The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SAM WHITEMAN, on behalf of
himself and others similarly
situated,
Plaintiff,
v. Case No. 8:22-cv-56-VMC-CPT
KFORCE INC.,
Defendant.
/
ORDER
This matter comes before the Court upon consideration of
Plaintiff Sam Whiteman’s Amended Motion for Issuance of
Notice Pursuant to Section 216(b) of the Fair Labor Standards
Act (Doc. # 74), filed on May 20, 2022. Defendant Kforce Inc.
responded in opposition on June 3, 2022. (Doc. # 88). For the
reasons that follow, the Motion is denied.
I. Background
Mr. Whiteman initiated this Fair Labor Standards Act
(“FLSA”) action against his former employer, Kforce, on
January 6, 2022. (Doc. # 1). He filed the amended complaint,
asserting an unpaid overtime claim under the FLSA on behalf
of a collective of other Kforce employees, on March 18, 2022.
(Doc. # 43).
According to the amended complaint, Kforce is a Tampa-
based “professional staffing agency that provides staffing
services to its clients.” (Id. at 1, 3). Mr. Whiteman worked
as a “Recruiter” for Kforce in Kansas between November 2017
and December 2020. (Id. at 2). Although Kforce allegedly
“employed [Mr. Whiteman], the opt-in Plaintiffs, and other
Recruiters under various internal recruiting job titles”
(sixteen different titles are mentioned), “Recruiters all
performed the same job duties.” (Id. at 9-11).
Now, Mr. Whiteman seeks conditional certification of
this case as an FLSA collective action and permission to send
notice to other potential class members. (Doc. # 74). He seeks
to represent a collective of “All persons employed by
Defendant as Recruiters since May 11, 2018, who were paid on
a salary basis, and who were classified as overtime exempt,”
but excluding those who have signed an arbitration agreement
and those who have released their FLSA claims as part of a
previous case’s settlement. (Doc. # 43 at 12; Doc. # 74 at
13). In the Motion, Mr. Whiteman points out that, at the time
of the Motion, fifteen other Recruiters had opted-in. (Doc.
# 74 at 15). Additionally, Mr. Whiteman and two opt-in
Plaintiffs have filed declarations attesting that they
believe other individuals will join this case if they are
made aware of its existence. (Doc. # 74-2; Doc. # 74-3; Doc.
# 74-7).
Kforce has responded (Doc. # 88), arguing first that the
Court should deny the Motion because there is no need to send
judicially authorized notice to the same putative class and
collective members who are part of the collective action
settlement in the similar case pending in California state
court, Elliott-Brand v. Kforce. (Doc. # 88). That case
involves an FLSA overtime claim as well as claims under
California law (including for failure to pay overtime).
Elliott-Brand was filed on December 24, 2020 — long before
this action was filed on January 6, 2022. But plaintiffs in
Elliott-Brand asserted an FLSA claim for the first time in
their amended complaint filed on January 7, 2022. (Id. at 3-
4). Counsel for Kforce nevertheless avers that Kforce and
Elliott-Brand had reached a settlement of both the California
state claims and the FLSA claim during a private mediation
held on November 12, 2021, which settlement required the
filing of the amended complaint with the FLSA claim. (Id.;
Doc. # 88-1 at Ex. C at ¶¶ 3-5).
In the motion for preliminary approval of the class and
collective settlement in Elliott-Brand, the parties requested
conditional certification of a FLSA collective including
specific recruiting positions with Kforce. (Doc. # 88-1 at
Ex. C at ¶ 4); see also (Doc. # 88-1 at Ex. B at ¶ 22) (the
Elliott-Brand amended complaint, seeking to represent a
collective of “all current and former talent recruiters who
worked for Defendants as employees nationwide and were
classified as exempt from overtime from March 19, 2018 to the
date of trial”). Pursuant to the Elliott-Brand court’s oral
ruling at a preliminary hearing, the parties in that case
removed the language excluding from the collective
individuals who had already asserted claims against Kforce
through other counsel. (Id. at ¶ 9). As Kforce explains,
“[t]his modification ensures that the Plaintiff and Opt-In
Plaintiffs in this matter are included in the collective
action settlement, although as a practical matter they can
choose not to participate.” (Doc. # 88 at 12).
