McCoy v. Elkhart Products Corporation

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

SHEILA MCCOY, individually

and on behalf of all others similarly

situated PLAINTIFF

v. No. 5:20-CV-05176

ELKHART PRODUCTS CORPORATION DEFENDANT

OPINION AND ORDER

Before the Court are Plaintiff Sheila McCoy’s motion (Doc. 18) for conditional

certification, brief in support (Doc. 19), and other supporting documents. Defendant Elkhart

Products Corporation filed a response (Doc. 21) in opposition. Plaintiff filed a reply (Doc. 24)

with leave of Court. For the reasons set forth below, Plaintiff’s motion will be granted as stated

herein.

I. Background

Plaintiff seeks conditional certification to provide notice to all hourly-paid production

facility employees who worked for Defendant at any time on or after October 1, 2017. Defendant

manufactures screw machine products, various copper and aluminum tubular components, and

tube fittings for the public, air conditioning, and refrigeration industries. Since October 1, 2017,

Plaintiff has worked for Defendant as an hourly employee. From January 2020 to September 2020,

Plaintiff worked in Defendant’s rotary department. Plaintiff alleges her job duties regularly

required her to clock in before her shift was scheduled to start and clock out after her shift ended,

but that Defendant adjusted her time to show she had only worked the scheduled time. For

example, Plaintiff states she would have to clean her equipment after her shift ended at 3:30 p.m.,

but she was not paid for the time after 3:30 p.m. Plaintiff contends she and other hourly employees

were regularly paid for fewer hours than they worked.

Defendant has two production facilities, one in Fayetteville, Arkansas and one in Elkhart,

Indiana. Defendant also has eighteen hourly employees in a facility in Oklahoma. Plaintiff argues

hourly employees at all of Defendant’s locations were subject to the same pay practices. Plaintiff

alleges Defendant has violated the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (the “FLSA”)

and the Arkansas Minimum Wage Act, Ark. Code Ann. § 11-4-201, et seq. (the “AMWA”).

Plaintiff seeks conditional certification of her FLSA claim as a collective action pursuant to 29

U.S.C. § 216(b), approval of authorization to issue notice to putative class members, disclosure of

contact information, and approval of the proposed notice and consent-to-join forms.

II. Discussion

A. Conditional Certification

“The FLSA allows named plaintiffs to sue [their employer] ‘for and in behalf

of . . . themselves and other employees similarly situated.’” Bouaphakeo v. Tyson Foods, Inc., 765

F.3d 791, 796 (8th Cir. 2014) (quoting 29 U.S.C. § 216(b)). This type of suit—a collective

action—is distinguishable from a class action certified under Federal Rule of Civil Procedure 23,

as it requires plaintiffs to use the opt-in mechanism under 29 U.S.C. § 216(b) for joining a putative

class of plaintiffs rather than the opt-out procedures in Rule 23. Schmidt v. Fuller Brush Co., 527

F.2d 532, 536 (8th Cir. 1975). The FLSA gives the Court “the requisite procedural authority to

manage the process of joining multiple parties in a manner that is orderly, sensible, and not

otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil

Procedure.” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). “The court has a

responsibility to avoid the stirring up of litigation through unwarranted solicitation of potential

opt-in plaintiffs, but the district court should, in appropriate cases, exercise its discretion to

facilitate notice to potential plaintiffs.” Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870,

890 (N.D. Iowa 2008) (citing Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn.

1991)); see also Hoffman-La Roche, 493 U.S. at 169) (internal quotations omitted).

Ultimately, certification of a collective action will depend on whether the named plaintiffs

are similarly situated to the putative class. The Supreme Court has hinted that the rules for joining

similarly situated plaintiffs are similar to the rules of joinder under Federal Rule of Civil

Procedure 20(a). See Epic Systems Corp. v. Lewis, -- U.S. --, 138 S.Ct. 1612, 1636 n.3 (2018)

(indicating that “similarly situated” FLSA plaintiffs may be joined in the same action under

Federal Rule of Civil Procedure 20(a), which requires that their claims arise out of the same

transaction or occurrence and involve common questions of law or fact). Neither § 216(b) nor the

Eighth Circuit Court of Appeals has defined when “other employees [are] similarly situated” so

that collective action certification and authorization of notice is appropriate. Davenport v. Charter

Comms., LLC, 2015 WL 164001, at *4 (E.D. Mo. Jan. 13, 2015). District courts within the Eighth

Circuit have historically utilized a two-stage approach for collective action certification under

§ 216(b). See e.g., Resendiz-Ramirez v. P & H Forestry, L.L.C., 515 F. Supp. 2d 937, 940 (W.D.

