IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RETTA MARLENE POWERS, et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 09-0556-WS-C

 )

AUTOMOTIVE COMPUTER )

SERVICES, INC., et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the plaintiffs’ motion to facilitate notice. (Doc.

46). The defendants have filed responses and the plaintiff a reply, (Docs. 55, 57, 60), and

the motion is ripe for resolution. After carefully considering the foregoing and other

relevant material in the file, the Court concludes that the motion is due to be granted.

BACKGROUND

According to the second amended complaint, four of the named plaintiffs were

employed by defendant Automotive Computer Services, Inc. (“Automotive”) as

Technicians. The fifth named plaintiff was employed by defendant Express Services, Inc.

(“Express”), which provides Automotive with temporary workers, and she worked as a

Technician while working at Automotive. 

The second amended complaint alleges that the named plaintiffs and other

Technicians were not exempt from the overtime requirements of the Fair Labor Standards

Act (“FLSA”). It also alleges that the defendants, for at least three years prior to the

filing of the complaint in August 2009, had a uniform policy and practice of consistently

requiring all Technicians to work over 40 hours a week for a salaried amount without

overtime compensation. The action is brought as a collective action under the FLSA, 29

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Section 216(b) applies to actions under the Age Discrimination in Employment

Act (“ADEA”), and cases (such as Hipp) construing Section 216(b) in the ADEA context

apply equally to cases brought under the FLSA. Albritton v. Cagle’s, Inc., 508 F.3d 1012,

1014 n.1 (11th Cir. 2007). 

2

Conditional certification is a predicate to notice. Morgan v. Family Dollar Stores,

Inc., 551 F.3d 1233, 1259 (11th Cir. 2008) (“[T]he importance of certification, at the

initial stage, is that it authorizes either the parties, or the court itself, to facilitate notice of

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U.S.C. § 216(b).

DISCUSSION

“An action to recover the liability prescribed in either of the preceding sentences

may be maintained against any employer ... in any Federal or State court of competent

jurisdiction by any one or more employees for and in behalf of himself or themselves and

other employees similarly situated.” 29 U.S.C. § 216(b) (emphasis added). The FLSA

thus allows the maintenance of a collective action, and notice to potential class members,

if the represented employees are “similarly situated” to the named plaintiffs. Hipp v.

Liberty National Life Insurance Co., 252 F.3d 1208, 1218 (11th Cir. 2001).1

 The

defendants argue that notice should not issue because the named plaintiffs are not

similarly situated to the Technicians the second amended complaint describes.

The Eleventh Circuit has recommended that trial courts consider certification

under Section 216(b) in two stages. “The first determination is made at the so-called

‘notice stage.’ At the notice stage, the district court makes a decision — usually based

only on the pleadings and any affidavits which have been submitted — whether notice of

the action should be given to potential class members.” Hipp, 252 F.3d at 1218 (internal

quotes omitted). “Because the court has minimal evidence, this determination is made

using a fairly lenient standard, and typically results in ‘conditional certification’ of a

representative class. If the court ‘conditionally certifies’ the class, putative class

members are given notice and the opportunity to ‘opt-in.’” Id. (internal quotes omitted).2

 

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the action to similarly situated employees.”). Although the plaintiffs have not explicitly

requested conditional certification, the defendants do not seek denial of the motion on that

basis. Accordingly, and because notice is the natural result of conditional certification,

the Court construes the plaintiffs’ motion to facilitate notice as encompassing a motion to

conditionally certify. 

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At the second stage, in response to a motion to decertify made after discovery, the court

makes a more informed factual determination on the similarly situated issue. Id. at 1218. 

While this two-tiered approach is only “suggest[ed],” not “require[ed],” id. at 1219, the

parties propose no alternative approach, and the Court opts to follow Hipp.

At the initial stage, “[t]he plaintiffs bear the burden of demonstrating a reasonable

basis for their claim of class-wide discrimination.” Grayson v. K Mart, 79 F.3d 1086,

1097 (11th Cir. 1996) (internal quotes omitted). “The plaintiffs may meet this burden,

which is not heavy, by making substantial allegations of class-wide discrimination, that

is, detailed allegations supported by affidavits which successfully engage defendants’

affidavits to the contrary.” Id. (internal quotes omitted). “[T]he district court should

satisfy itself that there are other employees ... who desire to ‘opt-in’ and who are

‘similarly situated’ with respect to their job requirements and with regard to their pay

provisions.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008) 

(internal quotes omitted). 

