United States District Court, E.D. Michigan, Southern Division
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.
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.
Court disagrees and DENIES Kraft's Motion.
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.
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.
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).
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].
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.
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 ...