Conejo et al v. Sellan Structural Erectors, LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:23-cv-02930-SKC-STV
ADRIAN CONEJO, and
ERICK ONTIVEROS MOLINA,
on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
SELLAN STRUCTURAL ERECTORS, LLC, et al.,
Defendants.
ORDER RE: PLAINTIFFS’ MOTION FOR
CONDITIONAL CERTIFICATION (DKT. 33)
Plaintiffs Adrian Conejo and Erick Ontiveros Molina previously worked for
Defendants Sellan Structural Erectors, LLC, Sellan Steel LLC, and Giorgio Sellan,
as installers and welders. Dkt. 25 at ¶26,37.1 According to the allegations, Plaintiffs
regularly worked more than 40 hours in a work week, but Defendants structured
their paychecks such that Plaintiffs were never properly paid overtime wages. Id. at
¶¶31, 33-35, 41, 43.
1 The following facts are taken from Plaintiffs’ Amended Complaint and are presumed
to be true for purposes of this Motion. The Court uses “Dkt. __” to refer to entries
from the electronic CM/ECF docket.
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Plaintiffs filed this action on November 6, 2023, asserting—as relevant here—
that Defendants violated the Fair Labor Standards Act (FLSA) by failing to pay its
construction workers overtime compensation for time worked over 40 hours per
workweek. Id. at ¶¶60-66. They also assert causes of action for various violations of
the Colorado Wage Act and conversion. Id. at ¶¶67-85. They assert their FLSA claims
on behalf of themselves and members of a collective, id. at ¶44, and now seek
conditional certification and approval of their Hoffman-LaRoche Notice and proposed
distribution methods. Dkt. 33. Defendants do not challenge Plaintiffs’ proposed
parameters for the collective or the proposed Hoffman-LaRoche Notice. Rather, they
argue Plaintiffs should be limited to notifying individuals who have worked for
Defendants three years prior to the filing of the complaint instead of Plaintiffs’
proposed six years. Dkt. 35. They also contend Plaintiffs should be limited to
disseminating notice by mail and that the opt-in period should be limited to 45 days.
Id.
The Court has carefully reviewed the Motion, the related briefing, and the
applicable law. No hearing is necessary. For the reasons discussed below, the Motion
is granted in part.
ANALYSIS
A. 	Legal Standard
Section 216(b) of the FLSA, allows collective actions for minimum wage or
overtime violations. 29 U.S.C. § 216(b). Under the statute, “a covered employer must
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pay its employees for the time that it employs them.” Peterson v. Nelnet Diversified
Solutions, LLC, No. 17-cv-01604-NYW, 2018 WL 3470604 at *3 (D. Colo. Apr. 25,
2018). The FLSA “defines the verb ‘employ’ expansively to mean ‘suffer or permit to
work.’” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (quoting 29
U.S.C. § 203(g)).
“A collective action under the FLSA may be maintained only by and among
employees who are similarly situated.” Harris v. Startek USA Inc., No. 22-cv-00437-
RM-SKC, 2023 WL 3976432, at *1 (D. Colo. Mar. 31, 2023). The trial court is tasked
with determining who is “similarly situated” for purposes of a § 216(b) claim in a
“manner that is orderly, sensible, and not otherwise contrary to statutory command
or the provision of the Federal Rules of Civil Procedure.” Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 170-72 (1989) (noting the court’s “managerial responsibility
to oversee the joinder of additional parties to assure that the task is accomplished in
an efficient and proper manner”); see also Thiessen v. Gen Elec. Capital Corp., 267
F.3d 1095, 1102 (10th Cir. 2001) (noting that the FLSA does not define “similarly
situated”).
The Tenth Circuit has approved a two-step certification process to determine
whether putative plaintiffs meet the similarly situated requirement. Thiessen, 267
F.3d at 1105. Under this approach, the trial court first makes a “notice stage”
determination conditionally certifying a collective of similarly situated plaintiffs. Id.
at 1102. After discovery has closed, the court then applies a stricter standard
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evaluating 	the 	“disparate 	factual 	and 	employment 	settings 	of 	the 	individual
plaintiffs; the various defenses available to defendant which appear to be individual
to each plaintiff; fairness and procedural considerations; and whether plaintiffs made
the filings required by the [FLSA] before instituting suit.” Id. at 1103 (cleaned up).
B. 	Discussion
At this initial stage, the Court makes its determination by relying on the
allegations in Plaintiffs’ Amended Complaint and any supporting affidavits filed with
the Motion. Ward v. Express Messenger Sys., Inc., No. 17-cv-02005-NYW, 2018 WL
1604622, at *3 (D. Colo. Apr. 3, 2018). “The court does not resolve factual disputes,
decide 	substantive 	issues 	going 	to 	the 	ultimate 	merits, 	or 	make 	credibility
determinations.” Id. (cleaned up). The burden of proof at this stage is “lenient” and
typically results in conditional certification. Miller v. Startek USA, Inc., No. 11-cv-
0017-REB-CBS, 2011 WL 1883012, at *1 (D. Colo. May 17, 2011) (citation omitted).
But the burden of proof “is not non-existent, and it cannot be satisfied simply by
unsupported assertions.” Ward, 2018 WL 1604622, at *3.
