Imel v. DC Constr. Servs., Inc.

MICHAEL IMEL, on behalf of himself and all others similarly situated, Plaintiff, v. DC CONSTRUCTION SERVICES, INC., and DUSTIN CALHOUN, Defendants.

Case No. 1:19-cv-0634-TWP-MPB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

June 1, 2020

ENTRY ON PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION

This matter is before the Court on Plaintiff, Michael Imel's ("Imel") Motion for Conditional Certification and Notice of Collective Action Lawsuit (Filing No. 29). Imel asks the Court to grant conditional certification of a proposed Collective Action and to direct the Defendants, DC Construction Services, Inc., ("DC Construction"), and Dustin Calhoun, ("Calhoun") (collectively, "Defendants"), to produce certain information and to set this matter for a status conference. For the reasons that follow, the Motion is granted.

I. BACKGROUND

Defendant, DC Construction, an Indiana corporation with its principal place of business in Hamilton County, Indiana, is a commercial paving and asphalt company. (Filing No. 31-1, ¶ 4.) DC Construction employs anywhere from 20 to 60 people at any given time. Id. at 5. Calhoun, a resident of Hamilton County, is the president, sole owner and operator of DC Construction. Some of DC Construction's employees are hourly employees who clock in and out via a timeclock at the main office or through a cell phone application, while other employees are paid on salary. Id. ¶ 6.

Plaintiff, Imel, is a resident of Anderson, Indiana. He worked as an asphalt supervisor at DC Construction for multiple periods from 2015 to 2019. (Filing No. 29-1 at 1 ¶4.) DC Construction paid Imel and some of his co-workers hourly and on a weekly basis. Id. ¶¶ 5-6. Imel and his hourly co-workers routinely worked more than 40 hours in a week for DC Construction. Id. ¶ 7. Imel and his fellow hourly co-workers would use the shop timeclock to clock in or out if they were working locally using a program called Builder-Trend to keep track of their start and end times. Id. ¶¶ 8-9. If DC Construction did not like where Imel or his fellow hourly co-workers were located when they clocked in or out on Builder-Trend, it would change the clock in or clock out time of the employee. Id. ¶ 10. DC Construction would punish Imel and his fellow hourly co-workers for clocking in or clocking out from the wrong location by deducting time from the employees' work hours. Id. ¶¶ 11-12. If Imel or his fellow hourly co-workers were to take time for a lunch break then DC Construction required them to write it on their timecards or note it on Builder-Trend. DC Construction would deduct one hour for lunch each day that Imel or other co-workers worked at least eight (8) hours, regardless of whether or not Imel and his fellow hourly co-workers actually took a lunch break, a partial lunch break, or no lunch break. Id. ¶¶ 13. In addition, DC Construction would deduct time from drivers, such as Imel, for stopping at a gas station or other location at any time while on the clock. Id. ¶ 14. For instance, if Imel stopped to let himself and/or his passengers use the restroom at a gas station on the way to a worksite, time would be deducted from Imel's time worked. Id. ¶ 15.

On February 12, 2019, Imel initiated this cause of action on behalf of himself and other employees of DC Construction alleging that DC Construction and Calhoun violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et. seq., by willfully failing to pay its hourly employees for all overtime hours worked over 40 hours in a work week and illegally deducting time from itshourly employees' time worked for purposes of punishment and for lunch breaks. (See Filing No. 1; Filing No. 30.) Imel seeks conditional certification of the following collective action:

All present and former hourly employees of DC Construction Services, Inc. who were employed on or after February 1, 2016 who had / have time deducted from their time worked as a punishment or for a lunch break without the employee noting that a lunch break was taken.

Defendants provide the declaration of Calhoun, and his description of the work and role of the parties, aligns with the description provided by Imel in his declaration. (See Filing No. 31-1.) However, Calhoun denies that he has violated any FSLA rules and contends that Imel is using this lawsuit as a means to coerce DC Construction and Calhoun to re-hire him. Calhoun affirms that he reviewed the daily sheets filled out by Imel and determined that Imel was paid all amounts owed. (Filing No. 31-1 at 2.)

