The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
CHRISTOPHER PHILLIPS, Individually
and on Behalf of Others Similarly Situated PLAINTIFF
v. Case No. 6:23-cv-6055
OAKLAWN JOCKEY CLUB, INC. DEFENDANT
ORDER
Before the Court is Plaintiff Christopher Phillips’ Motion to Certify Collective Action.
ECF No. 10. Defendant Oaklawn Jockey Club, Inc. (“Oaklawn”) responded. ECF No. 12.
Plaintiff replied. ECF No. 15. The Court finds the matter ripe for consideration.
I. BACKGROUND
Plaintiff brings this action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. (“FLSA”), and the overtime provisions of the Arkansas Minimum Wage Act, Ark. Code Ann.
§ 11-4-201, et seq. ECF No. 2. Plaintiff proceeds on behalf of himself and all others similarly
situated. Plaintiff alleges that Defendant Oaklawn erroneously categorized him and others as
exempt from the overtime provisions of the FLSA and failed to pay overtime wages owed to them.
In the instant motion, Plaintiff seeks to conditionally certify a collective action for his
FLSA claims pursuant to 29 U.S.C. § 216(b). ECF No. 10. Plaintiff proposes a collective defined
as “All Slot Technician Supervisors employed by Defendant since May 2, 2020.” Plaintiff
attached his sworn declaration describing his work and the estimated number of other individuals
who would be part of the collective. ECF No. 10-6. Plaintiff also attached his proposed means of
communicating with potential members of the proposed collective. ECF Nos. 10-1, 10-2, 10-3, &
10-4. Oaklawn responded in opposition, generally arguing that the prevailing method of
evaluating proposed collective actions is outdated and that Plaintiff has failed to demonstrate that
a collective is appropriate in this matter. ECF No. 12. Plaintiff replied, emphasizing the minimal
showing necessary to certify a collective under the standard used in this Circuit. ECF No. 15.
The original attorneys representing Plaintiff withdrew after filing the instant motion. ECF
Nos. 21 & 22. The Court then directed Plaintiff’s current counsel to provide an update as to their
intentions regarding the pending motion to certify a collective and if they intended to maintain the
motion and rest on the existing briefing. ECF No. 23. Plaintiff’s current counsel informed the
Court that they would rest on the existing briefings but would submit amended documents
regarding their communications with potential members of the proposed collective. ECF No. 24.
Plaintiff subsequently submitted the amended proposed communication documents. ECF Nos. 25-
1, 25-2, 25-3, & 25-4.
II. DISCUSSION
A. Potential Reevaluation of Conditional Certification Standard
In response to the instant motion, Oaklawn argues that the Court should not apply the
prevailing standard in the Eighth Circuit for evaluating requests to conditionally certify a collective
action for FLSA claims. ECF No. 12, p. 1-17. Oaklawn notes that the two-tier approach used by
district courts in the Eighth Circuit traces its lineage to the Fifth Circuit case Mooney v. Aramco,
54 F.3d 1207 (5th Cir. 1995). Oaklawn then notes that the Fifth Circuit in Swales v. KLLM Transp.
Serv., LLC, 985 F.3d 430 (5th Cir. 2021) recently rebuked the notion that it had endorsed the two-
tier approach for evaluating motions to conditionally certify a collective action. Oaklawn
emphasizes that the Fifth Circuit in Swales rejected the two-tier approach that courts in this Circuit
took from Mooney because it places too little burden on a plaintiff seeking to conditionally form a
collective and leads to unfounded litigation. Oaklawn contends that the Court should abandon the
standard applied in this Circuit and apply the process outlined in Swales in which a short discovery
period is permitted prior to determining if it is appropriate to certify a collective.
In reply, Plaintiff emphasizes that this Court and every other district court in the Eighth
Circuit currently applies the two-tier standard for evaluating motions to conditionally certify
collective actions. ECF No. 15, p. 1-7. Plaintiff also asserts that no district court in the Eighth
Circuit has chosen to apply the approach outlined in Swales.
The Court will apply the two-tier approach utilized by district courts in the Eighth Circuit.
The Court recognizes that Swales rejected the two-tier approach. 85 F.3d at 439-443. However,
that approach still prevails among district courts in this Circuit, and many have declined to apply
Swale since its decision. See Peck v. Mercy Health, No. 4:21-CV-834 RLW, 2023 WL 1795421,
at *3 (E.D. Mo. Feb. 7, 2023) (collecting district court cases within the Eighth Circuit that have
declined to adopt the approach taken in Swales). Accordingly, the Court declines to depart from
the two-tier approach at this time.
B. Standard for Conditionally Certifying FLSA Collective Action
“The FLSA allows named plaintiffs to sue ‘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)). The collective action process under the FLSA requires
plaintiffs to use an opt-in mechanism instead of the opt-out procedures for class actions under
Federal Rule of Civil Procedure 23. Freeman v. Tyson Foods, Inc., No. 5:21-CV-05175, 2022 WL
3566615, at *2 (W.D. Ark. Aug. 18, 2022) (citation omitted). “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.’” Id. (quoting Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165,
170, (1989)).
