Tucker v. Oscar Mike Incorporated

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL TUCKER,

individually and on behalf of

all others similarly situated,

Plaintiff,

v. Case No. 2:21-cv-1706-CLM

OSCAR MIKE, INC.,

Defendant.

MEMORANDUM OPINION

Michael Tucker sued his former employer, Oscar Mike, Inc., alleging

violations of the Fair Labor Standards Act (“FLSA”). Tucker asks the court to

conditionally certify an opt-in class of employees, and to approve notice to

potential opt-in plaintiffs, so that a class of plaintiffs may pursue their FLSA

claims in a collective action. But before conditionally certifying an opt-in class,

the Eleventh Circuit requires this court to find that (1) other employees desire

to opt-in to Tucker’s lawsuit, and (2) those other employees are “similarly

situated.” Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562, 1567–68

(11th Cir. 1991).

Tucker offers no evidence that any other employees desire to opt-in, aside

from his own declaration in which he asserts that he “believe[s] there would be

others who would want to join this lawsuit . . .” (Doc. 13-6, p. 5). So the court

DENIES Tucker’s motion to conditionally certify an opt-in class, and DENIES

AS MOOT his motion to approve notice to potential plaintiffs.

STATEMENT OF FACTS

Plaintiff Michael Tucker (“Tucker”) worked as a Diesel Mechanic for

Defendant Oscar Mike, Inc. (“Oscar Mike”) from 2020-2021. (Doc. 1, p. 3).

After separating from the company, Tucker sued Oscar Mike, alleging

violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”).

(Doc. 1, p. 1). The FLSA requires, among other things, that employers pay

employees overtime wages for all hours worked over forty each week, unless

the employee meets certain exemption requirements. In other words,

employers must pay overtime wages for all hours worked over forty, unless the

employee is properly classified as “exempt.”

The FLSA authorizes individual claims, as well as “collective actions,”

against employers accused of violating the FLSA. Collective actions allow a

plaintiff to assert claims on behalf of other similarly situated employees. See

29 U.S.C. § 216(b).

Tucker claims that Oscar Mike misclassified him and others as “exempt”

employees, and therefore failed to pay overtime pay as required by the FLSA.

So Tucker brings an individual claim, and a collective action claim. (See Doc.

1, pp. 7–8).

Tucker is the only named plaintiff in this action. And he has not yet

identified any specific employees who wish to join his lawsuit. (See Doc. 42).

But he has declared, under penalty of perjury, that he “believe[s] there would

be others who would want to join this lawsuit if they were made aware of the

opportunity . . .” (Doc. 13-6, p. 5).

Tucker has moved for conditional certification, approval and distribution

of notice, and disclosure of contact information. (Doc. 13). Oscar Mike opposes

the motion on various grounds.

LEGAL STANDARD

“[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.” Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th

Cir. 2001). But the court’s discretion is “not unbridled.” Morgan v. Family

Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). The court must

carefully exercise its discretion, and authorize notice in only appropriate cases.

See Haynes v. Singer Co., 696 F.2d 884, 886 (11th Cir. 1983).

DISCUSSION

The Fair Labor Standards Act (“FLSA”) authorizes “collective actions”

against employers accused of violating the FLSA.1 Morgan v. Family Dollar

Stores, Inc., 551 F.3d 1233, 1258 (11th Cir. 2008). Section 216(b) of the FLSA

provides: “[a]n 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.” 29 U.S.C. § 216(b). Tucker asks this court to

conditionally certify this case as a collective action under Section 216(b) of the

FLSA. (See Doc. 13).

Participants in a § 216(b) collective action must affirmatively opt into

the suit. See 29 U.S.C. § 216(b) (“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.”); see also

Morgan, 551 F.3d at 1258–59. In other words, once a plaintiff files a complaint

against an employer, any other similarly situated employees who want to join

must affirmatively consent to be a party and file written consent with the

court. Morgan, 551 F.3d at 1259 (citing Albritton v. Cagle’s, 508 F.3d 1012,

1017 (11th Cir. 2007)). Because similarly situated employees must

affirmatively opt into the litigation, the decision to certify the action, on its

own, does not create a class of plaintiffs. Instead, the “existence of a collection

action under § 216(b) . . . depend[s] on the active participation of other

plaintiffs.” Morgan, 551 F.3d at 1259.

