Campo v. Granite Servs. Int'l, Inc.

584 F.Supp.3d 1337

Emilio CAMPO, individually and on behalf of those similarly situated, Plaintiff,

v.GRANITE SERVICES INTERNATIONAL, INC. ; and Fieldcore Services Solutions, LLC, Defendants.

CIVIL ACTION NO. 1:21-cv-223-AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed January 24, 2022

Andrew W. Dunlap, Pro Hac Vice, Michael A. Josephson, Pro Hac Vice, Richard M. Schreiber, Pro Hac Vice, Josephson Dunlap Law Firm, Houston, TX, Charles Ryan Morgan, Morgan & Morgan, P.A., Orlando, FL, Andrew R. Frisch, Morgan & Morgan, P.A., Plantation, FL, Jeremy Stephens, Morgan & Morgan, PA, Atlanta, GA, for Plaintiff.

Brett Christopher Bartlett, Kevin Michael Young, Lennon Haas, Zheyao Li, Seyfarth Shaw, LLP, Atlanta, GA, for Defendants.

ORDER

AMY TOTENBERG, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiff's Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members [Doc. 36]. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART .

I. Background

Defendants Granite Services International, Inc. and FieldCore Services Solutions, LLC provide field, technical, and support services for the power generation and oil and gas industries. (Am. Compl., Doc. 8 ¶ 33.) Plaintiff Emilio Campo alleges that he worked for Defendants as an Environment, Health, and Safety ("EHS") Advisor from approximately August 2019 to February 2020. (Id. ¶ 13.) In the Amended Complaint, Campo alleges that Defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. , by paying him at the same hourly rate for all hours that he worked, including "straight time" pay for overtime hours. (Id. ¶¶ 45–46.) Defendants moved to dismiss the Amended Complaint on March 11, 2021, (Doc. 14), and the Court denied that motion on January 21, 2022, (Doc. 51).

While Defendants’ motion to dismiss was still pending, Campo filed a motion to conditionally certify his FLSA claim as a collective action. See (Pl.’s Mot., Doc. 36.) In that motion, Campo seeks to certify a collective action consisting of "[a]ll employees of Granite Services and FieldCore in the past three years who were paid ‘straight time for overtime.’ " (Id. at 1.) Campo seeks to exclude from that definition all EHS employees who worked for Defendants in Texas; those employees’ claims are already subject to a collective action in a related case, Greinstein v. FieldCore Services Solutions, LLC , No. 2:18-cv-208 (N.D. Tex.). (Id. at 1 n.1) Campo also seeks an order directing Defendants to produce, within 14 days, a list of the potential collective members’ names and last known addresses, phone numbers, and e-mail addresses for purposes of providing notice. (Id. at 2.) In addition, Campo seeks permission to send notice to the potential collective members in the form attached to his motion as Exhibit A, and to send that notice to the potential collective members by first-class mail, e-mail, and text message. (Id. ) Finally, Campo seeks an order providing the potential collective members with 60 days from the date the notices are initially mailed to opt-in to the collective action by filing the consent form attached to his motion as Exhibit B. (Id. )

Defendants filed an opposition to Campo's motion on August 11, 2021. (Defs.’ Opp'n, Doc. 43.) In their motion, Defendants challenge both Campo's request for conditional certification and the manner in which he seeks to provide notice to the potential collective members.

II. Analysis

A. Legal Framework Governing Collective Action Certification Under the FLSA

Section 216(b) of the FLSA authorizes employees to bring a collective action against employers accused of violating the FLSA as follows:

An action ... may be maintained against any employer ... 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 with the court in which such action is brought.

29 U.S.C. § 216(b).¹ This Court has the discretion to authorize the sending of notice to potential members in a collective action. Hoffmann–La Roche Inc. v. Sperling , 493 U.S. 165, 169–70, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ; Hipp v. Liberty Nat'l Life Ins. Co. , 252 F.3d 1208, 1219 (11th Cir. 2001). A collective action is particularly appropriate when it permits the "efficient resolution in one proceeding of common issues of law and fact arising from the same alleged ... activity." Hoffmann–La Roche , 493 U.S. at 170, 110 S.Ct. 482. "The benefits of a collective action ‘depend on employees receiving accurate and timely notice ... so that they can make informed decisions about whether to participate.’ " Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1259–60 (11th Cir. 2008).

