BEERS v. JOHNSON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANDREW S. BEERS and )

KATHERINE WHITE, individually and )

on behalf of all others similarly situated, )

)

Plaintiffs, )

)

v. ) 1:23CV367

)

TERRY S. JOHNSON, in his official )

capacity as SHERIFF OF ALAMANCE )

COUNTY, NORTH CAROLINA, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiffs Andrew S. Beers (“Beers”) and Katherine

White’s (“White”) (collectively “Plaintiffs”) Unopposed Motion for Collective and Class

Certification. (Docket Entry 21.) Defendant Terry S. Johnson, in his official capacity as

Sheriff of Alamance County, North Carolina, did not file a response. For the reasons stated

herein, the undersigned recommends that Plaintiffs’ motion be granted.

I. BACKGROUND

As set out in the Amended Complaint, Plaintiffs, on behalf of themselves and all others

similarly situated, bring a collective action against Defendant for violation of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 216(b), and also bring a class action pursuant to Rule 23

of the Federal Rules of Civil Procedure against Defendant for breach of contract under North

Carolina law. (See generally Am. Compl., Docket Entry 15.) More specifically, Beers, a

Detention Officer, and White, a Detention Corporal, are both employed as “12 Hour

Employee[s]” at the Alamance County Detention Center where they perform various job

duties related to the custody, care, and security of inmates and where Plaintiffs get paid

monthly. (Id. ¶¶ 3-4, 14-17.) Whether a Detention Officer or Corporal, the “Alamance County

Sheriff’s Office 12 Hour Employee Schedule – Permanent” has officials on a “rotating

schedule that consists of two days on, followed by two days off, followed by three days on,

followed by two days off, followed by two days on, followed by three days off ([the] ‘Rotating

Schedule’).” (Id. ¶ 20.) Each shift amounts to 12.25 hours, and Detention Officers and

Corporals “are scheduled to work between 14-17 shifts per month” under the Rotating

Schedule, which, depending on the rotations, equates to “between 171.5 hours and 208.25

hours per month.” (Id. ¶¶ 20-21.) Sometimes Detention Officers and Corporals work

additional time, including time scheduled for training, but Plaintiffs allege that “[r]egardless of

the actual number of hours Detention Officers and Corporals work under the Rotating

Schedule, Defendant only pays Detention Officers and Corporals 173.33 hours per month for

these hours.” (Id. ¶¶ 22-23; see also Ex. 3, Docket Entry 15-3.) For example, Beers worked a

total of 197.75 Rotating Schedule work hours, and additional hours for training during a pay

period, but was only paid for 173.33 hours. (Am. Compl. ¶ 25; see also Ex. 4, Docket Entry

15-4, Ex. 5, Docket Entry 15-5, Ex. 6, Docket Entry 15-6.) White also accrued hours above

the 173.33 count in a pay period for which she was not compensated. (Am. Compl. ¶ 26.)

Plaintiffs also allege that Detention Officers and Corporals are entitled to paid holidays,

earn paid vacation days and paid sick time according to a formula utilized for Alamance

County Employees, earn compensatory time (Comp Time) pursuant to Section 7(k) of the

FLSA, and earn two hours of paid “Birthday” pay per year. (Id. ¶¶ 27-30, 38.) When absent

from a scheduled shift, Detention Officers and Corporals utilize accrued benefits, including

Comp Time, in a specific order. (Id. ¶ 31.) However, Plaintiffs allege that when Detention

Officers and Corporals use “Vacation Leave, Holiday pay, Sick Leave and/or Birthday pay to

cover absences for Rotating Schedule work hours exceeding 173.33 per month, Defendant

fails to pay . . . all earned and accrued benefits.” (Id. ¶ 32.) Both Beers and White experienced

inadequate compensation as a result. (See id. ¶¶ 33-34.) In addition, when Detention Officers

and Corporals use Comp Time to cover absences for their Rotating Schedule work hours that

exceed the 173.33 per month, Plaintiffs allege that Defendant fails to pay all accrued

compensatory time off in violation of the FLSA. (Id. ¶¶ 44-46.)