II. LEGAL STANDARD

Under the FLSA, an employee is permitted to maintain a collective action for "unpaid overtime compensation . . . for and in behalf of himself . . . and other employees similarly situated." 29 U.S.C. § 216(b). The "District Court has the discretion to authorize notice to similarly situated employees so that they may opt-in to a class." Carter v. Indianapolis Power & Light Co., 2003 U.S. Dist. LEXIS 23398, at *7 (S.D. Ind. Dec. 23, 2003). "Such a collective action differs significantly from a Rule 23 class action. Potential class members in a collective action must affirmatively opt-in to be bound, while in a Rule 23 action they must opt out [to] not be bound." Cheesman v. Nexstar Broad. Grp., Inc., 2008 U.S. Dist. LEXIS 42265, at *3 (S.D. Ind. May 27, 2008) (emphasis in original). The standards governing class certification under Rule 23 are not applicable to FLSA collective actions. Id. at *5.

Courts in the Seventh Circuit engage in a two-step inquiry to determine whether an FLSA action may proceed as a collective action. The first step is called the "notice stage" and "involves an analysis of the pleadings and affidavits which have been submitted to determine whether notice should be given to potential class members." Id. (quoting Carter, 2003 U.S. Dist. LEXIS 23398, at *8). "The second step, which usually occurs after discovery has largely been completed, allows a court the opportunity to determine whether the class should be decertified or restricted because various putative class members are not in fact similarly situated as required by the statute." Id.

During the initial "notice stage," a plaintiff does not have to prove his entire case. Rather, the plaintiff must make only a threshold showing that he is similarly situated to the employees on whose behalf he seeks to pursue claims. Coan v. Nightingale Home Healthcare, Inc., 2005 U.S. Dist. LEXIS 15475, at *3 (S.D. Ind. June 29, 2005). This threshold showing is "relatively modest." Id. "The modest factual showing required at the first step of the proceedings may be lenient, but it is not a mere formality." Allen v. Payday Loan Store of Ind., Inc., 2013 U.S. Dist. LEXIS 169971, at *4 (N.D. Ind. Dec. 3, 2013) (citation and quotation marks omitted). "[T]o meet their burden, Plaintiffs must provide evidence via an affidavit, declaration, or other support beyond allegations in order to make a minimal showing of other similarly situated employees subjected to a common policy." Id. Although the first step of certification does not impose a high burden, "this does not mean that the 'modest factual showing' is a mere formality." Simmons, 2014 U.S. Dist. LEXIS 102420 at *4 (quoting Campbell, 2010 U.S. Dist. LEXIS 87077 at 4).

The first step serves as an important and functional step in the certification process because it would be a waste of the Court's and the litigant's time and resources to notify a large and diverse class only to later determine that the matter should not proceed as a collective action because the class members are not similarly situated.

Id.

III. DISCUSSION

The FLSA provides a procedural mechanism whereby employees may litigate a collective action on behalf of similarly situated employees. 29 U.S.C. § 216(b). Among other things, the FLSA prohibits employers from working their employees more than forty hours in a work week without compensating the employee overtime wages at a rate of at least time and a half for hours worked in excess of forty hours. 29 U.S.C. §§ 207, 215(a)(2). "An employee must be paid for all time spent in physical or mental exertion, whether burdensome or not, controlled and required by the employer, and pursued necessarily and primarily for the benefit of the employer or his business." Sehie v. City of Aurora, 432 F.3d 749, 751 (7th Cir. 2005) (citations and internal quotations omitted). Time that an employee spends traveling from one worksite to another during a given workday is compensable under the FLSA. Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. 29 C.F.R. § 785.38. United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1120 (10th Cir. 1999) (holding that shuttle time between split shifts was compensable and not a bona fide meal period because this travel was required).

Before conducting analysis on the issue of conditional certification, the Court will first determine whether Imel and his proposed class counsel are adequate representatives to bring this action.

A. Adequacy of Class Representative and Class Counsel

Although the requirements of Rule 23 generally do not apply to certification of an FLSA collective action, inadequacy of representation and proposed class counsel is nevertheless an equitable consideration at issue in determining whether to certify a putative class. SeeMoney Tree Mortg., Inc., 222 F.R.D. 676, 682 (D.Kan. 2004) ("[a]lthough FLSA § 16(b) does not expressly incorporate Rule 23(a)(4)'s adequacy-of-representation requirement, the adequacy of class counsel or a class representative is not necessarily irrelevant in a putative FLSA § 16(b) collective action because the court has an inherent interest in ensuring that opt-in plaintiffs are adequately represented.").

To be an adequate representative, as required for class certification, the named plaintiff must be part of the class and...