Here, Defendants do not challenge the proposed parameters of the collective or
that Plaintiffs may properly represent them. And the Court is satisfied Plaintiffs have
met their burden for conditional certification. The Court finds substantial allegations
that the following persons are similarly situated to Plaintiffs for purposes of
conditional certification:
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non-management workers who have worked for the Defendants at some
time between November 6, 2020, and the present, as an installer or
welder.
The Court is also satisfied that Plaintiffs’ proposed Hoffman-LaRoche Notice
adequately advises potential opt-in plaintiffs of their rights and options pertaining to
any potential FLSA claims they may have. See Bryant v. Act Fast Delivery of Colo.,
Inc., No. 14-cv-00870-MSK-NYW, 2015 WL 3929663 at *5 (D. Colo. June 25, 2015)
(internal citations omitted). Plaintiffs are authorized to disseminate the Notice and
consent forms to the potential opt-in Plaintiffs.
Turning to Defendants’ objections, since at most a three-year statute of
limitations will apply to Plaintiffs’ claims, Plaintiffs may distribute the notice to those
members of the collective who worked for Defendants within three years prior to the
date of the filing of this action. See German v. Holtzman Enterprises, Inc., No. 19-cv-
03540-PAB-STV, 2021 WL 1087718, at *3 (D. Colo. Mar. 22, 2021) (“[S]tatute of
limitations arguments are better suited for later stages of the litigation.”).
Next, Defendants ask the Court to limit Plaintiffs’ method of distribution to
traditional mail only. Defendants argue that Plaintiffs have not demonstrated the
transient nature of the collective, and therefore, at most they should only be allowed
to distribute via other methods if the mailed notices are returned as undeliverable.
This argument is not persuasive for two primary reasons. First, it overlooks the fact
that Plaintiff Conejo is currently working outside of Colorado (Dkt. 25 at ¶25); thus,
there is at least some indication that the members of the collective are transient.
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Second, Defendants’ proposed course of action—only using other methods once postal
service proves ineffective—conflicts with this Court’s obligations under Fed. R. Civ.
P. 1 to “secure the just, speedy, and inexpensive determination of every action.”
Waiting until mail service is returned and only then requiring Defendants to provide
email addresses and permitting dissemination via email is wholly inefficient. Even
more, “in this technology-driven age,” the Court perceives no “valid reason why the
parties should not agree to e-mail [and text] notice in the year [2025].” Sobolewski v.
Boselli & Sons, LLC, No. 16-cv-01573-RM-STV, 2017 WL 4586108, at *3 (D. Colo.
Oct. 16, 2017).2 In the context of this case, the Court concludes notice via traditional
mail, e-mail, and text message is appropriate and should be given.3
Finally, the Court is not persuaded by Defendants’ contention that the opt-in
period should be limited to 45 days simply because other courts have limited the
period thusly. Courts in this district have also approved opt-in periods of 90 days,
2 Defendants’ concern that electronic notices are easily disseminated to other people
via the internet with commentary that could distort the court-approved notice is also
not persuasive because “the same can nonetheless be said of notices sent by first class
mail,” which can be scanned, copied, or photographed and forwarded by any number
of means, including email and text. Sobolewski, 2017 WL 4586108, at *3.
3 The Court will not permit notice via social media at this time. In those cases where
social media is deemed an appropriate method of distribution, the court noted the
relatively young age of the proposed collective. See Beltran v. InterExchange, Inc., No.
14-cv-03074-CMA-CBS, 2017 WL 4418684, at *6 (D. Colo. Apr. 28, 2017) (“notice
through social media platforms is particularly appropriate for classes comprised of
largely young, largely transient unnamed plaintiffs”). Plaintiffs have not offered any
similar information regarding the potential age of the collective in this case, thus
using social media is not justified.
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Darrow v. WKRP Mgmt., LLC, No. 09-cv-01613-CMA-BNB, 2012 WL 638119 (D. Colo.
Feb. 28, 2012), and 120 days, Ortez v. United Parcel Serv., Inc., No. 17-cv-01202-CMA-
SKC, 2018 WL 3913131, at *5 (D. Colo. Aug. 16, 2018), and they regularly approved
Plaintiffs’ requested 60 days. See Logan v. United Am. Sec., LLC, No. 21-cv-00257-
NYW, 2021 WL 4990305, at *3 (D. Colo. Oct. 26, 2021) (“[T]he Notice of Collective
Action contains a 60-day opt-in period, which is favored in this District.”). As
Defendants offer no other reason to limit the opt-in period, the Court will permit a
60-day notice period.
* 	* 	*
For the reasons shared above, the Motion for Conditional Certification is
granted in part. The Court ORDERS as follows:
1. 	Within 14 days of this Order, Defendants shall provide Plaintiffs (in native
Excel format) with the following information for those individuals within
the parameters discussed above:
a. 	Full names (including known nicknames or alternative spellings);
b. 	All known mailing addresses;
c. 	All known phone numbers;
d. 	All known email addresses;
e. 	Primary language, if other than English;
f. 	Dates of employment; and
g. 	Positions held.
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2. 	Plaintiffs’ counsel shall propound the court-approved Hoffman-LaRoche
Notice and consent forms as soon practicable, but no later than 14 days
after receiving the foregoing information from Defendants.
3. 	The potential members of the collective shall have 60 days from the date of
dissemination to opt-in to the litigation.
DATED: March 20, 2025.
BY THE COURT:
S. Kato Crews
United States District Judge
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