UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARGARET J. NEFF, on behalf

of herself and others similarly situated, 

Plaintiffs, Case No. 2:10-cv-948

Judge Smith

Magistrate Judge Abel 

v. 

 

U.S. XPRESS, INC,

Defendant.

OPINION AND ORDER

This matter is before the Court on Plaintiff Margaret J. Neff’s Objections to the

Magistrate Judge’s March 18, 2013 Report and Recommendation (Doc. 59). The Magistrate

Judge recommended that the Court grant in part and deny in part Plaintiff’s September 16, 2011

Renewed Motion for Conditional Class Certification (Doc. 43). The Objections are fully briefed

and ripe for disposition. For the reasons that follow, the Court OVERRULES Defendant’s

Objections.

I. Background

Defendant provides transportation and logistics services to a wide range of customers

throughout the United States and has employed hundreds of individuals in the Account Manager,

Assistant Account Manager, and Account Supervisor logistical support roles. Plaintiff was

employed by Defendant from January 26, 2009, until January 28, 2010, as an Account

Supervisor assigned to the Kroger account at the Delaware, Ohio, distribution center.

In October 2010, Plaintiff initiated this action, on behalf of herself and others similarly

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situated, against Defendant for its alleged willful failure to compensate its employees with

overtime pay in violation of the Federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and

the Ohio Minimum Fair Wage Standards Act, Ohio Rev. Code § 4111.01, et seq. Plaintiff

alleges that Defendant unlawfully classified her, and the class she seeks to represent, as exempt

from overtime payments under federal and state law. In conjunction with filing the Complaint,

Plaintiff also moved for conditional class certification and expedited discovery. Plaintiff seeks

conditional certification of a national class of all Account Managers, Assistant Account

Managers, and Account Supervisors.

In September 2011, and after limited discovery, Plaintiff filed her Renewed Motion for

Conditional Class Certification. After additional discovery, the parties attempted to negotiate an

agreed class settlement and the Court administratively closed Plaintiff’s motion to certify in view

of the possibility that the parties would reach an agreement on the issue. The parties were

unable, however, to reach a final agreement as to the class, and they so notified the Court in

February 2013.

On March 18, 2013, the Magistrate Judge issued his Report and Recommendation. The

Magistrate Judge found that while Plaintiff offered some evidence supporting conditional

certification of a collective action on behalf of Account Managers and Account Supervisors at

the Delaware, Ohio site, she offered insufficient evidence supporting conditional certification of

a nationwide class of Account Managers and Account Supervisors. Consequently, the

Magistrate Judge recommended granting Plaintiff’s Renewed Motion for Conditional Class

Certification as to the Account Managers and Account Supervisors at the Delaware, Ohio site,

but otherwise denying the motion. Plaintiff timely filed Objections to the Report and

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Recommendation. The Objections are now ripe for disposition.

II. Discussion

If a party timely objects to a report and recommendation, the Court “shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations

to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon

review, the Court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

Plaintiff presents the following objections to the Report and Recommendation:

1. The Report and Recommendation erroneously finds Plaintiff has not met

her burden of demonstrating that some evidence exists to support her

allegations that a nationwide class of account supervisors, account

managers and assistant account managers exists.

2. The Report and Recommendation erroneously suggests that Plaintiff was

obligated to provide factual analysis of the relevant job descriptions, how

the job duties are performed, what they entail in practice and how much of

the employee’s time they require.

3. The Report and Recommendation erroneously finds that evidence of

similar job duties among the relevant job titles is not sufficient to

demonstrate that the employees are similarly situated.

4. The Report and Recommendation erroneously finds that Plaintiff has not

presented any evidence to demonstrate that defendant has a policy of

characterizing non-exempt positions as exempt.

5. The Report and Recommendation erroneously finds that Plaintiff has

offered no evidence that account managers and account supervisors at

sites other than the Delaware, Ohio site performed the same job duties as

she did.

6. The Magistrate erred by recommending that conditional class certification

be granted with respect to only account managers and account supervisors

at the Delaware, Ohio site and not on a nationwide basis.

In view of Plaintiff’s Objections, the general issue before the Court is whether the

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Magistrate Judge correctly determined that Plaintiff failed to meet the applicable evidentiary

burden in support of her allegation that a nationwide class of Account Supervisors, Account

Managers, and Assistant Account Managers exists.

Plaintiffs seeking to file a collective action under the Fair Labor Standards Act must

demonstrate that they are “similarly situated.” 29 U.S.C. § 216(b); see Comer v. Wal-Mart

Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (analyzing the certification process under Section

216(b)). Unlike the “opt out” procedures governing some class actions, as set forth in Federal

Rule of Civil Procedure 23, the Fair Labor Standards Act contains an “opt in” procedure. In this

regard, § 216(b) provides that “[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.”