The Amended Complaint also asserts that Defendant implemented a pay increase for

Detention Officers and Corporals in or about January 2022. (Id. ¶ 35.) As such, they “are

paid [a] monthly $333.33 ‘shift differential’ ” and “Defendant’s payroll records denote the

$333.33 payment as ‘Shift Diff’ or ‘SD.’ ” (Id.) However, Defendant does not include the

shift differential when calculating the rates of pay for Comp Time; rather, Defendant pays the

base hourly rates which Plaintiffs allege is a separate violation of the overtime provisions of

the FLSA. (Id. ¶ 47.) Again, both Beers and White experienced inadequate compensation as

a result. (See id. ¶¶ 48-49.) Plaintiffs further assert that Detention Officers and Corporals earn

paid overtime for additional hours worked outside of the Rotating Schedule, which Defendant

does not track, nor record such overtime hours based on the same schedule utilized for the

Rotating Schedule hours, nor does Defendant include the $333.33 shift differential when

calculating the regular rate of pay for determining the overtime pay. (Id. ¶¶ 50-53.) Moreover,

according to Plaintiffs, Defendant fails to include overtime “hours worked in its FLSA Section

7(k) calculation of hours worked in a 14-day period for purposes of determining when

Detention Officers and Corporals are eligible for compensatory time off by exceeding the 86-

hour threshold.” (Id. ¶ 54.)

As a result, Count 1 of the Amended Complaint raises a violation of the FLSA against

Defendant as a collective action. (Id. ¶¶ 74-77.) Plaintiffs bring Count II of the Amended

Complaint pursuant to Rule 23 for breach of contract. (Id. ¶¶ 78-81.)

In support of their motion, Plaintiffs point to the allegations in the Amended

Complaint, in addition to the admissions set forth in Defendant’s Amended Answer, and

sworn declarations of Beers, White, and Plaintiffs’ counsel, Philip J. Gibbons, Jr. (See

Declaration of Andrew S. Beers (“Beers Decl.”), Docket Entry 23; Declaration of Katherine

White (“White Decl.”), Docket Entry 22-1); Declaration of Philip J. Gibbons, Jr. (“Gibbons,

Jr. Decl.”), Docket Entry 22-2; Am. Compl. ¶¶ 14-57; Def.’s Answer, Docket Entry 16.) The

declarations of Beers and White reiterate the allegations in the Amended Complaint in that

Defendant pays Detention Officers and Corporals1 on a monthly basis, and all such officers

1 In their declarations, White and Beers explain:

The Detention Officer position consists of the following ranks:

Detention Officer I, Detention Officer II, Detention Officer III, and

Corporal. For purposes of [these] Declaration[s], the term “Detention

Officer” refers to all Detention Officer ranks that work pursuant to

the “Alamance County Sheriff’s Office 12 Hour Employee Schedule –

Permanent,” which is a rotating schedule that consists of two days on,

followed by two days off, followed by three days on, followed by two

days off, followed by two days on, followed by three days off ([the]

“Rotating Schedule”).

(White Decl. ¶ 2; Beers Decl. ¶ 2.) Thus, reference to the Detention Officers in the declarations also

incorporates Corporals.

are scheduled and work pursuant to the Rotating Schedule and are paid an hourly rate of pay,

and are eligible for the same benefits, including Vacation Leave, Holiday pay, Sick Leave, and

Birthday pay. (White Decl. ¶ 3; Beers Decl. ¶ 3; Am. Compl. ¶¶ 17, 27-30.) They further aver

that under the Rotating Schedule, Detention Officers and Corporals are scheduled to work

between 14-17 shifts per month, amounting to approximately 171.5 hours to 208.25 hours per

month, which sometimes requires additional work time for training or early/late release.

(White Decl. ¶ 3; Beers Decl. ¶ 3.) However, as stated above, regardless of the number of

hours worked, Defendant only compensates for 173.33 hours per month for these hours.

(White Decl. ¶ 6; Beers Decl. ¶ 6.) Beers has attached examples of his check details to his

declaration. (See Ex. 4, Docket Entry 23-4; Ex. 10, Docket Entry 23-10; Ex. 14, Docket Entry

23-14.) Again, as one example, Beers shows that despite working 197.75 hours, he was only

paid for 173.33 hours. (See Ex. 2, Docket Entry 23-2; Ex. 3, Docket Entry 23-3; Ex. 4, Docket

Entry 23-4.) Beers and White state that “[a]ll other Detention Officers, regularly work more

than 173.33 hours per month, but are not paid for these additional hours.” (White Decl. ¶ 6;

Beers Decl. ¶ 6.)

