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Dean v. W. Aviation, LLC

United States District Court, S.D. Florida

February 28, 2018

MATTHEW DEAN, on behalf of himself and others similarly situated, Plaintiffs,
W. AVIATION, LLC, Defendant.



         THIS CAUSE is before the Court upon Plaintiff's Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members, ECF No. [11]. 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.

         I. Background

         Plaintiff 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. [1]. 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.

         In the 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. [11] 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. [37]. Plaintiff has since responded to Defendant's objections in his Reply. See ECF No. [44]. The Motion is now ripe for review.

         II. Legal Standard

         The 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).

         Courts 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.

         III. Analysis

         A. Evidence Employees Desire to Opt In

         Plaintiff 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. Ala. 2004)).

         Here, 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.

         B. The Opt-in Employees Are Similarly Situated

         “Regarding 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 ...

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