On June 8, 2022, this Court deferred ruling on the
instant Motion until the Elliott-Brand court decided whether
to preliminarily approve the FLSA collective settlement and
to conditionally certify the FLSA collective for the purposes
of settlement in that case. (Doc. # 94). In doing so, the
Court explained: “While multiple collective actions covering
the same members are not prohibited by the FLSA, this Court
tends to agree with those courts holding that conditional
certification of a second collective action does not promote
judicial economy and creates the risk of confusion among
potential collective members.” (Id.).
Subsequently, the parties filed status reports informing
the Court that the Elliott-Brand court had preliminarily
approved the collective settlement on September 15, 2022.
(Doc. ## 108-109). The FLSA collective in Elliott-Brand
covers recruiters who held 23 different job titles and who
worked anytime between March 19, 2018, and February 14, 2022.
(Doc. # 131 at 1-2).
The Motion is ripe for review.
II. Legal Standard
The FLSA expressly permits collective actions against
employers accused of violating the FLSA’s mandatory overtime
provisions. See 29 U.S.C. § 216(b) (“An action . . . may be
maintained against any employer . . . by any one or more
employees for and in behalf of himself or themselves and other
employees similarly situated.”). In prospective collective
actions brought pursuant to Section 216(b), potential
plaintiffs must affirmatively opt into the collective action.
Id. (“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.”).
In making collective action certification determinations
under the FLSA, courts typically follow a two-tiered
approach:
The first determination is made at the so-called
notice stage. At the notice stage, the district
court makes a decision - usually based only on the
pleadings and any affidavits which have been
submitted - whether notice of the action should be
given to potential class members.
Because the court has minimal evidence, this
determination is made using a fairly lenient
standard, and typically results in conditional
certification of a representative class. If the
district court conditionally certifies the class,
putative class members are given notice and the
opportunity to opt in. The action proceeds as a
representative action throughout discovery.
The second determination is typically precipitated
by a motion for decertification by the defendant
usually filed after discovery is largely complete
and the matter is ready for trial. At this stage,
the court has much more information on which to
base its decision, and makes a factual
determination on the similarly situated question.
Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th
Cir. 2001)(internal citations and quotation marks omitted).
To maintain a collective action under the FLSA,
plaintiffs must demonstrate that they are similarly situated.
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258
(11th Cir. 2008). Similarly situated employees must
affirmatively opt into the litigation by giving their consent
in writing and filing their consent in the court in which
such action is brought. 29 U.S.C. § 216(b).
At the notice stage, the Court should initially
determine whether there are other employees who desire to opt
into the action and whether the employees who desire to opt
in are similarly situated. Morgan, 551 F.3d at 1259; Dybach
v. State of Fla. Dep’t of Corrs., 942 F.2d 1562, 1567–68 (11th
Cir. 1991). This determination is made using a “fairly lenient
standard.” Hipp, 252 F.3d at 1218. Mr. Whiteman bears the
burden of showing a reasonable basis for the claim that there
are other similarly situated employees and must offer
“detailed allegations supported by affidavits which
successfully engage defendants’ affidavits to the contrary.”
Morgan, 551 F.3d at 1261 (internal citations omitted).
Essentially, at this stage of the proceedings, the Court must
determine whether there are other Kforce recruiters who are
similarly situated and desire to opt in. Dybach, 942 F.2d at
1567–68.
III. Analysis
“Although the FLSA does not require them to do so, ‘the
district courts have discretion, in appropriate cases, to
implement § 216(b) by facilitating notice to potential
plaintiffs of the pendency of the action and of their
opportunity to opt-in as represented plaintiffs.’” Schucker
v. Flowers Foods, Inc., No. 16-CV-3439 (KMK), 2017 WL 3668847,
at *2 (S.D.N.Y. Aug. 24, 2017) (quoting Myers v. Hertz Corp.,
624 F.3d 537, 554 (2d Cir. 2010)); see also Auffray v. FXFL,
LLC, No. 1:15-CV-9379-GHW, 2016 WL 6810863, at *2 (S.D.N.Y.