In addition, Beers and White also attest to the issues with accrued benefits, including

paid holidays, paid vacation days, paid sick time, and birthday pay, and Defendant’s failure to

pay Detention Officers and Corporals all earned and accrued benefits for the additional hours

over 173.33 during months when officers use the benefits to cover absences for the Rotating

Schedule work hours exceeding 173.33. (White Decl. ¶¶ 7-11; Beers Decl. ¶¶ 7-11; see also Ex.

5, Docket Entry 23-5; Ex. 6, Docket Entry 23-6; Ex. 7, Docket Entry 23-7.) Beers provides

another example of a time period where he “should have been paid for a combined total of

181 hours, not including the 8 [overtime hours], representing [the] Rotating Schedule work

hours, accrued compensatory time paid, and accrued paid benefits[,]” however, he was only

paid “for 173.33 hours at [his] base hourly rate.” (Beers Decl. ¶ 12; see also Ex. 8, Docket Entry

23-8; Ex. 9, Docket Entry 23-9; Ex. 10, Docket Entry 23-10.)

Moreover, Beers and White aver to: (1) the “non-exempt” classification of Detention

Officers and Corporals under the FLSA; (2) Defendant’s failure to compensate when officers

use Comp Time to cover absences for their Rotating Schedule work hours that exceed the

173.33 per month; (3) Defendant’s improper tracking and calculation of overtime hours; and

(4) Defendant’s failure to include the $333.33 shift differential when calculating the regular

rate of pay for determining the overtime pay. (White Decl. ¶¶ 12-16; Beers Decl. ¶¶ 13, 15,

17, 19-20.) For example, Beers states that during one pay period, he “worked 156.5 Rotating

Schedule work hours[,]” and “used 2 hours of Birthday pay, 32.75 hours of Comp Time Taken

Hourly, and 7.25 hours of paid Holiday,” thus, he “should have been paid for 198.5 hours.”

(Beers Decl. ¶ 16; see also Ex. 12, Docket Entry 23-12.) However, he “was only paid for 173.33

hours” and “received no compensation for the 17.92 hours of Comp Time Taken Hourly or

for 7.25 hours of paid Holiday because these hours exceeded 173.33.” (Beers Decl. ¶ 16; see

also Ex. 13, Docket Entry 23-13; Ex. 14, Docket Entry 23-14.) On two instances when Beers

worked overtime in July and August of 2022, he states that he was paid overtime during the

August 2022 pay period, but “Defendant did not include [the] overtime hours towards the

FLSA Section 7(k) 86-hour threshold for earning compensatory time.” (Beers Decl. ¶ 18; see

also Ex. 15, Docket Entry 23-15.) Finally, Beers provides an example of the $333.33 shift

differential inadequate calculation. (See Beers Decl. ¶ 20.)2

According to Defendant’s Answer to the Amended Complaint, he admits that: (1)

Detention Officers and Corporals are scheduled to work the Rotating Schedule (Def.’s Answer

¶ 20); (2) Defendant currently employs approximately 57 Detention Officers and 11 Corporals

(id. ¶ 57); (3) Defendant pays Detention Officers and Corporals on a monthly basis (id. ¶ 17);

and (4) Detention Officers and Corporals are subject to the same compensation and

timekeeping policies and practices (id. ¶ 19).

