United States District Court, E.D. Missouri, Eastern Division
MAR'BELLA SANDOVAL, individually and on behalf of all others similarly situated, Plaintiff,
SERCO, INC., Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's Opposed Motion
for Conditional Certification and Notice to Putative Class
Members (Doc. No. 38) and Defendant's Motion for Denial
of Plaintiff's Motion for Court-Facilitated Notice,
Accounting of Plaintiff's Communications with Putative
Class Members, and Sanctions. (Doc. No. 64). The motions are
fully briefed and ready for disposition.
an action for overtime pay under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201-219 and the
Missouri Minimum Wage Law (“MMWL”), Mo. Rev.
Stat. §§ 290.500, et seq. Defendant Serco, Inc.
(“Serco”) is a multinational services company
headquartered in Virginia that serves primarily federal,
state, and local governments. (Collective/Class Action
Complaint (“Compl.”), Doc. No. 1 at ¶ 20).
Serco employs numerous customer service or call-center
employees across the nation who are responsible for speaking
with and assisting customers of Serco's clients.
Plaintiff is a former Serco hourly call-center employee.
(Compl. at ¶ 11).
brings Count I of her complaint as an “opt-in”
collective action under the FLSA, § 216(b), on behalf of
“all hourly call-center employees who were employed by
Serco, Inc., anywhere in the United States, at any time from
September 17, 2015 through the final disposition of this
matter.” (Compl. at ¶ 40). Count II is brought
under the MMWL as a Federal Rule of Civil Procedure 23 class
action on behalf of “all hourly call-center employees
who were employed by Serco, Inc., in Missouri, at any time
from September 17, 2016 through the final disposition of this
matter.” (Compl. at ¶ 69).
alleges that she and the putative class members are required
to start and log-in to their computers, open and log-in to
multiple different Serco computer programs, and ensure that
each program is running correctly - all of which can take up
to twenty minutes - before they are able to take their first
phone call, which comes in as soon as their official shift
starts. (Compl. at ¶ 27). Plaintiff further alleges that
Serco frequently required her and the putative class members
to assist customers after the end of their scheduled shifts,
and to remain at their computers during the lengthy shut-down
process, activities which were performed after the
employees' scheduled shifts had concluded. (Compl. at
¶ 28). As a result of Serco's policy and practice of
requiring its employees to perform these start-up and
shut-down tasks off-the-clock and without pay before their
scheduled shifts began, and after their scheduled shifts
ended, Plaintiff alleges that she and the putative class
members were not compensated for all hours worked. (Compl. at
¶¶ 3, 4, 26-34).
November 21, 2018, Plaintiff filed her Motion for Conditional
Certification and Notice to Putative Class Members. (Doc. No.
38). In her motion, Plaintiff requests the Court
conditionally certify a collective action and authorize
notice to the following class:
All hourly call-center employees who worked for Serco, Inc.
in the Affordable Care Act Division, anywhere in the United
States, at any time in the preceding three years through the
final disposition of this matter.
opposes certification on the grounds that Plaintiff has
failed to (1) clearly define the group of individuals she
purports to represent; and (2) establish she is
“similarly situated” to the individuals she
purports to represent. In further opposition, Serco argues
that conditional certification and court-facilitated notice
would be improper because Plaintiff has already, without this
Court's authorization, distributed notice before filing
her motion. Serco notes that by the time it filed its answer
to Plaintiff's complaint on November 9, 2018, 273 consent
to join forms had been filed by Plaintiff's counsel.
(See Doc. Nos. 9-19, 22-25, 27, 31, 34-36).
March 14, 2019, Serco filed a motion for denial of
court-facilitated notice, accounting of Plaintiff's
communications with the putative class, and sanctions,
asserting that Plaintiff's counsel has been unilaterally
contacting unrepresented individuals to solicit their
participation in this case. According to Serco, on February
17, 2019, an attorney at Plaintiff's counsel's firm
emailed the following communication to an unknown number of
We have added an update to our case against Serco. You can
find the update here,
Please share this website with anyone you know
who worked for Serco so they can complete the consent form
linked at the bottom to join the case. Every person who joins
makes the case stronger and pushes Serco to settle more
quickly before more people join. Additionally,
please take a moment to look at our other active cases.