The significance of certification at the initial stage (i.e., conditional

certification), “is that it authorizes either the parties, or the court itself, to

facilitate notice of the action to similarly situated employees.” Morgan, 551

F.3d at 1259 (citing Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218

(11th Cir. 2001)).

1 Collective actions differ from class actions in important ways. For example, in a Rule 23

class action, each person who falls within the class definition is considered to be a class

member, and is bound by the judgment unless he has opted out. See Fed. R. Civ. P. 23(c)(3).

By contrast, a putative plaintiff must affirmatively opt into a 29 U.S.C. § 216(b) action by

filing his written consent with the court.

A. Courts in this circuit are encouraged to apply a two-tier

approach to certification of collective actions.

Most courts apply a “two-tier” or “two stage” approach to certification of

collective actions. The Eleventh Circuit has endorsed this approach. See

Morgan v. Family Dollar Stores, 551 F.3d 1233, 1260 (11th Cir. 2008)

(endorsing the two-stage procedure for determining certification); Hipp v.

Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001) (recommending

without requiring that district courts use a two-tiered approach).

The first stage is the “notice stage.” At this stage, the district court

decides—usually based only on the pleadings and any affidavits submitted—

whether notice of the action should be given to potential class members. Hipp,

252 F.3d at 1218. Specifically, the court must satisfy itself that: (1) other

employees desire to opt-in, and (2) those other employees are “similarly

situated” with respect to their job requirements and pay provisions. Morgan,

551 F.3d at 1259 (citing Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d

1562, 1567–68 (11th Cir. 1991)). 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. Hipp, 252 F.3d at 1218. If

the district court conditionally certifies the class, putative class members are

given notice and the opportunity to opt-in. Id. The action then proceeds as a

representative action throughout discovery. Id.

The first stage is also known as “conditional certification” because the

court’s decision may be reexamined once the case is ready for trial. Morgan,

551 F.3d at 1261 (citing Albritton, 508 F.3d at 1014); see also Anderson v.

Cagle’s Inc., 488 F.3d 945, 952 (11th Cir. 2007) (stating district court certified

collective action, “but only conditionally,” noting the possibility of later

decertifying once discovery is substantially over).

The second stage is the “decertification stage.” The defendant initiates

this stage by filing a motion for decertification following the close of discovery.

Morgan, 551 F.3d at 1261. At this stage, the court has much more information

on which to base its decision, and can therefore make a more informed factual

determination on the similarly situated question. Id. This stage is less lenient,

and the plaintiff bears a heavier burden. Id. If the claimants are similarly

situated, the district court allows the representative action to proceed to trial.

Hipp, 252 F.3d at 1218. If the claimants are not similarly situated, the district

court decertifies the class, and the opt-in plaintiffs are dismissed without

prejudice. Id. The class representatives—i.e., the original plaintiffs—proceed

to trial on their individual claims. Id. (quoting Mooney v. Aramco Servs. Co.,

54 F.3d 1207, 1213-14 (5th Cir. 1995)).

While conditional certification can be undone, the court is mindful that

a “decision to certify, even if subject to correction at the decertification stage,

is not without consequences.” Lang v. DirecTV, Inc., 2011 WL 6934607, at *6

(E.D. La. Dec. 30, 2011). “Too much leniency at the notice stage can lead to a

‘frivolous fishing expedition conducted by the plaintiff at the employer’s

expense,’” and “extreme leniency at the notice stage can result in conditional

certification that must later be revoked at the eve of trial . . . when it becomes

obvious that manageability concerns make collective action impossible.” Id.

(citations omitted). This court takes seriously its obligation to grant conditional

certification in only “appropriate cases.” See Haynes v. Singer Co., 696 F.2d

884, 886 (11th Cir. 1983).

