1

IN THE UNITED STATES DISCTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 

 : 

CHARLES COOK, et al., : 

 : Case No. 2:18-cv-711

 Plaintiffs, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Vascura 

GORDON FLESCH CO., INC., : 

 : 

 Defendant. : 

 : 

OPINION & ORDER 

 This matter comes before the Court on Plaintiffs’ Motion for Conditional Class 

Certification. (ECF No. 5). Plaintiffs seek to conditionally certify a class based on alleged 

violations of the Age Discrimination in Employment Act (“ADEA”). This Motion is fully briefed 

and ripe for review. For the reasons set forth below, Plaintiffs’ Motion is DENIED. 

I. BACKGROUND 

A. Factual Background 

 Plaintiffs Charles Cook, Robert Rosen, and Walter Peterseim are former employees of 

Defendant, Gordon Flesch Co., Inc., in Columbus, Ohio. Plaintiffs allege that they faced various 

types of discrimination, including but not limited to, age discrimination. Plaintiffs allege that 

this discrimination led Gordon Flesch to terminate their employment. Plaintiffs now seek to 

conditionally certify a collective action under the ADEA and 29 U.S.C. §§ 216(b), 626(b). 

B. Procedural Background 

 Plaintiffs Cook and Rosen filed their Complaint on July 20, 2008. (ECF No. 1). They 

then filed a Motion for Conditional Certification of Collective Action Class on July 26, 2018. 
2

(ECF No. 5). They filed a First Amended Complaint, adding Peterseim’s claims, (ECF No. 11) 

before Gordon Flesch filed their Response in Opposition to the Plaintiffs’ Motion for 

Conditional Certification (ECF No. 13). Plaintiffs then filed a Reply. (ECF No. 15). In neither 

the original Complaint, the Motion for Conditional Certification, nor the First Amended 

Complaint did Plaintiffs include any declarations. Rather counsel attached the declarations and 

other evidence in Plaintiffs’ Reply brief. After briefing was completed on the Motion for 

Conditional Certification, Plaintiffs filed a Second Amended Complaint. (ECF No. 29). The 

Second Amended Complaint added claims not at issue in this Motion for Conditional 

Certification. 

II. LAW AND ANALYSIS 

Plaintiffs bringing claims under the ADEA may seek conditional certification of a 

collective action under 29 U.S.C. 626(b), which incorporates the standard of 29 U.S.C. § 216(b), 

the same provision that authorizes collective actions for FLSA violations. Hoffmann-La Roche 

Inc. v. Sperling, 493 U.S. 165, 169–70 (1989). The lead plaintiff bears the burden to show that 

the proposed class members are similarly situated to the lead plaintiff. O’Brien v. Ed Donnelly 

Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald 

Co. v. Gomez, 136 S. Ct. 663, 669 (2016). Plaintiffs seeking to certify a collective action under 

the FLSA face a lower burden than plaintiffs seeking class certification under Federal Rule of 

Civil Procedure 23. Id. In FLSA class actions, “class certification typically occurs in two stages: 

conditional and final certification.” Frye v. Baptist Mem’l Hosp., Inc., 495 F. App’x 669, 671 

(6th Cir. 2012) (unpublished). 

The conditional certification stage requires that plaintiffs make only a “modest factual 

showing” that they are similarly situated to proposed class members. Comer, 454 F.3d at 547. 
3

See also Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 764 (N.D. Ohio 2015). The standard 

at the first step is “fairly lenient...and typically results in conditional certification of a 

representative class.” Comer, 454 F.3d at 547 (internal citations omitted). Although lenient, 

plaintiffs seeking conditional certification “must present some evidence to support allegations 

that others are similarly situated.” Sisson v. OhioHealth Corp., 2013 WL 6049028, at *2 (S.D. 

Ohio Nov. 14, 2013). In determining conditional certification, courts have considered “whether 

potential plaintiffs were identified; whether affidavits of potential plaintiffs were submitted; and 

whether evidence of a widespread...plan was submitted.” Castillo v. Morales, Inc., 302 F.R.D. 

480, 486 (S.D. Ohio 2014) (quoting H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. 

Tex. 1999)). 

 Gordon Flesch argues that conditional certification is inappropriate in part because 

“plaintiffs offer no evidence to support the notion of a single decision, policy, or plan” that bases 

employee terminations on age. (ECF No. 13 at 6). As Plaintiffs have acknowledged in their 

Reply, their declarations and other evidence were inadvertently omitted from their Motion for 

Conditional Certification. (ECF No. 15 at 3). Plaintiffs attempted to correct this oversight by 

adding the evidence to their Reply. But “a moving party may not raise new issues for the first 

time in its reply brief,” Bishop v. Oakstone Academy, 477 F.Supp.2d 876, 889 (S.D. Ohio 2007), 

and “[e]vidence used to support a reply memorandum shall be limited to that needed to rebut the 

positions argued in memoranda in opposition.” S.D. Ohio Civ. R. 7.2(d). This evidence is not 

rebuttal evidence. Rather, Plaintiffs were required to submit the evidence prior to, or 

simultaneously with, their Motion for Conditional Certification. Without these additional 

documents, this Court is without any evidence upon which to make a finding as to the 

appropriateness of conditional certification. Therefore, Plaintiffs’ Motion is DENIED. 
4

Plaintiffs may renew their motion for conditional certification along with the proper evidence 

supporting their request. 

III. CONCLUSION 

 For the foregoing reasons, Plaintiffs’ Motion is hereby DENIED. 

 IT IS SO ORDERED. 

 

s/Algenon L. Marbley_______________ 

 ALGENON L. MARBLEY 

     UNITED STATES DISTRICT JUDGE 

DATED: March 26, 2019