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Albert v. HGS Colibrium

United States District Court, N.D. Georgia, Atlanta Division

May 3, 2017

BRADLEY ALBERT and PATRICK KNIERY, individually and on behalf of all others similarly situated, Plaintiffs,



         This matter is before the Court on Plaintiffs Bradley Albert (“Albert”) and Patrick Kniery's (“Kniery”) (together, “Plaintiffs”) Motion for Conditional Certification [29].

         I. BACKGROUND

         This is a putative collective action brought by Plaintiffs against their former employer, HGS Colibrium (“Colibrium” or “Defendant”). Plaintiffs claim Defendants failed to pay overtime compensation to Plaintiffs for hours worked in excess of forty (40) hours per week, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

         To support their Motion for Conditional Certification, Plaintiffs submit their individual declarations and the declarations of two opt-in plaintiffs, Rita Lacey (“Lacey”) and Scott Kuechenmeister (“Kuechenmeister”) (together, “Opt-in Plaintiffs”) (collectively, “Declarants”).

         Defendant is a technology services company that, among other things, markets health insurance products. (Am. Compl. ¶ 9; Boone Decl. [32.1] ¶ 5). Plaintiffs were employed by Defendant at its Roswell, Georgia, facility, from September 2014 to February 2015. (Albert Decl. ¶ 2; Kniery Decl. ¶ 2). Opt-in Plaintiffs Lacey and Kuechenmeister were employed at the Roswell facility from September 2014 to March 2015, and October 2014 to February 2015, respectively. (Lacey Decl. ¶ 2; Kuechenmeister Decl. ¶ 2). Declarants worked as Sales Representatives (“SR”) and were paid on an hourly basis. (Albert Decl. ¶¶ 2-3; Kniery Decl. ¶¶ 2-3; Lacey Decl. ¶¶ 2-3; Kuechenmeister Decl. ¶¶ 2-3). Declarants' primary job duties included “selling health insurance policies to persons residing in Colorado” and “obtain[ing] the renewal of health insurance policies” “on behalf of defendant's client, Colorado HealthOp.” (Id. ¶ 4). Declarants were supervised by team leaders, who reported to Manager Sharon Boone. (Id. ¶ 20).

         Declarants claim that Defendant required all SRs to perform work off-the-clock for which they were not fully compensated. (Id. ¶ 22). Declarants assert that their duties routinely required them to work more than eight hours per day and over forty hours per week, and their supervisors observed them working in excess of forty hours per week. (Id. ¶¶ 13, 15). Declarants state that they clocked-in at the beginning of their shifts, and their supervisors directed them to log out each day before eight hours had passed, regardless of whether they had completed their work. (Id. ¶¶ 14, 22). Declarants claim that, when they did not log out and continued to work more than eight hours, their managers would change the time records to reflect that they had not worked over forty hours in a week. (Id.). Declarants estimate that they worked approximately forty-eight (48) hours per week, but were not paid for the overtime work they performed. (Id. ¶¶ 9, 11).

         On August 22, 2016, Plaintiffs filed their Complaint [1]. In response to Defendant's Motion to Dismiss [10], on December 19, 2016, Plaintiffs filed their Amended Complaint [21]. Plaintiffs assert a claim against Defendants for willful failure to pay overtime, in violation of Section 207 of the FLSA.[1] Plaintiffs seek to represent:

All persons employed by Colibrium as non-exempt sales representatives at its Roswell, Georgia facility who sold or renewed policies for Colorado HealthOp between September 1, 2014 and [March 31, 2015, [2] and who were (a) not paid for all work performed while clocked-in; (b) were not paid for all work performed while off-the-clock; and (c) were not compensated for time worked over forty hours per week at overtime rates.

(Am. Compl. ¶ 54).

         On February 7, 2017, Plaintiffs moved to conditionally certify the class. Plaintiffs also seek an order requiring Defendant to produce the names and contact information of potential class members, and that the Court authorize Plaintiffs' proposed Notice of Lawsuit (“Notice”) [29.6]. Defendant opposes conditional certification.


