Free Case Review
Phillips Dayes FacebookPhillips Dayes TwitterPhillips Dayes Linkedin
Contact an Attorney

Here’s the opinion in full for you to read:

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
ARTHUR LAWRENCE, et al., )
)
Plaintiffs, )
)
vs. )
)
DEPENDABLE MEDICAL TRANSPORT )
SERVICES, L.L.C., et al., )
) N o . 2 : 1 3 – cv-0417-HRH
Defendants. )
___________________________________)
O R D E R
Motion for Preliminary Certification
Plaintiffs move for preliminary collective action certification
and court-supervised notice of a pending collective action. This 1
motion is opposed. Oral argument was requested but is not deemed 2
necessary.
Background
Plaintiffs are Arthur and Brandy Lawrence, Ricardo and Elisha
Ramirez, Jimmie Stinton, and Megan West. Defendants are Dependable
Medical Transport Services, L.L.C. (“DMTS”); DMTS, L.L.C.; Three Man
Transport, L.L.C.; Gibbs Investment, L.L.C.; Gibbs Investment Trust;
Docket No. 27. 1
Docket No. 41. 2
-1-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 1 of 16
Richard A. and Jane Doe Ganley; Mark and Jane Doe Ganley; and
William H. Gibbs and Jane Doe Ganley.
The Named plaintiffs worked as drivers for DMTS, which is “an
Arizona limited liability company that provides non-emergency
medical and non-medical transportation to the elderly, the
physically disabled, and others.” “During … the last three years 3
… approximately 280 different individuals have performed various
driving services throughout Arizona on behalf of DMTS.” 4
The Named plaintiffs allege that they were often required to
work more than 40 hours per week without being paid overtime and
that on many occasions, they were not paid minimum wage. They also
allege that defendants incorrectly classified some employees as
independent contractors.
On February 27, 2013, the Named plaintiffs filed a Fair Labor
Standards Act (FLSA) collective action complaint on behalf of
themselves and all other similarly situated employees. Since the
filing of the original complaint, twelve other individuals have
“opted in” as plaintiffs. The opt-in plaintiffs are Cynthia
Barajas, Frank Fuchs, Cristano Gonzalez, Constance Geegan, Anna
Magnusson, Spencer Richardson, Martinez Rogers, Sandy Sandoval,
Declaration of Terry Reilly at 2, ¶ 5, Exhibit 1, Response to 3
Plaintiffs’ Motion for Preliminary Collective Action Certification
and Court-Supervised Notice of Pending Collective Action, Docket
No. 41.
Id. at 2, ¶ 9. 4
-2-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 2 of 16
Mavis Scott, Bryce Spivey, Troy Vibbard, and David White. The 5
Named plaintiffs and the opt-in plaintiffs all contend that they
were subject to a systematic approach of being denied overtime and
minimum wage while employed as drivers for defendants.
The Named plaintiffs now move for preliminary certification of
their collective action and for court-supervised notice of same.
Discussion
The FLSA requires employers to pay employees at least the
federally-prescribed minimum wage and one-and-a-half times the
employee’s regular rate of pay for hours worked above forty hours
in a workweek, unless the employee is exempt. 29 U.S.C. §§ 206(a),
207(a). “Section 16(b) of FLSA authorizes an employee to bring an
action on behalf of similarly situated employees, but requires that
each employee opt-in to the suit by filing a consent to sue with the
district court.” Does I thru XXIII v. Advanced Textile Corp., 214
F.3d 1058, 1064 (9th Cir. 2000). “FLSA collective actions serve to
lower the cost of litigation for individual claimants and promote
efficiency in resolution of claims and the use of judicial
resources.” Bollinger v. Residential Capital, LLC, 761 F. Supp. 2d
1114, 1119 (W.D. Wash. 2011). “In order to make certain that
potential collective class members are notified of the action and
their right to take part, the courts may authorize the issuance of
The Named plaintiffs contend that four more drivers have 5
opted in since the instant motion was filed.
-3-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 3 of 16
notice by the named plaintiffs in an FLSA action to all other
putative class members.” Id. “The decision to certify a collective
action under the FLSA is within the discretion of the [c]ourt.”
Singleton v. Adick, Case No. CV 09–486–PHX–JAT, 2009 WL 3710717 at
*4 (D. Ariz. Nov. 2, 2009).
