Case: 1:14-cv-07858 Document #: 104 Filed: 11/07/15 Page 1 of 7 PageID #:813

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID M. JOHNSON,
)
PLAINTIFF,
) NO. 1:14-cv-07858
-VS)
) Motion To Certify
MELTON TRUCK LINES, INC., et al.,
) Class Pursuant to
And Unknown Defendants,

) 29 U.S.C. 216(b)
) and 29 U.S.C. 157

DEFENDANTS.

)
) Judge John J. Tharp
)
) **JURY DEMANDED**

NOTICE OF MOTION AND MOTION

TO DEFENDANTS AND THEIR COUNSEL OF RECORD:
Plaintiff David Johnson (Plaintiff or Plaintiff Johnson) respectfully moves this
Court pursuant to 29 U.S.C. 157, and 29 U.S.C. 201-209 conditionally to certify a Fair
Labor Standards Act collective action and order notice sent to members of a class of all current
and former Drivers, such as Plaintiff employed by Defendant Melton Truck Lines, Inc.
(Melton) within the three (3) years prior to July 23, 2014, who worked but were not paid for
non-drive time wages during all or part of their employment at Defendant Melton. Pursuant to
Local Rule, Plaintiff has attempted to confer with Defendants counsel regarding this motion
on October 21, 2015, defense counsel has not indicated that she represents Defendant Melton.
This Motion is based upon this Notice of Motion and Motion; the Memorandum of
Points and Authorities attached hereto; all pleadings and documents on file in this action; and
such other materials or argument as the Court may properly consider prior to deciding this
Motion.
DATED: November 7, 2015
BY: __/s/_David Johnson_____________
DAVID JOHNSON
David Johnson
901 East 56th Street, Unit 1C
Brooklyn, NY 11234
312-912-5035

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I. INTRODUCTION
Plaintiff Johnson has filed this action on behalf of himself and other similarly situated
current and former employees pursuant to 29 U.S.C. 216(b). Plaintiff alleges that Defendant
Melton has failed to pay him and a class of similarly situated employees non-drive time wages
for years, claiming that they were exempt from overtime pay, which is easily distinguishable
in this case. All Drivers, such as Plaintiff are entitled to payment of wages for all time worked
a federal law clearly established over fifty (50) years ago by the Court in Mitchell v. Mitchell
Truck Line, Inc., 286 F.2d 721, 725 (5th Cir. 1961). Plaintiff relies on the decision by the
Court in Mitchell, a case that stands as the law requiring all work performed by Drivers, such
as Plaintiff for Defendant Melton must be paid for under the FLSA without any special
exception for Defendants. Defendant Melton maintains a corporate policy of non-payment for
all time worked followed by forced dispatch often times under the threat of discipline,
termination, or retaliation in violation of federal, state, and other applicable laws.
Plaintiff has identified the specific corporate policy of Defendants Melton and Peterson
as a result of the Agreements between Defendants, Conexus, LLC (Conexus), and others at
their direction that provides for non-payment for all time worked by Drivers, such as Plaintiff.
Defendant Dargel has authored his email showing that the aforesaid corporate policy is
enforced under the threat of discipline, termination, or retaliation by everyone employed at
Defendant Meltons centralized operations located in Tulsa, Oklahoma. Finally, Plaintiff
further alleges that Defendants Melton and Peterson have intentionally installed a computer
program, which systemically does not pay the accrued Vacation when an employee is removed
from payroll for any reason.
Plaintiff now seeks conditional certification pursuant to the FLSA, 29 U.S.C.
216(b), on behalf of a collective class (hereafter, the FLSA Class) defined as:
All persons who are or have been employed by Defendants as over the road professional
Drivers under Meltons control and not off-duty performing any work related to a trip, such as
checking oil, grease, water, tires, etc. on the truck each morning; (b) driving to the shippers
site for loading; (c) waiting in line to be loaded at the materials site; (d) idle time awaiting
repair after breakdown of truck; (e) returning to truck yard from place where last load was
delivered at receivers site; and (f) cleaning up truck and refueling from the three (3) years
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prior to July 23, 2014 through the date of trial. And All persons who are or have been
employed by Defendants as over the road professional Drivers whose final paycheck does not
include a line item for the payment of Vacation during the three (3) years prior to July 23,
2014 through the date of trial.

