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O'Connor v. Dairy

United States District Court, D. Maine

May 22, 2015



NANCY TORRESEN, District Judge.

Before the Court is the Plaintiffs' motion for conditional certification of a collective action pursuant to 29 U.S.C. § 216(b) (ECF No. 26). For the reasons stated below, the motion is GRANTED.


The Plaintiffs are current and former Maine-based drivers for Oakhurst Dairy ("Oakhurst"), a wholly owned subsidiary of Dairy Farmers of America, Inc. (together, the "Defendants"). Oakhurst bottles milk and produces other dairy products from a facility in Portland, Maine. Second Am. Class and Collective Action Compl. ¶ 42 ("Second Am. Compl.") (ECF No. 49). The Plaintiffs allege that Oakhurst designates their job positions as "route salesmen, " when in fact they operate as delivery drivers. Second Am. Compl. ¶¶ 48-50. The crux of the Plaintiffs' federal law claim is that Oakhurst failed to compensate them as covered, non-exempt employees under the Fair Labor Standards Act (the "FLSA"). Second Am. Compl. ¶¶ 72-74.[1] Because of this alleged misclassification, the Plaintiffs seek unpaid overtime for hours worked in excess of forty hours per week, as required by 29 U.S.C. § 207. At this juncture, resolving the misclassification question is premature. Instead, I must determine whether to conditionally certify this action as a collective action under the FLSA.


I. FLSA Conditional Certification

A. Legal Standard

Under the FLSA, subject to certain exceptions, employers must pay their employees overtime wages for work in excess of 40 hours per week "at a rate not less than one and one-half times [their] regular rate." 29 U.S.C. § 207(a)(1); see 29 U.S.C. § 213(a)(1). Employees may sue to recover such wages owed either individually or collectively with "other employees similarly situated." 29 U.S.C. § 216(b). Courts in the First Circuit use a two-stage process to determine whether a proposed group of plaintiffs is "similarly situated" and therefore qualified to proceed as a collective action. Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357, 364 (D. Me. 2010).

First, a court determines whether notice should be given to potential collective action members. See Johnson v. VCG Holding Corp., 802 F.Supp.2d 227, 233-34 (D. Me. 2011). This stage typically takes place early in the litigation, before substantial discovery, based on the pleadings and any affidavits. Id. at 234. It is the plaintiff's obligation to "make a modest factual showing' that she and other employees, with similar but not necessarily identical jobs, suffered from a common unlawful policy or plan." Prescott, 729 F.Supp.2d at 364 (quoting Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006)). If the plaintiff makes this showing, notice may go out to other similarly situated employees, inviting them to join the collective action. Id.

Later, following the completion of discovery, an employer may move to decertify the collective action. Id. At this second stage, "the court must then make a factual determination as to whether there are similarly-situated employees who have opted in.'" Id. (quoting Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n.2 (5th Cir. 2008)). "Factors relevant to the stage-two determination include: factual and employment settings of the individual[ ] plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, [and] the degree of fairness and procedural impact of certifying the action as a collective action.'" Id. (quoting O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009)).

B. Application

The Plaintiffs seek conditional certification of the following FLSA collective: "[a]ll persons who are employed or have been employed by Defendant Oakhurst as delivery drivers based in the State of Maine at any time since three years prior to the filing of the Complaint, May 5, 2014." Pls.' Mot. for Conditional Certification 2 (ECF No. 26). The Defendants object on the grounds that: (1) the Plaintiffs' declarations establish that they did not share similar job duties and pay provisions; (2) the alleged misclassification is not a "policy" or "practice" sufficient to support conditional certification; and (3) their defenses based on FLSA exemptions will require fact-intensive, individualized inquiries. Defs.' Resp. in Opp'n to Pls.' Mot. for Conditional Certification 4-10 ("Defs.' Opp'n") (ECF No. 52). I address each of these points in evaluating whether employees in the proposed collective are "similarly situated" under 29 U.S.C. § 216(b).

The Plaintiffs have submitted eight declarations from current and former Oakhurst employees who were based in and worked out of Maine.[2] These employees, five named plaintiffs and three additional "opt-ins, " delivered Oakhurst products to customers. More specifically, their job duties included driving delivery trucks to stops on their routes, unloading product at each stop, giving invoices to customers, collecting payment from customers, making estimates for customers' future orders, entering new orders on handheld devices, driving delivery trucks back to base locations, and recording undelivered inventory on handheld devices. Cox Decl. ¶ 7; Fraser Decl. ¶ 7; Lavway Decl. ¶ 8; McNally Decl. ¶ 7; C. O'Connor Decl. ¶ 8; K. O'Connor Decl. ¶ 7; Scipione Decl. ¶ 7; Sudduth Decl.¶ 7.

Each employee-declarant explains that he was paid a set salary for work performed during the regular five-day work week. Cox Decl. ¶ 12; Fraser Decl. ¶ 11; Lavway Decl. ¶ 12; McNally Decl. ¶ 12; C. O'Connor Decl. ¶ 12; K. O'Connor Decl. ¶ 12; Scipione Decl. ¶ 11; Sudduth Decl.¶ 11. When such employees worked a sixth day in a given week, Oakhurst paid them an additional lump sum, calculated based on a percentage of their weekly salary plus, for some employees, a set bonus amount. Cox Decl. ¶ 12; Fraser Decl. ¶ 12; Lavway Decl. ¶ 13; McNally Decl. ¶ 12; C. O'Connor Decl. ¶ 13; K. O'Connor Decl. ¶ 13; Scipione Decl. ¶ 12. The Plaintiffs contend that this practice violated the FLSA because they regularly ...

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