* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 20 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARTIN MONTOYA, KEVIN

O’TOOLE, GORDON VOEGTLIN

and CHARLES GILBERT, for and on

behalf of themselves and other

employees similarly situated,

Plaintiffs-Appellants,

v.

RESCUE INDUSTRIES, INC., a

California corporation, doing business

as Rescue Rooter; ROGER BENSON;

JUDITH BENSON, individually, and

as officers of Rescue Industries, Inc.;

NICHOLAS DUVA, individually, and

as an officer of Rescue Industries,

Inc.,

Defendants-Appellees.

No. 98-1269

(D.C. No. 97-N-1560)

(D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.
1 Appellants do not reurge on appeal their claim that defendants failed to

maintain records required by 29 C.F.R. § 516.2(a).

-2-

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiffs commenced this action, on behalf of themselves and all other

service technicians defendants employed throughout the United States, alleging

that defendants failed to pay overtime as required by the Fair Labor Standards Act

(FLSA). 1

 See 29 U.S.C. §§ 201-219. The district court granted defendants’

motion to decertify the conditionally certified collective action, dismissed all

opted-in plaintiffs who were not employed as service technicians in defendants’

Denver service center, and then granted defendants summary judgment in part,

holding the Denver service technicians were exempt from FLSA’s overtime

requirements, until October 1996, because they were employees of a retail or

service establishment compensated by commissions, see 29 U.S.C. § 207(i). The

Denver service center plaintiffs recovered overtime compensation accruing after

October 1996. Appellants appealed, following entry of final judgment.
-3-

Appellants first argue that the district court erred in determining appellants

were, prior to October 1996, exempt from FLSA’s overtime requirements. 

Reviewing the district court’s summary judgment decision de novo, see Hamilton

v. Tulsa County Pub. Facilities Auth. , 85 F.3d 494, 496 (10th Cir. 1996), we

affirm the district court’s decision that the Denver plaintiffs were exempt prior to

October 1996 for substantially the reasons stated in that court’s “Order and

Memorandum of Decision” filed on June 22, 1998.

Appellants also argue that the district court erred in decertifying the

conditional collective action. See generally 29 U.S.C. § 216(b) (allowing

employees to assert FLSA claims against employer “for and in behalf

of . . . themselves and other employees similarly situated”). We review the

district court’s decision for an abuse of discretion. See, e.g. , Mooney v. Aramco

Servs. Co. , 54 F.3d 1207, 1213 (5th Cir. 1995). 

The district court decertified the class, determining that plaintiffs had failed

to show that the putative collective action members were similarly situated to the

named plaintiffs. Specifically, the court ruled that plaintiffs had failed to submit

the sales data from all of defendants’ twenty service centers located throughout

the nation, and thereby failed to establish that each of these other service centers

was a retail establishment for exemption purposes. 
2 Cases under the Age Discrimination in Employment Act incorporate and

apply the FLSA’s § 216(b) enforcement provisions. See Thiessen v. General

Elec. Capital Corp. , 13 F. Supp. 2d 1131, 1134 n.2 (D. Kan. 1998). 

-4-

While plaintiffs did bear the burden of establishing that they were similarly

situated to other service technicians defendants employed in other service centers,

see, e.g. , Harper v. Lovett’s Buffet, Inc. , No. CIV. A. 98-A-941-S,

___ F.R.D. ___, 1999 WL 39142, at *3 (M.D. Ala. Jan. 25, 1999), plaintiffs

initially met that burden by alleging that defendants compensated those other

technicians, who performed duties similar to the named plaintiffs, in the same

manner that defendants compensated the named plaintiffs, on a commission basis

without additional compensation for overtime. See Brzychnalski v. Unesco, Inc. ,

35 F. Supp.2d 351, 353 (S.D.N.Y. 1999) (proposed class members were similarly

situated to named plaintiffs because all were asbestos workers subject to common

scheme to deprive them of overtime compensation); see also Lockhart v.

Westinghouse Credit Corp. , 879 F.2d 43, 51-52 (3d Cir. 1989), overruling on

other grounds recognized in Starceski v. Westinghouse Elec. Corp. , 54 F.3d 1089,

1099 n.10 (3d Cir. 1995) 2. 

In addition, plaintiffs submitted evidence supporting these allegations. See,

e.g. , Belcher v. Shoney’s, Inc. , 927 F.Supp. 249, 251 (M.D. Tenn. 1996) (noting

some courts, in § 216(b) collective actions, require named plaintiffs initially to

submit factual support for allegations that class is similarly situated to named
-5-

plaintiffs). Appellants, therefore, made a sufficient initial showing that the

named plaintiffs were similarly situated to the putative collective action members. 

In their motion to decertify the class, following the close of discovery,

defendants argued only that the named plaintiffs had failed to submit sales data

from the different service centers. That evidence, however, went toward proving

defendants’ affirmative defense that plaintiffs were exempt from FLSA’s

overtime requirements. It remained defendants’ burden to prove that affirmative

defense. See Idaho Sheet Metal Works, Inc. v. Wirtz , 383 U.S. 190, 209 (1966). 

The district court, therefore, abused its discretion in decertifying the collective

action on this basis. We, therefore, reverse the district court’s decision to

decertify the conditional collective action on this basis and to dismiss all opted-in

plaintiffs who had not worked in the Denver service center, and we remand these

claims for the district court’s further consideration. We do not intend, on remand,

to preclude the district court from considering other factors that, in the exercise of

its discretion, that court may deem sufficient to decertify again the collective

action. See Bayles v. American Med. Response of Colo., Inc. , 950 F. Supp. 1053,

1067 (D. Colo. 1996) (decertifying collective action because, among other

reasons, employer’s defense could not be addressed on class-wide basis). 
-6-

In light of our decision on the decertification issue, we do not need to

address appellants’ final argument, that the district court deprived the opted-in

class plaintiffs of due process by dismissing their claims without notice.

The judgment of the United States District Court for the District of

Colorado is AFFIRMED in part, REVERSED in part, and REMANDED to the

district court for further proceedings consistent with this order and judgment.

Entered for the Court

James E. Barrett

Senior Circuit Judge