Last, in support of their motion, Plaintiffs submit the declaration of their counsel,

Attorney Gibbons, Jr., who states that he has been litigating labor and employment law cases

since 1996, and “[i]n 2008, [he] began focusing [his] employment law practice primarily on

wage and hour claims under federal and state law, including complex multi-plaintiff wage and

hour litigation.” (Gibbons, Jr. Decl. ¶ 3.) He has been lead counsel in several class and/or

collective wage and hour lawsuits, has “litigated more than 100 additional wage and hour

actions that did not involve conditional or class certification,” and is “currently litigating, or

have litigated, [several] class and/or collective action wage and hour lawsuits” in district courts

within North Carolina. (Id. ¶¶ 5-6.) Attorney Gibbons, Jr. has been recognized as a plaintiff-

side employment lawyer. (Id. ¶ 7.) In addition, he notes that he is being assisted by Attorney

Corey M. Stanton, who is currently working with Attorney Gibbons, Jr., and “has participated

2 The check detail for the pay period of August 1, 2022, through August 31, 2022 is attached

to the Amended Complaint. (See Ex. 17, Docket Entry 15-17.)

in litigating more than 60 employment law cases in North and South Carolina Federal District

Courts, including multiple class and collective actions.” (Id. ¶ 8.)

II. DISCUSSION

Plaintiffs seek conditional certification of their FLSA claim and authorization to send

Court-supervised notice of this action pursuant to 29 U.S.C. § 216(b). In addition, Plaintiffs

also seek class certification of their breach of contract state law claim under Rule 23(a) and

(b)(3), including the appointment of Plaintiffs’ attorneys as Class Counsel.

1. Conditional Certification of Plaintiffs’ FLSA Collective Action

Under the FLSA, an employee may bring an action for unpaid overtime wages “on

behalf of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). “These

collective actions facilitate judicial and economic efficiency by allowing a single proceeding of

claims stemming from common issues of law and fact.” Mebane v. GKN Driveline N. Am., Inc.,

No. 1:18CV892, 2020 WL 6525819, at *1 (M.D.N.C. Nov. 5, 2020) (internal quotations and

citation omitted). Certification of a FLSA collective action requires: “(1) the members of the

proposed class . . . be ‘similarly situated,’ and (2) the class members . . . ‘opt-in’ by filing their

consent to suit.” Long v. CPI Sec. Sys., Inc., 292 F.R.D. 296, 298 (W.D.N.C. 2013) (citation

omitted). Potential class member employees are considered “similarly situated” if they “raise

a similar legal issue as to coverage, exemption or nonpayment or minimum wages or overtime

arising from at least a manageably similar factual setting with respect to their job requirements

and pay provisions.” McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465, 469 (E.D.N.C. 2010)

(quoting De Luna-Guerrero v. N.C. Grower’s Ass’n, Inc., 338 F. Supp. 2d 649, 654 (E.D.N.C.

2004)); see also Quinteros v. Sparkle Cleaning, Inc., 532 F. Supp. 2d 762, 772 (D. Md. 2008) (“A

group of potential plaintiffs are ‘similarly situated’ when they together were victims of a

common policy or scheme or plan that violated the law.”).

Certification of a FLSA collective action is generally a two-step process, see O’Quinn v.

TransCanada USA Servs., Inc., 469 F. Supp. 3d 591, 604 (S.D.W. Va. 2020) (collecting cases),

with courts making “a preliminary determination whether to conditionally certify the class

based upon the limited record before the court.” McLaurin, 271 F.R.D. at 469. As explained

in another opinion in this Court:

At the first stage, known as conditional certification, “the court

determines whether the putative [collective action] members’

claims are sufficiently similar to merit sending notice of the action

to possible members of the [collective action].” Adams v. Citicorp

Credit Servs., Inc., 93 F. Supp. 3d 441, 453 (M.D.N.C. 2015)

(internal quotation marks omitted). Although “not a ‘rubber-

stamp approach,’ ” the conditional-certification standard is “fairly

lenient[:]” the plaintiff “need only make a relatively modest

factual showing that a common policy, scheme or plan that

violated the law exists.” Id. (internal quotation marks and brackets

omitted). Moreover, when evaluating conditional certification,

“the Court does not resolve factual disputes, decide substantive

issues on the merits, or make credibility determinations ....” Id. at

454 (internal quotation marks omitted).

Goldston v. Ariel Cmty. Care, LLC, No. 1:21CV615, 2022 WL 1289673, at *5 (M.D.N.C. Apr.

29, 2022) (unpublished) (footnote omitted).3 To demonstrate the required showing, Plaintiffs

may rely on “affidavits or other means.” Williams v. Long, 585 F. Supp. 2d 679, 684 (D. Md.

