffs' claims and highlighting factual inconsistencies. Although these attacks may be effective at a later stage in the litigation, neither the claims themselves nor these factual disputes are ripe for the Court's review now. See Id. Rather, such attacks are perhaps more appropriately levied in a motion to dismiss or a motion to decertify the collective action.

         Applying only the threshold level of scrutiny appropriate to the first stage of FLSA collective action certification, the Court recommends that the presiding judge conclude that Plaintiffs have met their burden of establishing that they and other putative collective members are similarly situated insofar as they are or were guards at the Prison overseen by MTC, and through two discrete policies of MTC, may have been deprived of proper remuneration under the FLSA. The Court emphasizes that it confined its review to the lenient standard of the first or “notice” step of the “ad hoc” certification process. Generally, at this initial stage, certification is appropriate where all employees work for the same entity, at the same location, with the same job titles, performing substantially the same job duties, and are subject to the same policies and procedures. See Rodarte v. Bd. of Cty. Comm'rs of Bernalillo Cty., No. 14-CV-193 JAP/SCY, 2014 WL 10298032, at *3 (D.N.M. Oct. 20, 2014) (unpublished). Such is the case here.

         The Court's finding is supported by the recent District of New Mexico case, Bustillos v. Bd. of Cty. Comm'rs of Hidalgo Cty. (“Bustillos”). See 310 F.R.D. at 631. There, correctional officers, sergeants, and lieutenants at the Hidalgo County Detention Center, along with county dispatchers, sued Hidalgo County on numerous grounds, including FLSA violations. Id. at 637. The plaintiffs claimed Hidalgo County required them to perform preliminary and postliminary duties without pay, and moved for certification of a collective under the FLSA. See Id. After a characteristically exhaustive review of the facts and relevant case law, U.S. District Judge James Browning found it sufficient for FLSA certification that “all employees in each subclass perform substantially similar job duties at one single facility, overseen by a single administrator who implements uniform policies common to all proposed class members.” Id. at 668. Having established that the employees were similarly situated, the Court reasoned that it “should consider any further dissimilar employment settings among proposed class members at the second stage of the Tenth Circuit's two-step analysis, after completing discovery.” Id. (citing Thiessen, 267 F.3d at 1103). “At the initial stage, ” the Court opined, “the plaintiffs ‘need only show that [their] positions [are] similar, not identical to the positions held by the putative class members.'” Id. (citing Pritchard v. Dent Wizard Int'l, Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002)). Because plaintiffs had made that showing - as they have in the instant matter - Judge Browning conditionally certified the collective for FLSA purposes. The same result should obtain here.

         B. ...

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