“To certify a class action under the FLSA, the [c]ourt must
determine whether Named Plaintiffs and potential opt-in members are
‘similarly situated.’” Id. (quoting 29 U.S.C. § 216(b)). Courts
in this district have used the two-tiered approach to analyze
whether the named plaintiffs and potential opt-in plaintiffs are
“similarly situated.” Id. “Under the two-tiered approach, during
the early stages of litigation, the [c]ourt evaluates the case under
a lenient standard and may grant conditional certification.” Id.
“The [c]ourt then reevaluates, usually prompted by a motion for
decertification, the ‘similarly situated’ question at a later stage,
once discovery has produced sufficient information regarding the
nature of the claims.” Id.
This case is at the early stages of litigation, and plaintiffs
have moved for preliminary or conditional certification. “At this
stage, the court ‘require[s] nothing more than substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan.’” Wood v. TriVita,
Inc., Case No. CV–08–0765–PHX–SRB, 2009 WL 2046048 at *3 (D. Ariz.
Jan. 22, 2009) (quoting Thiessen v. General Electric Capital Corp.,
-4-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 4 of 16
267 F.3d 1095, 1102 (10th Cir. 2001)). “All that need be shown by
the plaintiff is that some identifiable factual or legal nexus binds
together the various claims of the class members in a way that
hearing the claims together promotes judicial efficiency and
comports with the broad remedial policies underlying the FLSA.”
Wertheim v. Ariz., Case No. CIV 92–453 PHX RCB, 1993 WL 603552 at
*1 (D. Ariz. Sept. 30, 1993). “Given that a motion for conditional
certification usually comes before much, if any, discovery, and is
made in anticipation of a later more searching review, a movant
bears a very light burden in substantiating its allegations at this
stage.” Prentice v. Fund for Public Interest Research, Inc., Case
No. C–06–7776 SC, 2007 WL 2729187 at *2 (N.D. Cal. Sept. 18, 2007).
Courts have looked to several factors in
determining whether plaintiffs are similarly
situated for purposes of § 216(b), including:
(1) whether there is evidence that
the alleged activity was part of an
institution wide practice; (2) the
extent of the similarities among the
members of the proposed collective
action, in particular whether the
members all are challenging the same
employment practice; and (3) the
extent to which the members of the
proposed action will rely on common
evidence.
Wood, 2009 WL 2046048 at *3-4 (quoting Trinh v. JP Morgan Chase &
Co., 2008 WL 1860161 at *3 (S.D. Cal. April 22, 2008)). While the
court does not make factual determinations at this stage, “neither
the remedial purposes of the FLSA, nor the interests of judicial
-5-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 5 of 16
economy, would be advanced if [the court] were to overlook facts
which generally suggest that a collective action is improper.” West
v. Border Foods, Inc., Civil No. 05-2525 (DWF/RLE), 2006 WL 1892527
at *7 (D. Minn. July 10, 2006).
In order to show that they are similarly situated to the
potential opt-in plaintiffs, the Named plaintiffs offer the
declarations of three Named plaintiffs and eight opt-in plaintiffs. 6
All of them aver that they were drivers for defendant; that they
worked 12-16 hour days; that they were always on call; that if they
did not respond to a call after their shift ended, defendants could
fire them; that they were treated as exempt employees; that they
were required to use defendants’ equipment and procedures; that they
were required to wear identical uniforms; that they were assigned
the time to report for their first pick-up all the way through until
their last pick-up; that defendants assigned the routes the drivers
were responsible for on any given day; and that defendants deducted
the price of gas and the cost of uniforms from each driver’s pay.
Defendants contend that the Named plaintiffs have failed to
show that conditional certification would be appropriate. First,
defendants argue that the Named plaintiffs have not identified any
See Declarations of Cynthia Barajas, Frank Fuchs, Constance 6
Geegan, Cristano Gonzalez, Brandy Lawrence, Martinez Rogers, Mavis
Scott, Bryce Spivey, Jimmie Stanton, Megan West, and David White,
all attached to Motion for Preliminary Collective Action Certification
and Court Supervised Notice of Pending Collective Action,
Docket No. 27.
-6-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 6 of 16
foundation for their alleged knowledge regarding defendants’
business operations and compensation polices and the other job
duties performed by other drivers. Defendants argue it is
insufficient that plaintiffs’ declarations allege that they have
personal knowledge based on working for defendants and by having
spoken to “other drivers.” Defendants argue that this is unsupported
evidence, based on broad hearsay. See Colson v. Avnet, Inc.,
687 F. Supp. 2d 914, 929 (D. Ariz. 2010) (the plaintiff’s affidavit
“describ[ing] the experience of one former Avnet employee in one
office who is claiming to have not been paid the overtime wages she
was entitled to” was insufficient as were affidavits from individuals
who were not even members of the proposed class).
