UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PEDRO EDENILSON MUNOZ, on behalf of himself and all other similarly situated individuals,

Plaintiff, Civil Action No. 12-1627 (CKK) v.

BIG VALLEY, INC.,

Defendant.

MEMORANDUM OPINION (January 3, 2013)

Plaintiff Pedro Edenilson Munoz filed a collective action complaint seeking to recover

damages from his former employer, Defendant Big Valley, Inc., for purported violations of the

Fair Labor Standards Act (“FLSA”), 29 US.C. §§ 201 et seq., and the District of Columbia

Minimum Wage Act Revision Act (“D.C. Minimum Wage Act”),

et seq.

See generally Compl., ECF No. [1]. Presently before the Court is the Plaintiff’s [9] Motion to

Facilitate Identification and Notification of Similarly Situated Employees, which the Defendant

opposes. Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a

whole, the Court finds the Plaintiff failed to provide the bare minimum factual showing

necessary for the Court to require the Defendants to disclose personal information2 for all of its

current and former employees since October 1, 2009, or for the Court to approve the notice of 1 Pl.’s Mot., ECF No. [9]; Def.’s Opp’n, ECF No. [10]; Pl.’s Reply, ECF No. [11]. 2 Because the Court denies the Plaintiff’s Motion, the Court does not reach the issue of whether the Defendant should be required to produce all of the requested information. Cf. Encinas v. J.J. Drywall Corp.,

(D.D.C. 2010) (“Because plaintiffs have not specifically justified their need for access to putative class members' phone numbers, the defendants will be ordered to produce only the names and last known addresses of putative class members.”). litigation proposed by the Plaintiff. Accordingly, for the reasons stated below, the Plaintiff’s [9]

Motion to Facilitate Identification and Notification of Similarly Situated Employees is DENIED

WITHOUT PREJUDICE.

I. BACKGROUND

The Complaint alleges that from April 1, 2011 through August 15, 2012, the Plaintiff was

employed as a full time “general laborer” for the Defendant “at its business location in

Washington, D.C.” Compl. ¶¶ 8-10. The Plaintiff explains that the Defendant “distribute[s]

food products,” and that he worked as a “general laborer,” but otherwise does not describe the

nature of the Defendant’s business or the scope of his own employment. Compl. ¶¶ 3, 10. The

Plaintiff claims that over the course of his employment with the Defendant, he consistently

worked approximately sixty-five hours per week and received a flat salary of $320 per week,

which increased over time to $400 per week. Id. at ¶¶ 17-18; Aff. of P. Munoz, ECF No. [9-2],

¶¶4-5. The Plaintiff argues that his weekly salary only compensated him for “non-overtime

hours worked each week,” and that he was never paid for hours worked each week in excess of

forty, in violation of both the FLSA and the DC Minimum Wage Act. Compl. ¶ 24. The

Plaintiff requests relief in the form of unpaid overtime wages and liquidated damages under both

statutes. Id. at ¶¶ 48, 54.

The Plaintiff asserts that he is aware of eleven other current and former employees of the

Defendant “who are similarly situated in that they were not, or are not currently, paid by

Defendant at the rate of one-and-one half (1½) times their regular rate of pay for all overtime

hours worked each week.” Munoz Aff. ¶ 9; Compl. ¶ 41. These potential class members

allegedly have yet to join this action because “they are not aware of their rights to overtime

compensation or because they fear that if they join this action they will be [sic] Defendant will

2 retaliate against them.” Munoz Aff. ¶ 10; Compl. ¶ 41. The present motion seeks an order

requiring the Defendant to disclose to the Plaintiff the full name, home address, home telephone

number, work telephone number, cellular telephone number, work address, and e-mail address of

every individual who has worked for the Defendant at any time since October 1, 2009, so as to

allow the Plaintiff to identify other potential FLSA plaintiffs. Pl.’s Proposed Order, ECF No. [9-

5].

II. LEGAL STANDARD

The Fair Labor Standards Act provides for “collective actions” to recover damages from

an employer for violation(s) of the statute, so long as each plaintiff consents in writing to joining

the action:

An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) 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. No 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.

(b) (emphasis added). Collective actions brought under the FLSA are not subject

to the provisions generally associated with class action under Federal Rule of Civil Procedure 23.

