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Boyington v. Percheron Field Services, LLC

United States District Court, W.D. Pennsylvania

June 16, 2015

ERIC BOYINGTON, on behalf of himself and all others similarly situated, Plaintiff,



I. Introduction

This matter comes before the Court upon consideration of Plaintiff’s motion to certify class conditionally and to facilitate notice. (ECF No. 45). For the reasons that follow, the Court will grant Plaintiff’s motion.

II. Background

a. Procedural and factual history

Plaintiff filed the instant action in this Court under the Fair Labor Standards Act of 1938, as amended (FLSA) (29 U.S.C. § 201 et seq.), and the Pennsylvania Minimum Wage Act (PMWA) (43 P.S. § 333.101 et seq.), to recover damages for non-payment of overtime wages for Plaintiff and all others similarly situated. The procedural and factual history are laid out in greater detail in this Court’s Memorandum Opinion and Order denying Defendant’s Motion to Enforce Settlement Agreement. (ECF No. 96).

III. Legal Standard

The FLSA requires that employers pay overtime compensation to all non-exempt employees. 29 U.S.C. § 207(a)(1). The FLSA contains a provision that permits an employee to institute a representative action on behalf of that employee and all other employees similarly situated. 29 U.S.C. § 216(b). The twin requirements for a § 216(b) class action are that employees be similarly situated and that each class member file individual consent with the court in which the action is brought. Bishop v. AT & T Corp., 256 F.R.D. 503, 506 (W.D. Pa. 2009) (citing Sperling v. Hoffman La–Roche, Inc., 862 F.2d 439, 444 (3d. Cir. 1988)).

The Third Circuit has embraced a two-tier approach to class certification. Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012). Conditional certification is not really a certification, but is rather the district court's exercise of its discretionary power to facilitate the sending of notice to potential class members, and is neither necessary nor sufficient for the existence of a representative action under the FLSA. Id. (citing Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 194 (3d Cir. 2011)).

The initial stage requires a “modest factual showing, ” under which a plaintiff must produce some evidence, ‘beyond pure speculation, ’ of a factual nexus between the manner in which the employer's alleged policy affected her and the manner in which it affected other employees.” Id. at 536 n. 4 (quoting Symczyk, 656 F.3d at 193 (internal quotations omitted)). At the second stage, the plaintiffs must satisfy their burden by a preponderance of the evidence. Id. at 537. On final certification the court must determine “whether the plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs.” Id. (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)). The FLSA is a remedial statute that should be liberally construed. Id. (citing Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1265 (11th Cir. 2008)).

IV. Discussion

a. Conditional certification

Plaintiff asks that this Court enter an order conditionally certifying an FLSA collective composed of, and facilitating the sending of notices to, all persons who were employed as Right of Way Agents by Defendant Percheron Field Services LLC, or its predecessor entity Percheron Acquisitions LLC, during the period starting three years prior to the date of the court’s order through the date of this court’s order. (ECF No. 46 at 2).

Bearing in mind that Plaintiff need merely make a “modest factual showing” in order to obtain conditional certification, the Court finds that such a showing has been made, and that the class shall be conditionally certified. Percheron’s admissions in its answer provided sufficient common facts among Boyington and the other Right of Way agents. The answer admitted that Boyington “was one of at least 200 Right of Way Agents who have worked for Percheron since May 2011” and that as a Right of Way Agent, Boyington’s “primary duty was to get permission from land owners to conduct surveys, do route preparation for pipelines and obtain rights-of-way.” (ECF No. 32 at ¶¶ 16, 42, 34; ECF No. 36 at ¶¶ 16, 42, 34). Percheron also admitted that none of its Right of Way Agents received overtime compensation, that all of its Right of Way agents were classified as exempt, that none of its Right of Way Agents were paid a salary, and that Percheron does not pay any of its Right of Way Agents a guaranteed salary. (ECF No. 32 at ¶¶ 43, 47, 49, 56; ECF No. 36 at ¶¶ 43, 47, 49, 56). Boyington also stated that he came to know dozens of the other Right of Way Agents during the course of his employment at Percheron, all of whom performed the same general job duties as he did, received a daily pay rate rather than a salary, and “reported to the ...

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