United States District Court, S.D. Florida, Miami Division
GUILLERMO PINA, on behalf of himself and all others similarly situated, Plaintiff,
FEDEX FREIGHT, INC., Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR CONDITIONAL
CERTIFICATION AND FACILITATION OF COURT-AUTHORIZED
FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court upon Plaintiffs Motion for
Conditional Certification and Facilitation of
Court-Authorized Notice (D.E. No. 13), filed on February 23,
2018. Plaintiff Guillermo Pina filed this motion to
conditionally certify the present case as a collective action
under the Fair Labor Standards Act. Defendant FedEx Freight
responded in opposition, contending Pina has failed to show
that (i) he is similarly situated to the purported class, and
(ii) that other employees within the purported class wish to
join the suit. The Court agrees with FedEx Freight and
therefore denies Pina's motion for conditional
FedEx Freight employed Plaintiff Guillermo Pina as an
Operations Supervisor from October 13, 2009 to September 27,
2017. Pina brought this suit against his former employer
alleging that it denied him proper overtime compensation for
workweeks longer than forty hours in violation of the Fair
Labor Standards Act.
present motion, Pina seeks certification of the case as a
collective action under the Fair Labor Standards Act.
Specifically, he wishes to sue on behalf of anyone who, like
himself, worked as an Operations Supervisor for FedEx Freight
during the three years prior to the initiation of this
action. However, FedEx Freight contends that Pina's
allegations are deficient and do not merit conditional
Fair Labor Standards Act permits collective actions against
employers for violations of the statute. In particular, 29
U.S.C. § 216(b) states that "[a]n action . . . may
be maintained against any employer ... by any one or more
employees for and on behalf of himself or themselves and
other employees similarly situated." 29 U.S.C. §
216(b) (2012). Yet § 216(b) requires that all similarly
situated employees affirmatively opt into the suit before
becoming party plaintiffs. See Id. ("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
employ a two-step procedure when determining whether to
certify a class under the Fair Labor Standards Act. The
initial step, and the step at issue in the present matter, is
known as conditional certification. See Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir.
2008). During this stage, the court has the authority to
decide whether it should notify other similarly situated
persons. See Chung v. Affordable Battery, Inc., No.
12-60612- CIV-COHN/SELTZER, 2012 WL 3759029, at *1 (S.D. Fla.
Aug. 29, 2012). In making this decision, the court must first
"satisfy itself that there are other employees . . . who
desire to 'opt-in' and who are 'similarly
situated' with respect to their job requirements and with
regard to their pay provisions." Id. (quoting
Dybach v. State of Fla. Dep't of Corr., 942 F.2d
1562, 1567-68 (11th Cir. 1991)).
demonstrate both aspects of this initial inquiry, the
plaintiff has the burden of showing "a 'reasonable
basis' for his claim that there are other similarly
situated employees." Morgan, 551 F.3d at 1260.
Though the court applies a "lenient standard" at
this initial stage, "a plaintiff cannot rely on
speculative, vague, or conclusory allegations."
Chung, 2012 WL 3759029, at *1. At the very least, a
plaintiff must offer "more than 'only counsel's
unsupported assertions that FLSA violations [are] widespread
and that additional plaintiffs would come from other
[locations].'" Morgan, 551 F.3d at 1261
(quoting Haynes v. Singer Co., 696 F.2d 884, 887
(11th Cir. 1983)).
the Court concludes that Pina has failed to meet his burden
as to both Dybach requirements. Dybach, 942
F.2d at 1567-68. Pina asserts that the proposed class
consists of Operations Supervisors who "were similarly
situated in that they performed similar duties, were
misclassified as 'exempt, ' and were paid 'half
time' for all hours worked between [40 and 65] each
week." Yet, he provides only vague and conclusory
assertions regarding how these employees are similarly
situated. Such cursory allegations that "Plaintiff and
other Operations Supervisors . . .performed similar
duties" including "dispatching work" and
"warehouse activities associated with outbound
parcels" fall well short of the requisite showing to
support conditional certification under the Fair Labor
Standards Act. See Rife v. Fronton Holdings, LLC,
219 F.Supp.3d 1256, 1262 (S.D. Fla. 2016) (holding that
"a showing of similarity requires more than generalized
Pina fails to demonstrate that other similarly situated
employees desire to opt into the suit. Here too, he
"cannot rely on speculative, vague, or conclusory
allegations." Alvarez v. Sun Commodities, Inc.,
No. 12-60398-CIV, 2012 WL 2344577, at *2 (S.D. Fla. June 20,
2012). Pina's boilerplate statements that other employees
"were not properly paid" and "would likely
benefit from this claim" do not satisfy the Eleventh
Circuit's standard requiring a plaintiff to show that
"there are other employees . . . who desire to
'opt-in . . . ." Dybach, 942 F.2d at
1567-68. "The mere anticipation that others may want to
join the lawsuit ... is insufficient by itself."
Kubiak v. S.W. Cowboy, Inc., No.
312-CV-1306-J-34JRK, 2014 WL 2625181, at *8 (M.D. Fla. June
12, 2014) (citing Guerra v. Big Johnson Concrete Pumping,
Inc., No. 05-14237-CIV, 2006 WL 2290512, at *4 (S.D.
Fla. May 17, 2006). Because Pina has failed to show that
other similarly situated employees want to opt into the suit,
conditional certification is not appropriate.
explained above, Pina has failed to show that the purported
class consists of similarly situated employees who desire to
join the suit. Accordingly, it is ADJUDGED that ...