The declarations that the Named plaintiffs have submitted are
sufficient for purposes of the instant motion. “A reasonable
inference from the evidence submitted is that [plaintiffs], as …
employee[s] of defendant[s], would learn, during the normal course
of [their] employment, how the employer operates, where the employer
operates, what other similar employees are doing, and where they are
doing the[ir] jobs.” Aguayo v. Oldenkamp Trucking, Case No. CV F
04-6279 ASI LJO, 2005 WL 2436477 at *4 (E.D. Cal. Oct. 3, 2005).
Moreover, “affidavits submitted in support of a motion for
conditional certification pursuant to § 216(b) need not meet the
standard set forth in Rule 56(e)” because doing so “would defeat the
-7-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 7 of 16
purpose of the two-stage analysis.” White v. MPW Industrial
Services, Inc., 236 F.R.D. 363, 368 (E.D. Tenn. 2006).
Defendants next argue that the Named plaintiffs have failed to
show that they and the potential opt-in plaintiffs have similar job
duties. Defendants contend that they employ several different kinds
of drivers who perform different functions and who are compensated
differently. The various types of drivers include: 1) ambulatory
drivers who are paid on a salary basis, 2) wheelchair drivers who
are paid either on a salary basis or fee basis, 3) van go activities
drivers who are paid on a salary basis, 4) combo drivers who are
paid either on a salary basis or a fee basis, 5) hospice drivers who
are paid on a salary basis, 6) bariatric combo drivers who are paid
on a fee basis, 7) night/grave yard shift drivers who are paid on
a salary basis, 8) driver floaters who are paid on a salary basis,
9) driver supervisors who drive DMTS vehicles as needed, 10) a
quality assurance/risk management/driver trainer manager who drives
DMTS vehicles as needed, and 11) independent contractors. 7
Defendants also point out that the Named plaintiffs and the opt-in
plaintiffs who have submitted declarations do not all aver that they
were paid in the same manner. Some of them aver that they were paid
Reilly Declaration at 3-6, ¶¶ 11, 13, Exhibit 1, Response to 7
Plaintiffs’ Motion for Preliminary Collective Action Certification
and Court-Supervised Notice of Pending Collective Action, Docket
No. 41.
-8-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 8 of 16
on a fee basis; others aver that they were paid on a salary basis; 8 9
and others aver that they were first paid on a fee basis and then
changed to a salary basis or vice-versa. Because of the many 10
differences between the drivers’ duties and how they are paid,
defendants insist that determining the nature and scope of each
individual driver’s duties will require a very individualized
inquiry and will not involve common evidence, thereby rendering
certification of a collective action improper. See Wood, 2009 WL
2046048 at *4 (denying motion for conditional certification in part
because the plaintiff had not shown that the proposed class
performed the same or similar job duties); see also, Morisky v.
Public Service Elec. and Gas Co., 111 F. Supp. 2d 493, 499 (D.N.J.
2000) (collective treatment improper because “[t]he exempt or
non-exempt status of potentially hundreds of employees would need
to be determined on a job-by-job, or more likely, an
Geegan Declaration at 2, ¶ 8; Lawrence Declaration at 2, ¶ 9; 8
Scott Declaration at 2, ¶ 9; West Declaration at 2, ¶ 8; all
attached to Motion for Preliminary Collective Action Certification
and Court Supervised Notice of Pending Collective Action, Docket
No. 27.
Fuchs Declaration at 2, ¶ 9; Rogers Declaration at 2, ¶ 9; 9
Spivey Declaration at 2, ¶ 9; White Declaration at 2, ¶ 9; all
attached to Motion for Preliminary Collective Action Certification
and Court Supervised Notice of Pending Collective Action, Docket
No. 27.
Barajas Declaration at 2, ¶ 9; Gonzalez Declaration at 2, ¶ 10
9; Stanton Declaration at 2, ¶ 9; all attached to Motion for
Preliminary Collective Action Certification and Court Supervised
Notice of Pending Collective Action, Docket No. 27.
-9-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 9 of 16
employee-by-employee basis”); Freeman v. Wal-Mart Stores, Inc., 256
F. Supp. 2d 941, 945 (W.D. Ark. 2003) (preliminary certification of
collective action not proper because the plaintiff had not shown
that the proposed class had similar duties and thus “[i]t would be
a waste of the [c]ourt’s and the litigants’ time and resources to
notify a large and diverse class only to later determine that the
matter should not proceed as a collective action because the class
members are not similarly situated”); Pfohl v. Farmers Ins. Group,
Case No. CV03–3080 DT (RCX), 2004 WL 554834 at *9 (C.D. Cal. March
01, 2004) (“differing job duties and the individualized inquiry to
determine whether these varying duties meet the administrative
exemption preclude a collective action in this case”).
