United States District Court, W.D. Oklahoma
ALAN COOPER, individually and on behalf of all others similarly situated, Plaintiff,
COIL CHEM, LLC, Defendant.
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion for Conditional
Certification [Doc. No. 34]. Defendant has filed its response
in opposition [Doc. No. 42], to which Plaintiff has replied
[Doc. No. 48]. The matter is fully briefed and at issue.
brings this collective action on behalf of himself and a
putative class to recover unpaid overtime wages and other
damages under the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (“FLSA” or
“the Act”) and the New Mexico Minimum Wage Act,
N.M. Stat. Ann. §§ 50-4-1 et seq.
(“NMMWA”). Defendant provides various chemical
and delivery systems in support of oil and gas operations. As
part of its business, Defendant employs field operators,
whose main job duties involve preparing tools for deployment
in the field, mixing chemicals and ensuring the placement of
equipment in accordance with Defendant and its clients'
specifications. Plaintiff alleges Defendant required
Plaintiff and his co-workers to work substantial overtime
without compensation. Defendant denies any wrongdoing. Based
on the allegations of the Second Amended Complaint, his
Motion and supporting declarations, Plaintiff seeks
certification of a collective action that consists of:
All Field Operators performing completions work employed by
Coil Chem, LLC in the past 3 years who were paid a salary and
a job bonus.
Second Amend. Compl., ¶ 14.
an employee may maintain a FLSA collective action depends on
whether he is “similarly situated” to other
members of the putative class. See 29 U.S.C. §
216(b). Although § 216(b) does not define the term
“similarly situated, ” the Tenth Circuit has
endorsed the ad hoc method of determination.
Thiessen v. General Electric Capital Corp., 267 F.3d
1095, 1105 (10th Cir. 2001). Under this approach, the Court
engages in a two-step process. First, it makes an initial
“notice stage” determination on whether a
plaintiff is “similarly situated, ” which
requires nothing more than substantial allegations that the
putative class members were together the victims of a single
decision, policy or plan. Thiessen, 267 F.3d at
this determination, the court decides whether a collective
action should be certified for purposes of sending notice of
the action to potential class members.” Renfro v.
Spartan Computer Services, Inc., 243 F.R.D. 431, 432 (D.
Kan. 2007) (citation omitted). “Plaintiffs need only
show their positions are similar, not identical, to the
positions held by the rest of the collective class
members.” Garcia v. Tyson Foods, Inc., 890
F.Supp.2d 1273, 1279 (D. Kan. 2012) (citing Grayson v. K
Mart Corp., 79 F.3d 1086, 1096 (11th Cir.1996) (further
citations omitted)). This standard is a very lenient one and
typically results in certification for the purpose of
notifying potential plaintiffs. Renfro, 243 F.R.D.
at 432; Hart v. Sandridge Energy, Inc., No.
CIV-14-178-R, 2014 WL 2983358, at *2 (W.D. Okla. July 1,
2014). Ordinarily, the Court makes this determination fairly
early in the litigation, before the parties complete
discovery. Brown v. Money Tree Mortgage, Inc., 222
F.R.D. 676, 679 (D. Kan. 2004). In making this determination,
the Court does not reach the merits of the plaintiff's
claims. Gieseke v. First Horizon Home Loan Corp.,
408 F.Supp.2d 1164, 1166 (D. Kan. 2006) (citing Hoffman
v. Sbarro, Inc., 982 F.Supp. 249, 262 (S.D.N.Y. 1997)).
the second step, usually initiated at the close of discovery,
the Court utilizes a stricter standard of “similarly
situated” which requires evaluation of several factors,
including: (1) disparate factual and employment settings of
individual plaintiffs; (2) the various defenses available to
defendants which appear to be individual to each plaintiff;
and (3) fairness and procedural considerations.
Thiessen, 267 F.3d at 1102-03.
where putative class members are employed in similar
positions, the allegation that defendants engaged in a
pattern or practice of not paying overtime is sufficient to
allege that plaintiffs were together the victims of a single
decision, policy or plan.” Renfro, 243 F.R.D.
at 433-34 (citation omitted). In support of his ...