Nov. 16, 2016) (“[T]he decision whether to grant a motion for
conditional certification of an FLSA collective action lies
within the discretion of the district court.”). Pursuant to
Section 216(b), certification of collective actions in FLSA
cases is based on a theory of judicial economy by which “[t]he
judicial system benefits by efficient resolution in one
proceeding of common issues of law and fact arising from the
same alleged” activity and “avoiding a multiplicity of
duplicative suits.” Hoffmann–La Roche, Inc. v. Sperling, 493
U.S. 165, 170, 172 (1989). “[C]onditional certification of a
collective action is not mandatory, even where named
plaintiffs are able to show that they are similarly situated
to potential opt-in plaintiffs.” Auffray, 2016 WL 6810863, at
*2.
The Court declines to conditionally certify the
collective, given that the same collective is covered by the
Elliott-Brand collective settlement of the FLSA claim there.1
The collective settlement covers a nationwide class of Kforce
recruiters who were classified as exempt from overtime from
March 19, 2018, to February 14, 2022 – a collective definition
that encompasses the proposed collective in this case, with
the exception of employees who held two job titles, “Market
Manager – Talent Associate” and “VMO Recruiter” and with the
exception of the time period after February 14, 2022.2 (Doc.
1 The Court is not declining certification pursuant to the
first-filed rule, under which defendants often seek dismissal
of the second-filed FLSA putative collective action. See
Rodriguez v. Granite Servs. Int’l, Inc, No. 8:20-cv-2129-VMC-
JSS, 2020 WL 6784116, at *2 (M.D. Fla. Nov. 18, 2020) (“Under
the first-filed rule, when ‘two actions involving overlapping
issues and parties are pending in two federal courts, there
is a strong presumption . . . [favoring] the forum of the
first-filed suit[.]’ . . . ‘The “first to file” rule not only
determines which court may decide the merits of substantially
similar issues, but also establishes which court may decide
whether the second suit filed must be dismissed, stayed or
transferred and consolidated.’” (citations omitted)).
Rather, the Court utilizes its discretion to deny conditional
certification under the circumstances because conditional
certification would not further judicial economy. Thus, the
parties’ debate over which action should be considered first
filed does not affect the Court’s ruling.
2 The Court notes that the named Plaintiff here, Mr. Whiteman,
held the positions of Talent Associate and Market Manager
during his employment with Kforce, which ended in December
2020. (Doc. # 43 at 4). Thus, because the Elliott-Brand
collective covers Talent Associates who worked between March
2018 and February 2022, Mr. Whiteman falls within the
collective definition in Elliott-Brand for one position he
held and can opt-in to that collective settlement. Given that
Mr. Whiteman falls within the Elliott-Brand collective and
the putative collective in this case merely adds two
# 131 at 2-3). Importantly, that collective settlement has
been preliminarily approved and notice of the settlement has
been sent to the putative collective members already. See
(Doc. # 109 at 1-2) (the deadline to mail the notice of
settlement to all collective members in Elliott-Brand was
October 13, 2022).
The Court is aware that there is no prohibition on the
maintenance of more than one FLSA collective action covering
the same collective members. Nevertheless, conditionally
certifying another FLSA collective that covers the same
Kforce employees who have already been sent notice of their
opt-in rights in Elliott-Brand does not promote judicial
efficiency. See Schucker, 2017 WL 3668847, at *6 (“Plaintiffs
contend that the ‘FLSA does not prohibit multiple collective
actions.’ The Court agrees, but again, that is not the issue
raised by Defendants; the sole question here is whether
certification of a duplicative collective action is a prudent
and reasonable exercise of the Court’s discretion. It is not,
and numerous courts have agreed.”); Mosley v. Hydrostatic Oil
additional job titles to the 23 covered by Elliott-Brand and
extends the relevant period beyond February 2022, the Court
does not consider these additions to the putative collective
here significant enough to change the Court’s analysis
regarding the judicial economy of certifying a collective.
