United States District Court, M.D. Florida, Orlando Division
JOSE PEREZ, ALFREDO SANTOS, and DOUGLAS RICHEY, on behalf of themselves and others similarly situated, Plaintiffs,
OWL, INC., Defendant.
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE
cause came on for consideration, without oral argument, on
the following motions:
MOTION: PLAINTIFFS' MOTION FOR ISSUANCE OF NOTICE
PURSUANT TO § 216(b) OF THE FLSA (Doc. No. 29)
FILED: August 17, 2017 THEREON it is RECOMMENDED that
the motion be DENIED.
MOTION: PLAINTIFFS' MOTION FOR CLASS
CERTIFICATION (Doc. No. 48)
FILED: September 27, 2017 THEREON it is
RECOMMENDED that the motion be
15, 2017, Plaintiffs Jose Perez, Alfredo Santos, and Douglas
Richey (collectively, “Plaintiffs”) filed a Class
and Collective Action Complaint (the
“Complaint”). Doc. No. 1. Plaintiffs allege that
they worked as drivers for Defendant Owl, Inc., and that they
routinely worked more than forty hours a week, but were not
paid overtime in violation of the Fair Labor Standards Act
(“FLSA”). Id. at ¶ 1. They also
allege that Defendant “breached its contracts with
Plaintiffs and other drivers by failing to pay them at the
applicable prevailing wage rate for all hours worked.”
Id. at ¶ 3. Plaintiffs assert Count I under the
FLSA and label it a “Collective Action, ” and
Count II as Breach of Contract and label it a “Rule 23
Class Action.” Id. at 9-11. Plaintiffs bring
their claims on behalf of themselves and other
“similarly situated individuals, namely, all other
persons who have worked for [Defendant] as drivers
transporting patients.” Id. at ¶ 11.
is a transportation company whose largest client is the
United States Department of Veterans Affairs (the
“VA”). Doc. No. 40-1 at ¶¶ 3, 6.
Defendant provides transportation services to specific VA
hospitals and facilities, including locations in Orlando,
Daytona Beach, Viera Beach, Florida; Atlanta, Georgia;
Raleigh and Durham, North Carolina; Kansas City, Missouri;
and Richmond, Norfolk, and Hampton, Virginia. Id. at
¶ 7; Doc. No. 29-4 at ¶¶ 2, 12, 15; Doc. No.
29-6 at ¶ 3. According to the declaration of
Defendant's Chief Executive Officer and founder, Laster
Walker, each location is covered by a separate contract with
the VA, and the contracts are governed by the Service
Contract Act (the “SCA”), along with state and
federal laws. Doc. No. 40-1 at ¶ 7. The contracts
“incorporate the U.S. Department of Labor's [(the
“DOL”)] wage determinations unique to each city
or region.” Id. Walker avers that on the rare
occasions when hourly-paid drivers work over forty hours in
one week, they are paid one-and-a-half times their regular
rate for those hours. Id. at ¶ 12. He also
states, “While supervisors may work more than forty
(40) hours in a workweek, they would then work a reduced
schedule the following week. It is not accurate to say that
supervisors work more than forty (40) hours per week, every
week.” Id. at ¶ 14.
are and were drivers transporting patients for Defendant.
Doc. No. 29-1 at ¶ 2; Doc. No. 29-2 at ¶ 2.
Defendant's employees go through a ninety-day
probationary period. Doc. No. 40-1 at ¶ 10. After the
probationary period, “they may remain hourly drivers or
[are] promoted to a salaried, supervisory position.”
Id. In Florida, Defendant serves a large geographic
area where most patients prefer morning appointments, leaving
a gap between morning and afternoon “rushes.”
Id. at ¶ 13. Walker asserts that the salaried
“road supervisor” position was created “to
give more senior employees flexibility in dealing with these
surges and predictability in their weekly earnings.”
Id. Walker states that thirty to forty percent of
the Florida employees are “supervisors, ” while
“most other locations around the country have no more
than 3 to 5 supervisors total.” Id. at ¶
periods as hourly employees, Plaintiffs Santos and Richey
were switched to the road supervisor position and given an
annual salary of $26, 400. Doc. No. 29-1 at ¶¶ 3,
4; Doc. No. 29-2 at ¶¶ 3, 4. They state that their
duties were the same before and after being changed to road
supervisors. Doc. No. 29-1 at ¶ 5; Doc. No. 29-2 at
¶ 5. Those duties consisted of transporting VA patients
in a van modified to accommodate a stretcher or wheelchair.
