* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 thatdefendants failed to

maintain records required by 29 C.F.R. § 516.2(a). -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiffs commenced this action, on behalf of them selves 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 granteddefendants’ motion to decertify the conditionally certified col lective action, dismissed all opted-in plaintiffs who were not employed as servic e 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 entryof final judgment.-3-

Appellants first argue that the district court erre d in determining appellants were, prior to October 1996, exempt from FLSA’s ove rtime 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 Denve r plaintiffs were exempt prior to October 1996 for substantially the reasons stated i n that court’s “Order and Memorandum of Decision” filed on June 22, 1998. Appellants also argue that the district court erredin decertifying the conditional collective action. See generally 29 U.S.C. § 216(b) (allowing employees to assert FLSA claims against employer “f or and in behalf of . . . themselves and other employees similarly s ituated”). 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, determini ng that plaintiffs had failed to show that the putative collective action members were similarly situated to the named plaintiffs. Specifically, the court ruled th at plaintiffs had failed to submit the sales data from all of defendants’ twenty servi ce centers located throughout the nation, and thereby failed to establish that ea ch of these other service centers was a retail establishment for exemption purposes.2 Cases under the Age Discrimination in Employment Ac t 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 establishin g 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 defendan ts compensated those other technicians, who performed duties similar to the named plaintiffs, in the same manner that defendants compensated the named plaint iffs, 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 cl ass members were similarly situated to named plaintiffs because all were asbes tos 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, requir e named plaintiffs initially to submit factual support for allegations that class i s similarly situated to named-5-

plaintiffs). Appellants, therefore, made a suffici ent initial showing that the named plaintiffs were similarly situated to the put ative collective action members. In their motion to decertify the class, following t he close of discovery, defendants argued only that the named plaintiffs ha d failed to submit sales data from the different service centers. That evidence, however, went toward proving defendants’ affirmative defense that plaintiffs wer e exempt from FLSA’s overtime requirements. It remained defendants’ bur den 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 discretio n in decertifying the collective action on this basis. We, therefore, reverse the d istrict 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 considerati on. We do not intend, on remand, to preclude the district court from considering oth er factors that, in the exercise of its discretion, that court may deem sufficient to d ecertify again the collective action. See Bayles v. American Med. Response of Colo., Inc. , 950 F. Supp. 1053, 1067 (D. Colo. 1996) (decertifying collective acti on because, among other reasons, employer’s defense could not be addressed on class-wide basis).-6-

In light of our decision on the decertification iss ue, we do not need to address appellants’ final argument, that the distri ct court deprived the opted-in class plaintiffs of due process by dismissing theirclaims without notice. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED in part, REVERSED in part, andREMANDED to the district court for further proceedings consistent w ith this order and judgment.

Entered for the Court

James E. Barrett Senior Circuit Judge