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Burkhart-Deal v. Citifinancial

February 4, 2010


The opinion of the court was delivered by: Donetta W. Ambrose Judge, U.S. District Court



In this civil action ("Burkhart-Deal I"), Plaintiff bring claims for violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). To this point, the parties have engaged in discovery directed towards the issue of collective certification, including discovery from a sampling of seven percent of Defendant's branches from Los Angeles, Chicago, New York, Dallas, and Pittsburgh, depositions of eight witnesses, and Defendant's production of the names and contact information for approximately four percent of the putative nationwide group, or approximately seven hundred potential plaintiffs. Three Plaintiffs, in addition to the named Plaintiff, have opted into the action. Moreover, Plaintiff has submitted declarations of several FSRs who allege failures in compensation.

Plaintiff has filed a Motion seeking conditional certification of this action as a collective, opt-in action under the FLSA.*fn1 Her Motion also seeks court-facilitated notice to putative plaintiffs, and production of names and addresses of putative plaintiffs. Defendant opposes the Motion, on grounds that the putative plaintiffs are not similarly situated, and that the requested notice is inappropriate.

For the foregoing reasons, the Motion will be granted.



Under the FLSA, an employee who claims a violation of the right to receive overtime compensation may bring an action on behalf of himself and other "employees similarly situated." 29 U.S.C. § 216(b). Such employees must also give written consent to opt-in to the action. Id. Plaintiff bears the burden of demonstrating that she is similarly situated to the remainder of the proposed group. E.g., Craig v. Rite Aid Corp., 8-2317, 2009 U.S. Dist. LEXIS 114785, at *8 (M.D. Pa. Dec. 9, 2009). The term "similarly situated" is not defined in the FLSA, leading to a lack of unanimity among the courts.

This Court has applied a so-called "modest factual showing" standard, which requires the plaintiff to demonstrate a "factual nexus between her situation and the situation of other current and former employees, sufficient to determine that they are similarly situated." Kuznyetsov v. W. Penn Allegheny Health Sys., No. 9-379, 2009 U.S. Dist. LEXIS 47163, at **7-8 (W.D. Pa. June 1, 2009) (citing cases). Otherwise stated, plaintiff must make a "'modest factual showing' that similarly situated employees were injured as a result of a single decision, policy or plan before the proposed collective can be conditionally certified." Stanislaw v. Erie Indem. Co., No. 07-1078, 2009 U.S. Dist. LEXIS 85056, at *4 (W.D. Pa. Sept. 17, 2009).

Furthermore, where discovery has commenced, and the parties submit deposition testimony, declarations, and other evidence in support of their respective positions, application of the ["modest factual showing"] test is appropriate." Williams v. Owens & Minor, Inc., No. 09-00742, 2009 U.S. Dist. LEXIS 102304, at *7 (E.D. Pa. Oct. 9, 2009). This test, while stricter than others, is still "extremely lenient."*fn2 Id.

"If the plaintiff meets the requisite showing, the class is conditionally certified for the purpose of notice and discovery. ...Once the class is conditionally certified, notice is given to the potential plaintiffs so that they may elect whether to opt-in to the action." Bosley v. Chubb Corp., No. 04-cv-4598, 2005 U.S. Dist. LEXIS 10974, at *5 (E.D. Pa. June 3, 2005). Subsequently, the parties may conduct discovery regarding the opt-in plaintiffs. After such discovery, a district court may revoke conditional certification, if the proposed collective does not meet the FLSA's "similarly situated" requirement. Ruehl v. Viacom, Inc., 500 F.3d 375 (3d Cir. 2007).

[T]he purposes of using this method of collective action should be repeated. "A collective action allows . . . plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged [illegal] activity." Hoffmann-La Roche v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed. 2d 480 (1989).

Garcia v. Freedom Mortg. Corp., No. 09-2668, 2009 U.S. Dist. LEXIS 103147, at *8 ...

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