United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court on Plaintiff's Motion for
Conditional Certification and Judicial Notice under 29 U.S.C.
§ 216(b). (Doc. No. 26). Plaintiff seeks conditional
certification under the Fair Labor Standards Act
(“FLSA”) of two collective classes defined as:
(1) All individuals who worked for U.S. Bank through staffing
agencies as hourly-paid AML/BSA Preliminary Investigators, or
any equivalent position, at any location in the United States
during the period from three years prior to the entry of the
conditional certification order to the present; and
(2) All individuals who worked for U.S. Bank as AML/BSA
Investigators, or any equivalent position, and were
classified as exempt employees at any location in the United
States during the period from three years prior to the entry
of the conditional certification order to the present.
(Doc. No. 26). Defendant U.S. Bank National Association
objects to Plaintiff's Motion. (Doc. No. 31). After the
parties fully briefed the Motion, the Court held a hearing on
the Motion on June 11, 2018. The Motion is now ripe for
stated by the Supreme Court when addressing Section 216(b) of
Title 29, a “collective action allows . . . plaintiffs
the advantage of lower individual costs to vindicate rights
by the pooling of resources” and benefits the judicial
system “by efficient resolution in one proceeding of
common issues of law and fact arising from the same alleged
discriminatory activity.” Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1983) (addressing action
under the Age Discrimination in Employment Act of 1967, which
incorporates 29 U.S.C. § 216(b) through 29 U.S.C. §
These benefits, however, depend on employees receiving
accurate and timely notice concerning the pendency of the
collective action, so that they can make informed decisions
about whether to participate. Section 216(b)'s
affirmative permission for employees to proceed on behalf of
those similarly situated must grant the court the requisite
procedural authority to manage the process of joining
multiple parties in a manner that is orderly, sensible, and
not otherwise contrary to statutory commands or the
provisions of the Federal Rules of Civil Procedure.
See Fed. Rule Civ. Proc. 83.
Id. Therefore, the Supreme Court recognized that
“it lies within the discretion of a district court to
begin its involvement early, at the point of the initial
notice, rather than at some later time[, ]”
id. at 171, and held “that district courts
have discretion, in appropriate cases, to implement 29 U.S.C.
§ 216(b) (1982 ed.) . . . by facilitating notice to
potential plaintiffs[, ]” id. at 169.
Court, in the exercise of its discretion, concludes that
Court approval of a notice to both proposed collectives when
limited to individuals who worked for Defendant at the
Charlotte office is appropriate on this record. As to both
classes, Plaintiff has plead, attested to facts, and filed
documentation supporting a plausible FLSA claim on behalf of
similarly situated plaintiffs who worked at the division
office in Charlotte, North Carolina. (See Doc. Nos.
26-3, 26-8, 26-10). Plaintiff has made a sufficient showing
of a common policy or practice. See e.g., Myers
v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)
(“The court may send this notice after plaintiffs make
a ‘modest factual showing' that they and potential
opt-in plaintiffs ‘together were victims of a common
policy or plan that violated the law.'” (citation
omitted)); McLaurin v. Prestage Foods, Inc., 271
F.R.D. 465, 469 (E.D. N.C. 2010) (same). However, nationwide
notice is not appropriate given the lack of nationwide
evidence of wrongdoing. Plaintiff only worked in the
Charlotte office, and only Plaintiff filed an affidavit.
(Doc. No. 26-3). Cf. O'Donnell v. Robert
Half Int'l, Inc., 429 F.Supp. 2d. 246,
250-51 (D. Mass. 2006) (finding Plaintiff's showing for
nationwide notice insufficient). Further, the size of the
purported national class as stipulated by the parties is
substantial, and discovery closes in a few months. Both the
Court's ability to orderly oversee the joining of parties
and the parties' ability to timely complete discovery
would be hindered. See generally Sperling, 493 U.S.
at 170; Mickles v. Country Club, Inc., 887 F.3d
1270, 1280 (11th Cir. 2018) (affirming denial of conditional
certification and notice as untimely).
Court also declines to grant Plaintiff's request to
“conditionally certify” the collective action.
Conditional certification of a collection action is not
required by the FSLA, the Supreme Court, or the Fourth
Circuit. Cf. Mickles, 887 F.3d at 1278 (holding that
conditional certification is not required to become a party
plaintiff in light of the plain language of section 216(b)
and the Supreme Court's holdings). The FSLA is distinct
from Rule 23 in many ways and the Court does not believe the
term “conditional certification” embodies the
discretionary case management involvement permitted under 29
U.S.C. § 216(b). “[U]nlike in a class action filed
pursuant to Federal Rule of Civil Procedure 23 or a
comparable state court rule, in a collective action under the
FLSA, a named plaintiff represents only himself until a
similarly-situated employee opts in as a ‘party
plaintiff' by giving ‘his consent in writing to
become such a party and such consent is filed in the court in
which such action is brought.'” Simmons v.
United Mortg. & Loan Inv., LLC, 634 F.3d 754, 758
(4th Cir. 2011) (quoting 29 U.S.C. § 216(b)).
as raised by Defendant, the Court concludes some
modifications to Plaintiff's Proposed Notice (Doc. No.
26-2) are necessary.
Court intervention in the notice process for case management
purposes is distinguishable in form and function from the
solicitation of claims. In exercising the discretionary
authority to oversee the notice-giving process, courts must
be scrupulous to respect judicial neutrality. To that end,
trial courts must take care to avoid even the appearance of
judicial endorsement of the merits of the action.
Sperling, 493 U.S. at 174. To achieve this end, in
addition to the modification to the proposed class, the Court
orders the following modifications to the Proposed Notice of
Collective Action Lawsuit (Doc. ...