United States District Court, E.D. California
CARLOS A. QUIROZ, Plaintiff,
CITY OF CERES, Defendant.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
CONDITIONAL CERTIFICATION AND FACILITATED CLASS NOTICE (DOC.
matter is before the court on plaintiff's motion for
conditional certification and facilitated notice under the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”). A hearing on the motion was held on
June 6, 2017. Attorney Ace T. Tate appeared on behalf of
plaintiff, and attorney Jesse J. Maddox appeared on behalf of
defendant. Having considered the parties' briefs and oral
arguments and for the reasons set forth below, the court will
grant in part plaintiff's motion for conditional
certification and adopt the parties' stipulation.
Carlos A. Quiroz is employed as a police officer for
defendant City of Ceres (“City”). According to
the complaint and to plaintiff's declaration submitted in
support of the pending motion, as part of a collective
bargaining agreement the City offered and plaintiff accepted
an option to receive monetary compensation in lieu of certain
City-sponsored health benefits. (Doc. No. 1
(“Compl.”) at ¶ 25; Doc. No. 13-2
(“Quiroz Decl.”) at ¶¶ 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. at ¶ 26; Quiroz Decl. at ¶
8.) Plaintiff further alleges that defendant's failure to
fully compensate him and others similarly situated
constitutes a violation of the 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
March 29, 2017, plaintiff filed a motion for conditional
certification and facilitated notice under the FLSA. (Doc.
No. 13.) On April 17, 2017, defendant filed its opposition.
(Doc. No. 18.) On April 24, 2017, plaintiff filed his reply.
(Doc. No. 22.)
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 has identified no binding Ninth
Circuit or Supreme Court authority interpreting that term.
However, 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.
plaintiff Quiroz has met his burden of showing at the first
step that conditional certification is warranted. At this
stage in the litigation, the parties do not dispute defining
those “similarly situated” as “all current
or former employees of the City of Ceres who have worked
statutory overtime and received cash payments in lieu of
health care benefits or savings payments if they chose
coverage through the City that does not utilize the full
dollar allowance.” (Doc. No. 13-4 at 1-2; see
also Doc. Nos. 18 at 1-2; 18-2 ¶ 2; 22 at
Plaintiff contends that his decision to receive monetary
compensation in lieu of health benefits is part of a broader
uniform City policy affecting other employees. (See
Quiroz 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.
furtherance of conditional certification, plaintiff proposes
issuance of a facilitated notice to all potential plaintiffs
in this action. (See Doc. No. 13-4.) However,
defendant City requests that this court delay any issuance of
a facilitated notice or limit the recipients of such notice.
Specifically, defendant points out that similar issues
regarding overtime compensation have been raised in two
related cases brought against the City in this court:
Jonathan McManus et al. v. City of Ceres, No.
1:17-cv-00355-DAD-MJS, and Julio Amador et al. v. City of
Ceres, No. 1:17-cv-00552-DAD-MJS. Because the
McManus action may also involve conditional
certification under the FLSA, defendant argues that issuing a
notice in this action now may waste the parties'
resources and require potential plaintiffs to choose between
actions. (See Doc. No. 18 at 2-3.) Alternatively,
defendant proposes that notices not be issued to any named
parties in the related cases. (See Doc. No. 18 at
cause exists to issue a notice of collective action to
all potential plaintiffs, as defined in this order.
The court finds no legal basis on which to exclude certain
parties based on their involvement in other actions. Because
potential plaintiffs may only participate in an FLSA
collective action on an opt-in basis, it is ultimately up to
those individuals to decide whether and how they wish to
proceed in litigation. To the extent any parties might later
dispute whether an individual may recover in multiple
lawsuits, the court may resolve such a dispute at the
appropriate time. Therefore, the parties will be directed to
meet and confer regarding the form of the facilitated notice
and the manner in which such notice will issue, and are
encouraged to submit a joint proposal for court approval.
for the reasons set forth above:
Plaintiff's motion for conditional certification of a
collective action and for approval of facilitated notice
(Doc. No. ...