# Tucker v. Oscar Mike Incorporated

> District Court, N.D. Alabama · January 30, 2023

URL: https://www.frixlaw.com/law-library/cases/9991506

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** January 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991506

## How later opinions describe it (automated extraction)

- stating district court certified collective action, “but only conditionally,” noting the possibility of later decertifying once discovery is substantially over

## Opinion text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991506. Public record. Not legal advice.