This case is at the first stage—the notice or “conditional certification”

stage. Tucker, as the single named plaintiff, asks the court to grant his motion

for conditional certification. (See Doc. 13).

B. Tucker fails to provide enough evidence that other employees

“desire to opt-in” to his lawsuit.

As explained above, before granting a motion for conditional

certification, the court must make two findings: (1) that other employees desire

to opt-in, and (2) that those other employees are “similarly situated” with

respect to their job requirements and pay provisions. Morgan v. Family Dollar

Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008) (citing Dybach v. State of Fla.

Dep’t of Corrections, 942 F.2d 1562, 1567–68 (11th Cir. 1991)). The court will

first analyze whether there are other employees who desire to opt-in.

1. Unsupported belief as evidence of opt-ins: Plaintiffs in other cases

have successfully satisfied the first element by submitting affidavits of other

employees, consent forms to join the litigation from other employees, and

expert evidence indicating some other employees wish to opt-in. See Mooney v.

Advanced Disposal Servs., 2008 2008 WL 3843550, at *2 (M.D. Ala. Aug. 14,

2008) (citing Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d 1272,

1277 (M.D. Ala. 2004) (collecting cases)).

Tucker presents nothing of the sort. Instead, as evidence that others

desire to opt-in, Tucker—the singular named plaintiff in this action—proffers

one thing: a sworn declaration in which he asserts that he “believe[s] there

would be others who would want to join this lawsuit . . .” (Doc. 16-6, p. 5). The

parties confirmed in supplemental briefing that this is the only evidence

Tucker offers. (See Doc. 42, p. 2; Doc. 43, p. 2).

Other courts have explained that a plaintiff’s “mere stated belief in the

existence of other employees who desire to opt-in is insufficient.” Davis, 303

F.Supp.2d at 1277 (citing Horne v. United Servs. Auto. Ass’n, 279 F.Supp.2d

1231, 1236 (M.D. Ala. 2003)). And “unsupported expectations that additional

plaintiffs will subsequently come forward” are also insufficient. Davis, 303

F.Supp.2d at 1277 (citing Mackenzie v. Kindred Hosps. East, LLC, 276

F.Supp.2d 1211, 1220 (M.D. Fla. 2003)). In other words, notice to a potential

class is not appropriate to determine whether there are others who desire to

join the lawsuit. Mackenzie, 276 F. Supp. 2d at 1220 (citing Dybach, 942 F.2d

at 1567-68) (emphasis added). Instead, a plaintiff must make some showing

that others desire to opt in. See id.

District courts in the Eleventh Circuit have repeatedly found the type of

evidence Tucker offers to be insufficient—even when presented by multiple

named plaintiffs. See, e.g., Galban v. Bill Seidle’s Nissan, Inc., 2009 WL

10667636, at *2-3 (S.D. Fla. Apr. 10, 2009) (holding named plaintiffs did not

meet their burden because “a plaintiff’s or counsel’s belief in the existence of

other employees who may desire to opt in is insufficient to justify notice to a

potential class”); Wombles v. Title Max of Ala., Inc., 2005 WL 3312670, at *3

(M.D. Ala. Dec. 7, 2005) (holding plaintiffs did not meet their burden when five

plaintiffs alleged in affidavits that they “believe . . . that given the opportunity

. . . [others] would join in this lawsuit”); see also Mooney v. Advanced Disposal

Servs., 2008 WL 3843550, at **2-3 (M.D. Ala. Aug. 14, 2008) (“A stated belief

in the existence of other employees wishing to join this litigation is all the [four

named] plaintiffs have to offer . . . the court views the identification of only four

plaintiffs . . . as a weak indicator that other employees desire to opt-in”);

Slaughter v. CVS Rx Servs., Inc., 2004 U.S. Dist. LEXIS 30034, at *11 (N.D.

Ala. Nov. 1, 2004) (thirteen named plaintiffs “failed to show that other

similarly situated employees . . . desire to opt-in”).