The Named plaintiffs dispute that defendants categorized their
drivers as defendants are now contending. Ricardo Ramirez, Brandy
Lawrence, Frank Fuchs, Elisha Ramirez, and Jimmie Stanton all aver
that they were never told that they were a specific kind of driver
or that DMTS had different classes of drivers, other than regular
drivers and oxygen drivers. Lawrence, Fuchs, Ramirez, and Stanton 11
also aver that they performed transportation services for all kinds
Declaration of Ricardo Ramirez [etc.] at 3, ¶ 14; Declaration 11
of Brandy Lawrence at 2, ¶¶ 4-5; Declaration of Frank Fuchs at 2,
¶¶ 4-5; Declaration of Elisha Ramirez at 2, ¶¶ 4-5; Declaration of
Jimmie Stanton at 2, ¶¶ 4-5; all attached to Reply in Support of
Motion for Conditional Collective Action Certification and Court
Supervised Notice of Pending Collective Action, Docket No. 48.
-10-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 10 of 16
of patients. In further support of their contention that 12
defendants do not classify their drivers as they are now claiming,
plaintiffs offer several of DMTS’s monthly newsletters, which
include a section called “Driver Updates” which applies to all
drivers, and a section containing the weekend schedule, a schedule
that does not contain the categories of drivers that defendants are
now claiming. But even if defendants did in fact categorize their 13
drivers are they are now contending, the Named plaintiffs argue that
they and the potential opt-in plaintiffs are still similarly
situated because they were all drivers whose primary duty was to do
pick-up and drop-off clients.
“At this first stage the court does not resolve factual
disputes, decide substantive issues going to the ultimate merits,
or make credibility determinations.” Brasfield v. Source Broadband
Services, LLC, Case No. 2:08-2092-JPM/dkv, 2008 WL 2697261 at *2
(W.D. Tenn. June 3, 2008). The evidence that the Named plaintiffs
Lawrence Declaration at 2, ¶ 6; Fuchs Declaration at 2, ¶ 6; 12
Ramirez Declaration at 2, ¶ 6; Stanton at 2, ¶ 6; all attached to
Reply in Support of Motion for Conditional Collective Action
Certification and Court Supervised Notice of Pending Collective
Action, Docket No. 48.
Exhibit 6, Reply in Support of Motion for Conditional 13
Collective Action Certification and Court Supervised Notice of
Pending Collective Action, Docket No. 48. The weekend schedules
have the following categories on Saturdays: 1) drivers, 2) oxygen,
3) hot, 4) on call stretcher, 5) on call Pinal, and 6) on call
Gila.
-11-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 11 of 16
have submitted shows that they and any potential opt-ins were all
drivers, that they all received the same employee handbooks with
identical policies and procedures, that they all wore the same
uniform, that they all attended the same orientation, that they all
used the same equipment and procedures, that they were all required
to check in with DMTS in the same manner, that they were all
assigned routes for each day, and that they were all subject to
having their routes changed by DMTS. For purposes of preliminary 14
certification, the Named plaintiffs have sufficiently shown that
they and any potential opt-in plaintiffs had similar job duties.
Defendants next argue that conditional certification is not
appropriate here because the Motor Carrier Act exemption, the
taxicab driver exemption, the executive exemption, or the administrative
exemption may apply to some of the drivers and because some
of the drivers may have been properly classified as independent
contractors. But, the potential applicability of a FLSA exemption
is not an appropriate inquiry at this stage of the litigation. See
Neary v. Metropolitan Property and Cas. Ins. Co., 517 F. Supp. 2d
606, 620 (D. Conn. 2007) (“Defendant’s argument that in determining
whether its claim of applicability of the administrative exemption
is valid, individualized inquiry is necessary, does not preclude
Barajas, Fuchs, Geegan, Gonzalez, Lawrence, Rogers, Scott, 14
Spivey, Stanton, West, and White Declarations, all attached to
Motion for Preliminary Collective Action Certification and Court
Supervised Notice of Pending Collective Action, Docket No. 27.
