Madsen v. Sidwell Air Freight

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HEATHER MADSEN, individually and on behalf of all persons similarly situated, Plaintiff, v. SIDWELL AIR FREIGHT, DHL EXPRESS USA INC., d/b/a DHL EXPRESS Defendants.

No. 1:23-cv-0008-JNP

United States District Court, D. Utah

March 18, 2024

MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION

Hon Jill N. Parrish United States District Judge

Before the Court is Plaintiff's Motion for Conditional Certification of a collective action under the Fair Labor Standards Act (“FLSA”) and approval of her proposed notice. [See ECF 29.] A hearing on Plaintiff's Motion was held on August 11, 2023. Michael J. Anderson and Mariyam Hussain appeared for Plaintiff Heather Madsen; Randall K. Edwards and Jeanne D. Marshall appeared for Defendant Sidwell Air Freight; and Linda C Schoonmaker appeared for Defendant DHL Express (USA) Inc.

Although the Court had noticed a hearing for further consideration on Plaintiff's Motion, the Court now finds that such a hearing is no longer necessary. The Court, having reviewed the Motion briefs and the supplemental briefing on consent-based jurisdiction submitted by the parties, and for reasons discussed more fully below, hereby GRANTS IN PART Plaintiff's Motion.

BACKGROUND

Plaintiff Heather Madsen is a courier driver for Defendant Sidwell Air Freight operating out of the Salt Lake City International Airport. Plaintiff alleges that Sidwell provides what is known as “last-mile delivery services” for Defendant DHL in Utah. She further alleges that Sidwell provides these same services for DHL in several other states including Arizona, Idaho, New Mexico, Ohio, Oregon, Texas, and Washington. Plaintiff claims that she and other similarly situated drivers have not been paid overtime wages.

Specifically, Plaintiff asserts that all drivers for Sidwell are paid a uniform flat day rate, regardless of the actual hours they work, and that as a courier driver she (along with her fellow drivers) was regularly scheduled to work five days or more a week, with each shift entailing ten hours or more. Plaintiff asserts that this pay scheme violates the FLSA and she seeks conditional certification for all others working for Sidwell as a courier driver for DHL wherever located. She has alleged that other employees are similarly situated because they have similar job duties and schedules, were paid under the same flat day rate compensation policies, worked more than 40 hours per week, and did not receive appropriate overtime pay. She has supported her allegations with declarations and evidence of job postings. [See ECF 2.]

DISCUSSION

The FLSA authorizes a plaintiff to bring a “collective action” for overtime wages on behalf of “other employees similarly situated.” 29 U.S.C. § 216(b). Unlike in a class action under Federal Rule of Civil Procedure 23, parties are added to and bound by a FLSA collective action on an “opt-in” rather than “opt-out” basis. This requires the sending of an accurate and timely notice concerning the pendency of the action so that other “similarly situated” employees can make an informed decision about whether to join.

Courts within the Tenth Circuit have applied a two-step approach in determining if a collective action may be conditionally certified so that notice may issue. See Thiessen v. Gen Elec. Cap. Corp., 267 F.3d 1095, 1105 (10th Cir. 2001); Lewis v. eAssist, Inc., No. 2:22-cv-121, 2022 WL 1224978, at *2 (D. Utah Apr. 26, 2022); Kovacs v. G4S Secure Sols. (USA) Inc., No. 20-CV-3180, 2022 WL 1402097, at *2 (D. Colo. Jan. 18, 2022); see also James v. Boyd Gaming Corp., 522 F.Supp.3d 892, 901 (D. Kan. 2021) (noting “the Tenth Circuit has approved a two-step approach for determining whether plaintiffs in a proposed opt-in collective action are ‘similarly situated'”); Deakin v. Magellan Health, Inc., 328 F.R.D. 427, 431 (D.N.M. 2018) (noting that “this Court and many district courts in the Tenth Circuit apply the two-step” approach).

First, courts apply a lenient standard to determine “whether the plaintiff has asserted substantial allegations that the putative class members were together victims of a single decision, policy, or plan,” such that sending notice is appropriate. See Kovacs, 2022 WL 1402097, at *2 (cleaned up). The lenient standard is applied because it recognizes that plaintiffs have been unable to conduct discovery. See Pack v. Investools, Inc., No. 2:09-cv-1042, 2011 WL 3651135, at *2 (D. Utah Aug. 18, 2011) (recognizing this rationale). Then, after notice and discovery, the Court “applies a stricter standard to determine whether the action should continue as a collective action.” Id. The Defendants concede that this is the approach that has been taken within the Tenth Circuit. [See ECF No. 31, at 4.]