Ark. 2007) (“The Court is convinced that the more prudent approach is to use the two-stage

certification analysis that is used by a majority of courts, including a majority of district courts in

the Eighth Circuit.”). Nothing in Eighth Circuit or United States Supreme Court precedent requires

district courts to utilize this approach; rather, “[t]he decision to create an opt-in class under

§ 216(b), like the decision on class certification under Rule 23, remains soundly within the

discretion of the district court.” Bouaphakeo, 564 F. Supp. 2d at 891 (citing Hipp v. Liberty Nat.

Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001)).

Defendant argues the Court should not follow the two-stage approach because the two-

stage approach has resulted in courts approving conditional certification without reviewing if

potential class members are similarly situated. Defendant further argues that any argument raised

in opposition to conditional certification “is met with a dismissive citation that no consideration

of the merits . . . is appropriate at the initial notice stage.” (Doc. 21, p.7). Defendant requests the

Court to follow the recent Fifth Circuit opinion in Swales v. KLLM Transport Services, L.L.C., No.

19-60847, 2021 WL 98229 (5th Cir. Jan 12, 2021). In Swales, the Fifth Circuit rejected the two-

stage approach and instead found that a “district court should identify, at the outset of the case,

what facts and legal considerations will be material to determining whether a group of employees

is similarly situated . . . [a]nd then it should authorize preliminary discovery accordingly.” 2021

WL 98229, at *7 (internal quotations omitted). The Court will follow the historical, two-stage

approach, which has proven to be an efficient means of resolution of this issue. Although the

burden of proof is low at the first stage of the two-stage approach, it is not non-existent, and

Defendant’s complaint that the two-stage approach leads courts to grant conditional certification

without reviewing if potential opt-in plaintiffs are similarly situated is unfounded.

Under the two-stage approach to certifying a collective action, when named plaintiffs move

for certification of a collective action—typically early in the discovery process—a court considers

whether plaintiffs and putative class members were victims of a common decision, policy, or plan

of the employer that affected all class members in a similar manner. Resendiz-Ramirez, 515 F.

Supp. 2d at 940–41. While the burden of proof is relatively low, “some identifiable facts or legal

nexus must bind the claims so that hearing the cases together promotes judicial efficiency.” Jost

v. Commonwealth Land Title Ins. Co., 2009 WL 211943, at *2 (E.D. Mo. Jan. 27, 2009) (quotations

omitted). Some factors that may be considered by district courts making this determination

include: (1) whether everyone worked in the same location; (2) whether they held the same job

title; (3) whether the alleged violations occurred during the same time period; (4) whether all

workers were subjected to the same policies and practices, and whether those policies and practices

were established in the same manner by the same decision maker; and (5) the extent to which the

acts constituting the alleged violations are similar. See Watson v. Surf-Frac Wellhead Equip. Co.,

2012 WL 5185869, at *1 (E.D. Ark. Oct. 18, 2012). If notification is deemed appropriate, the

class is conditionally certified for notice and discovery purposes and the action proceeds as a

representative action. Croft v. Protomotive, Inc., 2013 WL 1976115, at *1 (W.D. Ark. May 13,

2013) (citing Resendiz-Ramirez, 515 F. Supp. 2d at 940).

Defendant argues Plaintiff has failed to show employees at the Indiana facility are similarly

situated to her or others at her facility. Plaintiff argues Defendant has standard pay policies that

are uniform from location to location and all employees were subject to the same pay practices,

and that Plaintiff’s declaration should demonstrate hourly employees at the Indiana facility are

similarly situated. The decision to certify a class is typically determined “based solely on the

affidavits presented by plaintiffs.” See Buford v. Superior Energy Servs., LLC, 2018 WL 6441097,

*4 (E.D. Ark. June 1, 2018) (internal citations and quotations omitted). However, Plaintiff has not

presented sufficient evidence that hourly employees at the Indiana location are similarly situated

based on her personal knowledge. See Chime v. Peak Security Plus, Inc., 137 F. Supp. 3d 183,

202 (E.D.N.Y. 2015) (finding the “focus of the court’s inquiry is not on the defendant’s evidence,

but on whether the plaintiffs have made their requisite showing . . . Defendant’s challenges are . .