“[C]ertification of a collective action depends on whether the named plaintiffs are similarly
situated to the putative class.” Id. While the Eighth Circuit has not defined what “similarly
situated” means, district courts within the Eighth Circuit have utilized a two-stage process for
certifying collective actions in FLSA cases. See id. This Court recently summarized this process:
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 potential class
members were victims of a common decision, policy, or plan of the employer that
affected all class members in a similar manner.” Courts typically base this initial
determination solely on the pleadings and affidavits that have been submitted, and
avoid making credibility determinations or findings of fact. . . . 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. If notification is deemed appropriate, the class is conditionally certified for
notice and discovery purposes and the case proceeds as a representative action.
Id. at *2-3 (internal citations and quotations omitted). The power to conditionally certify a
collective and authorize notice to putative class members is within the discretion of the district
court. Harris v. Georgia-Pacific Wood Products, LLC, No. 6:19-cv-06001-RTD, 2019 WL
13328597, at *4 (W.D. Ark. Apr. 11, 2019). “After the close of discovery, should Defendant[]
believe that any collective action members who opt to join this case are not similarly situated, they
may file a motion for decertification.” Bonton v. Centerfold Ent. Club, Inc., Case No. 6:14-CV-
6074, 2014 WL 12837002, at *2 (W.D. Ark. Oct. 9, 2014).
C. Whether Plaintiff is Similarly Situated to the Putative Class
Plaintiff argues that he has satisfied the small burden necessary to show that conditional
certification of the proposed collective is appropriate in this matter. ECF No. 11, p. 7-11. Plaintiff
contends that his affidavit submitted in support of the instant motion makes the requisite showing
for conditional certification for all “Slot Technician Supervisors” that worked for Defendant since
May 2, 2020. Plaintiff asserts that all Slot Technician Supervisors were similarly situated because
they had the same job title and work duties, worked in the same location, and were subject to the
same policies that resulted in violations of the FLSA during the same period.1 Plaintiff concludes
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that this initial showing is more than sufficient to grant conditional certification of the proposed
collective and permit Plaintiff to send notice to potential members of the collective.
Defendant argues that Plaintiff failed to meet his burden of showing that the proposed class
is similarly situated. ECF No. 12, p. 17-19. Defendant notes that Plaintiff’s affidavit contains
incorrect statements regarding the number of Slot Technician Supervisors that worked at the same
time as Plaintiff and the identities of employees he believes worked in the same position.
Defendant also asserts that there are so few potential collective members that this matter is not
appropriate for a collective action. Defendant also contends that the proposed class time period
should be limited to Plaintiff’s employment tenure with Defendant from May 2021 to October
2022. Defendant also notes that Plaintiff makes erroneous assertions regarding the authority he
and others in his position had over other employees. Defendant states that it will become obvious
that the proposed collective consists of employees exempt from FLSA overtime requirements and
that certification would be a waste of time and resources.
1 While not directly stated by Plaintiff, the website linked by Plaintiff indicates that Defendant Oaklawn operates its
business in Hot Springs, Arkansas. ECF No. 3, p. 2.
In reply, Plaintiff argues that Defendant failed to refute that Plaintiff met his burden under
the prevailing lenient standard applied by courts in the Eighth Circuit. ECF No. 15, p. 7-11.
Plaintiff contends that Defendant’s factual criticisms and credibility arguments are not applicable
at this stage. Plaintiff also contends that the small size of a proposed collective is no barrier to use
of the collective process.
The Court finds that Plaintiff has made the small showing necessary to conditionally certify
the proposed collective. Plaintiff submitted sworn statements asserting that he and others worked
in the same position in the same location during the same period and were subject to the same
policies that allegedly violated the FLSA. That showing is sufficient at this stage and the Court
cannot entertain the credibility and factual arguments Defendant makes in opposition. See
Freeman, 2022 WL 3566615, at *2-3. However, pursuant to its discretion to determine what
criteria would make individuals similarly situated to Plaintiff, the Court also finds it appropriate
to limit the time period applicable to the proposed collective to the period of Plaintiff’s
employment.2 See Harris, 2019 WL 13328597, at *4. Accordingly, the conditionally certified
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collective will consist of Slot Technician Supervisors that worked for Defendant at any time from
May 2021 until October 2022.
D. Proposed Notice and Consent Communications
Plaintiff argues that the Court should approve Plaintiff’s proposed communications with
potential members of the collective. ECF No. 11, p. 13-20. Plaintiff proposes to send an initial
Notice (ECF No. 25-1) via mail to potential members of the collective informing them of the
opportunity to opt in to the collective action, along with a Consent to Join (ECF No. 25-2) form
2 Other courts have similarly found it appropriate to limit the conditionally certified collective to the time period in
which the named plaintiff worked for the defendant. See, e.g., Mitchell v. Brown’s Moving & Storage Inc., Case No.
