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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-23170-CIV-MORENO/OSULLIVAN
ELLIOT GELBER, & all
others similarly situated,
Plaintiffs,
v.
AKAL SECURITY, INC.,
Defendants.
/
REPORT AND RECOMMENDATION
THIS MATTER is before the Court on the Plaintiffs Motion for Conditional
Collective Action Certification (DE# 11, 8/15/16). This matter was referred to the
undersigned pursuant to 28 U.S.C. 636(b). See Order of Referral of Motion for
Conditional Collective Action Certification to Magistrate Judge OSullivan (DE# 16,
8/17/16). Having reviewed the applicable filings and the law, the undersigned
respectfully RECOMMENDS that the Plaintiffs Motion for Conditional Collective Action
Certification (DE# 11, 8/15/16) be GRANTED in part and DENIED in part for the
reasons stated herein.
PROCEDURAL HISTORY
The plaintiff, Elliot Gelber, commenced the instant action on July 21, 2016. See
Complaint (DE# 1, 7/21/16). The Complaint asserted causes of action for unpaid
minimum wages (Count I) and unpaid overtime (Count II) under the Fair Labor
Standards Act, 29 U.S.C. 207 (hereinafter FLSA). The Complaint also asserted a
cause of action for unpaid wages under Florida Statute 440. On September 29, 2016,

