United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. ERGER UNITED STATES DISTRICT JUDGE
Court has reviewed The Omnicare Defendants' Motion
for Decertification (Document 249) and Memorandum of
Law in Support (Document 250), the Plaintiffs'
Response in Opposition to Omnicare's Motion for
Decertification (Document 257), and all attached
exhibits. For the reasons stated herein, the Court finds that
the motion for decertification should be denied.
BACKGROUND AND PROCEDURAL HISTORY
Court set forth in great detail the factual background and
procedural history of this action in its Memorandum
Opinion and Order (Document 260) granting the
Plaintiffs' partial motion for summary judgment. The
Court incorporates the factual background and procedural
history contained in that opinion and provides the following
brief summary necessary to address this motion. The
Plaintiff, Eric Young, initiated this action by filing a
Collective Action Complaint (Document 1) in this
Court on October 17, 2016. In his complaint, Mr. Young
alleged that the Defendants improperly classified him and
other delivery drivers as independent contractors and failed
to pay them the appropriate minimum wage and overtime pay. On
February 6, 2017, the Plaintiff moved for conditional class
certification of the matter as a Fair Labor Standards Act
(FLSA) collective action on behalf of himself and all other
similarly situated delivery drivers who had been employed by
the Defendants. In its Memorandum Opinion and Order
(Document 145), the Court found that the Plaintiff had
submitted sufficient evidence to show that a potential class
of similarly situated employees existed and granted
conditional certification and notice. On January 3, 2018, the
Court granted partial summary judgment on behalf of the
Plaintiffs, finding that the Omnicare Defendants jointly
employed the Plaintiffs for the purposes of the FLSA.
Defendants now seek to have the conditional class
decertified, and filed their motion requesting such action on
December 13, 2017. The Plaintiffs responded on December 27,
2017, and the motion is therefore ripe for review.
FLSA permits employees with claims for unpaid minimum wages
or unpaid overtime compensation to bring actions against the
employer on behalf of themselves and similarly situated
employees. 29 U.S.C. § 216(b). Affected employees must
give consent in writing to become parties to an FLSA
collective action. Id. Courts may facilitate notice
to potential plaintiffs. Purdham v. Fairfax Cty. Pub.
Sch., 629 F.Supp.2d 544, 547 (E.D. Va. 2009). “The
‘notice' stage of an FLSA collective action is also
known as the ‘conditional certification' stage,
” and typically takes place early in litigation before
the completion of discovery. Id. It is during this
stage that the district court determines
“‘whether the plaintiffs have demonstrated that
potential class members are similarly situated, ' such
that court-facilitated notice to the putative class members
would be appropriate.” Syrja v. Westat, Inc.,
756 F.Supp.2d 682, 686 (D. Md. 2010) (quoting Camper v.
Home Quality Mgmt. Inc., 200 F.R.D. 516, 519 (D. Md.
2000)). It is the plaintiff's burden to demonstrate that
a potential class of similarly situated individuals exists,
and the plaintiff must produce some factual evidence in
support of conditional certification. Purdham, 629
F.Supp.2d at 548. The standard is “fairly
lenient” at the conditional certification stage.
MacGregor v. Farmers Ins. Exch., Civil No.
2:10-cv-03088, 2012 WL 2974679, *1 -2 (D.S.C. July 20, 2012)
(quoting Anderson v. Cagle's, Inc., 488 F.3d
945, 953 (11th Cir.2007).
the close of discovery, a defendant may move to decertify the
class. “At that point, the court makes a factual
determination as to whether the class is truly
‘similarly situated.'” Id. at 547.
Here, the “court engages in a more stringent inquiry to
determine whether the plaintiff class is [in fact]
‘similarly situated' in accordance with the
requirements of [Section] 216, and renders a final decision
regarding the propriety of the proceeding as a collective
action.” Butler v. DirectSAT USA, LLC, 47
F.Supp.3d 300, 306 (D.Md. 2014) (quoting Dorsey v. TGT
Consulting, LLC, 888 F.Supp.2d 670, 686 (D.Md. 2012).
However, “[s]imilarly situated does not mean
identical.” Butler, 47 F.Supp.3d at 306. The
plaintiffs generally bear the burden of proving to the court
that the FLSA claims are similarly situated, and the district
court has broad discretion in determining whether the class
should be decertified Id. at 307. “If the
court determines under this heightened standard that the
plaintiffs are ‘similarly situated, ' the
collective action proceeds to trial.” Rehberg v.
Flowers Baking Co. of Jamestown, LLC, No.
3:12-CV-00596-MOC, 2015 WL 1346125, at *15 (W.D. N.C. Mar.
neither the FLSA nor the Fourth Circuit have articulated a
specific standard regarding decertification of an FLSA class,
“district courts in this circuit . . . have considered
three factors relating to similarity upon a motion to
decertify: 1) the disparate factual and employment settings
of the individual plaintiffs; 2) the various defenses
available to defendant which appear to be individual to each
plaintiff; and 3) fairness and procedural
Omnicare Defendants move the Court to decertify the
conditional class because the named Plaintiff testified
during his deposition that the terms of his independent
contract agreement were negotiable. Thus, Omnicare argues
that whether each putative class member was an independent
contractor requires a separate and individual inquiry,
refuting the claim that the Plaintiffs are similarly situated
such that an FLSA class is appropriate. The Plaintiffs
counter that minor written changes by the named Plaintiff to
his independent contractor agreement are not sufficient to
overcome the similarities between the purported class members
such that the class should not be decertified, and that the
three factors to be weighed by the Court all fall in favor of
Court finds that the motion for decertification should be
denied. In its argument for decertification, Omnicare relies
nearly entirely on the fact that the named Plaintiff made
written changes to his independent contractor agreement. That
he made some written changes, however, does not sufficiently
overcome the similarities in job duties, working conditions,
and terms of employment, especially given the Court's
previous ruling that the Omnicare Defendants are joint
employers of the Plaintiffs for FLSA purposes. Further, as
evidenced by the Plaintiffs in their memorandum in
opposition, none of the putative class members'
independent contractor agreements were edited with written
changes in the way Omnicare describes Mr. Young's
agreement. (See, Pls.' Resp. in Opposition, Exhibit B.)
The only remaining issue is that of damages, and edits to the
named Plaintiff's contract does not overcome the similar
situations of all putative Plaintiffs regarding the damages
owed them by Omnicare.
review of each of the three factors previously mentioned
counsels denial of the motion. With respect to disparate
factual and employment settings, all of the potential
Plaintiffs signed the same form independent contractor
agreement and were treated in the same or similar manner
regarding their compensation as delivery drivers. As the
Court previously found in granting summary judgment, many of
the contractual provisions found in Act Fast's
independent contractor agreement were in place at the behest
of Omnicare based on what it required from the independent
delivery service. Omnicare provides no facts to dispute that
the employment settings among the Plaintiffs were identical.
neither Omnicare nor Act Fast have raised any
Plaintiff-specific defenses throughout litigation, and
Omnicare fails to present any for argument here. In its own
motion for summary judgment, Omnicare argued that it was not
an employer of the Plaintiffs at all, but that all Plaintiffs
were independent contractors solely employed by Act Fast.
Even in the current motion, Omnicare argues that there
could be potential differences in each of the
independent contractor agreements because the terms were
negotiable, not that there are Plaintiff-specific defenses.
Finally, the procedural and fairness concerns also weigh in
favor of litigating the remaining damages issue at one time.
It would be an unnecessarily burdensome task and an ...