         A. Legal Standard to Conditionally Certify a Collective Action

         The FLSA requires covered employers to pay non-exempt employees who work more than forty hours in a week an overtime rate of one and one-half times the employee's regular pay rate for all hours worked that exceed forty. 29 U.S.C. § 207(a). Section 216(b) imposes liability on employers for violations of Section 207 and authorizes employees to bring lawsuits to recover that liability. Employees may sue individually or they may bring a collective action on behalf of themselves and other “similarly situated” employees:

An action . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. 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.

Id. § 216(b). A collective action under Section 216(b) requires potential plaintiffs to affirmatively opt into the lawsuit. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001). “The decision to create an opt-in class under § 216(b) . . . remains soundly within the discretion of the district court.” Id. at 1219.[3]

         The Eleventh Circuit sets out a two-step process to certify a collective action under Section 216(b). Id. In the initial, so-called “notice stage, ” the question is whether notice of the action should be given to potential class members. Id. at 1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir. 1995)). Relying on the pleadings and affidavits submitted by the parties, the Court applies a “fairly lenient standard” that “typically results in ‘conditional certification' of a representative class.” Id. (quoting Mooney, 54 F.3d at 1213-14). Whether notice shall be given also focuses on whether there are other employees who would desire to opt-in, and who are “similarly situated” to plaintiffs. See Dyback v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991). Plaintiffs must show there are other employees who wish to opt in and that these other employees are similarly situated. See Delano v. MasTec, Inc., No. 8:10-cv-320-T-27MAP, 2011 WL 2173864, at *4 (M.D. Fla. June 2, 2011). If the Court conditionally certifies a class, potential class members receive notice and an opportunity to opt into the class and the parties complete discovery. Hipp, 252 F.3d at 1218 (quoting Mooney, 54 F.3d at 1213-14).

         The second stage is optional and usually occurs if the defendant moves for “decertification” after the completion of all or most discovery in the case. Hipp, 252 F.3d at 1218 (quoting Mooney, 54 F.3d at 1213-14). Based on the more extensive factual record, the court makes a factual determination whether claimants are similarly situated. Id. (quoting Mooney, 54 F.3d at 1213-14). If they are, the collective action proceeds on the merits. If not, the court decertifies the class, the opt-in plaintiffs are dismissed without prejudice, and the original plaintiffs proceed on their individual claims. Id. (quoting Mooney, 54 F.3d at 1213-14).

         B. Analysis

         The Court here considers whether conditional certification is appropriate. In doing so, the Court must determine if there are other employees who desire to opt-in, and who are “similarly situated” to the plaintiff. See Dyback v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991). Two individuals have already opted into this litigation. This shows that former employees seek to be members of a collective action, and the desire to opt-in criteria is met.

         Plaintiffs next bear the burden of demonstrating a reasonable basis to conclude that they are similarly situated to the members of the proposed collective action. Cf. Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996). Plaintiffs “may meet this burden, which is not heavy, by making substantial allegations of class-wide discrimination, that is, detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary.” Id.

         Plaintiffs are, at this stage, required only to show that they and the potential class members are similarly, not identically, situated. Id. at 1096. They are not required to show they were subjected to a common or unified policy, plan or scheme, see Id. at 1095, although this is a common and effective way to satisfy the “similarly situated” requirement. Plaintiffs “must [at least] make some rudimentary showing of commonality between the basis for [their] claims and that of the potential claims of the proposed class, beyond the mere facts of job duties and pay provisions.” Scott v. Heartland Home Fin., Inc., No. 1:05-cv-2812-TWT, 2006 WL 1209813, at *6 (N.D.Ga. May 3, 2006) (quoting Marsh v. Butler Cnty. Sch. Sys., 242 F.Supp.2d 1086, 1093 (M.D. Ala. 2003)); see also Barron v. Henry Cnty. Sch. Sys., 242 F.Supp.2d 1096, 1103 (M.D. Ala. 2003) (“[W]hile a unified policy, plan or scheme of discrimination may not be required to satisfy the more liberal similarly situated requirement, some identifiable facts or legal nexus must bind the claims so that hearing the cases together promotes judicial efficiency.”). Plaintiffs seek to represent Sales Representatives employed by Colibrium at its ...

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