-12-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 12 of 16
certification at this first stage”); White, 236 F.R.D. at 372-73
(listing cases “in which courts have determined that the potential
applicability of an exemption is not an issue at the notice stage
of [the] analysis, but rather is an issue for the second stage”);
Austin v. CUNA Mut. Ins. Soc., 232 F.R.D. 601, 606 (W.D. Wis. 2006)
(noting that the defendant’s argument that “plaintiff falls within
the ‘white collar exemption’ to the FLSA’s overtime compensation
requirement” not properly raised during first stage of certification);
Moss v. Crawford & Co., 201 F.R.D. 398, 410-11 (W.D. Pa.
2000)(the fact that the defendant will raise an exemption defense
does not preclude conditional certification); Herring v. Hewitt
Assocs., Inc., Case No. 06-267 (GEB), 2007 WL 2121693 at *7 (D.N.J.
July 24, 2007) (rejecting the defendant’s argument that the issue
of whether an employee is exempt is not a highly individualized
inquiry precluding conditional certification); Ingram v. Coach USA,
Inc., Case No. 06-3425 (KSH), 2008 WL 281224 at *7 (D.N.J. Jan. 28,
2008) (declining to consider at the conditional certification stage
the defendants’ argument that certain employees “should be exempt
pursuant to the motor carrier exemption”). As one court observed,
[c]ertainly the Plaintiff must still prove at
trial that the positions at issue actually
qualify as non-exempt under the FLSA. But that
is not the inquiry to be answered in deciding
this motion. The ultimate determination regarding
the merits of the case, and whether the
class is properly situated—which requires a
more “stringent” inquiry—is made later in the
litigation process, after more thorough discovery.
-13-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 13 of 16
Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 91, 96
(S.D.N.Y. 2003).
Finally, defendants argue that simply alleging that all members
and potential members of the class were treated as exempt employees
is insufficient to show that all putative members of the collective
action were subject to the same policy or plan. See In re Wells
Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 959 (9th Cir.
2009) (“Wells Fargo’s blanket application of exemption status,
whether right or wrong, is not” a uniform corporate policy. “In
contrast to centralized work policies, the blanket exemption policy
does nothing to facilitate common proof on the otherwise individualized
issues.”); Vinole v. Countrywide Home Loans, Inc., 571 F.3d
935, 946 (9th Cir. 2009) (same); Colson, 687 F. Supp. 2d at 927
(“mere classification of a group of employees as exempt does not
automatically dictate, as a matter of law, whether collective action
notification is appropriate”); Trinh, 2008 WL 1860161 at *4, n.2
(“Because Plaintiffs’ only allegation that Defendants engaged in a
wrongful policy is that Defendants uniformly classified Plaintiffs
and other loan officers as ‘exempt,’ the [c]ourt … find[s] that
Plaintiffs have failed to make substantial allegations identifying
an unlawful nationwide policy”); Morisky, 111 F. Supp. 2d at 498
(denying certification in part because the alleged “common scheme”
was nothing more than defendant’s determination that plaintiffs were
exempt employees).
-14-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 14 of 16
However, as the Named plaintiffs are quick to point out, other
courts have held that “‘[g]enerally, 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.’” Daugherty v. Encana Oil & Gas
(USA), Inc., 838 F. Supp. 2d 1127, 1133 (D. Colo. 2011) (quoting
Renfro v. Spartan Computer Services, Inc., 243 F.R.D. 431, 433 (D.
Kan. 2007)). And, other courts have held that “a plaintiff may
establish that others are ‘similarly situated’ without pointing to
a particular plan or policy[.]” Barron v. Henry County School
System, 242 F. Supp. 2d 1096, 1103 (M.D. Ala. 2003). Thus, the
Named plaintiffs’ allegation that they and the potential opt-in
plaintiffs were all subject to the same corporate policy of not
being paid overtime is sufficient at this stage of the litigation.
Conclusion
Because plaintiffs have made a sufficient showing that
defendants’ drivers had similar job duties and that they were all
subject to defendants’ policy of not paying drivers overtime,
plaintiffs’ motion for preliminary certification is granted. 15
Defendants’ request that their counsel be allowed the
opportunity to work with plaintiffs’ counsel “to reach an agreement
Docket No. 27. 15
-15-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 15 of 16
with respect to opt-in proceedings, including the form of proposed
Notice” is also granted. The parties shall submit a joint proposal 16
regarding the form of Notice and other opt-in proceedings to the
court on or before July 22, 2013.
DATED at Anchorage, Alaska, this 3rd day of July, 2013.
/s/ H. Russel Holland
United States District Judge
Response to Plaintiffs’ Motion for Preliminary Collective 16
Action Certification and Court-Supervised Notice of Pending
Collective Action at 1, n.1, Docket No. 41.
-16-
Case 2:13-cv-00417-HRH Document 49 Filed 07/03/13 Page 16 of 16