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Oshikoya v. Leidos Health, LLC

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

December 8, 2017

AYODEJI OSHIKOYA, individually and on behalf of all others similarly situated, Plaintiff,


          Debra McVicker Lynch United States Magistrate Judge Southern District of Indiana

         Defendant Leidos Health, LLC moves the court to stay briefing on the plaintiff's motion for conditional certification in favor of first allowing a period of discovery relating to certification issues. The plaintiff opposes the motion principally on the ground that Leidos's proposal is inconsistent with standards courts have adopted for deciding whether an FLSA opt-in class conditionally should be certified.

         The court GRANTS the defendant's motion in part, but the court does not adopt the defendant's views that (1) the court must or will apply a “stringent” standard to the Section 216(b) certification question because some discovery is conducted before the certification question is decided; (2) the plaintiff will be precluded from proposing changes to the class definition or proposing sub-classes in response to any arguments made by the defendant in opposition to certification; or (3) the court's certification decision cannot be re-evaluated at later stages in the case.


         This case was recently transferred from the United States District Court for the Eastern District of Virginia. The plaintiff's complaint alleges that Leidos violates the Fair Labor Standards Act by misclassifying as independent contractors, and on that basis failing to pay overtime wages to, persons it hires to provide training services to Leidos's healthcare clients in the use of electronic recordkeeping systems. The plaintiff seeks to represent himself and “similarly situated” persons in a collective action under 29 U.S.C. § 216(b). The plaintiff also alleges that Leidos violated a Pennsylvania wage statute by misclassifying employees and failing to pay required overtime and seeks to represent a Rule 23 class for the state law claim.[1]

         After the transfer, the plaintiff filed his motion for conditional certification of a Section 216(b) class. Leidos asks the court to stay briefing and ruling on that motion until the parties conduct discovery pertinent to the Section 216(b) certification issue (and discovery pertinent to a decision whether a Rule 23 class should be certified for the state law claim(s)). Leidos posits that allowing a period of discovery will result in a more efficiently-managed case. The plaintiff disagrees. To evaluate the parties' arguments, it is first helpful to address generally the Section 216(b) “certification” process.

         “Similarly Situated” Section 216(b) Actions

         The FLSA allows an employee to sue his employer for violations of the overtime compensation provision and permits recovery of (i) the underpaid wages, (ii) an equal amount as liquidated damages, and (iii) reasonable attorneys' fees and costs. 29 U.S.C. § 216(b). It also permits an employee to bring an action “in behalf of himself . . . and other employees similarly situated, ” but “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id. A suit that is brought on behalf of other employees is known as a “collective action.” Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1527 (2013). The FLSA does not itself contain any procedures for determining whether a collective action is appropriate, identifying persons who may be “similarly situated, ” or otherwise managing a collective action.

         In Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165');">493 U.S. 165, 110 S.Ct. 482 (1989), the Supreme Court ruled that a district court has the discretion to implement the FLSA's provision allowing employees to opt in and consent to join a collective suit by ordering the defendant employer to supply the names and addresses of potential plaintiffs to whom court-approved notices can be sent advising of the suit and the employee's ability to consent in writing to join the suit. 493 U.S. at 169-70. Although the Court did not require a district court to exercise its discretion in any particular fashion, it ruled that a district court's facilitation of notice of the pending collective action to potential plaintiffs was an appropriate way for a court to manage a collective action. The Court stated:

[The] benefits [of a collective action] depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate. Section 216(b)'s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure. . . . It follows that, once [a collective action is filed], the court has a managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way.

493 U.S. at 170.

         Neither the Supreme Court, nor the Seventh Circuit, has said more to denominate standards a district court should follow in exercising its managerial responsibility consistent with the requirements of the FLSA. But it is well-recognized by federal courts of appeal that a district court should determine whether to “certify” a collective action; and it is common for the certification process to proceed in two stages. The first stage is known as “conditional certification, ” the “sole consequence of [which] is the sending of court-approved written notice to employees, Hoffmann-La Roche Inc. v. Sperling, [493 U.S. 165');">493 U.S. 165, 170, 110 S.Ct. 482 (1989)], who in turn become parties to a collective action only by filing written consent with the court.” Genesis Healthcare, 133 S.Ct. at 1532.

         The second stage occurs at the close of discovery or immediately preceding trial and often is triggered by an employer's motion to decertify the lawsuit as a collective action.[2] At that second stage, the court determines whether the plaintiffs (the persons who filed their written consents to opt in to the collective action) are in fact sufficiently similarly situated to be permitted to try their claims as a collective. See, e.g., Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008) (describing the two-step procedure for district courts to manage FLSA collective actions in the pretrial phase, consisting of a conditional certification “notice stage” and a later more stringent certification stage where the plaintiff employee bears a heavier burden to show that he and the opt-in parties are similarly situated); White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012) (also describing same two-step process for district courts to follow); Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2nd Cir. 2015) (describing its endorsement of this same two-step process for certifying a collective action under the FLSA); Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 535-36 (3rd Cir. 2012) (adopting use of this same two-step approach and stating that while the two-step process is “nowhere mandated, ” it has “garnered wide acceptance”).

         Although the Seventh Circuit has not specifically addressed the process, district courts within the Seventh Circuit have regularly followed a two-step process without apparent controversy or objection. See, e.g., Rochlin v. Cincinnati Ins. Co., 2003 WL 21852341 at *15-16 (S.D. Ind. July 8, 2003) (then-District Judge Hamilton); Clugston v. Shamrock Cartage and Spotting Services, 2014 WL 5502455 at *2-3 (S.D. Ind. Oct. 30, 2014) (Judge Pratt); Hawkins v. Alorica, Inc.,287 F.R.D. 431, 438-39 (S.D. Ind. 2012) (Judge Magnus-Stinson); Campbell v. Advantage Sales & Mktg., LLC, 2010 WL 3326752 at *3-4 (S.D. Ind. Aug. 24, 2010) (Judge McKinney); Lallathin v. Ro Ro, Inc., 2010 WL 2640271 at *1 (S.D. Ind. ...

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