3 As noted in Adams, some courts have taken “a more stringent ‘similarly situated’ inquiry . . .

at the conditional certification stage,” 93 F. Supp. 3d at 453 n.10; however, the undersigned finds that

approach inappropriate here. See Staley v. UMAR Servs., Inc., 630 F. Supp. 3d 707, 712 (M.D.N.C.

2022) (“Because most courts in the Fourth Circuit have declined to use the ‘intermediate’ approach,

Long, 292 F.R.D. at 299, and because Defendant has not advocated for it, the Court will use the

traditional lenient standard.”).

2008) (internal quotations and citation omitted) (emphasis omitted). “If the class is

conditionally certified, the court typically authorizes plaintiffs’ counsel to provide the putative

class members with notice of the lawsuit and their right to opt-in.” Long, 292 F.R.D. at 299

(citation omitted). “The second stage, known as decertification, only occurs if a defendant,

usually after discovery is virtually complete, moves to decertify a conditionally certified class.”

Hollis v. Alston Pers. Care Servs., LLC, No. 1:16CV1447, 2017 WL 3327591, at *2 (M.D.N.C.

Aug. 3, 2017) (unpublished) (internal quotations and citation omitted).4

Upon review of Plaintiffs’ motion, the undersigned concludes that Plaintiffs have

satisfied the modest factual showing that Defendant implemented a common policy, scheme

or plan that violated the rights under the FLSA of Plaintiffs and potential opt-in plaintiffs.

Through their declarations, Plaintiffs attest that they are similarly situated to other non-exempt

current and former full-time Detention Officers and Corporals in that they share similar job

duties and were subject to the same compensation schemes during the relevant period,

including Defendant’s uniform policy of failing to track hours worked under Section 7(k) of

the FLSA, failing to calculate the regular rate for the payment of overtime work, and failing to

pay all accrued compensatory time as required by the FLSA. Defendant does not oppose

conditional certification in this matter and the cited admissions in his answer noted above

further support Plaintiffs’ motion. Therefore, the undersigned concludes that conditional

certification under Section 216(b) is appropriate for all current and former Detention Officers

4 At the second stage, “a deeper inquiry into the merits is conducted, similar to a Rule 23

certification.” Clark v. Williamson, No. 1:16CV1413, 2018 WL 1626305, at *2 n.3 (M.D.N.C. Mar. 30,

2018) (unpublished).

and Corporals who worked pursuant to the “Alamance County Sheriff’s Office 12 Hour

Employee Schedule – Permanent” schedule during the time period from May 5, 2020, through

the present.5 See, e.g., Ruiz v. Monterey of Lusby, Inc., No. CIV.A. DKC 13-3792, 2014 WL

1793786 (D. Md. May 5, 2014) (finding conditional certification warranted where Plaintiffs

submitted declarations demonstrating a modest factual showing and there was no opposition

from Defendants).

As to the notification plan, Plaintiffs propose that the Parties “submit a Joint Status

Report regarding their efforts to agree on a notification plan, including the contents of the

proposed notice form, consent to join lawsuit form, proposal for distribution, and proposal

for opt-in period once the Court rules on Plaintiffs’ Motion.” (Docket Entry 22 at 13 n.6.)

The undersigned considers that Defendant has not opposed Plaintiffs’ Motion, and “parties

are routinely ordered to attempt a joint proposal for notice forms and methods of

distribution[.]” Staley, 630 F. Supp. 3d at 717; Galleher v. Artisanal, LLC, No. 1:19 CV 55, 2019

WL 5680357, at *3 (W.D.N.C. Oct. 31, 2019) (requiring parties to confer on “Plaintiff’s

proposed notice and opt-in/consent forms, the means and deadline for providing notice to

potential plaintiffs, or the commencement and termination of the ‘opt-in’ period”). Thus, the

undersigned finds it appropriate that the parties should confer on the notification plan upon

issuance of a final ruling on Plaintiffs’ motion.

5 Plaintiffs allege a willful violation of the FLSA. (See Am. Compl. ¶¶ 62, 77.) “The FLSA

imposes a three-year limitation. Therefore, the class may date back . . . three years prior to the filing

of this action.” Adams, 93 F. Supp. 3d at 456 n.11 (internal citation omitted).

