United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
This matter is before the Court on Plaintiffs Mark Ryan Allen, et al. 's ("Plaintiffs") Motion for Notice to Potential Plaintiffs and Conditional Certification. [Dkt. 33.] For the following reasons, the Court will grant in part and deny in part Plaintiffs' Motion for Notice to Potential Plaintiffs and Conditional Certification.
Cogent Communications, Inc. ("Defendant") is an Internet and network service provider offering Internet access, data transport, and colocation services through their Internet data centers. (Second Am. Compl. [Dkt. 30] ¶ 31.) In December 2011, a group of Defendant's sales account managers filed suit against Defendant to recover unpaid overtime wages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), in the District Court for the Southern District of Texas. Lagos v. Cogent Commc'ns, Inc. , No. H-11-4523 (S.D. Tex. Mar. 12, 2014). In Lagos , plaintiffs asserted that they routinely worked more than forty hours a week, were entitled to receive overtime compensation under the FLSA, and were wrongfully denied such compensation. Id. at 1. Defendant claimed the plaintiffs were exempt from the FLSA under the outside sales exemption. Id. at 4. The court conditionally certified the following nationwide collective action: "all current and former Global Account Managers and Regional Account Managers, employed by Cogent Communications, Inc. between December 21, 2008 to the present, who worked over 40 hours in a work week." Id. at 1-2. Notice was approved and sent to potential plaintiffs. Id. at 2. Following discovery, Defendant filed a motion to decertify the collective action, arguing too many differences existed among potential plaintiffs. Id. at 3. The court granted Defendant's motion and decertified the collective action. Id. at 31.
Plaintiffs in the current action are Regional Account Managers ("RAMs") and Global Account Managers ("GAMs") in Defendant's three Virginia offices. (Second Am. Compl. ¶¶ 6-28.) As in Lagos , Plaintiffs assert Defendant wrongfully withheld overtime compensation in violation of the FLSA. ( Id. ¶¶ 32-36.) They seek to conditionally certify a collective action of RAMs and GAMs employed by Defendant in Virginia. (Pls.' Mot. to Certify at 2.) Plaintiffs also request court-supervised notice. ( Id. at 14.) Defendant argues that Plaintiffs are collaterally estopped from proceeding with this action. It contends the issue of whether a statewide collective action is appropriate was already resolved by the Lagos court. (Def.'s Resp. in Opp'n [Dkt. 36] at 2). In the alternative, Defendant argues that Plaintiffs have not met their evidentiary burden to show that the collective action should be conditionally certified. ( Id. at 2.) Defendant also objects to Plaintiffs' proposed notice and consent. ( Id. at 29.)
Plaintiffs' Motion for Notice to Potential Plaintiffs and Conditional Certification is now before the Court.
II. Legal Standard
Section 216(b) of the FLSA authorizes a plaintiff to file suit for alleged FLSA violations "for and in behalf of himself... and other employees similarly situated." 29 U.S.C. § 216(b). These "collective actions" serve the objectives of the FLSA "by facilitating a resolution in a single proceeding of claims stemming from common issues of law and fact, and [aiding] in the vindication of plaintiffs' rights by lowering the individuals' costs by pooling claims and resources." Houston v. URS Corp. , 591 F.Supp.2d 827, 831 (E.D. Va. 2008).
To certify a collective action under the FLSA, two requirements must be met. First, the plaintiff and other employees must be "similarly situated." 29 U.S.C. § 216(b). Second, plaintiffs in the collective action must "opt-in" by filing consents with the court to join the action. Id. ; see Gregory v. Belfor USA Grp., Inc. , No. 2:12cv11, 2012 WL 3062696, at *2 (E.D. Va. July 26, 2012); Purdham v. Faifax Cnty. Pub. Sch. , 629 F.Supp.2d 544, 547 (E.D. Va. 2009); Houston , 591 F.Supp.2d at 831; Choimbol v. Fairfield Resorts, Inc. , 475 F.Supp.2d 557, 562 (E.D. Va. 2006).
Section 216(b) does not define "similarly situated" and the Fourth Circuit has not yet interpreted the term. However, courts in this district have adopted a two-stage analysis to determine when plaintiffs are similarly situated. Houston , 591 F.Supp.2d at 831; Choimbol , 475 F.Supp.2d at 562-63. At the first stage, known as the notice or conditional certification stage, the court decides whether to provide initial notice to potential collective action members. Choimbol , 475 F.Supp.2d at 562. The plaintiff's evidentiary burden at this stage is "fairly lenient'" and requires only "minimal evidence'" since generally there has been no discovery at this point. Houston , 591 F.Supp.2d at 831 (quoting Chomboil , 475 Supp. 2d at 562). A plaintiff must make a "modest factual showing sufficient to demonstrate that they and the potential plaintiffs were victims of a common policy or plan that violated the law." Choimbol , 475 F.Supp.2d at 563. Though the burden on the plaintiff is light, it is not "invisible." Houston , 591 F.Supp.2d at 831. "Mere allegations will not suffice." Bernard v. Household Int'l, Inc. , 231 F.Supp.2d 433, 435 (E.D. Va. 2002).
The court proceeds to the second stage of certification, the decertification stage, if a defendant files a motion for decertification. Houston , 591 F.Supp.2d at 832. This occurs after discovery is practically complete. At the decertification stage, courts apply a heightened, fact-specific standard to determine whether the plaintiffs are similarly situated. Houston, 591 F.Supp.2d at 832; Choimbol , 475 F.Supp.2d at 563. If a court determines that they are not, the court decertifies the collective action and the original plaintiffs may pursue their individual claims. Houston , 591 F.Supp.2d at 832; Choimbol , 475 F.Supp.2d at 563.
A court may collapse the two-stage certification process into one stage when there is sufficient evidence in the record at the notice stage to show certification of the collective action is not appropriate. Purdham , 629 F.Supp.2d at 547. A court may then deny certification outright. Id.
A. Conditional ...