Ware v. T-Mobile USA
828 F. Supp. 2d 948
M.D. Tenn.2011Background
- Plaintiffs move for court-supervised notice to potential FLSA collective action members under 29 U.S.C. § 216(b).
- Defendant is T-Mobile USA; plaintiffs allege unpaid pre-shift work, unpaid meal-break work, and miscalculated overtime regular rate at nationwide call centers.
- Named plaintiffs are six former or current non-exempt employees from Nashville, TN, and Colorado Springs, CO call centers; nationwide class is proposed.
- Plaintiffs seek names, addresses, and e-mails of eligible employees, notice dissemination by plaintiffs’ counsel, 120-day opt-in period, and tolling of the statute of limitations.
- Court applies the two-stage framework for FLSA conditional certification; at stage one, the court assesses whether plaintiffs are similarly situated.
- Court grants conditional certification only for Nashville and Colorado Springs centers; nationwide certification denied without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs are similarly situated to other employees | Ware and others show a common policy of uncompensated pre-shift work and miscalculated overtime. | Insufficient interest and potential individualized liability preclude conditional certification. | Conditionally certify for Nashville and Colorado Springs only. |
| Whether sufficient interest exists to notify others to opt in | Opt-in by at least one former employee exists; broad remedial goal supports notice. | Need show of widespread interest among potential class members. | Sufficient interest shown; notice may proceed for the Nashville/Colorado Springs group. |
| Whether Dukes v. Wal-Mart affects FLSA conditional certification analysis | Dukes does not apply to FLSA collective actions; O’Brien remains controlling. | Dukes requires individualized liability considerations that undermine conditional certification. | Dukes does not alter the FLSA analysis; conditional certification remains appropriate. |
| Scope of conditional certification | Evidence supports nationwide theories of liability for overtime calculations. | Only Nashville and Colorado Springs show uniform pre-shift and overtime issues; other centers lack evidence. | Conditional certification limited to Nashville and Colorado Springs. |
| Appropriate form and deadlines for notice and consent | Proposed forms adequately inform and allow opt-in; 120-day period is reasonable. | Notice forms may be deficient; 120 days potentially excessive. | Parties to confer to finalize notice and consent forms within 20 days; unresolved objections may be raised. |
Key Cases Cited
- Comer v. Wal-Mart Stores, Inc., 454 F.3d 544 (6th Cir.2006) (two-stage framework; modest showing suffices at first stage)
- O’Brien v. Ed Donnelly Enters., 575 F.3d 567 (6th Cir.2009) (similarly situated standard; less stringent than Rule 23)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (Supreme Court 2011) (class certification under Rule 23 not appropriate; not controlling for FLSA)
- Dybach v. Florida Dep’t of Corr., 942 F.2d 1562 (11th Cir.1991) (no minimum number of opt-ins required to show interest; enough to show desire to opt in)