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the plaintiff filed an Amended Complaint which named 13 other opt-in plaintiffs in
additional to Mr. Gelber, and asserted two causes of action under the FLSA, one for
unpaid minimum wages and one for unpaid overtime wages. (DE # 45, 9/29/16). The
Amended Complaint does not assert a third cause of action. Id.
On August 15, 2016, the plaintiff filed the instant motion. See Plaintiffs Motion
for Conditional Collective Action Certification (DE# 11, 8/15/16) (hereinafter Motion for
Conditional Certification). On August 24, 2016, the plaintiff filed the Plaintiffs
Supplement to his Motion for Conditional Collective Action Certification (DE # 22,
8/24/16). On August 8, 2016, Elliott Gelber, Angel Lopez, Luis Pagan, Mayra Llanos,
Monica Vila, Sigfredo Hernandez, and Lazaro Morera all filed their declarations giving
consent to join. See, Declaration of Elliott Gelber and attachments (DE# 8, 8/8/16). On
August 12, 2016, Sylvia Batista filed her declaration giving consent to join. See,
Declaration of Sylvia Batista (DE# 9, 8/12/16). On August 19, 2016, Fara Diaz filed her
declaration giving consent to join. See, Declaration of Fara Diaz (DE# 18, 8/19/16). On
August 31, 2016, the plaintiff filed the Plaintiffs Notice of Filing Opt-Ins as to Magalie
Santiago, Sandra Ameneiro, Rigoberto Magallon, and Luis Hoffmann, and attached
declarations of each of the individuals. See, Plaintiffs Notice of Filing Opt-Ins (DE # 25,
8/31/16). On September 19, 2016, the plaintiff filed the Plaintiffs Notice of Filing OptIns as to Jorge Agular and Altagracia Oliva Martinez, and attached declarations of each
of the individuals. See, Plaintiffs Notice of Filing Opt-Ins (DE # 33, 9/16/16). Also on
September 19, 2016, Carlos Tolentino filed his declaration giving consent to join. See,
Declaration of Carlos Tolentino (DE# 36, 9/19/16). On September 20, 2016, Ruben
Yero filed his declaration giving consent to join. See, Declaration of Ruben Yero (DE#
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40, 9/20/16). The defendant filed its response in opposition to the instant motion on
September 14, 2016. See Defendants Opposition to Plaintiffs Motion for Conditional
Collective Action Certification (DE # 32, 9/14/16). The plaintiff filed a reply on
September 23, 2016. See Plaintiffs Reply in Further Support of his Motion for
Conditional Collective Action Certification (DE# 43, 9/23/16). This matter is ripe for
consideration.
BACKGROUND
The plaintiff, Elliott Gelber, was and still is employed by Akal Security Inc. as an
air security officer. See Complaint (DE# 1 at 1, 5, 7/21/16). The plaintiff was and still
is paid $25.28 per hour. Id. at 5. The plaintiffs job duties included supervising
deportees after arrival at the Miami Akal facility, loading the deportees onto the aircraft
for deportation, and in-flight supervision of deportees during the trip to their home
countries. Id. at 6. After the delivery of the deportees to their home countries, the
plaintiff returned to the United States of America with the rest of the flight crew. Id. at
7. The plaintiff alleges that an Akal company policy forced him to take a one-hour
unpaid lunch break on the return flight if no deportees were on board the plane,
regardless of whether the plaintiff ate lunch or performed services for the defendant
during the time period. Id. At 8, 9, 10.
The plaintiff opines that there are numerous employees who are similarly
situated and who lose the same one-hour pay pursuant to the Defendants lunch break
policy. Id. At 11. Air security officers employed by the defendant operate out of four
(4) locations, including locations in Arizona, Texas, Louisiana, and Miami, Florida. See,
Plaintiffs Reply in Further Support of His Motion for Conditional Collective Action
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Certification (DE # 43, 9/23/16 at p. 4). Another FLSA case was filed by air security
officers in Federal Court in Texas in 2013, in which a nationwide class was certified.
See, Order attached to Plaintiffs Supplement to His Motion for Conditional Collective
Action Certification (DE # 22-2, 8/24/16). The Texas litigation resulted in a settlement
agreement. See, Settlement and Release Agreement attached to Plaintiffs
Supplement to His Motion for Conditional Collective Action Certification (DE # 22-3,
8/24/16).
According to the plaintiff, he
did not receive overtime compensation in the event that the
hours that were deducted were in excess of 40 per week.
To the extent the lunch break hours were hours in excess of
40 hours per week, plaintiff is entitled to time-and-a-half for
those hours. All deducted hours constitute at least a
minimum wage violation under the FLSA and, to the extent
the plaintiff worked in excess of 40 hours in any given week,
a violation of the overtime provisions of the FLSA.
Plaintiffs Motion for Conditional Collective Action Certification at p. 2 (DE # 11,
8/15/16). The plaintiff maintains that a nationwide collective action covering similarly
situated persons in the defendants four (4) cities of operation is appropriate. See,
Plaintiffs Reply in Further Support of His Motion for Conditional Collective Action
Certification (DE # 43 at p. 4, 9/23/16). There are 17 opt-in plaintiffs in this matter,
including Mr. Gelber, 14 of whom are now named in the Amended Complaint, (the other
three (3) being barred by Statue of Limitations issues), all of whom are connected to the
Miami location of the defendant Akal. Id. at p. 2 and 4. See also, Amended Complaint
(DE # 45, 9/29/16).
In opposition to the instant motion, the defendant argues that the plaintiffs
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motion fails to establish that potential class members exist that wish to join the lawsuit.
See, Defendants Opposition to Plaintiffs Motion for Conditional Collective Action
Certification (DE # 32 at p. 7, 9/14/16). The defendant also asserts that the plaintiff
fails to establish that potential class members are similarly situated and that the plaintiff
fails to establish the existence of a uniform policy of the defendant that violates the
FLSA. Id. at pp. 8-13.
In support of his position, the plaintiff asserts that he met the necessary twoprong test for conditional certification, that nationwide notice is appropriate, that the
merits of the litigation are not relevant at the certification stage, and that the notice
should include all air security officers employed by Akal, regardless of the number of
hours they worked. See, Plaintiffs Reply in Further Support of His Motion for
Conditional Collective Action Certification (DE # 43, 9/23/16 at pp. 1-6).
STANDARD OF REVIEW
An action for FLSA violations may be maintained against any employer . . . in
any Federal or State court of competent jurisdiction by any one or more employees for
and in behalf of himself or themselves and other employees similarly situated. 29
U.S.C. 216(b). In Hipp v. Liberty Natl Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir.
2001), the Eleventh Circuit suggested that district courts utilize:
a two-tiered approach in making the similarly situated determination. Under
this approach, during the early stages of litigation, the district court would
have evaluated the case under a lenient standard and likely would have
granted preliminary certification of an opt-in class. The court would then have
re-evaluated the similarly situated question at a later stage, once discovery
produced more information regarding the nature of the Plaintiffs claims.
252 F.3d at 1217-18. The Eleventh Circuit has made clear that the district courts have
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discretion to consider class certification and are not required to follow this two-tiered
procedure. Id. at 1219.
The first stage of the two-tiered procedure is often referred to as the notice
stage. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). The
second stage generally takes place after the parties have had an opportunity to
participate in discovery and is triggered by an employers motion for decertification. Id.
at 1261 (citation omitted).
Prior to allowing court supervised notification of opt-in rights, the Court must
determine that there are other individuals who desire to opt-in and who are similarly
situated with respect to their job requirements and with regard to their pay provisions.
Dybach v. State of Fla. Dept. of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991). At the
notice stage, [a] plaintiff has the burden of showing a reasonable basis for his claim
that there are other similarly situated employees. Morgan, 551 F.3d at 1260. The Court
generally makes its decision based on the pleadings and any affidavits which have
been submitted. Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996).
The Eleventh Circuit has described the plaintiffs burden at the notice stage as
not particularly stringent, . . . fairly lenient, . . . flexible, . . . not heavy . . . and less
stringent than that for joinder under Rule 20(a) or for separate trials under 42(b).
Morgan, 551 F.3d at 1262 (citations and internal quotation marks omitted).
Consequently, [t]he district courts broad discretion at the notice stage is . . .
constrained, to some extent, by the leniency of the standard for the exercise of that
discretion. Id. at 1261. The plaintiffs burden is less lenient at the second stage
because [a]t this point, the district court has a much thicker record than it had at the
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notice stage, and can therefore make a more informed factual determination of
similarity. Id.
The Eleventh Circuit has held that allowing notice to other potential members of
the plaintiff class to opt-in if they so desire is consistent with the broad remedial
purpose of the [Fair Labor Standards] Act. Dybach, 942 F.2d at 1567 (citation
omitted). However, the power to authorize notice must be exercised with discretion and
only in appropriate cases. Haynes v. Singer Co., 696 F.2d 884, 886 (11th Cir. 1983).
ANALYSIS
The plaintiff seeks conditional certification of [a]ll Aviation Security Officers
currently or formerly employed by Akal at any Akal facility who had an automatic lunch
break deduction taken out of their paycheck at any time since three years prior to the
date of the order certifying the class. Plaintiffs Reply in Further Support of His Motion
for Conditional Collective Action Certification (DE # 43 at p. 7, 9/23/16). At the notice
stage, the plaintiff has the burden of demonstrating a reasonable basis to believe that:
(1) there are other employees of the defendant who desire to opt-in and (2) these other
employees are similarly situated with respect to their job requirements and with regard
to their pay provisions. Dybach, 942 F.2d at 1567-68. For the reasons discussed
below, the plaintiff has met his burden on the first requirement and met his burden as to
the second requirement regarding other persons associated with the defendants Miami
location.
1.

