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Rood v. R&R Express, Inc.

United States District Court, W.D. Pennsylvania

October 23, 2019

BEN ROOD, Plaintiff,
R&R EXPRESS, INC., Defendant.


          J. Nicholas Ranjan United States District Judge.

         Plaintiff 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”).[1] 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.

         I. BACKGROUND

         R&R 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. [Id.].

         Mr. 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].

         Mr. 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].

         Mr. 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].


         Section 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).

         Courts 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. 2013).

         At the 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).

         At the 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 omitted).

         Put 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.

         “Courts 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. ...

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