United States District Court, W.D. North Carolina, Statesville Division
GREG DEARMAN on behalf of himself and all others similarly situated, Plaintiffs,
COLLEGIATE HOUSING SERVICES, INC., Defendant.
J. Conrad, Jr. United States District Judge
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
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).
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. ¶
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).
FLSA CONDITIONAL CERTIFICATION STANDARD
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.
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
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.
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.