United States District Court, N.D. Georgia, Atlanta Division
BRADLEY ALBERT and PATRICK KNIERY, individually and on behalf of all others similarly situated, Plaintiffs,
HGS COLIBRIUM, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs Bradley Albert
(“Albert”) and Patrick Kniery's
(“Kniery”) (together, “Plaintiffs”)
Motion for Conditional Certification .
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.
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”).
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).
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).
August 22, 2016, Plaintiffs filed their Complaint . In
response to Defendant's Motion to Dismiss , on
December 19, 2016, Plaintiffs filed their Amended Complaint
. Plaintiffs assert a claim against Defendants for
willful failure to pay overtime, in violation of Section 207
of the FLSA. 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,  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).
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.
Legal Standard to Conditionally Certify a Collective
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”
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.
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).
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).
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.
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
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 ...