Callier et al v. Outokumpu Stainless USA, LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FRANCIS CALLIER, et al.,

Plaintiffs,

CIVIL ACTION NO. 21-00521-JB-N
OUTOKUMIPU STAINLESS USA, LLC,

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Defendant.

ORDER DENYING CONDITIONAL CLASS CERTIFICATION

This matter is before the Court on Plaintiffs’ “Motion(s) for Conditional Collective
Certification, Court-facilitated Notice, and Production of Contact Information (and incorporated
memorandum of law)” filed on January 7, 2022 (Doc. 16), Plaintiffs' Evidentiary Submission
(Doc. 43), Defendant’s Brief in Opposition to Plaintiffs’ Motion for Conditional Certification
(Doc. 37), and Defendant’s Evidentiary Submission in Support of Its Opposition (Doc. 38). Also
before the Court is the parties’ Joint Submission (Doc. 42) in response to the Court’s order of
January 26, 2022 (Doc. 33).

For the following reasons, the Court finds Plaintiffs’ Motion for Conditional Certification
is due to be denied, without prejudice. Defendant is ordered to circulate the Acknowledgment
Form(s) (attached hereto as Exhibits A and B) and Notice (below) in accordance with the

instructions herein.
I. Background
Named plaintiffs, three hourly employees of Defendant, filed this collective action in

December, 2021, against Defendant, a steel manufacturer. (Doc. 1). Plaintiffs allege Defendant’s