4:19-cv-00783-LPR, 2021 WL 7541483, at *3 (E.D. Ark. Jan. 11, 2021).
that potential members would use to opt in to the collective action. Plaintiff also proposes to
electronically transmit those items to potential members via email (ECF No. 25-3) and allow the
potentials members to use electronic signature on the Consent to Join form to opt in to the
collective action. Plaintiff proposes a ninety-day (90) opt-in period in which to distribute the
Notice form and permit potential members to sign and submit the Consent to Join form. Plaintiff
also proposes to mail a Follow-Up reminder via postcard thirty (30) days after the initial Notice is
sent. Plaintiff requests that the Court direct Defendant to provide the names, last known mailing
address, last known work and personal email address, and cell phone numbers of the potential
collective members to Plaintiff in an electronic format. Plaintiff requests that Defendant be
required to provide that information within seven (7) days of the date of any order granting the
instant motion.
Defendant raises several objections to Plaintiff’s proposed means of communication with
potential members of the collective. ECF No. 12, p. 19-21. Defendant asserts that language should
be added to the Notice addressing the Court’s neutrality on whether a potential member should opt
in to the collective and the lack of any claims of employer retaliation in this case. Defendant
contends the language regarding the Court’s neutrality should also be included in the Follow-Up
reminder. Defendant also asserts that the “Effect of Severance” portion of the Notice should be
removed. Defendant also requests that Plaintiff be required to choose either mail or electronic
method for sending the Follow-Up reminder, as it is currently ambiguous as to which method
would be used. Defendant also contends that there is no reason to provide cell phone numbers of
potential members of the collective and that Defendant should be given fourteen (14) days to
provide any contact information in its possession.
In reply, Plaintiff argues that Defendant’s concerns are unfounded and overstated. ECF
No. 15, p. 11-14. Plaintiff notes that the language in its proposed communications documents has
previously been approved by courts, but also states that he understands the Court’s discretion to
require adjustments in response to Defendant’s objections. Plaintiff then clarifies that he is
requesting to send the Folow-Up reminder via mail. As to the requested cell phone numbers of
potential collective members, Plaintiff states that such information is required to communicate
with individuals who opt in to the action and to attempt to communicate with those whose mailing
address may have changed.
The Court generally approves of the proposed communications Plaintiff has presented.
However, the Court will direct Plaintiff to make the modifications requested by Defendant. Also,
the date range listed in the communications for potential members of the collective must also be
altered to conform with the Court’s determination that the collective will only consist of
individuals employed by Defendant at some point during the period in which Plaintiff was
employed by Defendant. Further, due to the limited number of individuals anticipated to make up
the collective, the opt-in period in which to distribute notice to potential members and obtain their
consent to join the collective will be limited to sixty (60) days. As to the contact information
requested by Plaintiff, the Court finds that all the material requested is appropriate and should be
provided to Plaintiff within ten (10) days of the date of this order. Plaintiff will be directed to
disseminate the initial Notice and Consent to Join communications within ten (10) days of
receiving the requested contact information from Defendant.
E. Equitable Tolling
Plaintiff raises the issue of equitable tolling for the claims of potential members of the
proposed collective. The Court will not consider arguments regarding equitable tolling at this
time.
III. CONCLUSION
For the reasons stated above, the Court finds that Plaintiff’s Motion to Certify Collective
Action (ECF No. 10) should be and hereby is GRANTED. However, the collective will be defined
as “All Slot Technician Supervisors” employed by Defendant at any time from May 2021 to
October 2022. Plaintiff is hereby directed to make the following modifications to the proposed
communications with potential members of the collective:
• All communications referencing the time period applicable to the collective must
be adjusted to match the time period mandated by the Court: May 2021 to October
2022.
• Plaintiff’s Notice (ECF No. 25-1) and Follow-Up (ECF No. 25-4) shall include
language that states, “The Court does not encourage or discourage participation in
this case.”
• Plaintiff’s Notice (ECF No. 25-1) shall include language at the beginning of the
“Retaliation Prohibited” section that states, “This case does not involve claims or
allegations that Defendant has retaliated against former or current employees.”
• Plaintiff’s Notice (ECF No. 25-1) shall omit the “Effect of Severance” section.
Defendant is hereby directed to provide Plaintiff with any of the requested contact
information in its possession in a manipulatable electronic format within ten (10) days of the date
of this order. Plaintiff must disseminate the initial Notice and Consent to Join communications
within ten (10) days of receiving that contact information from Defendant. Potential members of
the collective will have sixty (60) days from that initial dissemination to opt in to the collective
action.
IT IS SO ORDERED, this 5th day of January, 2024.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge