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Swafford v. Central Tri-Axle Inc.

United States District Court, S.D. Indiana, Indianapolis Division

November 13, 2017

CATHY SWAFFORD and RICK WOEHLECKE, individually and on behalf of others similarly situated, Plaintiffs,



         This matter is before the Court on a Motion to Conditionally Certify a Collective Action and Facilitate Notice Pursuant to 29 U.S.C. § 216(b) filed by Plaintiffs Cathy Swafford (“Swafford”) and Rick Woehlecke (“Woehlecke”) (collectively, “Plaintiffs”) (Filing No. 22). Plaintiffs previously were employed by Defendant Central Tri-Axle, Inc. (“CTI”) as dump truck drivers. Plaintiffs generally worked fifty to sixty-six hours per week for CTI, yet CTI failed to accurately record their hours worked and failed to pay Plaintiffs overtime premium for overtime hours worked. Because they were not paid overtime wages and suffered other wrongful deductions, Plaintiffs initiated this lawsuit against CTI under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and the Indiana Wage Payment, Wage Deductions, and Wage Claim statutes, Ind. Code §§ 22-2-5-1, et seq.; 22-2-6-1, et seq.; 22-2-9-1, et seq. Plaintiffs ask the Court to conditionally certify a collective action for the FLSA claim and permit notice to others who similarly have worked or are working for CTI as drivers and who have not been paid for overtime work. For the following reasons, the Court GRANTS Plaintiffs' Motion to Conditionally Certify a Collective Action and Facilitate Notice.

         I. BACKGROUND

         CTI is an Indiana corporation with its principal place of business in Edinburgh, Indiana. CTI hauls aggregate materials from various quarries within Indiana to its customers' sites. In order to provide these hauling services, CTI employs individual drivers. These employees drive equipment, including dump trucks, and transport materials such as stone, gravel, and dirt to various locations throughout Indiana (Filing No. 39-1 at 1).

         CTI employed Swafford as a dump truck driver from approximately June 2014 to April 2016. As a driver, Swafford drove CTI's dump trucks. She generally arrived at CTI's lot each day between 5:30 a.m. and 5:45 a.m., and was often one of the first drivers there. After arriving at work in the morning, Swafford would warm up her truck and do a walk around inspection. She was required to complete a pre-trip inspection of the truck, which involved a visual inspection. If Swafford determined that the truck required additional air in the tires, replaced lights, or other general maintenance or safety repairs, Swafford was responsible for ensuring that the truck received whatever maintenance was required to be ready for service. Swafford was instructed that her job required her to drive to a gravel pit to pick up her hauls for the day. Most gravel pits were between fifteen to twenty minutes away but could be as far as two hours away. No time records were kept for Swafford's work prior to her first run (Filing No. 23-1 at 1-2).

         At the end of the workday, Swafford drove her truck back to CTI's lot, filled it up with fuel, cleaned out the truck, locked the truck, completed paperwork, and returned the paperwork to the office. Then she would leave work. No time records were recorded or maintained for these work duties. Id. at 2. Swafford generally worked ten to twelve hours each day, five days a week, and she worked an additional six hours on some Saturdays. Her paystubs did not reflect all the hours she worked in the week. CTI did not track all of the hours Swafford actually worked, and, as a result, Swafford was not paid the required overtime rate for all hours worked in excess of forty hours in a single workweek. Id. at 2-3.

         Swafford worked with approximately forty other drivers at CTI, and based on her observations of and discussions with other drivers, Swafford understands that the other drivers performed similar job duties, were subject to the same rules and directives, were subject to the same timekeeping practices, and were paid based on the same pay plan. Id. at 3.

         CTI employed Woehlecke as a dump truck driver from approximately May 2010 to July 2016 (Filing No. 23-2 at 1). The facts concerning Swafford's employment experience at CTI noted above are equally applicable to Woehlecke and his work experience at CTI. Id. at 1-3.

         Plaintiffs filed this lawsuit against CTI on January 27, 2017. In late February 2017, Plaintiffs received a letter from CTI, which explained, “We have found an error on the payroll in which we have issued you a check. You will need to come in and sign for the check. If you have questions please give the office a call.” (Filing No. 23-1 at 3-4; Filing No. 23-2 at 3.) This letter was sent because of a U.S. Department of Labor investigation and settlement arising out of CTI's violation of the FLSA. Woehlecke talked with multiple current drivers for CTI who told him that at the end of the workday on February 28, 2017, CTI offered them a check as payment for previously unpaid overtime wages in exchange for a signed release (Filing No. 23-2 at 3).

         On March 1, 2017, Woehlecke drove to CTI's office and asked to see the documents relating to the letter he had received. CTI's fleet manager showed Woehlecke a document from the Department of Labor, which stated that by signing the document, Woehlecke was releasing his claims against CTI in exchange for approximately $235.00 in unpaid overtime wages. Id. at 3-4.

         CTI acknowledges that the U.S. Department of Labor conducted an audit to determine its compliance with the FLSA regarding CTI's drivers. The Department of Labor looked at a particular timeframe and determined that approximately sixty drivers were due overtime pay. To resolve the matter, CTI agreed to provide a fixed payment to the drivers, which included liquidated damages. CTI asserts that forty-nine drivers have “cashed checks” provided as a result of the Department of Labor investigation (Filing No. 39-1 at 2; Filing No. 44-1).


         Under the FLSA, an employee is permitted to maintain a collective action for “unpaid overtime compensation . . . for and in behalf of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). The “District Court has the discretion to authorize notice to similarly situated employees so that they may opt-in to a class.” Carter v. Indianapolis Power & Light Co., 2003 U.S. Dist. LEXIS 23398, at *7 (S.D. Ind. Dec. 23, 2003). “Such a collective action differs significantly from a Rule 23 class action. Potential class members in a collective action must affirmatively opt-in to be bound, while in a Rule 23 action they must opt out [to] not be bound.” Cheesman v. Nexstar Broad. Grp., Inc., 2008 U.S. Dist. LEXIS 42265, at *3 (S.D. Ind. May 27, 2008) (emphasis in original). The standards governing class certification under Rule 23 are not applicable to FLSA collective actions. Id. at *5.

         Courts in the Seventh Circuit engage in a two-step inquiry to determine whether an FLSA action may proceed as a collective action. Id. The first step is called the “notice stage” and “involves an analysis of the pleadings and affidavits which have been submitted to determine whether notice should be given to potential class members.” Id. (quoting Carter, 2003 U.S. Dist. LEXIS 23398, at *8). “The second step, which usually occurs after discovery has largely been completed, allows a court the opportunity to determine whether the ...

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