Castillo v. P & R Enterps., Inc.,

(D.D.C. 2007). Moreover, unlike a

traditional class action in which class members must “opt-out” of participating in the suit, FLSA

collective actions require each plaintiff to affirmatively “opt-in” to the lawsuit. Lindsay v. Gov’t

Emps. Ins. Co.,

(D.C. Cir. 2006).3

3 The D.C. Minimum Wage Act contains a similar provision requiring individuals to opt-in to a collective action.

(b). The Plaintiff’s motion and proposed notice concern only the FLSA, therefore the Court’s analysis is limited to potential members of a collective action under the FLSA only.

3 “Because trial court involvement in the notice process is inevitable in cases with

numerous plaintiffs where written consent is required by statute, it lies within the discretion of a

district court to begin its involvement early, at the point of the initial notice, rather than at some

later time.” Hoffmann-La Roche Inc. v. Sperling,

(1989). At this stage, the

Plaintiff need only make a “modest factual showing sufficient to demonstrate that they and

potential plaintiffs together were victims of a common policy or plan that violated the law.”

Castillo,

(citation omitted). Once discovery closes, if, based on the

factual record developed during discovery the Court determines that the class members are in

fact similarly situated, the case may proceed as a collective action. Id.4

III. DISCUSSION

The Plaintiff argues that he has met his burden to make the required factual showing

insofar as

Plaintiff, and others similarly situated individuals, were paid a flat weekly rate each week for performing their work duties. Each week, Plaintiff and others worked more than forty (40) hours per week and were not paid as proscribed by the FLSA for overtime hours worked. The weekly rate paid by Defendant to Plaintiff and other similarly situated individuals, as a matter of law, was only intended to compensate Plaintiff and others for non-overtime hours worked each week. Accordingly, Plaintiff and others similarly situated individuals are owed overtime wages in the amount of one-and-one-half (1½) times their regular rate of pay for all overtime hours worked each week.

Pl.’s Mot. at 9. The excerpt above constitutes the entirety the “factual showing” in the Plaintiff’s

motion. Noticeably absent from the motion is any explanation as to how the Plaintiff is

“similarly situated” to other former or current employees of the Defendant. The Plaintiff’s

Affidavit offers only that he is similarly situated with at least eleven other individuals “in that

4 Because the Plaintiff has not moved to conditionally certify a class, but rather requests an order to facilitate identification of potential class members, the impetus would be on the Plaintiff to move for class certification at the close of discovery. Cf. Castillo,

.

4 they were not, or are not currently paid by the Defendant at the rate of one-and-one-half (1½)

times their regular rate of pay for all overtime hours.” Mundoz Aff. ¶ 9. In other words, the

Plaintiff offers nothing more than conclusory allegations that other employees were not paid in

accordance with the FLSA to establish they are “similarly situated” to the Plaintiff. The burden

on the Plaintiff at this point is not stringent, but legal conclusions devoid of any factual basis are

insufficient to show that the Plaintiff and the other individuals “were victims of a common policy

or plan that violated the law.” Castillo,

(citation omitted).

The Plaintiff boldly asserts in his motion that “the mere fact that employees are

categorized in a certain way by their employer or that employees may work in multiple locales is

irrelevant to the issue of whether or not they are similarly situated.” Pl.’s Mot. at 5 (emphasis

added). Two employees may be similarly situated for purposes of the FLSA despite different

responsibilities and work sites, but the Court has no way to make that determination on the

present record. Cf. Castillo,

(finding that although janitors at certain

locations were represented by unions, “unionization d[id] not appear to affect how Plaintiffs and

other janitors perform the work in their assigned buildings, nor how their hours are submitted to

payroll for compensation,” therefore location was irrelevant). The Court has literally no

information as to when the eleven individuals mentioned by the Plaintiff worked for the

Defendant, in what capacity they were employed, how they were paid, or how the Plaintiff has

personal knowledge of their wages. The Plaintiff describes himself as a “general laborer” who

received a weekly salary, but seeks personal information regarding every other current and

former employee (within a particular time frame) of the Defendant regardless of how those

employees were paid, and regardless of whether or not they are exempt from the FLSA in the

first place. On this record, the Court cannot say that the Plaintiff has met his modest burden to

5 show that he and every other employee of the Defendant were “victims of a common policy or

plan that violated the law.”5

Without any analysis, the Plaintiff asserts that other courts in this District have accepted

similar proffers in the context of the same type of motion---that is, a motion seeking information

from the defendant(s) and notice to potential plaintiffs, but not conditional certification. In

contrast to this case, the movants in the cases relied on by the Plaintiff provided substantially

greater detail regarding why the movant was similarly situated to the group of employees whose

information the movant sought.6 For example, in Brown v. On the Go Transportation, Inc., No.