Oftentimes, wage violations like the one in this case are
shared across the industry and you may find that you are
eligible for another case we have against another employer
you worked for.
If you have already signed a consent form to join this case
you do not need to complete another one. If
your address, phone number, or other contact details have
changed please email those changes to
Team@a2xlaw.com with the subject line CHANGE OF
E-MAIL NOTICE - The information contained in this email is
intended only for the individual or entity to which it is
addressed. Its contents (which include any attachments) may
contain confidential or privileged information or both. If
you are not an intended recipient, you are prohibited from
using, disclosing, disseminating, copying or printing its
contents. If you received this email in error, please notify
the sender and purge all copies from your system.
(Emphasis added). (Doc. No. 66-2). One of the recipients of
this communication posted it to her Facebook page on February
20, 2019. Serco argues this communication is misleading,
improper, and unethical, and a “perversion” of
the court-facilitated notice process.
Motion for conditional certification
7 of the FLSA mandates that an employer may not subject
non-exempt employees to a work week in excess of forty hours,
unless the employee is compensated for his or her overtime
with additional pay of at least one and one-half times his or
her regular hourly wage. 29 U.S.C. § 207. A collective
action under the FLSA to recover overtime compensation and
liquidated damages may be maintained, “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). Unlike a Rule 23 class action, a collective action
under the FLSA is pursued on an “opt-in” basis,
requiring employees to provide their consent in writing to
join the action. Id.; Murphy v. Ajinomoto
Windsor, Inc., No. 1:15CV0120, 2017 WL 1194455, at *2
(E.D. Mo. Mar. 30, 2017).
FLSA does not define the term “similarly
situated.” Kautsch v. Premier Communications,
504 F.Supp.2d 685, 689 (W.D. Mo. 2007). Moreover, the Eighth
Circuit has not yet decided the standard for determining
whether employees are “similarly situated.”
District courts in this circuit, however, consistently apply
a two-step analysis to the question of conditional
certification. See, e.g., Kennedy v.
Boulevard Bank, No. 4:12CV40 JCH, 2012 WL 3637766, at *2
(E.D. Mo. August 22, 2012); Ondes v. Monsanto Co.,
No. 4:11CV197 JAR, 2011 WL 6152858, at *2 (E.D. Mo. Dec. 12,
2011); Perrin v. Papa John's Intern., Inc., No.
4:09CV1335 AGF, 2011 WL 4089251, at *2 (E.D. Mo. Sept. 14,
2011); Beasely v. GC Servs. LP, 270 F.R.D. 442, 444
(E.D. Mo. 2010); and Littlefield v. Dealer Warranty
Servs., LLC, 679 F.Supp.2d 1014, 1016 (E.D. Mo. 2010).
this two-step process, the plaintiff first moves for class
certification at an early stage in the litigation.
Kautsch, 504 F.Supp.2d at 688. A plaintiff's
burden when seeking conditional certification is not onerous
and the merits of a plaintiff's claims are not
considered. Id. Plaintiffs can meet this burden by
making a modest factual showing, based upon the pleadings and
affidavits, that the proposed class were victims of a single
decision, policy, or plan. Ondes, 2011 WL 6152858,
at *3 (citations omitted). The plaintiff “need not show
that members of the conditionally certified class are
actually similarly situated.” Dernovish v. AT&T
Operations, Inc., No. 09-0015-CV-W-ODS, 2010 WL 143692,
at *1 (W.D. Mo. Jan. 12, 2010) (internal quotations and
citation omitted). The Court will not make any credibility
determinations or findings of fact with respect to
contradictory evidence presented by the parties at this
initial stage. Perrin, 2011 WL 4089251, *3 (citing
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