II. STATEMENT OF FACTS

A. The Members of the Proposed Collective Class Perform the Same Job
Duties.
Drivers, such as Plaintiff Johnson operating a commercial motor vehicle across the
country perform the same job duties and are paid in the same manner by Defendant Melton.
The professional Drivers tend to work in excess of forty hours per week (sometimes as much
as seventy hours per week), and all were classified as exempt and not paid overtime wages.

III. ARGUMENT
The Court should conditionally certify the FLSA class, because Plaintiff and members
of the class are similarly situated to the proposed Collective Class, and easily meet the low
threshold to provide Notice to the Class under FLSA 216(b). Absent conditional certification
and Notice, potential class members may lose valuable portions of their claims as the statute of
limitations elapses.
The Court should also grant partial summary judgment to Plaintiffs and hold that as a
matter of law, Drivers do not fall within any FLSA exemption(s), inter alia, the Portal-toPortal Act and are entitled to compensation for all time worked at Defendant Melton.

A. Conditional Certification Under FLSA 216(b) Is Proper Because All

Melton Drivers Are Similarly Situated.
The purpose of the FLSA is to provide specific minimum protections to individual
workers and to ensure that each employee covered by the Act ... receive[s] [a] fair days pay
for a fair days work and [is] protected from the evil of overwork as well as underpay.
Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739 (1981). In passing the FLSA,
Congress intended to address long working hours that are detrimental to the maintenance of
the minimum standard of living necessary for health, efficiency and general well-being of
workers. Barrentine, 450 U.S. at 739. Congress also recognized that allowing individual
employees subject to the same illegal practices to bring claims collectively was both fair and
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efficient. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). The FLSAs
collective action provision provides for one or more employees to pursue an action in a
representative capacity for other employees similarly situated. Id., 29 U.S.C. 216(b).
Court-authorized Notice protects against misleading communications by the parties, resolves
the parties disputes regarding the content of the Notice, prevents the proliferation of multiple
individual lawsuits, assures that joinder of additional parties is accomplished properly and
efficiently, and expedites resolution of the dispute. Id. at 170-72.

1. Conditional Certification Should Be Determined Using the TwoStep Approach, and the Parties Are at Step One.
There are only two requirements to proceed as a representative action under 216(b): (1)
all plaintiffs must be similarly situated, and (2) a plaintiff must consent in writing to take
part in the suit. This latter requirement means that a representative action follows an opt-in
rather than an opt-out procedure. See, e.g., Thiessen v. General Elec. Cap. Corp., 267 F.3d
1095, 1105 (10th Cir. 2001); Myers v. Hertz Corp., 624 F.3d 537, 556 (2d Cir. 2010); Encinas
v. J.J. Drywall Corp., 265 F.R.D. 3, 6 (D.D.C. 2010).
There is only a threshold issue of whether the group is similarly situated. Hoffman v.
Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997). While the FLSA does not define
similarly situated, courts understand it to require a showing that the plaintiffs and potential
plaintiffs together were victims of a common policy or plan that violated the law. Encinas,
265 F.R.D. at 6, citing Castillo v. P & R Enterprises, Inc., 517 F. Supp. 2d 440, 445 (D.D.C.
2007). In determining if a group is similarly situated, courts in this District consider (1)
whether [putative class members] all worked in the same corporate department, division and
location; (2) whether they all advanced similar claims; and (3) whether they sought
substantially the same form of relief. Encinas, 265 F.R.D. at 6, quoting Hunter, 346 F. Supp.
2d at 119. While courts consider these three factors, class members need not have identical job
titles or duties or have worked in the same department or location to be similarly situated. It is
enough that they share substantively similar job responsibilities and suffer from a uniform pay
policy. Encinas, 265 F.R.D. at 6 -7, citing Castillo, 517 F. Supp. 2d at 446-48. When
employees are shown to be similarly situated, the district court has a managerial responsibility
to oversee the joinder of additional parties to assure that the task is accomplished in an efficient
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way and has the discretion to facilitate notice to potential plaintiffs of their right to opt-into the
action. See Hoffmann-La Roche, 493 U.S. at 166.
Courts utilize a two-step process when analyzing motions to certify a collective action
under the FLSA. Encinas, 265 F.R.D. at 6; McKinney, 585 F. Supp. 2d at 8. First, the court
determines whether the proposed class members are similarly situated. Encinas, 265 F.R.D.
at 6. This first step is conducted early in the litigation before discovery is conducted and when
the court has limited evidence regarding the similarly situated issue. The second step in this
approach occurs after discovery is complete, at which time the defendants may move to
decertify the class. Misra v. Decision One Mortg. Co., LLC, 673 F. Supp. 2d 987, 993 (C.D.
Cal. 2008). Thus, the two-stage procedure protects the interests of workers in ensuring they
receive prompt and timely notice of their right to vindicate their FLSA rights while
simultaneously ensuring that only claims on behalf of genuinely similarly situated workers go
to trial. First-step analysis is appropriate in this case because discovery has not begun.