Whether There Is a Reasonable Basis to Believe There Are Other Akal Air
Security Officers Who Desire to Opt-in
In the case of Pares v. Kendall Lakes Auto., LLC, No. 13 20317 CIV, 2013 WL
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3279803, the Court found that the affidavits from the two other employees shows that
at least two other co-workers desire to join the suit, thereby raising [Plaintiffs']
contention beyond one of pure speculation. Pares v. Kendall Lakes Auto., LLC, No.
13 20317 CIV, 2013 WL 3279803, at *5 (S.D. Fla. June 27, 2013) (citations omitted).
The undersigned finds that the plaintiff has met his lenient burden in the instant case.
In his reply, the plaintiff states that there are 17 opt-in plaintiffs, 14 of whom are
named in the draft Amended Complaint1. (DE # 43 at 1-2, 9/23/16). Including the
plaintiffs declaration, there are a total of 17 declarations from opt-in plaintiffs regarding
a desire to join in this matter. (DE #s 8, 9, 18, 25, 33, 36, and 40). As few as one
additional opt-in plaintiff is sufficient for conditional certification of a collective class.
See Pares v. Kendall Lakes Automotive, LLC, 2013 WL 3279803, * 5 (S.D. Fla. June
27, 2013). 17 declarations of a desire to join in this lawsuit exist on the docket in this
matter. Accordingly, the undersigned finds that the plaintiff has met his burden of
demonstrating that there is a reasonable basis to believe that other air security officers
who wish to join this case do indeed exist.
2.