Doc. No. 29-1 at ¶¶ 7, 8; Doc. No. 29-2 at
¶¶ 7, 8. If the patients require it, Santos and
Richey lift them “out of bed and onto a stretcher, tie
down the wheelchair or stretcher, and secure the
patient's oxygen tank or other medical equipment.”
Doc. No. 29-1 at ¶ 9; Doc. No. 29-2 at ¶ 9. Santos
and Richey are “required to clean out the van if a
patient vomits or goes to the bathroom in it.” Doc. No.
29-1 at ¶ 10; Doc. No. 29-2 at ¶ 10. Defendant
required Santos and Richey “to be trained in CPR and
how to transport the patients.” Doc. No. 29-1 at ¶
11; Doc. No. 29-2 at ¶ 11.
states that he worked as a dispatcher for a period of time
for Defendant, and one of his duties was to log the
drivers' hours. Doc. No. 29-1 at ¶¶ 12-13. Due
to this work, he learned the hours and duties of
Defendant's other drivers in Orlando. Id. at
¶ 13. The Orlando facility staffed about fifteen drivers
each day, and before August 2016, they were all road
supervisors. Id. He states that currently eight out
of the fifteen drivers are road supervisors. Id.
and Richey aver that they were required to work more than
forty hours a week, but were not paid overtime. Id.
at ¶¶ 5, 6; Doc. No. 29-2 at ¶¶ 5, 6.
Santos also states that the hourly drivers do not work
overtime. Doc. No. 29-1 at ¶ 13.
thirty of Defendant's drivers have filed notices of
opting in to this lawsuit. Doc. No. 11; Doc. No. 26; Doc. No.
28; Doc. No. 30; Doc. No. 33; Doc. No. 42; Doc. No. 59; Doc.
No. 75. They include drivers who worked in the Florida, North
Carolina, and Kansas City facilities. Doc. No. 29-3 at ¶
3; Doc. No. 29-4 at ¶ 2; Doc. No. 29-6 at ¶ 3.
Opt-in Plaintiff Seaira Bright originally worked out of the
Durham, North Carolina facility. Doc. No. 29-4 at ¶ 2.
After five months, she was labeled a road supervisor and
received a salary of $550 per week. Id. at
¶¶ 4, 6. Although she performed some office work,
the other road supervisors did not. Id. at ¶
11. Through this office work, she learned that Defendant
labels many of its Virginia drivers as road supervisors and
pays them a $26, 400 salary with no overtime. Id. at
Plaintiff Jerel Bazemore also worked out of the Durham
facility. Doc. No. 29-5 at ¶ 3. During his
probationary period, he was paid hourly. Id. at
¶ 3. Defendant then labeled him a road supervisor and
paid him a salary of $26, 400. Id. at ¶ 4. He
was switched back to an hourly employee for about eight
months, during which he states that he worked overtime but
was not paid for it. Id. at ¶ 6. He was then
switched again to the salaried road supervisor position.
Id. at ¶ 7.
Plaintiff Jean Wick worked out of the Kansas City facility.
Doc. No. 29-6 at ¶ 3. She was paid hourly and states
that she was not paid overtime. Id. at ¶¶
3, 5. She states, “There were approximately 18 other
drivers working for [Defendant] in Kansas City who were paid
on an hourly basis and they worked more than 40 hours . . .
per week without overtime pay.” Id. at ¶
Plaintiff Hans Giesler worked out of Defendant's Kansas
City, Missouri facility, also. Doc. No. 52-6 at ¶ 3.
Like Bazemore, Santos, and Richey, Giesler was paid hourly
during his probationary period, and then switched to a
salaried road supervisor position, being paid $26, 400
annually. Id. at ¶¶ 3, 4. He states that
most of the drivers in the Kansas City facility were paid per
hour, worked overtime, and “were only paid a flat
rate.” Id. at ¶ 8.
Bright, Bazemore, and Giesler also state that Defendant
“has a company-wide practice of depriving its hourly
drivers of overtime pay by carrying over overtime hours from
one week or pay period to next week or pay period.”
