IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
Case No. 12-1415-CV-W-ODS
PETER UWAEKE, WRICKEY JEAN
ROBERSON and TAMIKA OLIVER,
SWOPE COMMUNITY ENTERPRISES, )
INC. and SWOPE HEALTH SERVICES, )
ORDER AND OPINION GRANTING PLAINTIFFS’ MOTION
TO CONDITIONALLY CERTIFY COLLECTIVE ACTION
Pending is Plaintiffs’ motion to conditionally certify a collective action pursuant to
29 U.S.C. § 216(b). The motion (Doc. # 19) is granted.
Most – if not all – CSWs and CSSs worked within the Community Psychiatric
Plaintiffs are current and former employees of one or both defendants who held
the job title of Community Support Worker (“CSW”) or Community Support Specialist
(“CSS”). The identity of their employer is in dispute, and this dispute is not presented in
the instant motion.
Rehabilitation Program (“CPRP”). All CSWs and CSSs had the same written job
description. Indeed, it appears that state law required there be a written job description
for these individuals. See 9 C.S.R. § 10-7.110(a)(A). Generally speaking, these duties
involved providing services to clients to monitor their adjustment to community living.
Defendants concede that a single written job description exists for all CSW/CSS
employees, but the precise nature of those duties depends on a variety of details such
as whether the employee works with adults or children, works with individuals with drug-
related problems, or the like. Plaintiffs contend they were often required to work more
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than forty hours per week and that they were not paid overtime as required by the Fair
Labor Standards Act.
29 U.S.C. § 216(b) provides that a plaintiff may bring suit under the FLSA “for
and in behalf of himself . . . and other employees similarly situated.” However, an
employee does not become a party to the suit “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.” To date, more than fifty individuals have filed notices indicating their consent
to join in this action. Plaintiffs’ seek conditional certification of a collective action so they
can send notices to all employees who might be eligible to opt in. Specifically, they
propose sending notice to
all non-supervisory Community Support Specialists and Community
Support Workers employed by Swope in the Community Psychiatric
Rehabilitation Program within the past three years who were classified as
exempt from the FLSA’s overtime requirements and who worked more
than 40 hours in a workweek.
The Eighth Circuit has not adopted a particular standard for evaluating such
requests, but a majority of courts in this circuit have used the analysis adopted by the
Fifth Circuit. “Under this two step-process, the plaintiff first moves for class certification
for notification purposes. . . . At this early stage of the litigation, the Court does not
reach the merits of the plaintiff’s claims. Once the Court conditionally certifies the class,
potential class members are given notice and the opportunity to ‘opt-in.’” Kautsch v.
Premier Communications, 504 F. Supp. 2d 685, 688 (W.D. Mo. 2007). “At the second
step of the process, the defendant may move to decertify the class. This is typically
done after the close of discovery when the Court has much more information and is able
to make a more informed decision.” Id.
conditional in nature, a plaintiff’s burden is not onerous. There is no need to show that
the would-be members are identical. It is sufficient if the plaintiff presents some
Because the decision at this stage is made with limited information and is
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The Court concludes Plaintiffs have met the burden imposed on them at this
evidence demonstrating the class members are similar in important respects, most
notably by demonstrating they are subjected to similar policies or circumstances. E.g.,
Robertson v. LTS Mgt. Servs. LLC, 642 F. Supp. 2d 922, 926 (W.D. Mo. 2008); Huang
v. Gateway Hotel Holdings, 248 F.R.D. 225, 227 (E.D. Mo. 2008); Kautsch, 504 F.
Supp. 2d at 689; Young v. Cerner Corp., 503 F. Supp. 2d 1226, 1229 (W.D. Mo. 2007).
stage of the proceedings. The class members have the same job titles, are governed
by the same written job description, and were treated the same in terms of whether (or
not) they received overtime compensation. Their job duties are similar in nature as well.
Defendants have endeavored to identify differences in the particulars of each
employee’s duties and responsibilities, but these differences are insufficient to prevent
Plaintiffs from meeting the minimal burden imposed at this juncture. Even if the Court
were to reach the merits – which it is not supposed to do at this early stage –
Defendants have not suggested how these slight variations have any legal significance.