District courts outside the Eleventh Circuit have reached the same

conclusion. See, e.g., Rahman v. Fiesta Mart, LLC, 2016 WL 2346944, at *5

(S.D. Tex. May 4, 2016) (“[Plaintiff] has presented no evidence that would allow

the court to infer that other individuals are interested in joining this lawsuit .

. . [Plaintiff]’s unsupported assertion that others will be interested in joining

this lawsuit is insufficient to satisfy his burden.”).

The court asked the parties if any district court in the Eleventh Circuit

has granted a motion for conditional certification when (1) there is only one

named plaintiff, and (2) the only evidence that other employees desire to opt-

in is a declaration from the named plaintiff in which he asserts that he believes

others would want to join his lawsuit. (See Doc. 41). Oscar Mike said no. (See

Doc. 43, p. 2). Tucker offered a few cases that are close, but not on point. (See

Doc. 32).

Tucker asserts that in Santiago v. Mid-South Painting, Inc., the

Southern District of Florida conditionally certified a collective of similarly

situated employees based on a single named plaintiff’s sworn declaration. 2011

WL 3418252 (S.D. Fla. Aug. 3, 2011). But that case is factually different from

this one. First, the Santiago plaintiff’s declaration contains a different

assertion: that he was “aware of other painters who have expressed an interest

in joining the lawsuit . . .” Id. at *10. Tucker does not say that he is “aware” of

others who wish to join the suit. Instead, he says he “believe[s]” that others

will join. (See Doc. 13-6, p. 5). Being aware of specific individuals who wish to

join is different from merely believing that others will join. And regardless, the

court explained that “[n]ormally, this type of bald assertion is insufficient to

carry a plaintiff’s burden because unsupported expectations that additional

plaintiffs will subsequently come forward are insufficient to justify notice.” Id.

at *10–11.

The Santiago court made it clear that the only reason it concluded that

the plaintiff satisfied his burden of showing that other employees desired to

opt-in is because the defendant admitted that it failed to pay other employees

at an overtime rate for all hours worked over forty in a workweek. The court

explained:

Had Defendants not explicitly admitted that they, as

a rule, do not pay overtime wages, the Court’s

determination would be quite different. Without that

admission, if Plaintiff had relied solely on anecdotal

evidence or belief, the Court would not have found that

there are other employees who desire to opt-in.

Id. at *5, n.6. Oscar Mike does not make a similar admission. Indeed, Oscar

Mike denies that it did not pay overtime wages to Tucker and other diesel

mechanics. (See Doc. 4, ¶¶ 34-35). So this court finds that Santiago is factually

different and unpersuasive.

In each of the other cases offered by Tucker, at least one individual other

than the plaintiff filed a consent to join the lawsuit. See Bennett v. Hayes

Robertson Grp., Inc., 880 F. Supp. 2d 2170, 1275 (S.D. Fla. 2012) (on top of 21

named plaintiffs, three employees served pre-suit notice to join and three

employees submitted affidavits expressing interest); Brown v. Refuse

Materials, Inc., 2013 WL 2387750, at *3 (M.D. Ga. May 30, 2023) (finding

plaintiff’s submission of a consent form signed by a similarly situated employee

was a sufficient demonstration of interest in participation); Wynder v. Applied

Card Sys., Inc., 2009 WL 3255585, at *1 (S.D. Fla. Oct. 7, 2009) (one additional

individual filed a consent to join the action); Guerra v. Big Johnson Concrete

Pumping, Inc., 2006 WL 2290512, at **2, 4 (S.D. Fla. May 17, 2006) (one

additional individual filed a consent to join the action). So the court is aware

of no cases in which a district court in the Eleventh Circuit granted a motion

for conditional certification when (1) there is only one named plaintiff, and (2)

the only evidence that other employees desire to opt-in is a declaration from

the named plaintiff in which he asserts that he “believe[s]” there would be

others who would want to join.

