United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION
LAB SON FREEMAN, United States District Judge
Robert Estorga (“Estorga”) alleges that Defendant
Santa Clara Valley Transportation Authority
(“VTA”) fails to compensate bus drivers at an
overtime rate when they accrue travel time by working in
excess of 40 hours in a week. Mot. 1, ECF 34-1. VTA claims
that this suit is merely a collateral attack on the judgment
entered in a separate suit, Rai v. Santa Clara Valley
Transportation Authority, Case No. 12-cv-04344-PSG
(“Rai”). Opp'n 1, ECF 36. At this
juncture, Estorga seeks conditional certification of a
collective action under the Fair Labor Standards Act
(“FLSA”). For the reasons stated below, the Court
GRANTS IN PART and DENIES IN PART Estorga's motion for
to his retirement effective June 1, 2015, Estorga was a VTA
bus driver. Estorga Decl. ¶ 3, ECF 34-5. Estorga asserts
that during his employment with VTA, VTA failed to pay him
and other bus drivers for two types of travel time. First Am.
Compl. ¶ 8 (“FAC”), ECF 27. One is the
“start-end” travel time, in which Estorga claims
that a bus driver would begin a shift at the “division,
” but would end the shift on the street, a geographical
location distant from the “division.” FAC ¶
10; Russell Decl. ¶ 8. The second is unpaid travel time
incurred by “mid-shift” travel, in which Estorga
alleges he was required to travel from the end of his first
bus run in Gilroy to the beginning of a second bus run
starting in San Jose, for example. FAC ¶ 9; Mot. 3;
Russell Decl. ¶ 16. Estorga claims VTA's policies
violate FLSA overtime requirements for “hours
worked.” An overview of the Rai suit is also
recounted here as the Rai suit will be relevant to
the Court's evaluation of Estorga's motion. In 2012,
Beljinder Rai and other class representatives filed a class
action and collective action complaint in this District
asserting violation of FLSA and state labor laws due to
VTA's failure to compensate bus drivers for two forms of
travel time. Ex. B to McLaughlin Decl. (Rai Dkt.),
ECF 36-1. Rai claimed that “Start-End Travel Time,
” Ex. A to McLaughlin Decl. ¶¶ 10, 12
(“Rai Fourth Am. Coml.”); Ex. C to
McLaughlin Decl. ¶ 6.3.7 (“Rai
Settlement”), and “Split-Shift Travel Time”
required time and one-half overtime pay. Id. ¶
6.3.8; Rai Fourth Am. Coml. ¶¶ 13, 15. The
parties in the Rai suit proceeded through
conditional certification of the collective action, motion
for class certification and fact and expert discovery.
E.g., Rai Dkt. Following numerous
settlement conferences overseen by Magistrate Judge Spero,
the parties came to an agreement in which VTA agreed to pay
$4.2 million and to take certain steps to ensure compliance
with applicable wage-and-hour laws. Rai Settlement.
Amalgamated Transit Union, Local 265 (“ATU”)
representing all bus and light rail operators at VTA but not
a party to Rai, objected to the settlement.
Opp'n 36. On May 17, 2016, the Court found ATU's
objections and other objections to be untimely and without
merit, and approved the final class action settlement. Ex. J
to McLaughlin Decl. (Final Approval Hr'g Tr.) 6:17-14;
23:8-11; Exs. E and F to McLaughlin Decl. Plaintiff Estorga
opted out of the settlement class, along with sixteen other
members including Kenneth Dura, Wayne Metrick, Kevin Golden,
Paul Cooper, Juanito Alberto, Emile Betti, Kenneth
Norrington, J.L. Pitts, Fred Hernandez, David Howard, Chao
Yong Li, Richard Lewis, Richard Chavarria, Clifton Sledge,
John Marini, and Harold Sheehy. Ex. E to McLaughlin Decl.
¶¶ 8, 13 (“Final Approval”).
Apparently, none of these individuals opted-in to the FLSA
collective action, either. On May 17, 2016, Estorga filed
this suit. Compl., ECF 1.
before the Court is Estorga's motion for conditional
certification of a collective action pursuant to 29 U.S.C.
§ 216(b). ECF 34-1.
Fair Labor Standards Act (“FLSA”) provides that
actions against employers for violation of overtime and
minimum wage requirements may be brought “in any
Federal or State court of competent jurisdiction by any one
or more employees for and in behalf of himself or themselves
and other employees similarly situated.” 29 U.S.C.
brought on behalf of other employees is known as a
“collective action, ” a type of suit that is
“fundamentally different” from class actions.
Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523,
1529 (2013) (citation omitted). Unlike class actions
certified under Rule 23, potential members of an FLSA
collective action must “opt-in” to the suit by
filing a written consent with the Court in order to benefit
from and be bound by a judgment. 29 U.S.C. §216(b);
Leuthold v. Destination Am., Inc., 224 F.R.D. 462,
466 (N.D. Cal. 2004). Employees who do not opt-in may bring a
subsequent private action. Leuthold, 224 F.R.D. at
466 (citing EEOC v. Pan Am. World Airways, Inc., 897
F.2d 1499, 1508 n.11 (9th Cir. 1990)). Once an FLSA
“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.” Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 171 (1989) (discussing
collective action in context of Age Discrimination in
determination of whether a collective action is appropriate
is within the Court's discretion. See Adams v.
Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 535 (N.D.
Cal. 2007). The named plaintiff bears the burden to show that
they and the proposed class members are “similarly
situated.” See Id. (citing 29 U.S.C. §
216(b)). The FLSA does not define “similarly
situated.” District courts in this Circuit generally
apply a two-step inquiry in an FLSA action. See,
e.g., Leuthold, 224 F.R.D. at 466-67;
Adams, 242 F.R.D. at 536. The two-step approach
distinguishes between conditional certification of the action
and final certification. Under the first step, the court
makes an initial “notice-stage” determination of
whether potential opt-in plaintiffs are similarly situated to
the representative plaintiff, determining whether a
collective action should be certified for the sole purpose of
sending notice of the action to potential class members.
Leuthold, 224 F.R.D. at 466-67; Adams, 242
F.R.D. at 536. The sole consequence of conditional
certification is the “sending of court-approved written
notice, ” to the purported members of the class.
Genesis, 133 S.Ct. at 1530. Those individuals become
parties to a collective action only by filing written consent
with the court.
conditional certification at this notice-stage, courts
require little more than substantial allegations, supported
by declarations or discovery, that “the putative class
members were together the victims of a single decision,
policy, or plan” and a showing that plaintiffs are
“generally comparable to those they seek to
represent.” Villa v. United Site Servs. of
Cal., No. 12-00318-LHK, 2012 WL 5503550, at *13 (N.D.
Cal. Nov. 13, 2012) (citation omitted); Stanfield v.
First NLC Fin. Serv., LLC, No. 06-3892-SBA, 2006 WL
3190527, at *2 (N.D. Cal. Nov. 1, 2006); see also Morton
v. Valley Farm Transp., Inc., No. 06-2933-SI, 2007 WL
1113999, at *2 (N.D. Cal. Apr. 13, 2007) (describing burden
as “not heavy” and requiring plaintiffs to merely
show a “reasonable basis for their claim of
class-wide” conduct (internal quotation marks and
citation omitted)). Thus, a named plaintiff must show that he
or she is similarly situated to the absent members of the
collective action and present “some identifiable
factual or legal nexus [that] binds together the various
claims of the class members in a way that hearing the claims
together promotes judicial efficiency and comports with the
broad remedial policies underlying the FLSA.”
Russell v. Wells Fargo & Co., No. 07-3993-CW,
2008 WL 4104212, at *3 (N.D. Cal. Sept. 3, 2008); Sanchez
v. Sephora USA, Inc., No. 11-3396-SBA, 2012 WL 2945753,
at *2 (N.D. Cal. July 18, 2012) (“Plaintiff need not
show that his position is or was identical to the putative
class members' positions; a class may be certified under
the FLSA if the named plaintiff can show that his position
was or is similar to those of the absent class
members.” (citations and quotation marks
standard for conditional certification is a lenient one that
typically results in certification. Kress v.
PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 627-28
(E.D. Cal. 2009) (citing Wynn v. Nat'l Broad. Co.,
Inc., 234 F.Supp.2d 1067, 1082 (C.D. Cal. 2002)). As a
practical matter, “[a]t this stage of the analysis,
courts usually rely only on the pleadings and any affidavits
that have been submitted.” Leuthold, 224
F.R.D. at 468. Plaintiffs need not conclusively establish
that collective resolution is proper, because a defendant
will be free to revisit this issue at the close of discovery.
Kress, 263 F.R.D. at 630. However,
“[u]nsupported allegations of FLSA violations are not
sufficient to meet the plaintiffs' burden.”
Shaia v. Harvest Mgmt. Sub LLC, 306 F.R.D. 268, 272
(N.D. Cal. 2015) (citation omitted).
have emphasized that a lenient standard is used at the
notice-stage step because a court does not have much evidence
at that point in the proceedings-just the pleadings and any
declarations submitted. In contrast, at the second step, a
stricter standard is applied because there is much more
information available, “which makes a factual
determination possible.” Vasquez v. Coast Valley
Roofing, Inc., 670 F.Supp.2d 1114, 1123 (E.D. Cal.
2009); see also Labrie v. UPS Supply Chain Sols.,
Inc., No. 08-3182-PJH, 2009 WL 723599, at *4 (N.D. Cal.
Mar. 18, 2009) (noting that the first step “is
characterized by a fairly lenient standard, necessitated by
the fact that not all discovery will have been completed at
the time of the motion, ” while, at the second step,
“the court engages in a more stringent inquiry into the
propriety and scope of the collective action” because
“discovery is complete and the case is ready to be
considering whether the lenient notice-stage standard has
been met in a given case, courts bear in mind the following:
plaintiff need not submit a large number of declarations or
affidavits to make the requisite factual showing that class
members exist who are similarly situated to him. A handful of
declarations may suffice. See, e.g., Gilbert v.
Citigroup, Inc., No. 08-0385-SC, 2009 WL 424320, at *2
(N.D. Cal. Feb. 18, 2009) (finding standard met based on
declarations from plaintiff and four other individuals);
Escobar v. Whiteside Constr. Corp., No.
08-01120-WHA, 2008 WL 3915715, at *3-4 (N.D. Cal. Aug 21,
2008) (finding standard met based on ...