Tools, Inc., No. 1:20-CV-1040, 2021 WL 3134917, at *2 (W.D.
Ark. July 23, 2021) (“The Court finds that certifying a
second, competing collective action would risk undermining
the primary goal of collective actions: avoiding multiplicity
of similar suits and expediting the disposal of the actions
through cut-off dates.”); Brown v. Jacob Transportation, LLC,
No. 216CV02436JADNJK, 2017 WL 7725268, at *4 (D. Nev. Sept.
28, 2017) (agreeing with the reasoning of Schucker and
“find[ing] that certifying a second, competing collective
action . . . would undermine rather than serve the legitimate
goals behind the collective-action device”); Cunningham v.
Hamilton-Ryker IT Sols., LLC, No. 3:21-CV-00302, 2022 WL
868709, at *5 (S.D. Tex. Feb. 16, 2022) (denying motion to
dismiss under the first-filed rule but advising the parties
that the court would be “reluctant to authorize repeat notice
to those individuals who have already received notice” if the
plaintiff later moved for conditional certification because
“[i]ssuing repeat notice to potential class members defeats”
the purpose of collective actions), report and recommendation
adopted, No. 3:21-CV-00302, 2022 WL 861512 (S.D. Tex. Mar.
23, 2022).
“[A]t issue here is not a narrow or liberal construction
of the statute, but rather a practical assessment of the
relative costs and benefits of allowing [Mr. Whiteman] to
maintain a collective action that appears to serve little
purpose in enforcing the FLSA rights of potential class
members.” Schucker, 2017 WL 3668847, at *5. Mr. Whiteman seems
to assume that numerous Kforce recruiters will choose not to
opt-in to the Elliott-Brand collective but will opt-in to
this collective action. But this “assumption belies
commonsense, as there is no reason to infer that a potential
opt-in plaintiff will be spurred to action by a second notice,
but not the first.” Id. at *6. To the extent a Kforce
recruiter considers the monetary recovery under the Elliott-
Brand collective settlement inadequate, he may choose not to
opt-in and instead pursue his claims individually to obtain
full relief. There is no reason to believe that Mr. Whiteman
would obtain better results for potential opt-ins in this
case, such that the Court is skeptical that Kforce recruiters
would opt-in here despite their earlier choice not to opt-in
in Elliott-Brand. See Lau v. Wells Fargo & Co., No. 20-CV-
03870 (AJN), 2021 WL 1198964, at *3 (S.D.N.Y. Mar. 30, 2021)
(“[A]side from consuming judicial resources, a duplicative
collective action does not provide significant value to the
class.”).
Furthermore, conditionally certifying an overlapping
collective in this action and issuing notice will likely
confuse potential collective members about their rights. See
Mosley, 2021 WL 3134917, at *2 (“In allowing duplicative
collective actions to proceed, the Court risks confusion of
current collective members in Attaway and potential
collective members in the present case regarding their legal
options.”); Schucker, 2017 WL 3668847, at *7 (noting “the
risk of confusing potential collective members about their
legal options” if notice were sent to the same individuals
who had previously been sent notice in an earlier collective
action).
If the Elliott-Brand court denies final approval of the
collective settlement after hearing objections, Mr. Whiteman
may inform the Court and request what relief he considers
proper at that time.3
3 This is not to suggest that the Court would necessarily
permit Mr. Whiteman to renew his request for conditional
certification at any time if the Elliott-Brand collective
settlement is not finalized. The Court has entered a Case
Management and Scheduling Order for this case, under which
the deadline to move for decertification is February 22, 2023.
(Doc. # 91). The deadline to file dispositive motions is May
1, 2023, with the case set for an October 2023 trial term.
Depending on when the Elliott-Brand court issues its final
decision on the collective settlement, this case may well be
too far along in progress to revisit conditional
certification.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiff Sam Whiteman’s Amended Motion for Issuance of
Notice Pursuant to Section 216(b) of the Fair Labor Standards
Act (Doc. # 74) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
10th day of November, 2022.
VIRGINIA M. HERNANDEZ*COVINGTON
UNITED STATES DISTRICT JUDGE
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