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

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time and pay keeping practices incorporate a series of FLSA violations, resulting in under or un-
paid overtime. Plaintiffs also seek relief under the common law of Alabama for unpaid straight
time worked. 	This is the third such case asserted against Defendant; see Hornady, et. al. v.
Outokumpu Stainless USA, LLC, 1:18-CV-00317-JB-N (also a collective action) and Gibson v.
Outokumpu Stainless USA, LLC, 1:21-CV-00103-JB-N (a single plaintiff). 	As is well set out
elsewhere, the Court entered a default judgement against Defendant on liability in Hornady,
pursuant to its inherent power to issue case-ending sanctions and Fed. R. Civ. Pro. 37 for
discovery abuses, in November 2021. (See Doc. 344 in Hornady, et. al. v. Outokumpu Stainless
USA, LLC, 1:18-CV-00317-JB-N).
In their Motion, Plaintiffs seek an order, pursuant to the Fair Labor Standards Act, 29
U.S.C. 216 (b), holding that the above-captioned case can proceed as a conditionally certified
collective action. (Doc. 16). The collective, as proposed by Plaintiffs, should consist of all current
and former manufacturing employees at Defendant’s steel mill in Calvert, Alabama, who are or
were paid on an hourly basis and who received payment since November 1, 2018 for work
performed for Defendant. (Id.). Plaintiffs also seek notice to be given to the putative collective.
In order to facilitate notice, Plaintiffs request an order requiring Defendant to produce the last
known contact information of all its current and former hourly wage manufacturing employees
who have been employed by Defendant at its Calvert, Alabama facility since November 1, 2018.
(Id.).
II. 	Applicable Law
The Eleventh Circuit, as with most other circuits, employs a two-step approach to certify
a FLSA collective action under 29 U.S.C. § 216(b). 	The first step concerns whether notice of the
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FLSA action should be given to potential collective members. Grable v. C P Sec. Groups, 2022 U.S.
Dist. LEXIS 7351, *4-5 (M.D. Ga. January 14, 2022) (citing Hipp v. Liberty Nat'l Life Ins. Co., 252
F.3d 1208, 1218 (11th Cir. 2001)). “The sole consequence of conditional certification is the
sending of court-approved written notice to employees, . . . who in turn becomes parties to
collective action only by filing written consent with the court, §216(b).” Genesis Healthcare Corp.
v. Symczyk, 569 U.S. 66, 75 (2013); see also, Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218
(11th Cir. 2001) (“If the district court ‘conditionally certifies’ the class, putative class members
are given notice and the opportunity to ‘opt-in.’”); Williams v. Omanisky, 2016 WL 297718 at *3
(S.D. Ala. Jan. 21 2016).
When determining whether to send a court-approved notice to employees, “the court
must ask whether there are other employees who desire to opt in and whether those employees
are similarly-situated with respect to their job requirements and pay provisions.” Id. (quoting
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258 (11th Cir. 2008) (quoting Dybach v.
State of Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991)). “The district court is to
‘satisfy itself’ only: ‘that there are other employees . . . who desire to ‘opt in’ and who are
‘similarly situated’ with respect to their job requirements and with regard to their pay
provisions.” Hornady v. Outokumpu Stainless United States, 2019 U.S. Dist. LEXIS 241243, *5 (S.D.
Ala. May 30, 2019) (quoting Dybach, 942 F.2d at 1567-68). “The district court’s decision is ‘usually
based only on the pleadings and any affidavits which have been submitted.’” Hornady, 2019 U.S.
Dist. LEXIS 241243, at *4 (quoting Hipp, 252 F.3d at 1218). “Because there is limited evidence at
this early stage in litigation, this determination is made using a fairly ‘lenient standard’ which
typically results in conditional certification.” Id. at *5.
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Though this determination is made using a fairly lenient standard, “the Eleventh Circuit
has held that ‘plaintiffs have the burden of demonstrating a reasonable basis for crediting their
assertions that aggrieved individuals exist[] in the broad class that they propose[].’” Brooks v.
BellSouth Telcoms, Inc., 164 F.R.D. 561, 567-568 (N.D. Ala. 1995) (quoting Haynes v. Singer Co.,
Inc., 696 F.2d 884, 887 (11th Cir. 1983) (affirmed Brooks v. Bellsouth, 1997 U.S. App. LEXIS 11268
(11th Cir. April 28, 1997)). 	Plaintiff may not maintain a representative action under § 216(b)
unless the Court is convinced the employees to be represented are similarly situated. “In order
to be entitled to conditional class certification plaintiff has to submit evidence establishing at
least a colorable basis for his claim that a class of similarly situated plaintiffs exist.” Brooks, 164
F.R.D. at 567 (finding plaintiff had not “met his burden of demonstrating a reasonable basis for
presuming that similarly situated, aggrieved individuals exist in the class of persons that he
propose[d] for conditional class certification”)).
In Haynes, on appeal from the district court’s decision to deny notice to the plaintiff’s
desired collective, the Eleventh Circuit noted “[o]ur review of that decision must be premised
upon the evidence that was before the district court at that time. There was none.” Haynes v.
Singer Co., 696 F.2d at 887. The “[district] judge had before him only counsel's unsupported
assertions that FLSA violations were widespread and that additional plaintiffs would come from
other stores.” Haynes, 696 F.2d at 887. Similarly, in Brooks, the Eleventh Circuit affirmed denial