2. Rule 23 Class Certification

Plaintiffs also move for Rule 23 class certification. (Docket Entry 22 at 17-24.) Federal

Rule of Civil Procedure 23 sets forth a two-step analysis that governs the standard for class

certification. Fed. R. Civ. P. 23. First, the prerequisites (commonly referred to as numerosity,

commonality, typicality, and adequacy) require that “[o]ne or more members of a class may

sue or be sued as representative parties on behalf of all members only if:”

(1) the class is so numerous that joinder of all members is

impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical

of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a)(1)-(4); see also Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir.

2003). The Fourth Circuit Court of Appeals has reiterated that:

the final three requirements of Rule 23(a) tend to merge, with

commonality and typicality serving as guideposts for determining

whether . . . maintenance of a class action is economical and

whether the named plaintiff’s claim and the class claims are so

interrelated that the interests of the class members will be fairly

and adequately protected in their absence.

Brown v. Nucor Corp., 576 F.3d 149, 152 (4th Cir. 2009) (internal quotations and citations

omitted). In addition, the Fourth Circuit has “repeatedly recognized that Rule 23 contains an

implicit threshold requirement that the members of a proposed class be ‘readily identifiable’ ”

or ascertainable such that the “court can readily identify the class members in reference to

objective criteria.” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (citation omitted).

The moving party “need not be able to identify every class member at the time of

certification.” Id. However, “[i]f class members are impossible to identify without extensive

and individualized fact-finding or mini-trials, then a class action is inappropriate.” Id. (internal

quotations and citations omitted).

Upon satisfying Rule 23(a), the moving party must demonstrate that the action falls

under one of the three types of classes listed in Rule 23(b). Here, Plaintiffs assert that Rule

23(b)(3) is applicable which states that a class action may be maintained if “the court finds that

the questions of law or fact common to class members predominate over any questions

affecting only individual members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

Matters relevant to whether an action satisfies Rule 23(b)(3) are:

(A) the class members’ interests in individually controlling the

prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the

controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation

of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3)(A)-(D). Plaintiffs bear the burden of demonstrating that the class

complies with Rule 23. Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 321 (4th Cir. 2006).

District courts have broad discretion in deciding whether to certify a class. Ward v. Dixie Nat.

Life Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010).

Ascertainability

Plaintiffs contend that the class is ascertainable as the potential members can be

identified by objective criteria; that is, from Defendant’s records. (Docket Entry 22 at 18.)

Plaintiffs propose the class be defined as: “All current and former Detention Officers who

worked pursuant to the ‘Alamance County Sheriff’s Office 12 Hour Employee Schedule –

Permanent’ schedule during the time period May 5, 2020 through present.” (Docket Entry 22

at 5.) Defendant does not dispute that the proposed class is ascertainable, and the undersigned

agrees.6

Numerosity, Commonality, Typicality, and Adequacy

Here, the undersigned first concludes that the prerequisites of numerosity,

commonality, typicality, and adequacy are satisfied. Plaintiffs allege that the class is comprised

of more than 80 persons. (White Decl. ¶ 4; Beers Decl. ¶ 4.) “No specified number is needed

to maintain a class action,” Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, 375 F.2d

648, 653 (4th Cir. 1967), and classes numbering less than 20 have been deemed appropriate.

See e.g., id. Therefore, the undersigned concludes that the numerosity requirement is met.

Second, Plaintiffs have demonstrated that “there are questions of law or fact common

to the class.” Fed. R. Civ. P. 23(a)(2). “A single common question will suffice” so long as it

is “of such a nature that its determination ‘will resolve an issue that is central to the validity of

each one of the claims in one stroke.’ ” EQT, 764 F.3d at 360 (citing Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 351, 359 (2011)). Here, the common legal issue before the Court is

whether Defendant breached its contract with the Detention Officers and Corporals by failing

to pay them earned wages and benefits for all hours worked and/or scheduled. Plaintiffs have

set forth common factual issues between themselves and the putative class, including the

