Dominick v. United States
17-113
Fed. Cl.Dec 19, 2017Background
- Five current civilian police officers at Homestead Air Reserve Base (HARB) sued the United States under the FLSA and Back Pay Act claiming unpaid pre-shift work and uncompensated weekend/night differentials.
- Plaintiffs allege Air Force policy required officers to arrive 15 minutes before shifts ready to work but they were not paid for that time.
- Plaintiffs sought conditional certification of a collective action for all civilian police officers employed at HARB from Jan. 25, 2014 to Aug. 24, 2017 to facilitate opt-in notices under 29 U.S.C. § 216(b).
- The Government consented to conditional certification in principle but conditioned consent on court approval of the proposed notice and distribution plan.
- The Court applied the two-step FLSA collective-action framework and required more than bare pleading allegations — a modest factual showing supported by affidavits or other evidence that putative members were subject to a common policy.
- Because plaintiffs submitted only the complaint’s allegations and no supporting affidavits/evidence, the Court denied conditional certification without prejudice and cautioned about complying with the Scheduling Order for notice/opt-ins.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs are "similarly situated" for conditional certification under the FLSA | Plaintiffs contend all HARB civilian police share same job duties and pay practices and were subject to an Air Force practice of uncompensated pre-shift time | Gov't agreed to conditional certification conditionally (dependent on court-approved notice) and reserves right to seek decertification later | Denied without prejudice — plaintiffs failed to make the required modest factual showing supported by affidavits/evidence |
| Whether proposed notice/opt-in plan complies with court orders and timing requirements | Plaintiffs proposed class and notice period to solicit opt-ins | Gov't conditions consent on court’s approval of notice and distribution; Scheduling Order sets proof-of-consent timeline | Court denied motion but instructed plaintiffs to follow Scheduling Order and warned notice plan must comply when refiled |
Key Cases Cited
- Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165 (stating courts use procedures to determine who is "similarly situated" under FLSA)
- Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (conditional certification does not create a class or add parties; it only authorizes notice)
- Whalen v. United States, 85 Fed. Cl. 380 (Fed. Cl. two-step approach and modest factual showing standard for conditional certification)
- Gayle v. United States, 85 Fed. Cl. 72 (discussing various approaches and evidentiary requirement for company-wide FLSA collective)
- Barry v. United States, 117 Fed. Cl. 518 (plaintiffs must present affidavits or other evidence beyond pleadings to support conditional certification)