United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR CONDITIONAL
CERTIFICATION, AND GRANTING THE PARTIES' STIPULATION
REGARDING EARLY SETTLEMENT CONFERENCE AND TOLLING OF CLAIMS
(DOC. NOS. 34, 43)
Michael Charles Beidleman is employed as a fire captain for
the defendant City of Modesto (“City”). According
to the complaint and to plaintiff's declaration submitted
in support of the instant motion, during plaintiff's
employment, the City offered, and plaintiff accepted, the
option to receive monetary compensation in lieu of certain
City-sponsored health benefits. (Doc. No. 1
(“Compl.”) ¶ 25; Doc. No. 34-3
(“Beidleman Decl.”) ¶¶ 4, 6.) Plaintiff
alleges that, for the three years prior to the commencement
of this action, the City failed to include these in-lieu
payments in its calculation of plaintiff's regular rate
of pay, resulting in an underpayment of overtime
compensation. (Compl. ¶¶ 26; Beidleman Decl. ¶
8.) Plaintiff further alleges that defendant's failure to
fully compensate him and others similarly situated
constitutes a violation of the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”). See
Flores v. City of San Gabriel, 824 F.3d 890,
895 (9th Cir. 2016) (holding that cash payments in lieu of
health benefits “must be included in the regular rate
of pay and thus in the calculation of the overtime
rate” under the FLSA).
February 16, 2017, plaintiff filed a motion for conditional
certification and facilitated notice under the FLSA. (Doc.
No. 34.) On March 7, 2017, defendant filed its opposition.
(Doc. No. 39.) Therein, defendant indicated that it does not
oppose conditional certification but rather sought to stay
proceedings in this case pending the completion of a proposed
court-ordered early settlement conference. (See Id.
at 1-2.) On March 14, 2017, plaintiff filed his reply. (Doc.
hearing on the motion was held on March 21, 2017. Attorney
Ace T. Tate appeared on behalf of plaintiff, and attorney
Kevin P. McLaughlin appeared on behalf of defendant. As
discussed at the hearing, the parties thereafter filed a
stipulation regarding participation in an early settlement
conference and the tolling of claims. (Doc. No. 43.) Having
considered the parties' briefs and oral arguments and for
the reasons set forth below, the court will grant
plaintiff's motion for conditional certification and
adopt the parties' stipulation.
to the FLSA, an employee may file a civil action, on behalf
of himself and other employees similarly situated, against an
employer that fails to adhere to federal minimum wage and
overtime law. 29 U.S.C. § 216(b); see also Genesis
Healthcare Corp. v. Symczyk, 569 U.S.__, 133 S.Ct. 1523,
1527 (2013). Unlike a class action brought under Rule 23 of
the Federal Rules of Civil Procedure, similarly situated
employees can join an FLSA collective action only if they
opt-in by giving written consent to be joined. 29 U.S.C.
FLSA does not define the term “similarly situated,
” and this court finds no binding Ninth Circuit or
Supreme Court authority interpreting that term. Accordingly,
district courts in this circuit have used a two-step approach
to decide whether potential FLSA plaintiffs are similarly
situated. See, e.g., Kellgren v. Petco Animal
Supplies, Inc., No. 13CV644 L KSC, 2015 WL 5167144, at
*2 (S.D. Cal. Sept. 3, 2015); Syed v. M-I, L.L.C.,
No. 1:12-cv-01718-AWI-MJS, 2014 WL 6685966, at *2 (E.D. Cal.
Nov. 26, 2014); Troy v. Kehe Food Distributors,
Inc., 276 F.R.D. 642, 649 (W.D. Wash. 2011); Lewis
v. Wells Fargo Co., 669 F.Supp.2d 1124, 1127 (N.D. Cal.
2009); Leuthold v. Destination Am., Inc., 224 F.R.D.
462, 467-68 (N.D. Cal. 2004); Wynn v. National Broad.
Co., 234 F.Supp.2d 1067, 1082 (C.D. Cal. 2002). In the
first step, district courts may conditionally certify the
proposed class based on consideration of the parties'
pleadings and affidavits. Leuthold, 224 F.R.D. at
467. This determination is made under a “lenient
standard”-requiring a preliminary determination that
notice is appropriate and that “the putative class
members were together the victims of a single decision,
policy, or plan.” Lewis, 669 F.Supp.2d at 1127
(citing Thiessen v. General Elec. Capital Corp., 267
F.3d 1095, 1102 (10th Cir. 2001)). “The sole
consequence of conditional certification is the sending of
court-approved written notice to employees.”
Genesis Healthcare, 133 S.Ct. at 1530 (citing
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
171-72 (1989)). District courts have the authority to
facilitate notice to potential plaintiffs and may set a
deadline for plaintiffs to opt in. Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir.
2000) (citing Hoffmann-La Roche, 493 U.S. at 169).
In the second step, after class members have opted in and
discovery has taken place, the party opposing class
certification may seek to decertify the class.
Leuthold, 224 F.R.D. at 467.
Beidleman has met his burden of showing at the first step
that conditional certification is warranted. At this stage in
the litigation, plaintiff proposes, and defendant does not
oppose, defining those “similarly situated” as
“any and all current or former employees of the City of
Modesto in the job classifications of firefighter trainee,
firefighter, fire engineer and fire captain who have worked
overtime and received cash payments in lieu of health care
benefits within the same pay period at any time since July
28, 2013.” (Doc. No. 34-4 at 1; see also Doc.
Nos. 34-1 at 4; 39 at 1.) Plaintiff contends that his
decision to receive monetary compensation in lieu of health
benefits is part of a broader uniform City policy affecting
other fire department employees. (See Beidleman
Decl. ¶¶ 9-10.) In addition, based on
plaintiff's personal knowledge and belief, the City
similarly excludes such in-lieu compensation from its
calculation of regular rates of pay for purposes of overtime
compensation. (Id. ¶ 10.) Based on these
representations, the court is satisfied and accordingly
grants conditional certification of the proposed class.
EARLY SETTLEMENT CONFERENCE
opposition to plaintiff's motion, defendant originally
requested a stay of proceedings in the case-including
discovery, motion practice, and issuance of a notice to the
class-until completion of an early settlement conference. At
the hearing on this matter, the parties agreed in principle
to an early settlement conference. Subsequently, they filed a
stipulation regarding their participation in an early
settlement conference and the tolling of claims pending the
completion of that settlement conference. (Doc. No. 43.)
Having carefully reviewed the parties' stipulation, the
court finds good cause to adopt and grant it.
reasons set forth above, 1. Plaintiff's motion for
conditional certification (Doc. No. 34) is granted;
court conditionally certifies this FLSA collective action for
a class comprising any and all current or former employees of
defendant City of Modesto in the job classifications of
firefighter trainee, firefighter, fire engineer, and fire
captain, who have worked overtime and received cash payments
in lieu of health care benefits within the same pay period at
any time since July 28, 2013;
Plaintiff Michael Charles Beidleman is appointed collective
Plaintiff's counsel, Mastagni Holstedt, APC, is appointed