Courts have discretion to certify a class conditionally for purposes of serving notice, but

only “in appropriate cases.” Hoffman–La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989). 

Class certification in Fair Labor Standards Act collective actions typically occurs in two stages:

conditional and final certification. See Comer; White v. MPW Indus. Servs., Inc., 236 F.R.D.

363, 366 (E.D. Tenn. 2006) (citing cases). Before subjecting an employer to the burdens of a

collective action, “plaintiffs must establish a colorable basis for their claim that a class of

‘similarly situated’ plaintiffs exists.” Harrison v. McDonald’s Corp., F. Supp.2d 862, 868 (S.D.

Ohio 2005) (Holschuh, J.) (quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D.

Minn. 1991)). Therefore, as part of the first step in the certification process, a plaintiff must

present a “modest factual showing” that the plaintiff’s position is similar to that of other

employees. Comer, 454 F.3d at 546-47; see Pacheco v. Boar’s Head Provisions Co., Inc., 671 F.

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Supp.2d 957, 959 (W.D. Mich. 2009) (noting that courts require plaintiffs to show that there is

“a reasonable basis for their claim of class-wide discrimination,” which may be based solely on

the pleadings and any filed affidavits). The standard at the notice stage is “fairly lenient . . . and

typically results in ‘conditional certification’ of a representative class[.]’” Id. at 547 (quoting

Morisky v. Public Serv. Elec. & Gas Co., 111 F. Supp.2d 493, 497 (D. N.J. 2000)). The court

does not resolve factual disputes or make credibility determinations at the conditional

certification stage. Beetler v. Trans–Foam, Inc., No. 5:11CV132, 2011 WL 6130805, at *3

(N.D. Ohio Dec. 8, 2011).

During the second stage of the certification process, the court makes a final determination

on whether class members are similarly situated based upon a thorough review of the record after

discovery is completed. Schwab v. Bernard, No. 5:11-cv-1216, 2012 WL 1067074 (N.D. Ohio

March 28, 2012). This final certification decision is normally based on a variety of factors,

including “factual and employment settings of the individual[ ] plaintiffs, the different defenses

to which the plaintiffs may be subject on an individual basis, [and] the degree of fairness and

procedural impact of certifying the action as a collective action.” O’Brien v. Ed Donnelly

Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009) (citing 7B Wright, Miller, & Kane, supra, § 1807

n. 65 at 497, and Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007)).

When “the parties have been permitted to conduct some limited discovery to determine

whether a class of similarly situated plaintiffs may exist . . . courts have had a difficult time

elucidating an intermediate, or hybrid, standard that falls between the lenient first-stage and the

strict second-stage review.” Creely v. HCR ManorCare, Inc., 789 F. Supp.2d 819, 824 (N.D.

Ohio 2011). Under the “hybrid” or “intermediate” approach, which is essentially a heightened

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standard for conditional certification, when some discovery on the certification issue has

occurred, the plaintiff should be required to make a “modest ‘plus’ factual showing” that there is

a group of potentially similarly situated plaintiffs. Id. at 827. That is, when plaintiffs have had

the opportunity to conduct at least limited discovery on the certification issue, the plaintiffs are

required to make a “showing beyond their original allegations.” Id. Precisely where the

“hybrid” approach lands on the spectrum between the lenient approach of the first stage, and the

more stringent approach of the second stage, is not settled and by its very nature does not lend

itself to a clear rule applicable in all cases. Nonetheless, when some, but not all, discovery has

been undertaken relating to the issue of class certification, a heightened, but not stringent,

standard must be applied. See Creely (applying the intermediate approach). Under this

approach, the plaintiff must “have advanced the ball down the field – showing that it is more

likely that a group of similarly situated individuals may be uncovered by soliciting opt-in

plaintiffs.” Id. at 827.

The Sixth Circuit has stated that “plaintiffs are similarly situated when they suffer from a

single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with

that policy proves a violation as to all the plaintiffs.” O’Brien, 575 F.3d at 585. At the same

time, however, the Sixth Circuit has observed that even when proof of a violation as to one

particular plaintiff does not prove that the defendant violated any other plaintiff’s rights under

the Fair Labor Standards Act, the plaintiffs may nevertheless be similarly situated when their

claims are “unified by common theories of defendants’ statutory violations, even if the proofs of

these theories are inevitably individualized and distinct.” Id.