Doc. No. 52 at 2; Doc. No. 52-1 at ¶ 6; Doc. No. 52-4 at
¶ 4; Doc. No. 52-5 at ¶ 4; Doc. No. 52-6 at ¶
16. “[I]f a driver worked overtime during a week,
instead of paying the driver overtime, [Defendant] carried
those overtime hours over to the next week or pay period. . .
. Occasionally, the driver was not paid for those carryover
hours at all.” Doc. No. 52-1 at ¶ 6.
August 17, 2017, Plaintiffs filed their “Motion for
Issuance of Notice Pursuant to § 216(b) of the
FLSA” (the “Motion for Issuance of
Notice”). Doc. No. 29. They ask the Court to
“authorize notice to be issued to all similarly
situated employees so that they may opt in to join this
lawsuit.” Id. at 2. They seek this relief
under Count I, their claim for violations of the FLSA.
Id. On September 13, 2017, Defendant filed its
“Brief in Opposition to Plaintiffs' Motion for
Issuance of Notice Under 29 U.S.C. §216(b).” Doc.
No. 40. On October 4, 2017, with the Court's
authorization, Plaintiffs filed their reply to
Defendant's response. Doc. No. 47; Doc. No. 52.
September 27, 2017, Plaintiffs filed their “Motion for
Class Certification.” Doc. No. 48. They seek class
certification as to Count II of their Complaint for breach of
contract. Id. at 2. On October 11, 2017,
Defendant filed its “Opposition to Plaintiffs'
Motion for Rule 23 Class Certification.” Doc. No. 54.
Once again pursuant to Court authorization, on October 20,
2017, Plaintiffs filed their “Reply in Support of
Motion for Class Certification.” Doc. No. 56; Doc. No.
November 3, 2017, Plaintiff filed a “Supplement in
Support of Plaintiffs' Motion for Issuance of Notice
Pursuant to § 216(B) of the FLSA.” Doc. No. 61.
The Court denied Defendant's motion to strike the
Supplement, but permitted Defendant to file a response to it.
Doc. No. 63; Doc. No. 67. On December 5, 2017, Defendant
filed its “Response to Plaintiffs' Supplemental
Brief.” Doc. No. 68.
Motion for Issuance of Notice and the Motion for Class
Certification are now ready for review. Plaintiffs ask for
oral argument on their Motion for Issuance of Notice. Doc.
No. 29 at 18. Oral argument would not assist the Court in its
determination of the issues; therefore, the request is
MOTION FOR ISSUANCE OF NOTICE.
Motion for Issuance of Notice, Plaintiffs seek relief under
29 U.S.C. § 216(b) of the FLSA and ask the Court to do
[O]rder that notice of this case be issued to all individuals
who were employed as drivers by [Defendant] who did not
receive overtime pay despite working more than 40 hours a
week, including drivers [Defendant] labeled as “road
supervisors, ” since June 15, 2014. Furthermore,
Plaintiffs request that the Court approve the proposed Notice
and Opt-in forms . . . attached hereto as Exhibits G and H;
order that notice be issued by regular and electronic mail;
set an opt-in deadline of 90 days after the notices are
issued; allow for a reminder notice to be sent out 45 days
into the opt-in period; and enter the Proposed Order attached
as Ex. M.
Doc. No. 29 at 17-18.
is a two-step procedure for whether a FLSA collective action
should be certified: 1) the notice stage; and 2) the
decertification stage. Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). The Motion
for Issuance of Notice falls under the notice stage. The
notice stage is when “a district court determines
whether other similarly situated employees should be
notice stage, “[a] plaintiff has the burden of showing
a ‘reasonable basis' for his claim that there are
other similarly situated employees.” Id.
(quoting Anderson v. Cagle's, Inc., 488 F.3d
945, 952 (11th Cir. 2007)). The standard for determining
similarity at the notice stage is fairly lenient, not
particularly stringent, and not heavy. Id. at 1261.
addition to determining whether there are similarly situated
employees to the plaintiff, the court must also
“satisfy itself that there are other employees of the
department-employer who desire to ‘opt-in' . . .
.” Dybach v. State of Fla. Dep't of Corr.,
942 F.2d 1562, 1567-68 (11th Cir. 1991).
Other employees ...