United States District Court, M.D. Tennessee, Nashville Division
RICHARDSON, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion to Conditionally
Certify Collective Action, Order Disclosure of Putative
Members' Names and Contact Information, and Facilitate
Court-Supervised Notice (Doc. No. 14), to which no response
has been filed.
Powers' First Amended Complaint (Doc. No. 12) asserts
that she is a former employee of Defendants Blessed HomeCare
and Leatherman, who provide in-home care services and group
home services to clients. Plaintiff filed this action
pursuant to the Fair Labor Standards Act
(“FLSA”), alleging failure to pay time and
one-half the hourly wage (“overtime
compensation”) to caregivers, such as Plaintiff, who
worked more than 40 hours per week for Defendants.
Id. In the pending motion, Plaintiff asks the Court
to conditionally certify a class of all current and former
employees of Defendants who worked as caregivers within the
last three years. (Doc. No. 14). Plaintiff also asks the
Court to require Defendants to provide Plaintiff with a
computer readable data file containing the name, last known
address, last known email address, and dates of employment
for each such employee, to conspicuously post notice of this
case in the group homes maintained by Defendants, and to
disseminate the notice with paychecks and/or pay stubs.
Id. Finally, Plaintiff asks the Court to approve her
proposed Consent to Join form. Id.
FLSA provides that a collective action to recover
compensation may be maintained against any employer by any
one or more employees for and on behalf of themselves and
other employees similarly situated. 29 U.S.C. § 216(b).
Unlike class actions under Fed.R.Civ.P. 23, FLSA collective
actions require similarly situated employees to “opt
in” as party plaintiffs. Also, because the FLSA
requires only that the employees be “similarly
situated, ” plaintiffs seeking to certify a collective
action under the FLSA face a lower burden than those seeking
to certify a class under Rule 23. Watson v. Advanced
Distribution Servs., 298 F.R.D. 558, 561 (M.D. Tenn.
courts recognize a two-step process to determine whether
plaintiffs are similarly situated. Bradford v.
Logan's Roadhouse, Inc., 137 F.Supp.3d 1064, 1071
(M. D. Tenn. 2015). The first step takes place at the
beginning of discovery, where the plaintiff bears the burden
of showing that employees in the purported class are
similarly situated. Id. The plaintiff must show only
that her position is similar, not that it is identical, to
the positions held by the putative class members.
Id. (citing Comer v. Wal-Mart Stores, Inc.,
454 F.3d 544, 546 (6th Cir. 2006)). At this first stage,
courts use a “fairly lenient standard” that
typically results in conditional certification of a
representative class. Id.
the required factual showing is “modest, ” it
cannot be satisfied simply by unsupported assertions.
Medley v. Southern Health Partners, Inc., No.
1:17-cv-00003, 2017 WL 3485641, at * 5 (M.D. Tenn. Aug. 15,
2017). In other words, conclusory allegations are
insufficient to support conditional certification.
Arrington v. Michigan Bell Tel. Co., No. 10-10975,
2011 WL 3319691, at * 4 (E.D. Mich. Aug. 1, 2011) (citing 7B
Wright, Miller & Kane, Federal Practice &
Procedure § 1807 (3d ed. 2005) at 490-91). This is
true even if the conclusory allegations are asserted not
merely in a complaint, but rather in a (sworn)
plaintiff's declaration. See McKinstry v. Dev.
Essential Servs., Inc., No. 2:16-cv-12565, 2017 WL
815666, at * 2 (E.D. Mich. Mar. 2, 2017) (noting that
Arrington's rule applies even to assertions made
in a declaration). The named plaintiff must present some
factual support for the existence of a class-wide policy or
practice that violates the FLSA. Medley, 2017 WL
3485641, at * 5. A plaintiff must submit evidence
establishing at least a colorable basis for her claim that a
class of similarly situated plaintiffs exists. Id.;
Swinney v. Amcomm Telecom., Inc., No. 12-12925, 2013
WL 28063, at * 5 (E.D. Mich. Jan. 2, 2013). At the first
stage, a plaintiff must present substantial allegations
supported by declarations; if the plaintiff meets that
burden, a court, in its discretion, may conditionally certify
the case as a collective action. Medley, 2017 WL
3485641, at * 5.
may consider the factual record developed to date when
determining whether the plaintiff has met her evidentiary
burden, but the court does not resolve factual disputes,
decide substantive issues going to the merits, or make
credibility determinations at this first stage.
Bradford, 137 F.Supp.3d at 1072. If a court
determines that conditional certification is warranted, it
may authorize the notification of similarly situated
employees to allow them to opt into the lawsuit. Id.
Such certification is conditional and by no means final.
FLSA does not define the term “similarly situated,
” but courts have held 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
plaintiffs. Bradford, 137 F.Supp.3d at 1071;
Watson, 298 F.R.D. at 561. Employees may be
similarly situated if their claims are unified by common
theories of the defendant's statutory violations, even if
the proofs of these theories are individualized and distinct.
Id. In the FLSA context, courts have consistently
required the plaintiffs to show that the class members were
together the victims of a “single decision, policy, or
plan” before they will conditionally certify a
collective action. Pacheco v. Boar's Head Provisions
Co., 671 F.Supp.2d 957, 961 (W.D. Mich. 2009).
noted above, a plaintiff must submit evidence establishing at
least a colorable basis for her claim that a class of
similarly situated plaintiffs exists for the purposes of
conditional certification. Swinney, 2013 WL 28063,
at * 5; O'Neal v. Emery Fed. Credit Union, No.
1:13-cv-22, 2013 WL 4013167, at * 5 (S.D. Ohio Aug. 6,
2013). Certification at the notice stage,
although governed by a lenient standard, is not automatic.
Harriel v. Wal-Mart Stores, Inc., Civil Action No.
11-2510, 2012 WL 2878078, at *4 (D.N.J. July 13, 2012).
“A plaintiff must show a ‘factual nexus'
between his or her situation and the situation of other
current and former employees sufficient to determine that
they are similarly situated.” Id.
only question before the Court on the instant motion is
whether Plaintiff has carried her burden of showing that
employees in the purported class are similarly situated for
purposes of the first (“notice”) stage of
conditional certification. In support of her motion,
Plaintiff has filed her own Declaration (Doc. No. 14-1), in
which she describes the factual basis for her own claim of
failure to pay overtime compensation. The only facts
Plaintiff asserts with regard to the allegedly similarly
situated employees, however, is the following: “I am
aware of other caregivers who worked for Defendants within
the last three years who worked more than 40 hours in a
workweek and who were ...