1. Conditional Certification

A. Whether any Conditional Certification or Notice Should be Approved Before There is More Discovery

The main opposition offered by Defendants to conditional certification is their argument that the Court should reject the two-step approach and adopt an approach used in Swales v. KLLM Transp. Servs, L.L.C., 985 F.3d 430, 436-43 (5th Cir. 2012). In Swales, the court concluded that the two-step approach frustrates the FLSA notice process because: (1) the process of conditional certification is not consistently applied and the standards vary from case to case leaving “no clue” as to what kinds of similarity matter; and (2) the conditional certification approach is nowhere mentioned in the text of the FLSA. See Id. Swales suggests that district courts should require more proof of whether employees may be “similarly situated” before allowing notice to be sent. Essentially, the Swales approach rejects the lenient standard of the two-step approach in favor of a more rigorous factual analysis that demands that some discovery be conducted before determining if a plaintiff and others are “similarly situated” so that notice may be permissible. At bottom, the Swales court seemed concerned that the two-step approach, with its lenient standard on notice, “stirred up” litigation. See id. at 441.^[1]

Plaintiff, however, correctly points out that the district courts in the Tenth Circuit have uniformly rejected the Swales approach. See, e.g., Green v. Perry's Restaurants Ltd, No. 21-cv-0023, 2022 WL 16744795, at *4 n.4 (D. Colo. Nov. 7, 2022) (“To the extent Defendants argue that the Court should follow the Fifth Circuit's approach in Swales . . . the Court declines to do so, as Swales is not binding Supreme Court or Tenth Circuit authority, nor does the Court find persuasive the reasoning of that decision.”); Spencer v. Mental Health Res., Inc., No. 1:21-cv-121, 2022 WL 3031839, at *3 (D.N.M. Aug. 1, 2022) (declining to adopt Swales and granting conditional certification). Plaintiff also identifies 38 other district court opinions outside the Tenth Circuit that have also rejected Swales. One of those decisions is Roberts v. Sidwell Air Freight Inc., No. C21-5912, 2022 WL 16949565 (W.D. Wash. Nov. 15, 2022).

In Roberts, the court granted a similar motion for conditional certification in an action containing nearly identical allegations against Sidwell and DHL, but only for drivers within the State of Washington. The court addressed almost all the arguments presented for and against conditional certification that have been presented here and concluded that Sidwell's courier drivers in Washington were “similarly situated” for purposes of the FLSA and ruled in favor of certification for drivers in the State of Washington. See id. at *2-4, *7-9.

Among other things, the court in Roberts also concluded that the two-step approach, which is effectively a “plausibility-like standard” for conditional certification is more appropriate as it allows the court to “monitor and approve” the notice sent out, while allowing the court to remain “neutral on the merits.” 2022 WL 1649565, at *3-4.^[2]This Court agrees with the court's analysis in Roberts, and it will continue to adhere to the two-step approach that has been approved by the Tenth Circuit and used throughout this Circuit and elsewhere.

B. Has Plaintiff Sufficiently Asserted That Other Putative Class Members Are Similarly Situated

As noted above, Plaintiff, a Utah resident who worked for Sidwell in Utah, asserts that she and all drivers for Sidwell as courier drivers for DHL are paid a uniform flat day rate regardless of the actual hours they work, and that as a courier driver she and her fellow drivers were regularly scheduled to work five days or more a week, with each shift entailing ten hours or more, and are similarly expected to complete all routes for a daily wage. [See ECF No. 2 ¶¶ 49-64, 70, 7273; see also ECF No. 29-6 at ¶¶ 5-10, 16-18, 22, 24.] Likewise, opt-in plaintiff Roscoe Shorey, a resident of Vancouver, Washington, who worked for Sidwell as a courier driver for DHL in Washington and in Portland Oregon, submitted a declaration in support of Plaintiff's motion that presents comparable assertions. [See ECF No. 29-7 at ¶¶ 2-5, 8-11, 18-20, 24.] And in further support, Plaintiff submitted job postings from Sidwell for courier driver positions in Arizona, Idaho, Ohio, Oregon, Texas, and Utah-all of which describe the positions and pay in a similar manner. [See ECF No. 29-5.]

Notably the court in Roberts, looking at nearly the same factual assertions and analyzing the same arguments Sidwell raises here, concluded that courier drivers employed by Sidwell in Washington were “similarly situated” for purposes of the FLSA. See Roberts, 2022 WL 1649565 at *9 (concluding that plaintiff plausibly supported his argument that other Sidwell drivers are similarly situated through his allegations, his motion, in supporting declarations, and job postings that indicated...