While a court does not address or reach the merits of a misclassification claim at the

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conditional notice stage, facts relevant to exempt status are probative to the issue of whether

employees are similarly situated. The Southern District of Ohio recently resolved that a

company’s own job descriptions are relevant in considering, at the conditional certification

stage, whether a potential putative class is similarly situated. See Wade v. Werner Trucking Co.,

No. 2:10-cv-270, 2012 WL 5378311, *4 (S.D. Ohio Oct. 31, 2012) (Sargus, J.). In the final

analysis, however, when a court determines whether an employee is exempt from the Fair Labor

Standards Act, it must focus on “the actual day-to-day activities of the employee rather than

more general job descriptions contained in resumes, position descriptions, and performance

evaluations.” Schaefer v. Indiana Michigan Power Co., 358 F.3d 394, 400 (6th Cir. 2004). 

Thus, evidence concerning the day-to-day activities of employees is central to assessing whether

a potential putative class is similarly situated.

Because the parties in this matter were provided the opportunity to conduct discovery on

the issue of class certification, the Magistrate Judge correctly determined that the Court should

apply an intermediate approach to Plaintiff’s request for conditional certification. The Court

agrees with the Magistrate Judge’s decision to follow the reasoning applied in Creely. Thus, the

issue becomes whether the Magistrate Judge properly applied the standard articulated in Creely.

In applying the “modest ‘plus’ factual showing” standard, the Magistrate Judge

concluded that Plaintiff failed to meet her burden of demonstrating that there is some evidence to

support her allegations. Plaintiff argues that this conclusion was erroneous. The Court

disagrees. A review of the evidence submitted by Plaintiff, in support of her request for

conditional certification, reveals that it does not meet the applicable standard. In support of her

allegations, Plaintiff submitted her own affidavits, dated September 30, 2010, and December 20,

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2011, and job descriptions for the positions of Account Supervisor, Account Manager, and

Assistant Account Manager assigned to various accounts throughout the United States.

In her September 30, 2010 affidavit, Plaintiff stated in part that she and certain other

employees were treated as “exempt” under the Fair Labor Standards Act even though they did

not appear to meet the “salary test.” (Doc. 2-1). She also stated that she and the other

employees frequently worked more than forty hours per week, but were not paid time and a half

for the hours worked over forty hours. See id. In her December 20, 2011 affidavit, Plaintiff

stated that her essential job duties while working for Defendant were assigning truck drivers to

loads and dispatching the drivers. She stated that there were approximately twelve other

employees assigned to Defendant’s dedicated Kroger account, and that these employees

performed identical job functions as her despite the fact that they may have had different job

titles than her. She further stated that she and the other employees regularly worked twelve hour

shifts with no lunch break, and that they regularly worked more than forty hours per week. 

Lastly, Plaintiff stated: “I am aware of other U.S. Xpress, Inc. employees, who performed job

functions identical or similar to mine for other dedicated accounts besides Kroger. Those

employees were also misclassified by U.S. Xpress, Inc. as ‘exempt’ under the Fair Labor

Standards Act.” (Doc. 51-1).

Plaintiff argues that the Magistrate Judge scrutinized the merits of her claim, which is

inappropriate for the purpose of conditional certification. To the contrary, the Magistrate Judge

did not address the issue of whether Plaintiff and other individuals she seeks to represent were

actually exempt from the Fair Labor Standards Act’s overtime requirements. The Magistrate

Judge essentially observed that the job descriptions, which contain some managerial tasks, do

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not, in and of themselves, indicate a policy of characterizing non-exempt positions as exempt.

Despite an opportunity for discovery regarding certification, Plaintiff has not submitted evidence

of the day-to-day characteristics of the job duties in operation.

Plaintiff’s affidavits are not sufficient because they do not “advance the ball” beyond the

group of employees at the Delaware, Ohio location dedicated to the Kroger account. As noted

by the Magistrate Judge, Plaintiff’s affidavit sets forth her essential job duties and her personal

knowledge of the approximately twelve other employees assigned to the Kroger account, who,

according to her, performed identical job functions regardless of their job titles. In view of this

evidence, Plaintiff has supported her request for conditional certification of a collective action on

behalf of Account Managers and Account Supervisors at the Delaware, Ohio location.

Beyond making conclusory assertions, however, Plaintiff’s affidavit does not provide

factual development of her allegation that employees assigned to accounts other than Kroger

were similarly situated to her. Plaintiff states that she is “aware” of other employees of

Defendant assigned to accounts other than Kroger who performed job functions identical or

similar to her but were also improperly classified as exempt. But Plaintiff does not indicate the

basis of this “awareness.” For example, Plaintiff does not attest that this awareness is based on

personal knowledge instead of simply what she deduces based on a review of the documents she

has submitted, which set forth the job descriptions of the positions of Account Supervisor,

Account Manager, and Assistant Account Manager assigned to various accounts throughout the

country. Simply stated, Plaintiff’s affidavits do not demonstrate her personal knowledge of the

specific day-to-day duties of employees assigned to different accounts.

