Smith v. ADEBCO, Inc.

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MARTEESE SMITH, individually and on behalf of all other similarly situated individuals, Plaintiff, v. ADEBCO, INC., and DEBRA YOUNG, Defendants.

No. 2:20-cv-00003

United States District Court, M.D. Tennessee, Northeastern Division

May 5, 2023

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff's Second Motion for Conditional Certification Approval of 29 U.S.C. § 216(b) Notice and Consent Forms Order for Disclosure of Current and Former Employees of Defendant ADEBCO, Inc., and Toll Statute of Limitations for Putative Class (Doc. No. 98). For the following reasons, the Motion (Doc. No. 98) will be granted in part and denied in part.

I. BACKGROUND

On November 16, 2018, ADEBCO entered into an Independent Contractor Trucking Agreement with Kiewit Infrastructure South Co. (“Kiewit”), under which ADEBCO agreed to furnish dump trucks and drivers to perform hauling on I-440. (Doc. Nos. 99-1 ¶ 7). Pursuant to this agreement ADEBCO hired Marteese Smith in July 2019, who, throughout his employment, drove a dump truck from ADEBCO's yard in Nashville to the I-440 project site, which was also located in Davidson County, Tennessee. (Doc. Nos. 98-1 at 4; 99-1 ¶ 11). ADEBCO paid its drivers consistent with the Pay Policy that states that a driver's pay is based on “billable time to [the] customer” and that time not billed to a customer would be paid from the driver's regular pay rate regardless of whether that driver worked more than 40 hours in a given workweek. (Doc. Nos. 98-1 ¶ 7; 99-1 ¶¶ 8, 10).

As a result of ADEBCO's adherence to this policy, Plaintiff avers that he and other drivers were underpaid in violation of the Fair Labor Standards Act, 29 U.S.C § 207, (the “FLSA”). (Doc. Nos. 28 ¶¶ 31-33, 42; 98-1 ¶¶ 7-11).

Accordingly, on April 1, 2022, Smith filed the instant Motion for conditional certification. Plaintiff seeks conditional certification of a collective action consisting of:

All current and former employees who worked as a driver for ADEBCO, Inc. and Debra Young hauling material from the I-440 worksite to the Vulcan Danley quarry located off of Harding Place in Davidson County, Tennessee and who did not drive out of the State of Tennessee at any time since January 16, 2017, and who worked more than 40 hours in a workweek in some weeks during that period and believe they did not receive overtime wages for all overtime worked.

(Doc. No. 98-2 at 1). Additionally, Smith make four requests to facilitate notice to potential collective action members. He requests the Court to (1) direct Defendants to immediately provide his counsel a computer-readable file containing the names, last known addresses, last known email addresses, social security numbers, dates of employment, and last known telephone numbers of “all drivers who, like Plaintiff, operated vehicles for hauling construction materials for Defendants at the I-440 construction site in Davidson County, Tennessee within the last [four] years”; (2) toll the statute of limitations for the putative collective action participants to the date this Motion is granted; (3) require that “notice be posted at Defendants' physical location where it stores its trucks, enclosed with all current drivers' next regularly scheduled paycheck or stub, and be mailed and emailed to such drivers so they can assert their claims on a timely basis as part of this litigation”; and (4) deem opt-in plaintiff's consent forms “filed” on the date that they are postmarked (excluding any plaintiffs who have opted in prior to the Court-supervised Notice being sent). (Doc. No. 98 at 1-2, 19).

Defendants responded to Smith's Motion on May 2, 2022, (Doc. No. 99), and the parties filed supplemental briefs on June 15, 2022, focused on the application of Finn v. Dean Transportation, Inc., 53 F.Supp.3d 1043 (M.D. Tenn. 2014), Secretary of Labor v. Timberline South, LLC, 920 F.3d 1065 (6th Cir. 2009), and any other potentially similar, applicable decision. (Doc. Nos. 105-06).^[1]

II. LEGAL STANDARD

The FLSA generally requires that employers pay employees specified hourly rates for up to 40 hours per week and pay overtime compensation at one and one-half times the regular rate for hours worked in excess of 40 hours in a week. 29 U.S.C. § 207. To enforce this provision, a collective 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” who opt in by giving their consent in writing. 29 U.S.C. § 216(b). Accordingly, “[d]istrict courts conduct a two-phase inquiry to determine whether plaintiffs are similarly situated: conditional and final certification.” Honaker v. Wright Bros. Pizza, Inc., No. 2:218-cv-01528, 2020 WL 134137, at *1 (S.D. Ohio Jan. 13, 2020) (citing Frye v. Baptist Mem'l Hosp., Inc., 495 Fed.Appx. 669, 671 (6th Cir. 2012)).

