United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, SENIOR UNITED STATES DISTRICT JUDGE
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
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.
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 ¶
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.
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.
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.
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.”
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.
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.
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.
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.
Conditional Certification of the Collective Action
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 ...