of the putative collective when the evidence submitted by the plaintiff amounted to “three
documents.” Brooks, 164 F.R.D. at 567 (“After reviewing all the evidence submitted by the
plaintiff, the court finds that plaintiff has not demonstrated a sufficient factual basis on which a
reasonable inference could be made that defendants orchestrated or implemented a single
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decision, policy, or plan to discriminate against their management employees on the basis of
age.”)
III. 	Analysis
Defendant contends Plaintiffs have not met their burden and have not presented any
evidence of the allegedly similarly-situated pay practices resulting in a failure to pay overtime.
(Doc. 46). Defendant points out “Plaintiffs failed to submit any declarations from themselves or
any other opt-in plaintiffs in support of their Motion or any evidence from the relevant time
period, and instead rely on nothing but general allegations that Plaintiffs and members of the
proposed class were not properly compensated under the FLSA.” (Id.). Defendants are correct.
In their Motion, Plaintiffs make the following assertion as support for their position there are
other employees who are similarly situated and who wish to opt-in:
All of the hourly, non-exempt, manufacturing employees in Calvert were subject
to the same time and pay practices. All of the same time and pay practices which
were the subject of the allegations in Hornady when conditional certification was
entered without opposition are also alleged in this case. The additional allegations
here are based on testimony of Defendant’s representatives in the Hornady case
which also purported to described practices which were applicable to all the
hourly, non-exempt manufacturing employees.
(Doc. 16).
In their reply, Plaintiffs explain they “[chose] to primarily use the evidence OTK provided
in Hornady.” 	(Doc. 44). 	In fact, Plaintiffs rely entirely on the record in Hornady, including
declarations filed at the outset of the litigation (July, 2018) and depositions taken during the
pendency of the action (March 2020). Plaintiffs attempt to justify this reliance by titling it “what
this Court has already read and said.” (Doc. 44). Plaintiffs argue the issue is Defendant’s time
keeping and pay practices – the “unified policies, plans and procedures” -- “which [Defendant]
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has already repeatedly explained applied to all hourly employees.” (Id.). Plaintiffs contend the
“record evidence [in Hornady] substantiates that OTK’s hourly employees are similarly situated
in all material ways.” (Doc. 44). However, Defendants correctly argue this evidence is not before
the Court in this litigation.
To overcome Defendant’s position, Plaintiffs suggests this Court may “even take judicial
notice” of the record in Hornady; however, Plaintiffs’ suggestion does not take into account the
relevant rule. Rule 201(b) of the Federal Rules of Evidence provides:
(b) Kinds of Facts That May Be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute
because it:
(1) generally known within the trial court’s territorial jurisdiction;
or
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
Fed.R.Evid. 201(b). A case on which Plaintiffs rely explains further: “[A] court may take judicial
notice of the undisputed matters of public record, i.e., the fact that hearings and prior
proceedings took place, and what was said in those proceedings, but it may not take judicial
notice of disputed facts stated in public records for their truth.” In re Cole v. Patton, 2019 U.S.
Dist. LEXIS 125712, at *1 (M.D. Fla. July 29, 2019) (quoting Amcal Gen. Contractors, Inc. v. Ace
Am. Ins. Co., 2009 U.S. Dist. LEXIS 97111, at *3 (C.D. Cal. Oct. 20, 2009)). A court may not take
judicial notice of a fact that is subject to reasonable dispute. Amcal, 2009 U.S. Dist. LEXIS 97111,
at *3. “Generally, a court can take judicial notice of ‘what was said and what the judge ruled in
another court proceeding, as such matters are not subject to reasonable dispute; however, the
Court may not take judicial notice of any statements for their truth, as the veracity of statements
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are subject to reasonable dispute.”)). In re Cole, 2019 U.S. Dist. LEXIS 125712, at *1 (quoting
Walter v. McIntosh, 2013 U.S. Dist. LEXIS 111179 (M.D. Fla. Aug. 7, 2013)).
The Eleventh Circuit provided an extended discussion of judicial notice in United States v.
Jones, 29 F.3d 1549 (11th Cir. 1994):
In order for a fact to be judicially noticed under Rule 201(b), indisputability is a
prerequisite. 21 C. Wright & K. Graham, Federal Practice and Procedure: Evidence
§ 5104 at 485 (1977 & Supp.1994). Since the effect of taking judicial notice under
Rule 201 is to preclude a party from introducing contrary evidence and in effect,
directing a verdict against him as to the fact noticed, the fact must be one that
only an unreasonable person would insist on disputing. Id. If it were permissible
for a court to take judicial notice of a fact merely because it has been found to be
true in some other action, the doctrine of collateral estoppel would be
superfluous. Id. at 256–57 (footnote omitted). Moreover, to deprive a party of the
right to go to the jury with his evidence where the fact was not indisputable would
violate the constitutional guarantee of trial by jury. Id. at 485. Accord United
States v. Aluminum Co. of America, 148 F.2d 416, 446 (2d Cir.1945) (L. Hand, J.).
Jones, 29 F.3d at 1553 (vacating summary judgment where the district court’s decision was an
impermissible finding of fact based on inadmissible evidence because it relied on an order in
another, albeit related, matter).