6 As this action was originally initiated on May 5, 2023, and the statute of limitations for a

North Carolina state law breach of contract claim is 2 years, see N.C. Gen. Stat. § 1-53(1), the

undersigned concludes that the duration of Plaintiffs’ class period should begin May 5, 2021, rather

than May 5, 2020. See Conner v. Cleveland Cnty., N. Carolina, No. 1:18-CV-00002-MR-WCM, 2023 WL

3081295, at *12 n.13 (W.D.N.C. Apr. 24, 2023).

similar Rotating Schedule for work, receipt of the same training and performance of the same

law enforcement duties, all earning accrued benefits pursuant to the same benefits policy, the

eligibility to work additional time, and all ultimately being subject to Defendant’s same alleged

breaching contractual conduct. The commonality prerequisite is therefore satisfied.

Third, the typicality requirement is met. Plaintiffs’ breach of contract claim arises from

the same underlying facts as the putative class members. Again, “the key question in

determining typicality is whether the interests of the class members will be fairly and

adequately protected in their absence.” Sims v. BB & T Corp., No. 1:15-CV-732, 2017 WL

3730552, at *4 (M.D.N.C. Aug. 28, 2017) (internal quotations and citation omitted).

Therefore, the typicality requirement is met here because “the claims asserted by the named

plaintiffs arise from the same course of conduct and are based on the same legal theories as

the claims of the unnamed class members.” Tatum v. R.J. Reynolds Tobacco Co., 254 F.R.D. 59,

65 (M.D.N.C. 2008) (internal quotations and citation omitted).

Next, Plaintiffs have demonstrated that they will “fairly and adequately protect the

interests of the class.” Fed. R. Civ. P. 23(a)(4). This subpart “serves to uncover conflicts of

interest between named parties and the class they seek to represent” as well as to evaluate

“competency and conflicts of class counsel.” Clark v. Duke Univ., No. 1:16-CV-1044, 2018

WL 1801946, at *7 (M.D.N.C. Apr. 13, 2018) (internal quotations and citation omitted). Here,

Plaintiffs have no conflicts or antagonistic interests with the interests of any other Detention

Officers or Corporals. (Gibbons, Jr. Decl. ¶ 9.) In addition, as set forth above, Plaintiffs’

counsel has the necessary skill, experience, and qualifications to adequately represent the

interests of the class. (See id. ¶¶ 1-8; see also Fed. R. Civ. P. 23(g).) Therefore, Plaintiffs’ counsel

should be appointed class counsel. See Lewis v. Precision Concepts Grp., LLC, No. 1:18CV64,

2019 WL 13143749, at *4 (M.D.N.C. July 29, 2019) (“Based on the information set out in the

Motion and supporting Memorandum, it appears that proposed counsel has sufficient

experience and is capable of conducting this type of litigation, and will be preliminarily

approved as counsel.”).

Rule 23(b)(3) Requirement

Plaintiffs also move for class certification based on the requirements of Rule 23(b)(3).

As previously stated, Rule 23(b)(3) certification may be obtained if “the court finds that the

questions of law or fact common to class members predominate over any questions affecting

only individual members,” and “a class action is superior to other available methods for fairly

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3) (emphasis added). Thus,

the two aspects of this requirement are predominance and superiority. As explained by this

Court:

First, the predominance requirement tests whether the proposed

class is “sufficiently cohesive to warrant adjudication by

representation” and is satisfied when “questions of law or fact

common to the members of the class predominate over any

questions affecting only individual members.” Gariety v. Grant

Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004); see also Fed. R.

Civ. P. 23(b)(3). “A common question is one that can be resolved

for each class member in a single hearing” rather than one that

“turns on a consideration of the individual circumstances of each

class member.” Thorn, 445 F.3d at 319. The predominance

requirement focuses on the quality of common issues rather than

just the quantity. See Gunnells, [348 F.3d at 429]; see also EQT, 764

F.3d at 366 (noting that, to satisfy predominance, the plaintiff

must show that the defendant’s common conduct has sufficient

bearing on the central issue in the litigation). Second, “[t]he

superiority requirement ensures that ‘a class action is superior to

other available methods for the fair and efficient adjudication of

the controversy.’ ” Thorn, 445 F.3d at 319 (quoting Fed. R. Civ.