Whether There Is a Reasonable Basis to Believe That All Other Akal Air
Security Officers Are Similarly Situated
[T]he FLSA does not define how similarly situated employees need to be to

bring a collective action under 216(b), and the Eleventh Circuit has not adopted a
precise definition of the phrase. Collado v. J. & G. Transp., Inc., No. 14-80467-CIV,
2014 WL 5390569, at *4 (S.D. Fla. Oct. 23, 2014) (citing Morgan, 551 F.3d at 1259). In

The plaintiff filed the Amended Complaint on September 29, 2016, (DE # 45,
9/29/16).
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determining whether other employees are similarly situated, this Court has considered
multiple factors including:
1) whether the plaintiffs all held the same job title; 2)
whether they worked in the same geographic location; 3)
whether the alleged violations occurred during the same
time period; 4) whether the plaintiffs were subjected to the
same policies and practices, and whether these policies and
practices were established in the same manner and by the
same decision maker; [and] 5) the extent to which the
actions which constitute the violations claimed by Plaintiffs
are similar.
Smith v. Tradesmen Intl, Inc., 289 F. Supp. 2d 1369, 1372 (S.D. Fla. 2003) (citation
omitted).
The plaintiff argues that the opt-in plaintiffs are all similarly situated because they
all held the title of air security officer, they all performed the same role for the
company, and were subject to Akals uniform, company-wide automatic one-hour lunch
break deduction from their paychecks despite being on-the-clock for that lunch hour
and without regard to whether the employee even took a lunch break or how long of a
lunch break was taken. (DE # 43 at p. 2, 9/23/16). The defendant argues that the
plaintiff fails to identify any job requirements noting that he is similarly situated to
potential class members in Miami. (DE # 32 at pp. 8-9, 9/14/16). The defendant further
argues that the plaintiff fails to demonstrate that there exist similarly situated class
members on a nationwide basis, (DE # 32 at pp. 9-11), and that the plaintiff fails to
establish a uniform policy of the defendant violates the FLSA.2 (DE # 32 at pp. 11-13).
2

