United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
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. 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.
FACTUAL AND PROCEDURAL BACKGROUND
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. Id. On January 22, 2016,
Plaintiffs filed this action 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). 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.
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.
the instant Motion, Plaintiffs seek conditional certification
of a collective action under 29 U.S.C. §
216(b) for Defendant's alleged violations of
29 U.S.C. § 207. 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.
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,
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.
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.
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).
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).
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.
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.
Putative Collective Members Are Similarly Situated and
Victims of a Single Policy Decision, Policy or Plan
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
(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
Id. at 4-5.
support of these contentions, Plaintiffs attach eight
declarations of current or former guards at the Prison
working for hourly wages. 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. 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.
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.
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 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
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.
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.