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Dearman v. Collegiate Housing Services, Inc.

United States District Court, W.D. North Carolina, Statesville Division

March 29, 2018

GREG DEARMAN on behalf of himself and all others similarly situated, Plaintiffs,


          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER comes before the Court on Greg Dearman's (“Plaintiff”) Motion to Certify Class Conditionally as a Collective Action and Facilitate Notice Under Section 216(b) of the Fair Labor Standards Act, (“Motion to Conditionally Certify”), (Doc. No. 15); his memorandum in support, (Doc. No. 16); Collegiate Housing Services, Inc.'s (“Defendant”) Response, (Doc. No. 17); and Plaintiff's Reply, (Doc. No. 18). Plaintiff's motion is ripe and ready for adjudication.

         I. BACKGROUND

         Defendant, a foreign corporation registered to do business in North Carolina, provides and manages student housing to educational facilities across 20 states. (Doc. No. 16 at 2). Defendant employed Plaintiff as an inspector from August, 2010 to March 2017. (Doc. No. 1 ¶ 3). As a housing inspector, Plaintiff inspected student housing units to ensure compliance with Defendant's internal rules and regulations. (Id. ¶ 15). These duties included monthly inspections of residences, move-in and move-out inspections, and inspections of contracted work on units, such as painting, repairs, or cleaning. (Doc. No. 16 at 2-3). Plaintiff was also required to be “on-call” during evenings to answer emergency telephone calls. (Doc. No. 1 ¶ 22). Since he began working for Defendant, Plaintiff claims to have regularly worked in excess of 40 hours a week. (Id. ¶ 18). Originally, Plaintiff did not record his hours of work because Defendant paid him on a salary basis. (Id. ¶¶ 17, 20). However, in late 2016, Defendant began paying inspectors like Plaintiff on an hourly basis. (Id. ¶ 17).

         Plaintiff filed suit before this Court on March 17, 2017. (Doc. No. 1). In his Complaint, Plaintiff alleges that, since converting his pay to an hourly basis, Defendant implemented a “no overtime” rule for inspectors. (Id. ¶ 21). Defendant implemented this rule, Plaintiff states, without reducing the duties and responsibilities for inspectors, even though Defendant was aware that inspectors worked in excess of 40 hours a week. (Id. ¶¶ 21-22). Plaintiff states that he continued to work throughout his evenings, weekends, and scheduled meal breaks due to the expectations Defendant placed on him. (Id. ¶¶ 22-24). As a result, Plaintiff's Complaint alleges a Section 216(b) The Fair Labor Standards Act (“FLSA”) claim on behalf of himself and those housing inspectors similarly situated. (Id. ¶ 27). Plaintiff seeks redress for Defendant's allegedly willful refrain from paying overtime wages for housing inspectors. (Id. ¶ 31).

         To support his claim, Plaintiff argues that other housing inspectors working for Defendant experienced similar working conditions across multiple states. (Doc. No. 16 at 4). All housing inspectors perform the same basic duties and regularly worked over 40 hours a week, Plaintiff states. (Doc. No. 1 ¶¶33-34). Plaintiff alleges that due to Defendant's centralized “no-overtime” policy, all housing inspectors were therefore damaged. Plaintiff now asks the Court to conditionally certify a collective action so that notice may be facilitated pursuant to the FLSA and potential plaintiffs can receive the chance to “opt in” to the current action. (Doc. No. 16).


         The FLSA, 29 U.S.C. § 201 et seq., “embodies a federal legislative scheme to protect covered employees from prohibited employer conduct.” Houston v. URS Corp., 591 F.Supp.2d 827, 831 (E.D.Va. 2008). The FLSA allows a plaintiff alleging a violation of the statute to bring suit on his own behalf or on behalf of other employees who are similarly situated. 29 U.S.C. § 216(b). Section 216(b) of the FLSA expressly provides for the procedure for collective actions as follows:

An action to recover the liability prescribed [under the FLSA] may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. 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 brought.

Id. Thus, there are two general requirements for the certification of a FLSA collective action: (1) the members of the proposed class must be “similarly situated, ” and (2) the class members must “opt-in” by filing their consent to suit. Id.; see also Romero v. Mountaire Farms, Inc., 796 F.Supp.2d 700, 705 (E.D. N.C. 2011).

         The term “similarly situated” is not defined in the FLSA and the Fourth Circuit has not provided guidance on how “similarly situated” requirement of § 216(b) should be applied. Holland v. Fulenwider Enterprises, Inc., No. 1:17-CV-48, 2018 WL 700801, at *2 (W.D. N.C. Feb. 2, 2018). However, federal district courts in the Fourth Circuit typically follow a two-step approach when deciding whether the named plaintiffs are similarly situated to potential plaintiffs for the purposes of certifying the collective action. See, e.g., Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 566 (D.Md. 2012); Romero, 796 F.Supp.2d at 705; Choimbol v. Fairfield Resorts, Inc., 475 F.Supp.2d 557, 562-63 (E.D.Va. 2006).

         At the first stage, the court makes a preliminary determination whether to conditionally certify the class based upon the limited record before the court. Romero, 796 F.Supp.2d at 705. “Consistent with the underlying purpose of the FLSA's collective action procedure, this initial inquiry proceeds under a ‘fairly lenient standard' and requires only ‘minimal evidence.' ” Id. (quoting Choimbol, 475 F.Supp.2d at 562); see also Romero, 796 F.Supp.2d at 705 (“The standard for conditional certification is fairly lenient and requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.”) (quotation omitted). The primary focus in this inquiry is whether the potential plaintiffs are “similarly situated with respect to the legal and, to a lesser extent, the factual issues to be determined.” De Luna-Guerrero v. The North Carolina Grower's Assoc., 338 F.Supp.2d 649, 654 (E.D. N.C. 2004) (quoting Ellen C. Kearns, The Fair Labor Standards Act, § 18.IV.D.3, at 1167 (1999)). Once conditionally certified, the court may authorize plaintiffs' counsel to provide the putative class members with notice of the lawsuit and their right to opt-in. Romero, 796 F.Supp.2d at 705.

         After discovery is virtually complete, and if the defendant files a motion for decertification, the court proceeds to stage two. Choimbol, 475 F.Supp.2d at 563. At this stage of the litigation, courts apply a heightened, more fact-specific standard to the “similarly situated” analysis. Id. Once plaintiffs establish the burden of proving that they are “similarly situated, ” the collective action may proceed to trial. Id. Otherwise, if the court determines that the plaintiffs are not “similarly situated, ” the class is decertified. Id. The original plaintiffs may then proceed on their individual claims. Id.

         III. ...

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