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Deskins v. Southern West Virginia Community and Technical College

United States District Court, S.D. West Virginia, Charleston

August 22, 2019

MELISSA DESKINS, Plaintiff,
v.
SOUTHERN WEST VIRGINIA COMMUNITY AND TECHNICAL COLLEGE, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN T. COPENHAVER, SENIOR UNITED STATES DISTRICT JUDGE

         Pending is plaintiff's motion for conditional certification of the present action as a collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), filed in the Circuit Court of Kanawha County, West Virginia, alongside her original complaint, on or about May 29, 2018. Defendant removed this case to this court on July 3, 2018.

         I. Background

         Plaintiff Melissa Deskins initiated this action in the Circuit Court of Kanawha County against defendant Southern West Virginia Community and Technical College “to recover damages for herself and on behalf of others similarly situated to her, for unpaid overtime” under the FLSA, 29 U.S.C. § 201 et seq. Compl., ECF No. 2-1, at 4.

         Plaintiff worked in defendant's human resources department for approximately three years before her employment with defendant ended on April 27, 2018. Id. at ¶ 6. Defendant is an “employer” as that term is defined in the FLSA. 29 U.S.C. § 203(d); Compl., ECF No. 2-1, at ¶ 3. “Defendant's main campus and administrative offices, including its payroll and human resources departments, are located on Defendant's Logan campus.” Litteral Aff., ECF No. 6-1, at ¶ 4. Defendant has five locations in West Virginia: Boone/Lincoln County Campus, Williamson Campus, Lincoln Location, Logan Campus, and Wyoming/McDowell Campus. Id. at ¶ 5.

         Defendant maintains a 4-day workweek in which non-exempt employees are required to work 9.5 hours a day, Monday through Thursday. Compl., ECF No. 2-1, at ¶ 14. Non-exempt employees are not scheduled to work on Friday, Saturday or Sunday. Id. Mr. Litteral contends that employees are expected to work 9.5 hours Monday through Wednesday and to work 9 hours on Thursday. Litteral Aff., ECF No. 6-1, at ¶ 6. They are, according to him, allowed to work an additional 2.5 hours before working 40 hours in a workweek. Litteral Aff., ECF No. 6-1, at ¶ 6.

         Defendant has approximately 169 non-exempt positions, which includes full and part-time employees as well as student workers, and some of the positions are vacant. Id. at ¶ 7.

         Plaintiff claims that she consistently worked in excess of forty hours per workweek and was not paid one and one-half times her regular hourly rate for such hours worked despite, she asserts, that she was never exempt from the minimum wage/maximum hour requirements of the FLSA. 29 U.S.C. § 213; Compl., ECF No. 2-1, at ¶ 8-10. It is further alleged that defendant never recorded the actual hours worked by plaintiff, nor did defendant require plaintiff to record her own hours worked, thus violating the FLSA. 29 U.S.C. § 211(c); Compl., ECF No. 2-1, at ¶ 11. Defendant, however, does have a policy by which non-exempt employees and their supervisors are supposed to submit and approve time cards as well as apply for and approve overtime hours and payment. Litteral Aff., ECF No. 6, at ¶¶ 9-12. Overtime hours may be approved, according to defendant's policy, either before or after the hours are worked. Id. at ¶ 12.

         Plaintiff contends that Sam Litteral, defendant's chief financial officer, “knowingly and deliberately suffered and permitted Plaintiff to work hours in excess of forty (40) in one week while knowingly and deliberately failing to pay Plaintiff legally-required overtime rates.” Compl., ECF No. 2-1, at ¶ 12. Further, plaintiff believes that, after communicating with “no fewer than two other current non-exempt” employees, the same policies that resulted in her not being properly paid for overtime work were applied to others. Id. at ¶ 13. Specifically, other non-exempt employees have confirmed with plaintiff that Litteral stated that “he would not approve pay for the overtime hours worked.” Id.

         Plaintiff contends, “[u]pon information and belief, other FLSA non-exempt employees of Defendants, in addition to Plaintiff, have been improperly compensated by Defendants in a manner similar or identical to the . . . Plaintiff . . . . Under 29 U.S.C. § 216(b), these other employees are ‘similarly situated' to Plaintiff for purposes of this litigation.” Id. at ¶ 5. Plaintiff also maintains that defendant cured its illicit pay practices in May 2017. Pl.'s Mem. Supp. Mot. Conditional Certification, ECF No. 2-1, at 17.

         The plaintiff seeks damages (including overtime pay due, liquidated damages and attorney fees, costs, and interest) under 29 U.S.C. § 255 for “knowing and deliberate[] violations of the Act, ” incurred over a period of three years that predate the filing of the complaint. In addition, they seek this present certification to issue notice to all similarly situated plaintiffs. Pl.'s Mot. Conditional Certification, ECF No. 2-1, at 10. Accompanying plaintiff's motion is the affidavit of Melissa Deskins. Deskins Aff., ECF No. 2-1, at 18-22.

         Defendant timely filed a notice of removal to this court pursuant to 28 U.S.C. § 1331 on July 3, 2018. Not. Removal, ECF No. 1, at ¶ 3. On August 20, 2018, defendant filed a response in opposition to plaintiff's motion for conditional collective action certification, with Mr. Litteral's affidavit attached, to which the plaintiff has replied. In the defendant's response, it requests that certification be denied, or alternatively, limited. Def.'s Resp., ECF No. 6, at 10-11. Defendant contends, in the alternative to denying plaintiff's motion, that the proposed collective action notice should be revised. Id. at 11-13.

         On August 24, 2018, pursuant to the request of the parties, the court entered an order directing that discovery be stayed pending the further of the court, specifically, until the court enters a ruling on the plaintiff's motion.

         II. Analysis

         A. Conditional Certification of the Collective Action

         Employees may bring a collective action under the FLSA on behalf of similarly situated employees. 29 U.S.C. § 216(b). According to the statute, “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court.” Id. The Supreme Court authorized courts to facilitate notice to potential plaintiffs in such collective actions, emphasizing the importance of “employees receiving accurate and timely notice concerning the pendency of the collective action” and observing that “[c]ourt authorization of notice serves the legitimate goal of avoiding a multiplicity of duplicative ...


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