To be sure, at least one federal district court has granted conditional

certification when there is only one named plaintiff, and no evidence that other

employees desire to opt-in. See Adams v. United Cerebral Palsy of Cent. Ark,

Inc., 2017 WL 5659822, at **1–2 (E.D. Ark. Apr. 27, 2017). But that district

court, unlike this one, “does not require plaintiffs in a Fair Labor Standards

Act case to establish that other potential class members desire to opt in.” Id.

This district court is bound by Eleventh Circuit precedent, so it must “satisfy

itself that there are other employees . . . who desire to opt-in.” Dybach, 942

F.3d at 1567; see also Mooney v. Advanced Disposal Servs., 2008 WL 3843550,

at *2 (M.D. Ala. Aug. 14, 2008) (explaining that district courts in this circuit

are required to find that other potential class members desire to opt-in).

2. Other arguments for certification: In his supplemental brief, Tucker

argues that “the existence of just one other co-worker who desires to join in is

sufficient to ‘rais[e] the Plaintiff’s contention beyond one of pure speculation’”

(Doc. 42, pp. 2–3) (quoting Bennett v. Hayes Robertson Grp., Inc., 880 F. Supp.

2d 1270, 1283 (S.D. Fla. 2012)). That may be true, but Tucker does not show

that any other coworker desires to join his lawsuit. Again, all Tucker proffers

is his own declaration, in which he claims that he “believe[s] there would be

others who would want to join this lawsuit . . .” (Doc. 13-6, p. 5).

Tucker also asserts that evidence of “a common payroll policy or scheme”

is enough to meet his burden. (Doc. 42, p. 3) (citing Mooney v. Advanced

Disposal Servs., 2008 WL 3843550, at *2 (M.D. Ala. Aug. 14, 2008)). But he

cites no binding authority for this proposition. And the same court that

observed that plaintiffs have “established there were other employees desiring

to opt-in on the basis of their being subjected to a common payroll policy or

scheme” also said, “it is insufficient for a plaintiff to rely on a mere stated belief

in the existence of other employees who desire to opt-in.” Mooney, 2008 WL

3843550, at *2 (internal quotation marks omitted). In Mooney, “[a] stated belief

in the existence of other employees wishing to join this litigation is all the

plaintiffs [had] to offer” and the court denied the motion for conditional

certification. Id. at **2, 4.

* * *

The court holds that Tucker’s personal declaration is not enough to

satisfy the court that “there are other employees . . . who desire to opt-in.”

Dybach, 942 F.3d at 1567. If it were enough, any plaintiff could satisfy the first

requirement for conditional certification—and thus eliminate the requirement.

As another court put it, “[i]f an FLSA plaintiff were required to show only that

other potential plaintiffs exist (rather than showing that those potential

plaintiffs would actually seek to join the lawsuit), it would:

render preliminary class certification automatic, as

long as the Complaint contains the magic words:

‘Other employees similarly situated.’ Under this

rationale, any plaintiff who is denied overtime pay

may file suit under [the] FLSA and, as long as her

complaint is well-pled, receive preliminary class

certification and send court-approved notice forms to

every . . . employee[ ]. This is, at best, an inefficient

and overbroad application of the opt-in system, and at

worst it places a substantial and expensive burden on

a defendant . . . More importantly, automatic

preliminary class certification is at odds with the

Supreme Court’s recommendation to ‘ascertain the

contours of the [§ 216] action at the outset.’”

Parker v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1165 (D. Minn. 2007)

(quoting Smith v. Sovereign Bancorp, Inc., 2003 WL 22701017, at *2 (E.D. Pa.

Nov. 13, 2003)).

The court is unwilling to hold, at this time, that Tucker’s case is

appropriate for collective action. Because the court finds that Tucker fails to

establish that others are interested in joining his lawsuit, the court does not

opine on whether other Oscar Mike employees are similarly situated.

CONCLUSION

For the reasons stated above, the court DENIES Michael Tucker’s

motion for conditional certification, and DENIES AS MOOT his motion for

approval and distribution of notice, and disclosure of contact information (doc.

13). The court will enter a separate order that carries out this ruling.

DONE on January 30, 2023.

LPulg

COREY. MAZE

UNITED STATES DISTRICT JUDGE

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