. premature . . . [and] defendant’s attacks on plaintiffs’ affidavits and other evidence raise

questions as to whether plaintiffs could prevail under a more stringent standard and . . . survive a

decertification motion”); Pressler v. FTS USA, LLC, 2010 WL 1904974, at *4 (W.D. Ark. May

12, 2010). Plaintiff’s affidavit states she had personal knowledge of other employees regularly

being paid fewer hours than they had worked because of conversations Plaintiff had with other

employees. This is sufficient to demonstrate a similarly situated class in the location Plaintiff

worked, but Plaintiff has presented no evidence to show employees in Defendant’s Indiana facility

were similarly situated. Defendant agrees it has eighteen hourly employees in a facility in

Oklahoma, but if the Court conditionally certifies a collective action, Defendant suggests the

definition be amended because these employees are on the Fayetteville, Arkansas payroll and can

be included as potential opt-in plaintiffs by referencing that factor.

Considering the factors listed above, the Court finds that Plaintiff has met her burden at

this stage to demonstrate that she is similarly situated with other putative class members on the

Fayetteville, Arkansas payroll. Accordingly, the Court will conditionally certify this action.

Regarding the class definition, Plaintiff requests that the Court conditionally certify and approve

notice for the following class: all hourly-paid production facility employees who worked for

Defendant at any time on or after October 1, 2017. Defendant proposes the following class

definition: all hourly-paid production facility employees who worked for Defendant at any time

on or after October 1, 2017 in Defendant’s Fayetteville, Arkansas facility or on Fayetteville

payroll. Because Plaintiff has not demonstrated that conditional certification should include

Indiana employees, the Court agrees with Defendant’s proposed definition, and the definition is

amended to read as follows: all hourly-paid production facility employees who worked for

Defendant at any time on or after October 1, 2017 in Defendant’s Fayetteville, Arkansas facility

or on Fayetteville payroll.

B. Form of Notice and Consent-to-Join

Plaintiff has submitted a proposed notice, a consent to join, and a second notice of right to

join (to be sent to non-responding class members 30 days after the initial notice is sent). Defendant

objects to certain aspects of these documents and proposes certain changes. The Court will address

each objection and proposal in turn.

A collective action depends “on employees receiving accurate and timely notice

concerning the pendency of the collective action, so that they can make informed decisions about

whether to participate.” Hoffmann–La Roche, 493 U.S. at 170. The Court will manage the

preparation and distribution of notice so that it is “timely, accurate, and informative.” Id. at 172.

A district court “has broad discretion regarding the ‘details’ of the notice sent to potential opt-in

plaintiffs.” Butler v. DirectSat USA, LLC, 876 F. Supp. 2d 560, 574 (D. Md. 2012). When

determining the details, the Court is “guided by the goals of the notice: to make as many potential

plaintiffs as possible aware of this action and their right to opt in without devolving into a fishing

expedition or imposing undue burdens on the defendants.” Diaz v. N.Y. Paving Inc., 340 F.Supp.3d

372, 386 (S.D.N.Y. 2018) (internal alterations and citation omitted). Just as it is not the purpose

of notice to solicit participation in litigation, it is not the purpose of notice to discourage

participation.

Defendant argues Paragraph (3) of the proposed first notice should be modified to conform

to the allegation in Plaintiff’s complaint. The paragraph as proposed states “Plaintiff filed a lawsuit

against Defendant asserting that Defendant violated federal law in failing to pay its hourly-paid

production facility employees correctly.” (Doc. 18-1, p.1). Defendant requests this sentence be

changed to read “Plaintiff filed a lawsuit against Defendant asserting that Defendant violated

federal law in failing to pay its hourly-paid production employees overtime by consistently

adjusting employees’ hours to reflect only forty hours worked each week.” The Court agrees and

orders Paragraph (3) must be changed to read

(3) DESCRIPTION OF THE LAWSUIT: Plaintiff in this case is a former hourly-

paid production facility employee for Defendant Elkhart Products Corporation

(“Defendant”). Plaintiff filed a lawsuit against Defendant violated federal law in

failing to pay its hourly-paid production employees overtime by consistently

adjusting employees’ hours to reflect only forty hours worked each week.