Like Plaintiff’s affidavits, the documents setting forth the job descriptions of positions

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with Defendant located throughout the United States do not constitute evidence that Plaintiff is

similarly situated to a nationwide class of Defendant’s employees. Plaintiff maintains that the

job descriptions indicate that Defendant’s Account Supervisors and Account Managers generally

have common duties. This may be true, but the job descriptions also contain duties and

responsibilities potentially supporting exempt status, as these written job descriptions contain

some managerial tasks. Thus, the job descriptions do not, in and of themselves, demonstrate a

policy of characterizing non-exempt positions as exempt. Furthermore, Plaintiff has not

presented evidence factually developing the characteristics of these jobs in operation so as to

support her contention that others were similarly situated.

In response to Plaintiff’s discovery request for job descriptions of Account Supervisors

and Account Managers employed by Defendant, Defendant provided the job descriptions as

requested but explained that the “written job descriptions, while applicable, do not fully cover

the job duties and responsibilities of the Account Supervisor and Account Manager job positions,

given the actual day-to-day tasks vary based upon several factors including, among others, the

requirements of the dedicated account, the number of drivers . . . the preferences/skills/styles of

each individual employed in the positions . . . customer demands, [and] location of the

account[.]” (Doc. 43-1, Def.’s Answer to Interrog. No. 3). Despite receiving notice of

Defendant’s position that the actual duties and tasks of Account Supervisors and Account

Managers vary from account to account, there is no indication that Plaintiff sought to take any

depositions of persons holding these positions, as a means to factually develop such issues as

how the job duties are actually performed, what they entail in practice, or how much of the

employee’s time they require. Thus, Plaintiff has failed to present probative evidence showing

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the actual day-to-day activities of the nationwide class she seeks to represent.

Plaintiff’s evidentiary submission may have been sufficient had no discovery taken place,

or if only Defendant had the opportunity for discovery regarding certification, but it is not

sufficient under the modest plus factual showing standard, which is applicable here because the

parties engaged in a period of discovery for the purpose of conditional class certification. 

Plaintiff fails to show the type of progress that is mandated under the standard articulated in

Creely. That is, while Plaintiff may have made a modest showing that she is similarly situated to

the proposed class of employees, she fails to make the elevated factual showing necessitated by

the parties having already engaged in conditional class certification discovery.

Finally, the Court notes that in support of Plaintiff’s Objections to the Magistrate Judge’s

Report and Recommendation, she states that the Magistrate Judge “appears to have excluded

assistant account managers from conditional certification of the narrow class of Delaware, Ohio

employees without any explanation.” (Doc. 60 at 3). Plaintiff does not develop any argument to

challenge this omission. It is undisputed that Plaintiff was employed as an Account Supervisor

assigned to Defendant’s dedicated Kroger account at the Delaware, Ohio distribution center. 

Plaintiff’s December 12, 2011 affidavit states that there were approximately twelve other

employees assigned to Defendant’s dedicated Kroger account, and that those employees

“performed identical job functions to mine despite the fact they may have had job titles different

from mine.” (Neff Dec. 12, 2011 Affidavit, ¶ 4). Implicit in her affidavit is the assertion that

there were others with different job titles, but “identical” job functions. The different job title

that she refers to logically would be Account Manager. However, her reference to persons with

different job titles would not necessarily be a reference to Assistant Account Managers, as an

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Assistant Account Manager would necessarily assist the Account Manager, and therefore not

perform the identical job functions. Therefore, the Magistrate Judge’s reference to only Account

Managers and Account Supervisors at the Delaware, Ohio location was reasonable and

consistent with the evidence of record.

In sum, the Court has reviewed the Report and Recommendation and Plaintiff’s

Objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b) and finds Plaintiff’s

Objections to be without merit.

III. Conclusion

For the foregoing reasons, the Court OVERRULES Plaintiff’s Objections to the

Magistrate Judge’s Report and Recommendation (Doc. 60). The Report and Recommendation

(Doc. 59) is therefore ADOPTED and AFFIRMED. Accordingly, Plaintiff’s Renewed Motion

for Conditional Class Certification is GRANTED as to the Account Managers and Account

Supervisors at the Delaware, Ohio site, but it is otherwise DENIED.

IT IS SO ORDERED.

 s/ George C. Smith GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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