The plaintiffs have done precisely what Grayson and Morgan envision. Their

affidavits assert in some detail that they bore none of the characteristics that could render

them exempt; that they routinely were required to work over 40 hours a week without

overtime compensation; that the job duties/responsibilities of all Technicians were very

similar (suggesting they also were non-exempt); that other Technicians worked overtime

hours at a similar rate and without overtime compensation; that there were dozens if not

hundreds of such Technicians during the relevant time period; that temporary Technicians

acquired through Express were indistinguishable from Automotive’s employed

Technicians in job duties, hours of work, and lack of overtime compensation; that both

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temporary and permanent Technicians routinely worked over 40 hours a week without

overtime compensation, both in Automotive’s offices and on the road; and that many

Technicians, both temporary and permanent, repeatedly discussed how they desired to be

compensated for the extra hours they worked. (Doc. 46, Exhibits 2-7; Doc. 60, Exhibits

B-D).

The defendants first object that the plaintiffs are not similarly situated to the

proposed potential class members because the plaintiffs allege failure to pay overtime

only for work performed away from Automotive’s offices. That objection has been

rendered moot by the Court’s recent grant of the plaintiffs’ motion for leave to file a

second amended complaint, which alleges that the plaintiffs were illegally denied

overtime compensation both while on the road and while working in Automotive’s

offices.

Automotive argues that, despite the second amended complaint, the Court should

restrict notice to Technicians who were denied overtime while traveling, but it offers no

reason the Court should or even could do so. (Doc. 61 at 5). Express seconds

Automotive’s motion, explaining that the second amended complaint “does not in any

way change their assertion that each of the named Plaintiffs were employed as Technician

I’s that traveled to various car dealerships around the USA to perform Training Weeks

and Go Live Weeks.” (Doc. 62 at 3). The argument is inscrutable. The paragraphs to

which Express refers simply state, for each plaintiff, that she worked both in

Automotive’s office and by traveling to various car dealerships. There is nothing

inconsistent about alleging that the plaintiffs worked both on the road and in the home

office and alleging that they were denied overtime compensation both on the road and in

the home office. 

Express next argues that the temporary Technicians it supplied are not similarly

situated to the Technicians employed by Automotive, because: (1) Express and

Automotive are different employers; (2) Express and Automotive treat their employees

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In particular, Automotive defends on the grounds that its employees are exempt,

while Express concedes its supplied employees are non-exempt but insists they were paid

for all hours worked.

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differently; and (3) Express and Automotive pay their employees differently. (Doc. 57 at

6-8). As to the first distinction, Express has provided no authority suggesting that

employees of a temporary agency that supplies workers to another company are, for that

reason alone, not similarly situated to employees of the other company doing precisely

the same work. As to the second, Express does not identify any way in which it and

Automotive treat their employees differently, much less articulate how any such

distinction in treatment is relevant to the inquiry before the Court. 

As to the third, Express notes that the plaintiffs’ affidavits allege that

Automotive’s Technician employees were paid an annual salary on a bi-weekly basis,

while Express employees who worked for Automotive as Technicians were paid a salary

on a weekly basis. (Doc. 57 at 1-2, 3-4). While it is true that the prospective class

members should be similarly situated to the plaintiffs “with regard to their pay

provisions,” Morgan, 551 F.3d at 1259 (internal quotes omitted), there is evidence that

every member of both sets was paid by salary. Express has offered no authority or

argument to support its implicit position that persons performing a job who are paid a

salary every week cannot be similarly situated to persons performing the same job who

are paid a salary every other week. 

Express next argues that its supplied Technicians cannot be similarly situated to

Automotive’s employed Technicians because the defenses of Express and Automotive are

different. (Doc. 57 at 2, 3, 6-7 & 7 n.3).3

 The argument is unavailing, because

differences in defenses are considered at the second, de-certification stage, not at the

initial, conditional certification stage. Morgan, 551 F.3d at 1261-62. 

Even could Express show a meaningful difference between Technicians employed

by Automotive and those supplied by Express, it could hardly affect the pending motion. 

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This disposes as well of Express’s insistence that plaintiffs and proposed class

members must be victims of a “single” decision, policy or plan. (Doc. 57 at 6, 7). At

least as between the named plaintiff supplied by Express and other temporary

Technicians, the alleged failure to pay overtime compensation meets that standard. 

It is worth noting that “a unified policy, plan, or scheme of discrimination may not

be required to satisfy the more liberal ‘similarly situated’ requirement of § 216(b) ....” 

Grayson v. K Mart, 79 F.3d at 1095. Express does not acknowledge Grayson or explain

why it is inapplicable here. 

