United States District Court, W.D. Tennessee, Western Division
ASHLEY SHARP, on behalf of herself and those similarly situated, Plaintiff,
MECCA CAMPUS SCHOOL, INC. and CHARLES POGUE, individually, Defendants.
ORDER ON MOTION TO CERTIFY CLASS
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion to Certify Class. (Docket
Entry “D.E.” #25). The parties have consented to
the jurisdiction of the United States Magistrate Judge. (D.E.
#29). For the reasons set forth herein, Plaintiff's
Motion is hereby GRANTED.
August 24, 2016, Plaintiff Ashley Sharp
(“Sharp”), an hourly paid bus driver, filed her
Complaint against Defendants Mecca Campus School, Inc.
(“Mecca”) and Charles Pogue (“Pogue”)
alleging unpaid overtime compensation in violation of the
Fair Labor Standards Act, as amended, 29 U.S.C. § 216(b)
(the “FLSA”). On August 26, 2016, ten individuals
in addition to Sharp filed Consents to Join Collective
Action-Eric Moragne, Shaniki Brown, David Denton, Callie
Edwards, Tasha Liggins, Sheila Mans, Sherronda McAdams,
Sheena Puryear, Demeka Rounds, and Annette Johnson.
Sharp Complaint is virtually identical to the Complaint and
Amended Complaint filed in this Court by Tasha Liggins
(“Liggins”), on behalf of herself and those
similarly situated, on September 16, 2015. See Tasha
Liggins v. Mecca Campus School, Inc., No.
2:15-cv-02247-STA-cgc. In the Liggins case, six
individuals in addition to Liggins filed Consents to Join
Collective Action-Shaniki Brown, David Denton, Callie
Edwards, Sheila Mans, Sheena Puryear, and Danny Watson. The
Liggins case was dismissed with prejudice on June 3,
2016 for failure to comply with the Court's order to
submit a mediation certificate and stipulation of dismissal,
and a judgment was entered.
November 30, 2016, Sharp filed the instant Motion to Certify
Class. Sharp seeks to conditionally certify the collective
action, compel production regarding potential opt-in
plaintiffs, authorize notice to all similarly situated
employees, and toll the statute of limitations. Specifically,
Sharp proposes that the representative class consists of all
current and former bus drivers and bus monitors that worked
for Defendants at any time within the last three years who
were not properly compensated overtime wages. On March 14,
the Court entered an Order to Show Cause to Defendants to
respond within fourteen days as to why the Motion to Certify
Class should not be granted. On March 27, 2017, Defendants
responded that they had notified Plaintiff's counsel via
email on February 21, 2017 that they “would not file an
objection to the Motion to Certify Class but could not agree
to it either.” Defendants stated that they
“[r]egrettably . . . failed to notify the Court of such
position.” Defendants do note, though, that multiple
opt-in plaintiffs in this case were also plaintiffs in the
Liggins case, which has already been dismissed with
prejudice by this Court.
FLSA provides, in pertinent part, the following on pursuing
An action to recover the liability [for unpaid minimum wages
or unpaid overtime compensation] . . . may be maintained
against any employer . . . in any Federal or State court of
competent jurisdiction by any one or more employees for and
in behalf of himself or themselves and other employees
similarly situated. No 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 in
which such action is brought.
29 U.S.C. § 216(b). The two key requirements of Section
216(b) are that the plaintiffs must be similarly situated and
that all plaintiffs must signal in writing their affirmative
consent to participate in the action. Comer v. Wal-Mart
Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (citing
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165,
of a FLSA collective action is a two-phase process.
Comer, 454 F.3d at 546; O'Brien, 575
F.3d at 583. “The first takes place at the beginning of
discovery, ” and any certification is
“conditional and by no means final.”
Comer, 454 F.3d at 546 (internal quotations
omitted). The court should rely upon the pleadings and any
filed affidavits in determining if conditional certification
is appropriate. James Allen Frye v. Baptist Memorial
Hospital, No. 2:07-cv-02708-SHM-cgc, 2010 WL 3862591, at
*2 (W.D.Tenn. Sept. 27, 2010). At this stage, a plaintiff
must only “make a modest factual showing” that
“his position is similar, not identical” to the
positions held by the other proposed opt-in plaintiffs.
Comer, 454 F.3d at 546 (citations omitted).
“[T]his determination is made using a fairly lenient
standard, and typically results in conditional certification
of a representative class.” Id. (citations
omitted); see also White v. MPW Indus. Srvs., 236
F.R.D. 363, 366-67 (E.D.Tenn. Mar. 21, 2006) (citing cases).
“To require more at this stage of the litigation would
defeat the purpose of the two-stage analysis.”
White, 236 F.R.D. at 368.
second phase of an FLSA collective action is typically
precipitated by a motion for decertification, White,
236 F.R.D. at 366 (quoting Mooney v. Aramco Srvs.
Co., 54 F.3d 1207, 1213- 14 (5th Cir. 1995)), and it
does not occur until “after all of the opt-in forms
have been received and discovery has concluded, ”
Comer, 454 F.3d at 546. At this point, “trial
courts examine much more closely the question of whether
particular members of the [collective action] are, in fact,
similarly situated.” Id. Because “the
court has much more information [upon which] to base its
decision” during the second phase, it employs a
“stricter standard” for final certification.
FLSA does not define “similarly situated.”
O'Brien, 575 F.3d at 584. The United States
Court of Appeals for the Sixth Circuit has also not defined
“similarly situated” but has concluded that the
consideration of whether violations are alleged to have
occurred at “about the time and place and approximate
manner is a starting point for understanding what similarly
situated means.” Id. at 585 (internal
quotations omitted). However, the court cautioned that
requiring causes of action to accrue at about the same time
and place in the approximate manner of the named plaintiff
“is more demanding than what the statute
requires.” Id. Further, the court stated that
“it is clear that plaintiffs are similarly situated
when they suffer from a single, FLSA-violating policy, and
when proof of that policy or of conduct in conformity with
that policy proves a violation as to all the
plaintiffs.” Id. Yet while such a policy is
one manner of demonstrating that the plaintiffs are similarly
situated, “showing a unified policy of violations is
not required” for class certification. Id. at
584 (internal quotations omitted). Employees may also be
similarly situated if the claims are “unified by common
theories of defendants' statutory violations, ”
although this is also not a requirement. Id. at 585
(concluding that proposed opt-in plaintiffs were similarly
situated because the claims alleged two common means of
violating the FLSA-“forcing employees to work off the
clock and improperly editing time-sheets.”).
instant case, Defendants have not contested any aspect of
Plaintiff's proposed conditional certification or notice
to putative class members. Sharp avers that her claims are
typical of the claims of the approximately thirty former and
current similarly situated bus drivers and bus monitors who
were employed by Defendants. In support, Sharp provides the
Declarations of opt-in Plaintiffs Eric Moragne
(“Moragne”), Annette Johnson
(“Johnson”), and Sherronda McAdams
(“McAdams”), who state that they worked as bus
drivers and monitors over forty hours per week but were paid
their usual hourly pay for hours worked beyond forty hours
per week in violation of the FLSA. (Mot. to Certify, Exhs. A,
B & C ¶¶ 5-12). Moragne, Johnson, and McAdams
also stated that, during their employment, they personally
observed and discussed with other bus drivers and bus
monitors who performed the same or similar duties and worked
similar hours but were not paid overtime compensation.
(Id. ¶ 14). ...