United States District Court, E.D. North Carolina, Southern Division
RUBY SHEFFIELD, individually and on behalf of all others similarly situated, Plaintiff,
BB&T CORPORATION, BRANCH BANKING AND TRUST COMPANY, and DOES 1-10, Defendants.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on plaintiffs motion for
conditional class certification and Court supervised notice
under 29 U.S.C. § 216(b). Defendants have responded,
plaintiff has replied, and the matter is ripe for ruling. For
the reasons that follow, plaintiffs motion is granted.
is a former employee of defendant BB&T, which is in part
a commercial bank organized under the laws of North Carolina,
who was assigned to work as a special assets collection
representative at BB&T's call center facility located
in Lumberton, North Carolina. Plaintiff alleges that BB&T
employed more than 100 collection or customer service
representatives at its Lumberton call center. Plaintiff
further alleges that BB&T required its call center
employees to report to their workstations ten minutes prior
to beginning their shifts in order to start and login to
their computers and computer programs and applications, but
were not compensated for this time. Plaintiff alleges that as
a result, plaintiff and other call center employees were
scheduled to work more than forty-hours per week and were not
paid for overtime.
FLSA expressly allows employees to maintain a collective
action for, inter alia, "unpaid minimum wages,
or their unpaid overtime compensation." 29 U.S.C. §
216(b). To bring a collective action under the FLSA, the
putative plaintiffs must satisfy two requirements: (1) they
must establish they are "similarly situated, " and
(2), they must affirmatively consent to the named plaintiffs
class representation. Id. As to the question of
whether the putative plaintiffs are "similarly situated,
" the Court applies a two-step approach. See
Cameron-Grant v. Maxim Health Care Servs., Inc., 347
F.3d 1240, 1243 (11th Cir. 2003).
first, "notice" stage of the process, the Court
determines whether the plaintiff and potential opt-in
plaintiffs are sufficiently "similarly situated" to
warrant notice being given to allow potential plaintiffs to
opt-in and to proceed as a collective action through
discovery; at this initial stage, a lenient standard applies.
McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465,
469 (E.D. N.C. 2010). A plaintiff must establish "a
modest factual showing sufficient to demonstrate that they
and potential plaintiffs together were victims of a common
policy or plan that violated the law." Patton v.
Thomson Corp., 364 F.Supp.2d 263, 267 (E.D.N.Y Apr. 5,
2005)) (citations omitted). If the Court finds plaintiff and
potential opt-in plaintiffs sufficiently similarly situated
to warrant issuing notice of the collective action, the Court
will conditionally certify the collective action.
second stage of collective action certification is triggered
later. The Eleventh Circuit Court of Appeals described the
second stage of the two-stage approach as follows:
The second determination is typically precipitated by a
motion for "decertification" by the defendant
usually filed after discovery is largely complete and the
matter is ready for trial. At this stage, the court has much
more information on which to base its decision, and makes a
factual determination on the similarly situated question. If
the claimants are similarly situated, the district court
allows the representative action to proceed to trial. If the
claimants are not similarly situated, the district court
decertifies the class, and the opt-in plaintiffs are
dismissed without prejudice. The class representatives-i. e.
the original plaintiffs-proceed to trial on their individual
Hipp v. Liberty Nat'l Life Ins. Co.,
252 F.3d 1208, 1218(11th Cir. 2001) (quoting Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)
(internal footnote omitted)).
do not challenge plaintiffs assertion that she and the other
call center employees at the Lumberton facility are similarly
situated for purposes of conditional certification. Further,
plaintiff and defendants have conferred and stipulated to the
form of the Notice and Consent to Sue forms, and have also
agreed that the statute of limitations on the notice should
reference three years prior to the date the court-ordered
notice is sent. The Court, having conducted its own review,
agrees that plaintiff and the putative class members are
similarly situated for purposes of conditional certification.
Accordingly, plaintiffs motion to conditionally certify class
is GRANTED and the class is hereby defined as:
All Collections Representatives I and II employed by Branch
Banking and Trust Company, its subsidiaries, or other related
entities at its Lumberton, North Carolina call center, who
were not paid for the overtime hours they worked
off-the-clock prior to the start of their shifts from [three
years prior to the date court-ordered notice is sent] through
completion of this litigation.
Court further agrees that the notice and forms submitted by
the parties are appropriate. The sole remaining question for
the Court is whether to permit the potential opt-in class
members to be contacted at their personal email address, if
defendants have retained such information. The Court finds
any burden on defendants to produce such information to be
minimal and that inclusion of email correspondence to
potential opt-in class members will assist in furthering the
purposes of the FLSA. Accordingly, plaintiff's request to
serve notice of this lawsuit on putative class members by
personal email is allowed. Defendants ...