Cox v. TJ Inspection Inc

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

SHAWN COX, individually and on )

behalf of all others similarly situated, )

)

Plaintiff, )

)

v. ) Case No. CIV-23-187-G

)

TJ INSPECTION, INC. )

)

Defendant. )

ORDER

Plaintiff Shawn Cox has filed a Collective Action Complaint (Doc. No. 1), seeking

recovery individually and on behalf of all others similarly situated against Defendant TJ

Inspection, Inc. for violation of the Fair Labor Standards Act (“FLSA”). See id. ¶¶ 12-14.

Now before the Court is Plaintiff’s Motion (Doc. No. 35), seeking conditional class

certification of a proposed class of similarly situated persons and the issuance of notice of

this lawsuit to potential class members. Defendant has responded (Doc. No. 37), and

Plaintiff has filed a Reply (Doc. No. 38).

I. Relevant Standards

The FLSA permits “any one or more employees” to bring a collective action against

their employer as follows:

An action to recover the liability prescribed . . . may be maintained against

any employer (including a public agency) in any Federal or State court of

competent jurisdiction by any one or more employees for and in behalf of

himself or themselves and other employees similarly situated. 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.

29 U.S.C. § 216(b).

The Tenth Circuit has endorsed a two-tiered approach to conditional class

certification under the FLSA’s opt-in class mechanism:

Under [this] approach, a court determines, on an ad hoc case-by-case basis,

whether plaintiffs are “similarly situated.” In utilizing this approach, a court

typically makes an initial “notice stage” determination of whether plaintiffs

are “similarly situated.” In doing so, a court requires nothing more than

substantial allegations that the putative class members were together the

victims of a single decision, policy, or plan. At the conclusion of discovery

(often prompted by a motion to decertify), the court then makes a second

determination, utilizing a stricter standard of “similarly situated.”

Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1102-03 (10th Cir. 2001) (alteration,

citations, and internal quotation marks omitted).

The first-stage certification, sought here by Plaintiff, “is the vehicle by which the

Court authorizes the named plaintiff to give notice to the other similarly situated persons,

granting them the opportunity to opt in by filing a consent with the Court.” Whitlow v.

Crescent Consulting, LLC, 322 F.R.D. 417, 420 (W.D. Okla. 2017). Such “‘conditional

certification’ does not produce a class with an independent legal status, or join additional

parties to the action. The sole consequence of conditional certification is the sending of

court-approved written notice to employees, who in turn become parties to a collective

action only by filing written consent with the court.” Genesis Health Care Corp. v.

Symczyk, 569 U.S. 66, 75 (2013) (citations omitted); see also Carlson v. Pharoah Energy

Servs., LLC, No. CIV-23-802-PRW, 2025 WL 952237, at *1 (W.D. Okla. Mar. 28, 2025)

(“Putative collective members must opt in to the FLSA action by consenting in writing.

Courts have discretion to facilitate notice to potential plaintiffs.” (alteration, footnote, and

internal quotation marks omitted)).

II. Discussion

Plaintiff defines the putative class as: “All individuals who claimed overtime in

Farmer v. TJ Inspection, Inc. who have been denied work by TJ Inspection[, Inc.].” Pl.’s

Reply Ex. 1, Proposed Notice (Doc. No. 38-1); see also Compl. ¶ 14.

Plaintiff, who was previously employed by Defendant, alleges that in 2022 he and

77 other workers filed an FLSA collective action suit against Defendant claiming they were

owed overtime pay. See Collective Action Compl. ¶¶ 2-3, 8-9, 20 (citing Farmer v. TJ

Inspection, Inc. (W.D. Tex.)). According to Plaintiff, after that suit was resolved

Defendant retaliated against those plaintiff-workers “by sending newly hired inspectors to

work in their stead.” Id. ¶¶ 1, 4, 12. Specifically, “[w]ithin weeks of Farmer’s dismissal,

TJ Inspection laid off or did not send [Plaintiff] or the members of the FLSA Class out to

work on their next rotation or project,” instead hiring additional inspectors. Id. ¶¶ 22, 25.

Plaintiff also submits affidavits from himself and other workers who had been plaintiffs in

Farmer and thereafter laid off or denied work by Defendant. See Pl.’s Mot. Exs. 1, 2, 3, 4

(Doc. Nos. 35-1, 35-2, 35-3, 35-4). Plaintiff alleges that Defendant’s intentional

discrimination violates the FLSA’s anti-retaliation provision. See Collective Action

Compl. ¶¶ 5, 32-34; 29 U.S.C. § 215(a)(3).

At this initial “notice stage,” the Court “appl[ies] a fairly lenient standard for what

constitute[s] ‘similarly situated.’” Thiessen, 267 F.3d at 1103. The Court requires “only a

modest factual showing” and limits its inquiry to whether the plaintiff “makes substantial

allegations that the putative members of the class were victims of a single policy or plan.”