Defendant denies Plaintiff’s claims and allegations. Defendant asserts that it

complied with the law, and properly compensated all of its hourly-paid production

facility employees.

This case has been set for trial the week of November 1, 2021. If the case is not

settled between the parties, a trial will be held at the United States District Court

for the Western District of Arkansas in Fayetteville. The Court has not ruled on or

decided any of the issues, including the merits of the claims or defenses.

The proposed notice must also be updated to reflect the class definition as defined above.

Defendant also objects to Paragraph (6) of the proposed notice and argues the last line,

reading “Plaintiff’s attorney will receive part of any money judgment or settlement entered in favor

of the class,” should be removed because it is not necessary to explain how Plaintiff’s counsel will

be compensated. Defendant also objects to Paragraph (6) because the sentence “It is important to

understand you may be entitled to recovery just because you were employed as an hourly-paid

production facility employee” suggests a plaintiff could be entitled to recovery simply because

they were employed. Paragraph (6) provides information necessary for potential class members

to make an informed decision on whether to participate in the lawsuit and will not be changed.

Defendant objects to Paragraph (10) of the proposed notice because Defendant argues it is

not necessary. Paragraph (10) as written informs potential class members that if they take part in

this case, retaliation is prohibited, and it will not be removed. However, the Court agrees with

Defendant that the last sentence of Paragraph (10), which directs potential class members to

contact the Clerk of Court if they are subjected to retaliation, should be revised. The Clerk of

Court has no authority to adjudicate or redress complaints of retaliation. The second sentence in

Paragraph (10) must be changed to read “If you believe you have been discriminated or retaliated

against in any way as a result of your receipt of this notice or election to participate in this lawsuit,

you should contact your attorney immediately.”

The Court orders the proposed reminder postcard be changed to read as follows:

On _______ ___, 2021, you were sent a Notice of Right to Join Lawsuit informing

you of a lawsuit in which you could become a member as an Opt-In Plaintiff. You

are being sent this second notice because you must join the lawsuit if you want to

become a member of the class. If you did not receive the first Notice and would

like a copy, please contact Plaintiff’s attorney listed below. If you already sent a

Consent, it has not been received. The consent must be received by _______ ___,

2021. The Court neither encourages nor discourages participation in this lawsuit.

The title of the postcard should also be changed from “Second Notice of Right to Join Lawsuit” to

“Reminder of Right to Join Lawsuit.” This change will ensure the putative class members are

informed of the Court’s neutrality on the matter and rephrasing the title of the postcard will only

improve its accuracy.

C. Dissemination of Notice and Requests for Information

Plaintiffs have also requested notice be made through U.S. Mail and email, and a follow-

up reminder postcard be sent by U.S. mail. Plaintiffs further request Defendants post a copy of

the notice in a location where Defendants post government-required notices. The Court will grant

the request to provide notice through U.S. Mail and email and to require Defendants to post the

notice in a physical location. The Court will also grant Plaintiffs’ request to send a second notice

of right to join lawsuit via U.S. Mail.

Plaintiff requests sending notice through email in addition to U.S. Mail because of the

problems that occur when notice is sent by U.S. Mail. The proposed email notice provides

potential class members with a way to sign the consent to join electronically. “Electronic

communication is commonly utilized and is an appropriate, convenient, and efficient manner of

communication with potential plaintiffs in FLSA actions.” Middleton v. Hempstead Cty, Ark.,

Case No. 4:18-cv-4112, 2019 WL 3948106, at *4 (W.D. Ark. Aug. 21, 2019). Defendants argue

notice by email should not be allowed because Plaintiff has not demonstrated email is necessary

and because Defendant does not have emails for all of its production employees. The Court finds

that it is reasonable to permit Plaintiffs to send notice through email, not because of necessity but

because it is a method reasonably calculated to provide timely actual notice to potential opt-in

plaintiffs. Irvine v. Destination Wild Dunes Mgmt., Inc., 132 F. Supp. 3d 707, 711 (D.S.C. 2015)

(“This has become a much more mobile society with one’s email address and cellphone number

serving as the most consistent and reliable method of communication.”). Defendant must provide

the email addresses it does have for potential opt-in plaintiffs, but Defendant is not expected to

take affirmative steps to obtain email addresses from those employees for whom Defendant does

not already have that information. Plaintiff’s request for potential opt-in plaintiffs to sign the

consent electronically will also be granted. Adkinson v. Tiger Eye Pizza, LLC, Case No. 4:19-CV-

4007, 2019 WL 5213957, at *9 (E.D. Ark. Oct. 16, 2019) (“The FLSA does not contain a physical

signature requirement but, rather, requires only that opt-in consent be ‘in writing.’”) (internal

citation omitted).