More recently the Eleventh Circuit cautioned that judicial notice “bypasses the
safeguards” in the litigation process. In Kerruish v. Essex Holdings, Inc., the Court stated:
But ‘the taking of judicial notice of facts is, as a matter of evidence law, a highly
limited process. The reason for this caution is that the taking of judicial notice
bypasses the safeguards which are involved with the usual process of proving facts
by competent evidence in district court.’ Shahar v. Bowers, 120 F.3d 211, 214
(11th Cir. 1997) (en banc) (per curiam) (declining to take judicial notice of
newspaper accounts or press releases of a public official's conduct). ‘[T]he kinds
of things about which courts ordinarily take judicial notice are’ things like
‘scientific facts: for instance, when does the sun rise or set,’ or ‘matters of
geography.’ Id.
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777 F. App’x 285, 293-294 (11th Cir. June 6, 2019) (holding Rule 201 does not allow the reverse
of a grant of summary judgment by relying on an affidavit never made part of the district court
record, “[a]nd we see hearsay problems lurking were we to do so.”)
The Court is mindful the “FLSA is a remedial statute that has been construed liberally to
apply to the furthest reaches consistent with congressional direction.” Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1265 (11th Cir. 2008). 	However, Plaintiffs’ position stretches the
bounds of leniency and liberality. While it would certainly streamline matters for the Court to
take judicial notice of the Hornady facts, the Court declines to exercise its discretion to do so.
Under Fed. R. Evid. 201(b), facts to be judicially noticed must be “not subject to reasonable
dispute.” The Hornady facts and allegations were accepted as true as a result of Defendant’s
default. (Doc. 344 and 351). The fact of the default in Hornady will do nothing to help satisfy
Plaintiffs’ burden of proof in this case. Moreover, the class in Hornady was conditionally certified
with Defendant’s acquiescence. 	The Court will not exercise its discretion and deem these same
facts to be true, and therefore, undisputed, in this litigation.
Plaintiffs must meet their burden. Absent declarations, affidavits, or properly submitted
evidence, the Court finds they have not met their burden. Plaintiffs’ motion for conditional
certification is denied without prejudice. 	However, the Court agrees with Plaintiffs, the
conditional certification stage is not the time to consider Defendant’s defenses or declarations.
Rather, the “second stage” of the two-step approach to certification of a collective often requires
the collective to overcome a motion to decertify. This “second stage is triggered by an employer's
motion for decertification.” See Morgan, 551 F.3d at 1261 (citing Anderson, 488 F.3d 945, 953
(11th. Cir. 2007)) “[A]t the second stage, ‘although the FLSA does not require potential class
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members to hold identical positions, the similarities necessary to maintain a collective action
under § 216(b) must extend beyond the mere facts of job duties and pay provisions’ and
encompass the defenses to some extent.” Id. (quoting Anderson, 488 F.3d at 953 (citation and
quotation marks omitted)).
IV. 	Joint Submission: Proposed Acknowledgement and Notice Forms
On January 13, 2022, Plaintiffs filed a Motion for Immediate Hearing and Other Related
Relief, concerning “what appears to be a serious interference by Defendant … with the collective
action notice process.” (Doc. 26). The Court heard arguments on the Motion, and instructed
Defendant to provide a notice and an amended acknowledgment form to the employees who
received voluntary payments from the Defendant for any time rounded off from November 1,
2018 forward. The Court anticipated Defendant would meet with those employees regarding the
amended acknowledgment forms. Upon due consideration, the Court orders as follows:
1) 	The Amended Acknowledgment form (attached hereto as Exhibit A) shall be distributed
by Defendant to those individuals who are (a) not Plaintiffs in this civil action or the
Hornady, et al. v. Outokumpu Stainless USA, LLC, matter (such Plaintiffs are “Represented
Employees”), and (b) who signed Acknowledgment forms in connection with payments
offered by Defendant in January, 2022 (“Prior Payees”).
2) 	The Amended Acknowledgement form (Exhibit A) shall be hand-delivered to Prior Payees
with the following notice:
“You are being provided with an Amended Acknowledgment regarding certain
overtime payments that were made to you in January 2022. This Amended
Acknowledgment clarifies that: (a) any payments you received did not constitute
a settlement or release of any claim you might have under the Fair Labor
Standards Act, and (b) acceptance of these payments does not foreclose your
ability to join any collective action that may or may not proceed in the future.”
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3) 	The Acknowledgement Form (attached as Exhibit B) will be utilized for future payments,
if any, to employees other than Represented Employees (“Future Payees”).
The parties agreed Exhibit B will need to be revised, in consultation with Plaintiffs’ counsel, for
Represented Employees. The parties agreed Exhibit A will need to be revised for Prior Payees
who have become Represented Employees since signing the prior acknowledgment. (See Doc.
42).
IT IS FURTHER ORDERED that the parties shall use the Acknowledgment forms
attached hereto and incorporated herein as Exhibit A and Exhibit B.
DONE and ORDERED this 24th day of March, 2022.
/s/ JEFFREY U. BEAVERSTOCK
CHIEF UNITED STATES DISTRICT JUDGE
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EXHIBIT A