2. This Case Meets the Standard for Conditional Certification

Plaintiff Johnson has met his first-stage burden to show that the class of people
employed as a Driver for Defendant Melton is similarly situated. The burden at this stage is
lenient and the declarations, admissions, and other documentation that Plaintiff offers are
sufficient to meet it. Plaintiff alleges that Defendant Meltons manifest corporate policy is not
to pay all wages due to people working as a Driver for all time worked in these activities: (a)
checking oil, grease, water, tires, etc. on the truck each morning; (b) driving to the shippers
site for loading; (c) waiting in line to be loaded at the materials site; (d) idle time awaiting
repair after breakdown of truck; (e) returning to truck yard from place where last load was
delivered at receivers site; and (f) cleaning up truck and refueling at truck at the days
(collectively non-drive time) constituting a violation of the FLSA. Furthermore, Plaintiff
alleges upon information and belief Defendants Melton and Peterson knew or should have
known that of the 1,000 Average Drivers most end their employment in less than six (6)
months and thus the written corporate policy as to payment of Accrued Vacation is illusory. In
support of the allegations, Plaintiff offers his own testimony and that of the potential class
members alleging that the corporate policy affected people Defendant Melton employed as
Drivers and that Defendant Melton used the same method in not paying all of its Drivers.
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Plaintiff also offers statements from Defendant Melton confirming that the non-payment
was company-wide that it applied to everyone in classified as a Driver. Finally, Plaintiff
alleges that the calculation of compensation for all time worked is based upon an agreed fixed
rate of pay of $25 per hour and readily determinable by multiplying by the hours contained the
logbooks sent electronically to Defendant Melton by each Driver, notwithstanding accurate
time-keeping is mandated by federal law. These allegations along with the supporting
evidence are sufficient to show that all the people working as a Driver were subject to a
common illegal corporate policy that Defendants Melton and Peterson did not pay them for all
time worked as agreed by the parties. Accordingly, the putative class is similarly situated and
should be conditionally certified for purposes of notifying putative class members of the
opportunity to join the action.

3. Drivers Do not Fall within the Exemption From Compensation For All
Time Worked.
Because Drivers, such as Plaintiff do not perform any over-time, the FLSA exemption
for the payment of over-time pay does not apply as a matter of law, and summary judgment is
appropriate. See, e.g., Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721, 725 (5th Cir. 1961);
Steiner v. Mitchell, 350 U.S. 247, 256 (1956); Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 693 (U.S. 1946); Secretary of Labor v. E.R. Field, Inc., 495 F.2d 749,751(1st Cir. 1974, );
D A S Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552, 554 (10th Cir. 1958); Sandifer v. U.S.
Steel Corp., 678 F.3d 590, 595-99 (7th Cir. 2012).

V. CONCLUSION
For the foregoing reasons, the Court should grant Plaintiffs Motion to conditionally
certify the class for purposes of notice and discovery; approve the form and content of
Plaintiffs proposed notice and reminder notice; order Defendant Melton to produce to
Plaintiffs Counsel the contact information for each putative collective class member; order the
issuance of notice to the FLSA class promptly, and grant partial summary judgment as to
liability only against Defendants.
Respectfully submitted,
BY:_______/s/___________________________
DAVID JOHNSON
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CERTIFICATE OF SERVICE
I hereby certify that on November 7, 2015filed the foregoing with the Clerk of the Court
for the Northern District of Illinois, using the ECF system will send notification and a copy of
such filing to all parties of record.
BY: __/s/_David Johnson____________________
DAVID JOHNSON
David Johnson
901 East 56th Street, Unit 1C
Brooklyn, NY 11234
312-912-5035

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