10-371 (D.D.C. filed Mar. 5, 2010), Judge John D. Bates granted a similar motion, relying on

two affidavits from named plaintiffs which explained that while employed by the defendants

“‘[d]rivers, including [each named plaintiff], regularly worked as much as seventy-five (75)

hours per week,’” but did not receive any compensation for overtime hours. Brown v. On the Go

Transp., Inc., No. 10-371, Mem. Opin. & Order at 3 (D.D.C. filed Aug. 9, 2010). Similarly,

Judge Richard J. Leon granted the same type of motion based on representations from the

Plaintiff that she

ha[d] personal knowledge that other current and former employees of Defendants (who are similarly situated in that they worked for Defendants’ at their dry cleaning facilities, they provided dry cleaning services, they were paid on an hourly basis, they were paid in cash by Defendants, and they did not perform work that would qualify them as exempt from the overtime requirements of the FLSA) worked in excess of forty (40) hours per week on a regular basis for

5 This is not to say that the Plaintiff could not seek certification of a class comprised of a specific subset of employees, but at this point the Plaintiff has sought information regarding all current and former (since October 1, 2009) employees of the Defendant, and thus must make the required showing as to that entire set of individuals. 6 Although cited by the Plaintiff, the Court does not analyze Judge Ricardo M. Urbina’s order in Barringer because that plaintiff’s motion was granted as conceded. Barringer v. U.S. One Transp., No. 10-1656, Mem. Order (D.D.C. filed Jan. 24, 2011).

6 Defendants during the relevant time period. These employees also were not compensated at a rate of one and one-half (1½) times their regular rate for overtime hours.

Malalgodapitiya v. JAAM, Ltd., No. 06-430, Pl.’s Mot. to Facilitate Identif. & Notif. of Similarly

Situated Emps. at 2-3 (D.D.C. filed June 8, 2006); see Malalgodapitiya v. JAAM, Ltd., No. 06-

430, Order (D.D.C. filed Jan. 9, 2007).

Finally, Judge Beryl A. Howell granted a similar motion upon the plaintiff’s showing that

she had personal knowledge that other employees of the defendants were similarly situated

insofar as they each “(1) danced for Defendants as exotic dancers at their club; (2) were paid a

dance shift wage; (3) were paid in cash by Defendants; (4) and had their wages unlawfully

withheld and were not compensated at the rate of the prescribed minimum wage or higher, as

required by law.” Thompson v. Linda & A, Inc., No. 09-1942, Pl.’s Mot. to Facilitate Identif. &

Notif. of Similarly Situated Emps. at 10 (D.D.C. filed Jan. 29, 2010); see Thompson v. Linda &

A, Inc., No. 09-1942, Order (D.D.C. filed May 6, 2010). In each of these cases, the plaintiff(s)

submitted affidavits reflecting their personal knowledge that individuals employed in similar

roles were paid by a similar method, which violated the FLSA. The Plaintiff’s affidavit in this

case omits any factual statements regarding the other employees’ roles or payment method(s),

and simply leaps to the legal conclusion that the payment of those individuals violated the FLSA.

The Court cannot rely on the Plaintiff’s assertion that he is similarly situated to other individuals;

the Plaintiff must submit some factual basis from which the Court can conclude the Plaintiff and

other employees were similarly situated and suffered from a common policy that violated the

FLSA.

IV. CONCLUSION

For the foregoing reasons, the Court finds the Plaintiff failed to make the modest showing

7 that he is similarly situated to all other current and former employees of the Defendant for

purposes of the FLSA, which is necessary before the Court may (1) require the Defendant to

disclose the personal information of all other employees, or (2) approve the proposed notice to

potential plaintiffs regarding this lawsuit. The Plaintiff’s motion and affidavit offer only the

conclusory allegation that the Plaintiff knows of other individuals employed by the Defendant

whose pay violated the FLSA. The Plaintiff failed to provide any facts to show that the Plaintiff

and other employees were subject to a common policy or plan that violated the FLSA.

Accordingly, the Plaintiff’s [9] Motion to Facilitate Identification and Notification of Similarly

Situated Employees is DENIED WITHOUT PREJUDICE. An appropriate Order accompanies

this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

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