United States District Court, D. Kansas
ASHLEY FOSTER, individually and on behalf of other similarly situated persons, Plaintiff,
ROBERT BROGDEN'S OLATHE BUICK GMC, INC., Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
Ashley Foster, individually and on behalf of other similarly
situated persons, filed this lawsuit against defendant Robert
Brogden's Olathe Buick GMC, Inc. She alleges that
defendant violated the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.
and the Kansas Wage Payment Act (“KWPA”), Kan.
Stat. Ann. § 44-312 et seq. Doc. 1. The parties
have agreed on a class-wide settlement. They now ask the
court to grant preliminary approval of their collective
action settlement. Doc. 37. For reasons explained below, the
court respectfully declines the parties' request.
alleges that defendant failed to pay her and the putative
class members fully and fairly because of an automatic pay
deduction protocol. Plaintiff says this pay deduction
protocol deducted 30 minutes from every hourly employee's
daily pay record even if the employee did not take a lunch
break. Defendant denies these allegations.
court assigned this matter to mediation, and on November 21,
2017, the parties engaged in that process before Mr. Joseph
Eischens. The parties reached an agreement in principle on
the FLSA collective action claim at mediation. And plaintiff
stipulated to dismiss the KWPA claim without prejudice. On
January 28, 2018, the parties reached a proposed settlement
settlement agreement proposes that:
1. Defendant will pay $12, 000 plus the costs of mediation
into a settlement fund to be held in escrow by the settlement
administrator for payment to the putative class members who
2. The payments to class members will be based on automatic
deductions for lunch breaks assessed against each class
member from March 1-December 31, 2016.
3. Defendant will not discharge or discriminate against any
current or former employee who is a member of the settlement
4. At least 10 days before the final fairness hearing,
plaintiffs' counsel will apply to the court for an
attorneys' fee award to be paid from and not to exceed
one-third of the settlement payment. Also, plaintiffs'
counsel will ask the court to order reimbursement for their
reasonable out-of-pocket litigation costs and expenses.
the parties seek the court's preliminary approval of
their collective action settlement.
parties to an FLSA action must present a putative settlement
of those claims to the court for review, and the court must
determine whether the settlement is fair and reasonable.
Barbosa v. Nat'l Beef Packing Co., LLC., No.
12-2311-KHV, 2015 WL 4920292, at *3 (D. Kan. Aug. 18, 2015)
(citing Lynn's Food Stores, Inc. v. United
States, 679 F.2d 1350, 1353 (11th Cir. 1982)). “To
approve an FLSA settlement, the Court must find that the
litigation involves a bona fide dispute and that the proposed
settlement is fair and equitable to all parties
concerned.” Id. (citing Lynn's Food
Stores, Inc., 679 F.2d at 1353). Also, when parties
settle FLSA claims before the court has made a final
certification ruling, the court must make some final class
certification findings before it can approve an FLSA
collective action settlement. Id. (citing
McCaffrey v. Mortg. Sources, Corp., No. 08-2660-KHV,
2011 WL 32436, at *2 (D. Kan. Jan. 5, 2011)).
following three sections, the court discusses collective
action certification, the fairness and reasonableness of the
proposed settlement agreement, and the fairness and
reasonableness of the proposed service payment to plaintiff.
Ultimately, the parties have presented the court insufficient
evidence to make rulings on these issues so, on the current
record, the court cannot preliminarily approve the
parties' collective action settlement.
FLSA Collective Action Certification
§ 216(b) of the FLSA, a group of employees may bring
claims against their employer on behalf of employees who are
“similarly situated” to plaintiffs. 29 U.S.C.
§ 216(b). Unlike class actions under Fed.R.Civ.P. 23,
“[n]o employee shall be a party plaintiff to any such
action 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.” Id. In other words,
putative class members who wish to join this lawsuit must
216(b) does not define the term “similarly
situated.” But, the Tenth Circuit has approved a
two-step approach for determining whether plaintiffs in a
proposed opt-in collective action are “similarly
situated” for purposes of § 216(b). Thiessen
v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th
Cir. 2001). Under this approach, a court makes an initial
“notice stage” determination about the
similarly-situated requirement. Id. at 1102.
“That is, the court determines whether a collective
action should be certified for purposes of sending notice of
the action to potential class members.” In re Bank
of Am. Wage & Hour Emp't Litig., 286 F.R.D. 572,
576 (D. Kan. 2012). The court must certify the case
conditionally as a collective action before plaintiffs may
send notice to putative class members of their right to
opt-in. Folger v. Medicalodges, Inc., No.
13-1203-MLB, 2014 WL 2885363, at *2 (D. Kan. June 25, 2014).
conditional certification at the notice stage, courts
“‘require nothing more than substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan.'”
Thiessen, 267 F.3d at 1102 (quoting Vaszlavik v.
Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo.
1997)). As a result, the standard for certification at the
notice stage is a lenient one and typically results in
certification. In re Bank of Am. Wage & Hour
Emp't Litig., 286 F.R.D. at 576.
second stage, or final certification, comes after the parties
have completed discovery. Thiessen, 267 F.3d at
1102-03; Folger, 2014 WL 2885363, at *2. At this
stage, courts apply a stricter standard to the
similarly-situated requirement. Thiessen, 267 F.3d
at 1102-03. During final certification, the court considers:
“(1) the disparate factual and employment settings of
individual plaintiffs; (2) various defenses available to
defendant which appear to be individual to each plaintiff;
and (3) fairness and procedural considerations.”
Grove v. ZW Tech, Inc., No. 11-2445-KHV, 2012 WL
1789100, at *4 (D. Kan. May 17, 2012) (citing
Thiessen, 267 F.3d at 1103) (other citation
omitted). Importantly, before the court can approve a
proposed FLSA collective action settlement, it must make a
final certification ruling. Barbosa, 2015 WL
4920292, at *3 (citing McCaffrey, 2011 WL 32436, at
the parties do not request a final certification ruling, and
they do not present sufficient evidence to allow the court to
make such a decision. This omission prevents the court from
approving the proposed class action settlement. See
Gambrell v. Weber Carpet, Inc., No. ...