P. 23(b)(3)).

Krakauer v. Dish Network L.L.C., 311 F.R.D. 384, 394 (M.D.N.C. 2015), aff’d, 925 F.3d 643 (4th

Cir. 2019).

Here, the undersigned concludes that the legal and factual issues surrounding

Defendant’s alleged breach of contract in the manner in which Detention Officers and

Corporals were compensated, see Compl. ¶¶ 20-37, is common to all proposed members of

the class and predominate over any issues affecting individual members. See Adams v. Sitel

Operating Corp., No. 1:16CV1051, 2019 WL 13296014, at *6 (M.D.N.C. Jan. 24, 2019) (“The

‘qualitatively overarching issue’ in this case is whether [defendant] is liable for compensation

due to its Work@Home Agents for off-the-clock work performed before, during, and after

each shift.”). If Defendant’s policy and practice of only paying Detention Officers and

Corporals for 173.33 hours per month, regardless of the number of hours worked, resulted in

the underpayment of earned wages or accrued benefits for Plaintiffs, all other putative class

will have suffered the same injury. See Conner, 2023 WL 3081295, at *15 (“If Cleveland County

contracted with . . . employees to pay them . . . for non-overtime hours and then paid them

less than that, then it breached the contract . . . . Accordingly, the question at issue—whether

the breach resulted in damages—is common to all class members.”).

Moreover, a class action is the superior method for proceeding in this matter. Plaintiffs

contend that “[a] class action also allows class members to seek relief from Defendant’s

underpayment of regular and overtime wages without fear of retaliation.” (Docket Entry 22

at 24.) “The prospect of retaliation against employees for joining [a] lawsuit only heightens

the need for class-wide resolution[.]” Jones v. Fid. Res., Inc., No. CV RDB-17-1447, 2019 WL

4141015, at *11 (D. Md. Aug. 30, 2019). Moreover, a single action here would promote judicial

efficiency. See Lorenzo v. Prime Commc’ns, L.P., No. 5:12-CV-69-H(2), 2014 WL 10987818, at

*6 (E.D.N.C. Jan. 15, 2014) (“[I]nterests of judicial efficiency would be promoted by having

the putative class members’ claims adjudicated in a single proceeding, rather than in multiple,

individual suits.”), report and recommendation adopted, No. 5:12-CV-69-H, 2014 WL 10935944

(E.D.N.C. Mar. 24, 2014), amended, No. 5:12-CV-69-H, 2018 WL 1535476 (E.D.N.C. Mar. 29,

2018). Therefore, for the above reasons, Plaintiffs satisfy the requirements of Rule 23(b)(3).

III. CONCLUSION

For the reasons stated herein, IT IS HEREBY RECOMMENDED that Plaintiff’s

Unopposed Motion for Collective and Class Certification (Docket Entry 21) be GRANTED,

with modifications to the class definition, in that:

1. Plaintiffs’ claim under the FLSA be conditionally certified as a collective action

under 29 U.S.C. § 216(b), and the conditionally certified FLSA class be identified

as “all current and former Detention Officers and Corporals who worked pursuant

to the ‘Alamance County Sheriff’s Office 12 Hour Employee Schedule –

Permanent’ schedule during the time period May 5, 2020 through present;”

2. Plaintiffs’ claim for breach of contract under North Carolina law be certified as a

class action pursuant to Fed. R. Civ. P. 23(b)(3), and the certified class be defined

as “all current and former Detention Officers Detention Officers and Corporals

who worked pursuant to the ‘Alamance County Sheriff’s Office 12 Hour Employee

Schedule – Permanent’ schedule during the time period May 5, 2021 through

present;” and

3. The Court appoint Philip J. Gibbons, Jr., and Corey M. Stanton of Gibbons Law

Group, PLLC as Class Counsel.

IT IS FURTHER RECOMMENDED that the parties be directed to confer and to

submit to the Court a Joint Status Report, within thirty (30) days of the date upon a ruling on

this recommendation, regarding their efforts to agree on a notification plan, including an

appropriate notice form, consent form, manner of distribution, and opt-in deadline.

/s/ Joe L. Webster

United States Magistrate Judge

June 6, 2024

Durham, North Carolina