COLLEEN KOLLAR-KOTELLY, District Judge.
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 U.S.C. §§ 201 et seq., and the District of Columbia Minimum Wage Act Revision Act ("D.C. Minimum Wage Act"), D.C. Code §§ 32-1001 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,
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
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 (1 ½) 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 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].
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:
29 U.S.C. § 216(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., 517 F.Supp.2d 440, 444 (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., 448 F.3d 416, 419 (D.C.Cir.2006).
"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, 493 U.S. 165, 171, 110 S.Ct. 482, 107 L.Ed.2d 480 (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, 517 F.Supp.2d at 445 (citation omitted). Once discovery closes, if, based on the factual record developed during
The Plaintiff argues that he has met his burden to make the required factual showing insofar as
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 they were not, or are not currently paid by the Defendant at the rate of one-and-one-half (11/2) 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, 517 F.Supp.2d at 445 (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, 517 F.Supp.2d at 446 (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
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.
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
For the foregoing reasons, the Court finds the Plaintiff failed to make the modest showing 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.