United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
CONDITIONALLY CERTIFY FLSA COLLECTIVE ACTION RE: DKT.,
HAYWOOD S. GILLIAM, JR United States District Judge
before the Court is Plaintiff Timothy Aboudara, Jr.'s
motion for conditional certification of a collective action
pursuant to 29 U.S.C. § 216(b). Dkt. No. 24. For the
reasons detailed below, the Court GRANTS the motion IN PART
and approval of the form of the class notice is stayed
pending an attempt by the parties to agree upon its contents.
alleges that he is currently a firefighter for - and employee
of - Defendant City of Santa Rosa. Dkt. No. 1
(“Compl.”) ¶¶ 3, 20; Dkt. No. 24-3
¶ 2. Plaintiff has also been a member of the
International Association of Firefighters, Local 1401
(“Local 1401”) since his employment with
Defendant began in October 2004. Dkt. No. 24-3 ¶ 2. On
March 27, 2017, he brought this Fair Labor Standards Act
(“FLSA”) case on behalf of himself and all others
similarly situated against Defendant for improperly
calculating their overtime compensation and cash out payments
for compensatory time off (“CTO”). See
Compl. ¶¶ 23-27. More specifically, Plaintiff
alleges that Defendant erroneously excluded two types of
compensation that he receives under the collective bargaining
agreement between Defendant and Local 1401 when calculating
his “regular rate” of pay. Id.; see
also Dkt. Nos. 24-6, 24-7, and 24-8 (excerpts from
collective bargaining agreements).
to the collective bargaining agreement, Plaintiff and his
fellow members of Local 1401 receive cash payments in lieu of
holidays (“HIL”), regardless of whether they
actually worked those holidays. See Dkt. No. 24-3
¶¶ 4, 7. Under the agreement, HIL compensation is
prorated based on the number of calendar days worked by an
employee, regardless of the number of holidays that have
occurred or will occur. Id. It also cannot be used
for non-working hours such as vacation or sick leave.
Id. Plaintiff and members of Local 1401 also receive
sick leave incentive payments (“SLI”), the
equivalent of one shift's pay if they take fewer than 56
hours of sick leave in a year. Id. ¶¶ 6-7.
According to Plaintiff, Defendant excluded both HIL and SLI
from Local 1401's overtime pay and CTO calculations.
Compl. ¶¶ 30-39; see also Dkt. No. 24-3
¶¶ 10-12; Dkt. No. 24-4 ¶¶ 11-13.
Plaintiff now requests certification of a collective action
and for an order authorizing facilitated notice of this
action to prospective class members. See Dkt. No.
the FLSA, an employee may bring a collective action on behalf
of other “similarly situated” employees. 29
U.S.C. § 216(b); see also Does v. Advanced Textile
Corp., 214 F.3d 1058, 1064 (9th Cir. 2000). Unlike class
actions certified under Federal Rule of Civil Procedure 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. Id. The district court has discretion to
determine whether a collective action is appropriate. See
Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466
(N.D. Cal. 2004).
the FLSA nor the Ninth Circuit defines the term
“similarly situated.” District courts in this
Circuit and numerous other Circuits generally apply a
two-step approach, differentiating between conditional and
final class certification. See, e.g., Rivera v.
Saul Chevrolet, Inc., No. 16-CV-05966-LHK, 2017 WL
3267540, at *2 (N.D. Cal. July 31, 2017) (collecting cases).
Under the first step, the Court determines whether potential
opt-in plaintiffs exist who are similarly situated to the
representative plaintiffs such that a class should be
conditionally certified to provide them with notice of the
action. Id. Those individuals become parties to a
collective action only by filing written consent with the
stage, the Court applies a fairly lenient standard and
generally relies on the pleadings and any filed affidavits.
See Leuthold, 224 F.R.D. at 468; see also
Wellens v. Daiichi Sankyo, Inc., No. 13-CV-00581-WHO,
2014 WL 2126877, at *1 (N.D. Cal. May 22, 2014). To warrant
conditional certification, “[t]he plaintiff must make
substantial allegations that the putative class members were
subject to an illegal policy, plan, or decision, by showing
that there is some factual basis beyond the mere averments in
the complaint for the class allegations.”
Wellens, No. 13-CV-00581-WHO, 2014 WL 2126877, at *1
(quotation omitted). The plaintiff need not conclusively
establish that collective resolution is proper, however,
because certification at the initial stage is conditional and
a defendant may revisit the issue after conducting discovery
at the second stage. Kress v. PricewaterhouseCoopers,
LLP, 263 F.R.D. 623, 628-30 (E.D. Cal. 2009).
concedes that a group of Local 1401 firefighters should be
conditionally certified as a collective action under the
FLSA. See Dkt. No. 35 at 1. Plaintiff argues that
the class also should include Santa Rosa police officers who
received HIL payments and worked overtime. See Dkt.
No. 24-1 at 4. Plaintiff contends that the police
officers are similarly situated because “employees in
multiple job classifications across multiple bargaining units
received cash payments in lieu of holidays” and
“were all subject to Defendant's practice of
excluding such payments from the ‘regular rate' of
pay.” Id. at 4-5.
Court disagrees. Plaintiff has not shown, even under the more
lenient conditional certification standard, that he is
“similarly situated” to individuals outside Local
1401. Plaintiff has offered little more than his
counsel's speculative belief that there are other Santa
Rosa employees who are similarly situated to Local 1401
members. In the complaint, Plaintiff alleges that Santa Rosa
police officers received HIL payments that were not included
in their overtime compensation. See Compl.
¶¶ 9, 28. Yet he offers no factual basis for this
allegation. As part of the motion for conditional
certification, Plaintiff attached the collective bargaining
agreement between Defendant and the Santa Rosa Police
Officers Association, see Dkt. No. 24-9, but he did
not provide any declaration from an officer that Defendant
improperly calculated his overtime or CTO cash out payments.
Rather, Plaintiff's counsel merely states “[o]n
information and belief” that Santa Rosa “provided
HIL compensation to employees outside the firefighting
bargaining unit” and that such payments were
“uniformly excluded . . . from those employees'
overtime and CTO calculations.” Dkt. No. 24-2
¶¶ 11, 14-15. Again, however, he provides no
factual basis for this allegation. And at the hearing held on
this motion, Plaintiff's counsel confirmed that Plaintiff
has no “personal knowledge” of “the payroll
practices  for the police officers.”
the Court could find based on the collective bargaining
agreements that Santa Rosa police officers received HIL
payments like Plaintiff, that provision is not itself
unlawful. Plaintiff still must show that Defendant subjected
those officers to an unlawful policy by omitting such
payments from their overtime or CTO cash out calculations.
Plaintiff's conclusory allegations simply do not provide
sufficient factual evidence that Santa Rosa police officers
are similarly situated for purposes of 28 U.S.C. §
216(b). See, e.g., Shaia v. Harvest Mgmt. Sub
LLC, 306 F.R.D. 268, 272 (N.D. Cal. 2015)
(“Unsupported allegations of FLSA violations are not
sufficient to ...