Young, the plaintiff sought to conditionally certify opt-in classes based on pay grades,
not job duties. In rejecting certification, the court noted that “other than being paid at the
same compensation levels, Plaintiffs have not alleged a single common policy or
practice governing all these employees. Their job responsibilities are so varied that it is
hard to conceive of a single policy that could govern them all.” Young, 503 F. Supp. 2d
at 1231. In the present case, the duties of CSW/CSS workers appear sufficiently similar
to permit conditional certification.
be amended. In their Reply Suggestions Plaintiffs indicate they are reformulating the
class definition, and the notice needs to be amended in numerous places to reflect this
change. This change also renders most of Defendants’ objections moot.
defendant/employer because SCE denies being any plaintiff’s employer. The Court
does not know who the employer is, and SCE is certainly a defendant at this juncture.
Unless and until the Court concludes SCE should be dismissed, SCE shall be treated
Defendants object to the inclusion of Swope Community Enterprises (“SCE”) as a
Defendants’ attempted comparison of this case to Young is unpersuasive. In
The Court generally approves of Plaintiffs’ proposed Notifie, although it must first
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as if it is a defendant. Plaintiffs are asserting claims against SCE, and so long as they
are seeking relief from SCE there is no impropriety in including SCE in the Notice.
Defendants correctly contend the description of the “Claims in the Lawsuit,”
specifically Item 4, is confusing. This item states Defendants violated the FLSA “in two
different ways” then identifies the “first” way, but does not include a second. Either
there is only one way, there needs to be a second way added, or the “first” way needs
to be divided into a “first” and “second.”
Defendant contends the starting date for the class period is incorrect, and the
Court agrees in part. The statute of limitations for an FLSA claim is two years unless
the employer acted willfully, in which case the limitation period is three years. The
Notice indicates the class period starts in May 2010, which Defendant correctly points
out has no correspondence to the date this suit was filed in December 2012. While
Plaintiffs have not explained their thought process on this issue, the Court believes it
can be discerned. The Notice is intended for employees who have not already filed
their Consent to Join. For those people, the statute of limitations was not tolled by the
filing of the suit and will be tolled (if at all) only after they file their Consent to Join. The
Notice states the class begins May 2010 because Plaintiffs initially filed their motion in
May 2013 – so the earliest valid claim asserted by an employee responding to the
Notice (assuming the three year limitation period applies) would be from May 2010. Of
course, the Notice will not be disseminated until sometime in July or August 2013, so
the month will have to be changed.
years because Plaintiffs’ have not proved Defendants acted willfully. Plaintiffs have not
proved anything – indeed, this is why their burden is so low at this juncture. Plaintiffs
refer to Department of Labor Opinion Letters from and before 2007 to substantiate their
legal claim, and it may be that an employer who acts contrary to four separate opinion
letters could be deemed to have acted “willfully.” The Court need not decide this issue.
It is sufficient to note that the statute of limitations could be three years, and prudence
dictates that the Notice be directed to the largest permissible class.
In a final group of arguments, Defendants object to the Notice’s characterization
of their position. The Notice merely indicates that “Swope denies that it has improperly
In a related argument, Defendants contend the limitation period should be two
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Inasmuch as Plaintiffs must amend the Notice for the reasons discussed above,
paid any current or former” employees, and the Court cannot discern any error in this
statement. Defendants also allude to other disagreements and express a willingness to
discuss the matter with Plaintiffs. The problem is that the clock is ticking: the statute of
limitations on an employee’s claim is not tolled unless and until that employee files
notice of his or her consent to join. Thus, while Defendants are discussing and
negotiating these unidentified disagreements, employees’ claims are diminishing.
the Court sees no harm in allowing Defendants an opportunity to provide input.
However, the Court intends for Plaintiffs to resubmit the proposed Notice within two
weeks, and Defendants will have the same amount of time to provide input. They are
free to make suggestions to Plaintiffs, and they are free to submit alternative proposals
to the Court. Any disagreements will be resolved by the Court. To this end, the parties
are directed that in addition to filing their proposals on or before July 25, 2013, they
should e-mail their proposals in a word processing format so they can be edited by the
provide Plaintiffs with a computer readable data file containing the name, last known
address, dates of employment, phone number and e-mail addresses (both personal and
work) for each current and former employee falling within the class definition.
Defendant is also ordered to post a copy of the Notice in all break rooms until the opt-in
IT IS SO ORDERED.
DATE: July 10, 2013
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
The opt-in period shall end ninety days after the Court issues its final approval of
With regard to dissemination of the Notice, Defendants shall have two weeks to
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