Citing to a Northern District of New York case, Fengler v. Crouse Health

Found., Inc., 595 F.Supp.2d 189, 196 (N.D.N.Y. 2009) the defendant argues that
automatic meal-deduction policies are legal and are insufficient on their own to support
a collective action.
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In Pares v. Kendall Lakes Auto., LLC, 2013 WL 3279803, at *6 (S.D. Fla. June
27, 2013) the Court noted that
A plaintiff may satisfy this burden by providing sufficient
evidence showing [that the employer] engaged in a policy or
pattern of FLSA violations. Ledbetter v. Pruitt Corp., No.
5:05CV329 (CAR), 2007 U.S. Dist. LEXIS 10243, at *10,
2007 WL 496451 (M.D.Ga. Feb. 12, 2007). Thus a plaintiff
can demonstrate that other employees are similarly situated
by pointing to a common scheme, plan, or policy. See
Barron v. Hen ry Cnty. Sch. Sys., 242 F.Supp.2d 1096, 1103
(M.D.Ala.2003). Yet the Eleventh Circuit has now made it
clear that in this circuit a plaintiff may establish that others
are similarly situated without pointing to a particular plan or
policy. Id. To do so however, a plaintiff must make some
rudimentary showing of commonality between the basis for
his claims and that of the potential claims of the proposed
class, beyond the mere facts of job duties and pay
provisions. Id. Indeed, a plaintiff must show that the
violations were more than sporadic occurrences. Id. at
1104. Ultimately, though, the Court must determine whether,
based upon the particular facts of the case, the similarities
among the putative class members are sufficient so that it is
more practical, efficient, and fair to proceed as a collective
action rather than requiring separate actions. Order on
Plaintiffs' Motion for Conditional Certification at 6, Montes de
Oca, No. 1023610CIVMORENO/TORRES.

Pares v. Kendall Lakes Auto., LLC, 2013 WL 3279803, at *6 (S.D. Fla. June 27, 2013).
In Martinez v. DHL Express, 2016 WL 455394 (S.D. Fla. 2016), the plaintiff
attempted to certify a class of individuals from Miami Airport (MIA), John F. Kennedy
Airport (JFK), and Los Angeles International Airport (LAX). In the Martinez case, both
originally named plaintiffs worked at MIA. In conjunction with the reply to the plaintiffs
Motion for Conditional Certification filed by the plaintiffs in the Martinez case, the
plaintiffs submitted six (6) additional declarations to support the request to certify the
class at all three (3) airport locations. Only one (1) of the six (6) declarations came from
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an employee outside of MIA, and the Court found that the plaintiffs failed to satisfy their
burden of demonstrating JFK and LAX employees were similarly situated to the MIA
employees. (The Court in Martinez did find that the plaintiffs submitted an adequate
number of affidavits and an adequate amount of support to certify a class of MIA
employees). In this matter, all of the declarations docketed in support of the class
certification are from employees of the Miami location of the defendant, none are from
any other location. Accordingly, following the decision in the Martinez case, in which
there was only one declaration from an employee outside of MIA (here there are none),
the undersigned finds that the plaintiff failed to meed his burden of demonstrating the
appropriateness of certifying a nationwide class.
The undersigned finds, however, that the plaintiff met his burden associated with
certifying a class comprised of Akal Miami based employees. In Martinez, the plaintiffs
submitted numerous declarations from MIA agents, all alleging substantially the same
policy and practice violations. Martinez, at *6. Similarly, in this matter, there are 17
declarations on the docket of Miami employees asserting similar circumstances. The
undersigned finds that 17 declarations is an adequate number of declarations to meet
the necessary burden of certifying a local class, and recommends a certification of a
class of Miami employees.
The instant motion should be GRANTED in part and DENIED in part.
RECOMMENDATION
In accordance with the foregoing, the undersigned respectfully recommends that
the Plaintiffs Motion for Conditional Collective Action Certification (DE# 11, 8/15/16) be
GRANTED in part and DENIED in part. Should the Court adopt this Report and
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Recommendation the parties should be required to provide a joint agreed notice to be

sent to potential class members.
The parties will have fourteen (14) days from the date of being served with a
copy of this Report and Recommendation within which to file written objections, if any,
with the Honorable Federico Moreno, United States District Judge. Failure to file
objections timely shall bar the parties from a de novo determination by the District
Judge of an issue covered in the Report and shall bar the parties from attacking on
appeal unobjected-to factual and legal conclusions contained in this Report except
upon grounds of plain error if necessary in the interest of justice. See 28 U.S.C.
636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790,
794 (1989); 11th Cir. R. 3-1 (2016).
RESPECTFULLY SUBMITTED at the United States Courthouse, Miami, Florida
this 5th day of October, 2016.

JOHN J. O SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Moreno
All Counsel of Record

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