At the conditional certification stage, the lead plaintiff bears the burden of showing that opt-in plaintiffs are similarly situated. Frye, 495 Fed.Appx. at 671; see also Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). Although the FLSA does not define the term “similarly situated,” the Sixth Circuit has noted that courts have considered the “‘factual and employment setting of the individual[] plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, [and] the degree of fairness and procedural impact of certifying the action as a collective action.'” O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds, Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 670 (2016). “[It] is clear that plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” Id. at 585; see also Vasser v. Mapco Express, 546 F.Supp.3d 694, 701 (M.D. Tenn. 2021) (citing Bradford v. Logan's Roadhouse, Inc., 137 F.Supp.3d 1064, 1071 (M.D. Tenn. 2015)). Employees may also be similarly situated if their claims are merely “unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct.” Id. But “[s]howing a ‘unified policy' of violations is not required [for certification].” Id. at 584. As the Sixth Circuit stated in O'Brien, even a requirement that employees' “causes of action under the FLSA accrued at about the same time and place in the approximate manner of the named plaintiff” would be “more demanding than what the [FLSA] requires.” Id. at 585. If the named plaintiff shows that employees in the proposed class are similarly situated, “[t]he district court may use its discretion to authorize notification of similarly situated employees to allow them to opt into the lawsuit.” Comer, 454 F.3d at 546.

Where, as here, the request is made early in the case and prior to significant discovery, the standard is “fairly lenient,” and requires only “a modest factual showing that” typically results in conditional certification for the representative class.” Comer, 454 F.3d at 547 (quoting Pritchard v. Dent Wizard Int'l Corp., 21 F.R.D. 591, 594 (S.D. Ohio 2002); Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 497 (D. N.J. 2000)). In meeting this burden, substantial allegations supported by declarations are “all that is required.” White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 373 (E.D. Tenn. 2006). And, at this first stage of conditional certification, the court “does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Roberts v. Corr. Corp. of Am., No. 3:14-cv-2009, 2015 WL 3905088, at *10 (M.D. Tenn. June 25, 2015) (citing Brasfield v. Source Broadband Servs., LLC, 257 F.R.D. 641, 642 (W.D. Tenn. 2009)).

After the parties complete discovery, the Court then moves to the second phase of the certification process. See Evans v. Caregivers, Inc., No. 3:17-cv-402, 2017 WL 2212977, at *5 (M.D. Tenn. May 19, 2017) (citing Struck v. PNC Bank N.A., No. 2:11-cv-00982, 2013 WL 571849, at *2 (S.D. Ohio Feb. 13, 2013)). “At the second stage, . . . trial courts examine more closely the question of whether particular members of the class are, in fact, similarly situated” because “the court has much more information on which to base its decision.” Comer, 454 F.3d at 546 (quoting Morisky, 111 F.Supp.2d at 497). The bar at this later stage is significantly more stringent. Id. (citing Atkinson v. Teletech Holdings, Inc., No. 3:14-cv-253, 2015 WL 853234, at *3 (S.D. Ohio Feb. 26, 2015)). But because analyzing the second phase “is for another day,” the Court will now determine whether to conditionally certify the class at issue. See Vasser v. Mapco Express, LLC, No. 3:20-cv-665 2021 WL 2661136, at *11 (M.D. Tenn. June 29, 2021) (Crenshaw, Jr., C.J.).

III. ANALYSIS

A. Conditional Certification of Plaintiff's Claim

To support his Motion, Smith submitted a declaration averring that, pursuant to the Pay Policy, Kiewit would regularly clock him in well-after the start of his workday and clock him out well before the end of his workday, (Doc. No. 98-1 ¶¶ 4-5), and that ADEBCO paid Smith at his regular-hour rate for a portion of his overtime work. (See id. ¶¶ 6, 8 (“During the pay period from August 19, 2019 [to] August 24, 2019, I worked 65 recorded hours. I received regular payment for 46 hours regular pay, and only 19 hours of overtime pay.”)). Smith further states that “about thirty other drivers . . . performed the same duties and worked in the same locations as [he] did[,] . . . were subject to the same pay practice,” and were also “not paid overtime pay for all...