47202162 v1
AMENDED ACKNOWLEDGMENT
(This Acknowledgment Replaces the January 2022 Acknowledgment)
1. I, ___________________________, Employee ID #____________________, understand that
my employer, Outokumpu Stainless USA, LLC (“OTK”) had previously represented to me, in
January 2022, that, upon my signing of a prior version of this acknowledgment, (a) OTK would
make a payment to me of _______________________________00/100 Dollars ($__________)
minus applicable withholdings, and (b) OTK would pay such amount to me by direct deposit
through the normal payroll process. My signature below confirms that I signed a prior
acknowledgment and that this payment has already been made.
2. I understand that OTK has represented to me that, from November 1st, 2018 to November 27th,
2021, if my time worked had been recorded each workday from the time I clocked in until the
time I clocked out, with no rounding, I would have received additional gross overtime pay of
________________________and 00/100 Dollars ($_____________), I understand that OTK
has represented to me that, although the Company is not obligated to make this payment, the
payment OTK will pay to me upon signing this acknowledgment in paragraph 1 is two (2) times
this amount of additional gross overtime pay, and serves to compensate me for the overtime I
would have received with no rounding during the three year time period.
3. My acceptance of this lump sum payment was not a settlement of any overtime pay claims that
I may have.
4. Acceptance of this lump sum overtime payment does not foreclose my ability to join any lawsuit
for overtime pay that may or may not proceed in the future.
__________________________________________________
Signature
Date:_______________________
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EXHIBIT B

47202189 v1
ACKNOWLEDGMENT
1. I, ___________________________, Employee ID #____________________, understand that
my employer, Outokumpu Stainless USA, LLC (“OTK”) has represented to me that, upon my
signing of this acknowledgment, (a) OTK will make a payment to me of
_______________________________00/100 Dollars ($__________) minus applicable
withholdings, and (b) OTK will pay such amount to me by direct deposit through the normal
payroll process.
2. I understand that OTK has represented to me that, from November 1st, 2018 to November 27th,
2021, if my time worked had been recorded each workday from the time I clocked in until the
time I clocked out, with no rounding, I would have received additional gross overtime pay of
________________________and 00/100 Dollars ($_____________), I understand that OTK
has represented to me that, although the Company is not obligated to make this payment, the
payment OTK will pay to me upon signing this acknowledgment in paragraph 1 is two (2) times
this amount of additional gross overtime pay, and serves to compensate me for the overtime I
would have received with no rounding during the three year time period.
3. The acceptance of this lump sum payment is not a settlement of any overtime pay claims that I
may have.
4. Acceptance of this lump sum overtime payment does not foreclose my ability to join any lawsuit
for overtime pay that may or may not proceed in the future.
__________________________________________________
Signature
Date:_______________________
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