Carlson, 2025 WL 952237, at *1 (internal quotation marks omitted); Whitlow, 322 F.R.D.

at 421. “The court does not weigh the evidence, resolve factual disputes, or rule on the

merits of plaintiffs’ claims.” Foster v. Nova Hardbanding, LLC, No. CV-15-1047, 2016

WL 4492829, at *2 (D.N.M. Apr. 20, 2016) (alteration and internal quotation marks

omitted).

Defendant objects that the proposed class members are insufficiently similar

because they joined the Farmer suit at different times and under different circumstances

and because they did not all experience the same (if any) adverse employment actions. See

Def.’s Resp. at 10-12; see also Def.’s Resp. Exs. 1, 2, 3, 4, 5 (Doc. Nos. 37-1, 37-2, 37-3,

37-4, 37-5). Such individualized inquiries do not defeat certification at this initial stage,

however. See Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 682 (D. Kan. 2004); see

also Reab v. Elec. Arts, Inc., 214 F.R.D. 623, 628 (D. Colo. 2002) (explaining that

“individual questions with respect to damages” generally “will not defeat class

certification” (internal quotation marks omitted)). And “[q]uestions of management issues

are for the second stage analysis after discovery.” Foster, 2016 WL 4492829, at *4.

Having considered the parties’ arguments and the relevant record, the Court finds

that Plaintiff’s allegations and evidence are sufficient to establish that the putative plaintiffs

are “similarly situated” in relevant respects “so as to permit conditional certification.”

Whitlow, 322 F.R.D. at 421.

Defendant additionally objects to the wording of Plaintiff’s Proposed Notice, see

Def.’s Resp. at 13-14. Plaintiff has replied by submitting an Amended Proposed Notice,

which states that Defendant denies any retaliation and explains that participation in the

lawsuit may result in discovery obligations. See Pl.’s Reply at 5-8; Pl.’s Reply Ex. 1, Am.

Proposed Notice (Doc. No. 38-1). The Court finds that these revisions adequately address

Defendant’s relevant concerns and that the new notice is substantively appropriate, subject

to the revisions ordered below.

CONCLUSION

Accordingly, the Court ORDERS as follows:

1. Plaintiff’s Motion (Doc. No. 35) is GRANTED. The Court conditionally certifies,

under 29 U.S.C. § 216(b), the putative FLSA class of all individuals who claimed

overtime in Farmer v. TJ Inspection, Inc. who have been denied work by TJ

Inspection, Inc. for the purpose of facilitating notice of this retaliation case.

2. The Court APPROVES the Amended Proposed Notice and related documents,

attached as an exhibit to Plaintiff’s Reply, subject to Plaintiff making the following

revisions to the notice prior to distribution:

a. On page 1, immediately below the heading “NOTICE OF LAWSUIT

ALLEGING UNLAWFUL RETALIATION,” Plaintiff shall add: “THIS

NOTICE AND ITS CONTENT HAVE BEEN AUTHORIZED BY THE

UNITED STATES COURT FOR THE WESTERN DISTRICT OF

OKLAHOMA. THE COURT HAS TAKEN NO POSITION REGARDING

THE MERITS OF THIS LAWSUIT.”1

b. In the third sentence of paragraph 2 on page 1, “has ordered this notice be

sent” shall be replaced with “has authorized this notice to be sent.”

c. In paragraph 4 on page 2, Plaintiff shall remove the sentence: “If this case is

not successful, you will receive nothing and you will not be responsible for

case costs, expenses, or attorneys’ fees.” The sentence shall be replaced

1 See Whitlow, 322 F.R.D. at 425.

with: “If this case is not successful, you will receive nothing, and court costs

and expenses (not including TJ Inspection’s attorney’s fees) could be

assessed against the participating plaintiffs.’””

d. Plaintiff shall remove “This Court” from the first sentence of paragraph 5 on

page 2, as there is no basis for stating that the Court prohibits anyone from

engaging in the cited actions.’

e. On page 4, in the first sentence of the language to be sent via text message,

“an important Court notice” shall be replaced with “an important Court-

authorized notice.”

3. IT IS FURTHER ORDERED that, within 14 days of the date of this Order,

Plaintiff's counsel shall send the notice and consent form to the Farmer plaintiffs

by U.S. Mail, email, and/or text. The recipients shall have 60 days from the date

the notice is sent to opt in by returning their signed consent form to Plaintiffs

counsel for filing with the Court.

IT IS SO ORDERED this 12th day of August, 2025.

CHARLES B. GOODWIN

United States District Judge

? See Whitlow, 322 F.R.D. at 423-24 & n.7.

3 See Whitlow, 322 F.R.D. at 425.