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As noted, one of the Technicians supplied by Express is a named plaintiff, and other

temporary Technicians from Express would be similarly situated to her even if they were

not similarly situated to Automotive employees.4

Changing tracks, Express argues that the plaintiffs have no evidence that any of its

supplied Technicians desire to opt in. (Doc. 57 at 8-9). The plaintiffs’ recent affidavits,

however, provide this evidence in abundant detail. (Doc. 60, Exhibits B-D).

The plaintiffs have submitted a proposed form of notice. (Doc. 46, Exhibit 1). 

Automotive objects that the notice creates an appearance of judicial partiality because it

states that “the United States District Court for the Southern District of Alabama has

authorized the sending of this notice.” (Doc. 55 at 4). It is true that, “[i]n exercising the

discretionary authority to oversee the notice-giving process, courts ... must take care to

avoid even the appearance of judicial endorsement of the merits of the action.” HoffmanLa Roche, Inc. v. Sperling, 493 U.S. 165, 174 (1989). However, the Court can detect no

violation of this rule in the proposed notice.

In its entirety, the section to which Automotive objects reads as follows:

V. NO OPINION EXPRESSED AS TO THE MERITS OF THE CASE. 

This Notice is for the sole purpose of determining the identity of 

those persons who wish to be involved in this lawsuit. Although the United 

States District Court for the Southern District of Alabama has authorized 

the sending of this notice, the Court expresses no opinion regarding the 

merits of the Plaintiffs’ claims or ACS’s or Express’ defenses.

The clause challenged by Automotive performs the salutary function of informing

recipients that none of the parties is trying to pull a fast one by sending the notice without

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The plaintiffs seek as well the social security numbers of potential class members. 

They have not explained why such information is needed or even appropriate, and the

Court will not require its production. See, e.g., Lightsey v. Potter, 2006 WL 2938715 at

*3 (N.D. Ga. 2006) (social security numbers need not be provided in discovery absent a

good explanation of their relevance and how such relevance outweighs the privacy

interests of the affected persons).

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judicial involvement, and the balance of the provision makes clear beyond cavil that the

Court has not endorsed the merits of the action. Other courts have approved similar

language. E.g., Martinez v. Cargill Meat Solutions, 2009 WL 5034479 at *9 (D. Neb.

2009); Craft v. Ray’s, LLC, 2008 WL 5458947 at *2 (S. D. Ind. 2008); Bailey v. Youth

Villages, Inc., 2008 WL 2987201 at *2 (W.D. Tenn. 2008); Updite v. Delta Beverage

Group, Inc., 2006 WL 3718229 at **7, 9 (W.D. La. 2006) (report and recommendation. 

Absent explanation or authority, which Automotive does not provide, the Court can find

no fault with the proposed language. 

Express “request[s] that any notice that be issued ... be agreed upon by all parties.” 

(Doc. 57 at 10). Because Express identifies no deficiency in, or objection to, the notice as

proposed by the plaintiffs, the Court will not engage in this idle exercise.

Express does challenge the plaintiffs’ proposed consent-to-join form, on two

grounds: (1) it fails to address whether the opt-in plaintiff was employed by Automotive

or by Express; and (2) it fails to address “the method by which the employee was paid.” 

(Doc. 57 at 9-10). Express does not explain why this information is necessary or even

appropriate for such a form. The opt-in plaintiff’s employer should be clear since — 

pursuant to a request by the plaintiffs to which the defendants do not object — the

defendants will be required to provide the plaintiffs the names and addresses of potential

class members for mailing purposes. (Doc. 46 at 3).5

 The “method” by which each opt-in

plaintiff was paid is both vague and, as the plaintiffs note, a subject of dispute in this

action (with Express alleging payment by the hour and the plaintiffs payment by salary). 

Express offers no reason it should be entitled to inject a question that, if answered

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favorably to Express — even if answered incorrectly or without adequate information or

reflection — will become a defense exhibit in this litigation.

Express “request[s] that ... the accompanying consent to join form be agreed upon

by all parties.” (Doc. 57 at 10). Because Express identifies no valid objection to the

proposed form, the Court will not require negotiations.

CONCLUSION 

For the reasons set forth above, the plaintiffs’ motion for conditional certification

is granted. The class is defined, as it is in the plaintiffs’ proposed notice, as “Employees

at Automotive Computer Services, Inc. and Express Services, Inc. ... who have held the

position of Level I Support Technician since August 27, 2006 and/or who are currently

holding this position.” 

The plaintiffs’ motion to facilitate notice is granted. The proposed form of notice

and proposed consent to join form are approved. The defendants are ordered to provide

to plaintiffs’ counsel, within 14 calendar days of the date of this order, the names and

addresses of all persons falling within the conditionally certified class. 

DONE and ORDERED this 4th day of March, 2010.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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