The Eleventh Circuit applies a two-stage process to FLSA collective actions. See Hipp , 252 F.3d at 1218 ; Morgan , 551 F.3d at 1260–61. The first stage in determining whether a collective action should be conditionally certified is the notice stage (also referred to as the conditional certification stage) at which time the court determines whether other similarly situated employees should be notified and given the opportunity to opt-into the case as plaintiffs. Morgan , 551 F.3d at 1261. The second stage of the certification process 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." Hipp , 252 F.3d at 1218 ; see also Anderson v. Cagle's, Inc. , 488 F.3d 945, 953 (11th Cir. 2007). At the conclusion of discovery when a matter is ready for trial, the district court uses the factual information gathered during discovery to determine whether the plaintiffs are actually similarly situated, and if they are not the court decertifies the collective.² Anderson , 488 F.3d at 953.

In the first stage of the certification process, the district court makes a decision based on limited information — such as the pleadings in the complaint and related affidavits — regarding whether notice of the action should be given to potential collective members.³ Anderson , 488 F.3d at 952–53 ; Hipp , 252 F.3d at 1218. A 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 ; Grayson v. K-Mart Corp. , 79 F.3d 1086, 1096 (11th Cir. 1996). The burden on the plaintiff at this initial stage, however, is not a heavy one. At this stage, because the court has minimal evidence the "determination is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class."⁴ Hipp , 252 F.3d at 1218 ; see Morgan , 551 F.3d at 1260 (describing the standard for determining similarity, at this initial stage, as "not particularly stringent," "fairly lenient," "flexib[le]," "not heavy," and "less stringent than that for joinder under Rule 20(a) or for separate trials under 42(b)").

Before granting conditional certification, the Court should determine: (1) whether employees sought to be included in the putative class are similarly situated with respect to their job requirements and pay provisions; and (2) whether there are other employees who wish to opt-in to the action. Dybach v. State of Fla. Dep't of Corr. , 942 F.2d 1562, 1567–68 (11th Cir. 1991) (concluding that the "broad remedial purpose" of the FLSA is best served if the district court is deemed to have the power to give such notice to other potential members of the plaintiff class to "opt-in" if they so desire and that "the district court should satisfy itself that there are other employees of the defendant employer who desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their job requirements and with regard to their pay provisions"). Here, the plaintiff offers declarations from himself and four other employees who wish to opt-in to a potential collective action. Thus, the Court need only determine whether the named plaintiff is similarly situated to these potential collective members based on a lenient proof standard and whether there is a likelihood of other potential plaintiffs being interested in opting-in, if given notice. See Riddle v. Suntrust Bank , No. 1:08-cv-1411, 2009 WL 3148768, at *3 (N.D. Ga. Sept. 29, 2009) (finding that because actual notice has not been sent to putative collective members, the existence of only three opt-in plaintiffs sufficiently demonstrated an interest by other employees to opt-in to the suit and that the "appropriate time to address issues of individual differences between putative class members and whether any particular individual is exempt is after the completion of discovery and during the second stage of the certification determination."); Reece v. United Home Care of N. Atlanta, Inc. , 1:12-cv-2070, 2013 WL 895088, at *4 (N.D. Ga. Mar. 8, 2013) (certifying a collective at the notice stage when only two opt-in plaintiffs had joined the suit).

The focus of the court's inquiry at this stage is not on whether there has been an actual violation of law, but on whether the proposed plaintiffs are similarly situated with respect to their allegations that the law has been violated. Kreher v. City of Atlanta, Ga. , No. 1:04-cv-2651, 2006 WL 739572, at *4 (N.D. Ga. Mar. 20, 2006) (stating that plaintiffs are not required to submit evidence of a highly particularized nature and finding that "[a]lthough lacking in some detail, Plaintiffs’ declarations establish the existence of other employees employed in similar positions and subjected to similar policies"). Applying the fairly lenient standard of the notice/conditional certification stage, plaintiffs are not required to show that they hold identical positions. Hipp , 252 F.3d at 1217 ; Grayson , 79 F.3d at 1096. Rather, for purposes of conditional certification plaintiff...