Plaintiff proposes a follow-up postcard be sent, via U.S. Mail, 30 days after the notice is

distributed. Defendant argues a follow-up postcard is not necessary because Plaintiff has failed to

demonstrate that the notice when sent by U.S. Mail is likely to not be received by potential opt-in

plaintiffs. The Court finds the request to use a reminder postcard should be granted. Though a

reminder may run the risk of appearing to encourage participation, it also increases the likelihood

that potential opt-in plaintiffs will receive actual notice of this action, reducing the probability that

the Court and parties will need to address multiple requests to allow late opt-ins.

Plaintiff’s request that Defendant be required to post the notice in a conspicuous location

at its facilities will be granted. See Cruthis v. Vision’s, 2013 WL 4028523, at *8 (E.D. Ark. Aug.

7, 2013) (citing Putnam v. Galaxy 1 Mktg., Inc., 276 F.R.D. 264, 276 (S.D. Iowa 2011)) (“[C]ourts

routinely approve requests to post notice in common areas or on employee bulletin boards, even if

there is an alternative form of notice.”).

Plaintiff requests the Court order Defendant to provide them with a list of the names, last

known mailing addresses, telephone numbers, work and personal email addresses, and cell phone

numbers of all potential plaintiffs within the class description. Defendant argues it should not be

required to produce telephone numbers of potential opt-in plaintiffs because Plaintiff did not

request to send notice via text message. Plaintiff’s reply, for the first time, requests the Court to

allow Plaintiff to send notice via text message. The Court will not authorize notification by text

message. The Court will grant Plaintiff’s request that Defendant provide them with a list of names,

last known mailing addresses, and work and personal email addresses, but not telephone numbers.

Plaintiff also requests the deadline to file opt-in plaintiffs’ consent-to-join forms be set no

earlier than 90 days after Plaintiff mails notice. The Court finds that a 60-day opt-in period,

beginning after Plaintiff receives contact information, is sufficient and will serve the interests of

efficiently facilitating notice without further delaying the litigation. Plaintiff asks the Court to

require Defendant to produce the contact information in Excel within 7 days of the Court’s order,

Defendant requests 14 days. Defendant does not provide any reason why it requires 14 days and

the Court finds 7 days is appropriate.

III. Conclusion

IT IS THEREFORE ORDERED that Plaintiff’s motion for conditional certification of a

collective action and approval of notice (Doc. 18) is GRANTED. The motion is GRANTED as

follows:

• The Court conditionally certifies the case as a collective action pursuant to 29 U.S.C.

§ 216(b) and authorizes notice to be sent to potential opt-in plaintiffs. The opt-in class will

consist of all hourly-paid production facility employees who worked for Defendant at any

time on or after October 1, 2017 in Defendant’s Fayetteville, Arkansas facility or on

Defendant’s Fayetteville payroll. Within 10 days after receiving the contact information

for potential opt-in plaintiffs, Plaintiff must prepare and distribute notice to all putative

plaintiffs as allowed by this order. Plaintiff must file any opt-in plaintiffs’ signed consent-

to-join forms with the Court within 60 days after receiving the contact information of

potential opt-in plaintiffs.

• Defendant is directed to provide the names, mailing addresses, and email addresses of all

putative members of the collective action. Defendant may provide this information in any

reasonable format. Defendant has until February 18, 2021 to deliver the contact

information to Plaintiff.

• Plaintiff’s proposed notice and consent-to-join forms are approved with the changes set

forth above.

• Defendant is directed to post a copy of the notice in a conspicuous location at their facilities

in an employee common area or where other notices of employee rights are posted.

IT IS SO ORDERED this 11th day of February, 2021.

/s/P. K. Holmes,

P.K. HOLMES, III

U.S. DISTRICT JUDGE