United States District Court, W.D. Pennsylvania
Nicholas Ranjan United States District Judge.
Ben Rood is a former employee of Defendant R&R Express,
Inc. Mr. Rood filed a “collective/class action
complaint” alleging, among other things, that R& R
Express failed to pay him and others similarly situated
overtime in violation of the Fair Labor Standards Act (the
“FLSA”). Mr. Rood has moved for conditional
certification of an FLSA collective and asks the Court to
facilitate providing notice to potential members of this
collective. For the reasons stated below, the Court
GRANTS Mr. Rood's motion for conditional
certification but DENIES his requests
related to notice without prejudice.
Express provides transportation and logistics services. [ECF
60, at 3]. R&R Express employed Mr. Rood as a Logistics
Coordinator from May 31, 2016 until September 12, 2017. [ECF
1, at ¶¶ 9, 13]. As a Logistics Coordinator, Mr.
Rood was “responsible for arranging logistics support
(freight brokerage) for industries throughout the contiguous
United States.” [Id. at ¶ 31];
accord [ECF 60, at 4]. That required
“identifying past customers, or potential customers,
with shipping needs and persuading [those] customers to allow
[R&R Express] to make arrangements for the movement of
the customer's goods.” [ECF 1, at ¶ 32].
Multiple witnesses testified that Logistics Coordinators work
whatever hours are required to succeed. [ECF 61, at 3-4].
According to Mr. Rood, that means that he, and other
Logistics Coordinators, necessarily worked overtime.
Rood alleges that these “Logistics Coordinators were
all subject to the same policy resulting in the systematic,
blanket denial of overtime pay to employees…who
regularly worked more than 40 hours in workweeks during the
class period who performed non-exempt duties and would
otherwise have been entitled to overtime pay during the
relevant time period.” [ECF 56, at 7].
Rood seeks to recover unpaid overtime on behalf of the
“Logistics Coordinators employed by [R&R Express]
over the past three years.” [ECF 1, at ¶ 99]. Mr.
Rood's proposed collective includes an estimated 18
potential members. [ECF 61, at 4].
Rood now moves this Court to conditionally certify a
collective action. [ECF 55]. Additionally, Mr. Rood asks the
Court to approve his proposed Notice of Conditionally
Certified Collective Action Lawsuit [ECF 55-1]; approve his
proposed Opt-in Consent Form [ECF 55-2]; and order R&R
Express to produce the contact information for each of its
current and former employees in the proposed notice group.
[ECF 56, at 13-15].
7 of the FLSA requires employers to pay overtime to certain
employees who work more than 40 hours in a work week. 29
U.S.C. § 207(a). Under the FLSA, a plaintiff may bring a
collective action behalf of themselves “and other
employees similarly situated” to recover unpaid
overtime compensation. 28 U.S.C. § 216(b).
in the Third Circuit “follow a two-step process for
deciding whether an action may properly proceed as a
collective action under the FLSA.” Camesi v. Univ.
of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir.
first step, “the court makes a preliminary
determination as to whether the named plaintiffs have made a
modest factual showing that the employees identified in their
complaint are similarly situated.” Id. A
plaintiff's burden at the first step is light and can be
met by “produc[ing] 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.” Symczyk v.
Genesis HealthCare Corp., 656 F.3d 189, 195 (3d Cir.
2011), rev'd on other grounds sub nom.,
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66
(2013). If this burden is satisfied, “the court will
‘conditionally certify' the collective action for
the purpose of facilitating notice to potential opt-in
plaintiffs and conducting pre-trial discovery.”
Camesi, 729 F.3d at 243. This “conditional
certification” is not really a certification at
all-instead, “[i]t is actually 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.” Zavala v.
Wal Mart Stores, Inc., 691 F.3d 527, 536 (3d Cir. 2012)
(internal citations, marks, and alterations omitted).
second step, “with the benefit of discovery, ”
the court “makes a conclusive determination as to
whether each plaintiff who has opted in to the collective
action is in fact similarly situated to the named
plaintiff.” Camesi, 729 F.3d at 243. The
second step can be “triggered” by “the
plaintiff's motion for ‘final certification,'
by the defendants' motion for
‘decertification,' or, commonly, by both.”
Id. Determining whether class members are similarly
situated during this stage “generally requires the
consideration of three factors: (1) the disparate factual and
employment settings of the individual plaintiffs; (2) the
various defenses available to the defendant; and (3) fairness
and procedural considerations.” Kuznyetsov v. W.
Penn Allegheny Health Sys., Inc., No. 10-948,
2011 WL 6372852, at *2 (W.D. Pa. Dec. 20, 2011) (citations
simply, the first stage looks at “whether
‘similarly situated' plaintiffs do in fact exist,
while at the second stage, the District Court determines
whether the plaintiffs who have opted in are in fact
‘similarly situated' to the named
plaintiffs.” Zavala, 691 F.3d at 536 n.4.
typically rely on the pleadings and affidavits of the parties
to determine the suitability of conditional
certification.” Waltz v. Aveda Transp. & Energy
Servs., Inc., No. 16-469, 2016 WL 7440267, at *2 (M.D.
Pa. Dec. 27, 2016) (citation omitted). Given the
“modest burden” at the first stage of the
proceedings, “motions for conditional certification are
generally successful.” Id.; see alsoBowser v. Empyrean Servs., LLC, 324 F.R.D.
346, 352 (W.D. Pa. ...