United States District Court, S.D. Florida
MATTHEW DEAN, on behalf of himself and others similarly situated, Plaintiffs,
W. AVIATION, LLC, Defendant.
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Plaintiff's
Motion to Conditionally Certify Collective Action and
Facilitate Notice to Potential Class Members, ECF No. .
The Court has carefully reviewed the Motion, the opposing and
supporting briefs, the applicable law, and is otherwise fully
advised. For the reasons stated below, the Motion is granted
in part and denied in part.
filed a Complaint on behalf of himself and on behalf of
others similarly situated under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 216(b), on November
20, 2017. ECF No. . Plaintiff, Matthew Dean
(“Plaintiff”), alleges he and other similarly
situated individuals were hourly employees of Defendant W.
Aviation LLC (“Defendant”) who regularly worked
in excess of 40 hours per week. Id. ¶¶
10-11. Plaintiff also alleges that he and others similarly
situated performed non-exempt work that required the payment
of overtime compensation. Id. at ¶ 14. In the
Complaint, Plaintiff seeks to conditionally certify a class
of employees defined as “hourly employees who worked
for Defendant at any time during the last three (3) years,
and who were subjected to Defendant's common scheme of
altering, deleting, and modifying time records of employees
to avoid the payment of overtime compensation under the
FLSA.” Id. at ¶ 19.
Motion, Plaintiff now seeks to certify a slightly different
class of individuals as follows: “All hourly paid
‘Line Service Technicians' of Defendant, W.
AVIATION, LLC, at any time during the last three (3) years,
who were not paid full and proper overtime compensation for
all hours worked over forty (40) in one or more
workweeks.” See ECF No.  at 1. Defendant
does not oppose Plaintiff's request for conditional
certification of this new proposed class. Instead, Defendant
objects to the form of Plaintiff's proposed “Notice
of Pending Overtime Collective Action Lawsuit”
(“Notice”) and the proposed “Consent to
Join Collective Action and Be Represented by Richard Celler
Legal, P.A.” (“Consent”) attached to the
Motion. See ECF No. . Plaintiff has since
responded to Defendant's objections in his Reply.
See ECF No. . The Motion is now ripe for review.
FLSA provides that a plaintiff can bring a collective action
on behalf of similarly situated employees who opt-in. 29
U.S.C. § 216(b); see also Anderson v. Cagle's,
Inc., 488 F.3d 945, 950 n.3 (11th Cir. 2007). District
courts have discretion to permit notice to other potential
members of the plaintiff class, and “before determining
to exercise such power the district court should satisfy
itself that there are other employees of the
department-employer who desire to ‘opt-in' and who
are ‘similarly situated' with respect to their job
requirements and with regard to their pay provisions.”
Dybach v. State of Fla. Dept. of Corr., 942 F.2d
1562, 1567-68 (11th Cir. 1991). While “similarly
situated” is not defined by the FLSA, the Eleventh
Circuit has held that a finding that the employees are
“similarly situated” does not require that the
potential members of the collective action hold identical
positions. Grayson v. K Mart Corp., 79 F.3d 1086,
1096 (11th Cir. 1996).
apply a “two-tiered procedure that recognizes distinct
burdens at different stages of the litigation process.”
Peña v. Handy Wash, Inc., 28 F.Supp.3d 1289,
1296 (S.D. Fla. 2014), as amended (July 3, 2014),
class decertified, No. 14-20352-CIV, 2015 WL
11713032, at *1 (S.D. Fla. May 22, 2015) (citing
Cameron-Grant v. Maxim Healthcare Servs., Inc., 347
F.3d 1240, 1243 n. 2 (11th Cir. 2003)). In the initial stage,
the district court evaluates certification under a lenient
standard for the purposes of notifying potential opt-in
plaintiffs of their right to participate in the
proceedings. Hipp v. Liberty Nat. Life Ins. Co., 252
F.3d 1208, 1219 (11th Cir. 2001); see also
Albritton., 508 F.3d at 1014. “If the district
court ‘conditionally certifies' the class, putative
class members are given notice and the opportunity to
‘opt-in.' The action proceeds as a representative
action throughout discovery.” Cameron-Grant,
347 F.3d at 1243. Because the FLSA requires potential class
members to affirmatively opt-in, the “benefits of a
collective action depend on employees receiving accurate and
timely notice . . . so that they can make informed decisions
about whether to participate.” Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir.
2008) (quoting Hoffmann-La Roche, Inc. v. Sperling,
493 U.S. 165, 170 (1989)) (internal quotation marks omitted).
Through this lens, the Court analyses Plaintiff's Motion.
Evidence Employees Desire to Opt In
must first show a reasonable basis for the existence of other
potential opt-in plaintiffs. “The existence of just one
other co-worker who desires to join in is sufficient to raise
the plaintiff's contention beyond one of pure speculation
. . . . Courts in this district have conditionally certified
classes with as few as two affidavits from potential
plaintiffs.” Rojas v. Garda CL Se., Inc., 297
F.R.D. 669, 677 (S.D. Fla. 2013). “On the other hand,
when plaintiffs provide no evidence in support of the
existence of other employees who wish to opt in or when the
only evidence is an unsworn statement from the
plaintiffs' counsel . . . conditional certification is
not proper.” Id. (citing Williams v.
Imperial Hospitality Grp., Inc., No. 10-60835-CIV, 2010
WL 3943590, at *2 (S.D. Fla. 2010); Davis v. Charoen
Pokphand (USA), Inc., 303 F.Supp.2d 1272, 1277 (M.D.
two employees, Vinson Armstrong and Carlos Jaramillo, in
addition to Plaintiff, have filed notices of their consent to
join as plaintiffs, see ECF Nos. [10-1] and [19-1],
and Plaintiff has provided an affidavit with the Motion
indicating personal knowledge of additional employees
interested in joining this action. ECF No. [11-1] at
¶12-13. With this evidence, Plaintiff has, at this
stage, met his burden to demonstrate the existence of
additional opt-in plaintiffs.
The Opt-in Employees Are Similarly Situated
the ‘similarly-situated' requirement, courts
commonly consider five factors at the
conditional-certification stage: (1) whether plaintiffs held
the same job title; (2) whether they worked in the same
geographic location; (3) whether the alleged violations
occurred during the same time period; (4) whether plaintiffs
were subjected to the same policies and practices, and
whether the policies and practices were established in the
same manner and by the same decision maker; and (5) the
degree to which the actions constituting the claimed
violations are similar.” Peña, 28
F.Supp.3d at 1296. In their declarations, Plaintiff and Mr.
Armstrong assert that they currently work or worked for
Defendant as Line Service Technicians at the Fort Lauderdale
Executive Airport and were responsible for cleaning,
stocking, assisting flight attendants with preparation of the
cabins of charter airplanes for takeoff, helping passengers
with their luggage, assisting with customer service
inquiries, and fueling and towing aircraft on the runway.
See ECF No. [11-1] at ¶¶ 4-6; ECF No.
[11-2] at ¶¶ 4-6. Plaintiff has worked for
Defendant from July of 2016 through the present while
Armstrong worked for Defendant from March of 2016 until March
of 2017. See ECF No. [11-1] at ¶ 3; ECF No.
[11-2] at ¶ 3. In addition, they state that there are
numerous employees like them who performed the same or
substantially similar duties and were paid hourly.
Id. With regard to the alleged FLSA violations, both
Plaintiff and Mr. Armstrong state that their manager engaged
in a practice of deleting their overtime hours on their time
sheets, which reduced the amount of overtime ...