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Kraft v. Gongos, Inc

United States District Court, E.D. Michigan, Southern Division

April 14, 2019

HEATHER KRAFT, Plaintiff,
v.
GONGOS, INC., GONGOS RESEARCH, INC., and DEBRA POMORSKI, Defendants.

          ORDER AND OPINION DENYING PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF A FLSA COLLECTIVE ACTION AND FOR AN ORDER FOR NOTICE TO THE CLASS [DOC. #18]

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff Heather Kraft (“Kraft”) is a former employee of Defendants Gongos, Inc., Gongos Research, Inc., and Debra Pomorski (“Defendants”). She says she and others who were employed as Research Coordinators for Defendants were not properly compensated for overtime work as required under the Fair Labor Standards Act (“FLSA”). Plaintiff says she has met her burden to make a modest factual showing that she is similarly situated to other potential plaintiffs - enough to warrant conditional certification of a collective action under FLSA.

         The Court disagrees and DENIES Kraft's Motion.

         II. LEGAL STANDARD

         The Fair Labor Standards Act (“FLSA”) requires employers to pay time-and-a-half for nonexempt employees who work more than forty hours per week. 29 U.S.C. § 207; Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 545 (6th Cir. 2006). Under FLSA, employees have the right to collectively sue for violations on behalf of themselves and other employees similarly situated. 29 U.S.C. § 216(b); Monroe v. FTS USA, LLC, 815 F, 3d 1000 (6th Cir. 2016); Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). To proceed with a representative action, two requirements must be met: (1) plaintiffs must be “similarly situated”; and (2) all plaintiffs must affirmatively consent in writing to participate. 29 U.S.C. § 216(b); Comer, 454 F.3d at 546.

         Neither FLSA nor the Sixth Circuit defines the phrase “similarly situated, ” but the determination typically occurs in two stages. The first stage, also called the “notice stage, ” takes place at the beginning of discovery. It involves conditional certification for notice purposes so plaintiffs can opt-in to the suit.

         At this first stage, the Court determines whether a plaintiff has provided sufficient evidence of “similarly situated” plaintiffs to warrant sending notice to other potential plaintiffs. Comer, 454 F.3d at 546. A named plaintiff “can show that the potential claimants are similarly situated ‘by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.'” Olivo v. GMAC Mortg. Corp., 374 F.Supp.2d 545, 548 (E.D.Mich. 2004). Plaintiffs must show only that their “position is similar, not identical, to the positions held by the putative class members.” Comer, 454 F.3d at 546-47 (quoting Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D., 591, 595 (S.D.Ohio 2002)). “This initial standard is fairly lenient, and in order to meet this standard, Plaintiffs must simply submit evidence establishing at least a colorable basis for their claim that a class of ‘similarly situated' plaintiffs exists.” Olivo v. GMAC Mortgage Corp., 374 F.Supp.2d 545, 548 (E.D.Mich. 2004). “At this stage, courts consider factors such as whether potential plaintiffs have been identified; whether affidavits of potential plaintiffs were submitted; and whether evidence of a widespread unlawful policy or plan has been submitted.” Sutka v. Yazaki North America, Inc., 2018 WL 1255767 slip op. at 8 (E.D.Mich. Mar. 12, 2018) (quoting Anderson v. P.F. Chang's China Bistro, Inc., No. 16-14182, 2017 WL 3616475, at *7) (citing Olivo, 374 F.Supp.2d at 548).

         III. DISCUSSION

         Kraft asks the Court to conditionally certify a class of:

All current and former employees of Defendants Gongos, Inc., Gongos Research Inc., and Debra Pomorski, who worked as Research Coordinators and who worked hours in excess of forty per week but were not paid 1 ½ times their regular rate for overtime hours.

Plaintiff's Motion. [Doc. #18].

         Kraft's primary support for conditional certification is her single declaration in which she says that Defendants paid her on a salary basis and that she “regularly worked more than 40 hours per week and was not paid one and one half times [her] regular rate of pay for all hours worked over 40 in a week.” Declaration of Heather Kraft, ¶ 3. She says she is “personally aware of other individuals employed by Defendants as research coordinators, who performed similar job duties, who were compensated on a salary basis, and were not paid one and one half times their regular rate of pay for overtime hours.” Id., at ¶ 13. Kraft says her declaration and the pleadings show a single policy articulated by Defendants that does not properly pay time and a half for overtime hours in violation of FLSA.

         Defendants oppose Kraft's request. They argue conditional certification is inappropriate for two reasons: 1) Kraft's conclusory allegations do not show she is similarly situated with other Research Coordinators by way of a common policy or plan which violates FLSA; and 2) Kraft has not shown her alleged job responsibilities are similarly situated with ...


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