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Senegal v. Fairfield Industries Inc.

United States District Court, S.D. Texas, Houston Division

March 27, 2017

DARNELL SENEGAL, individually and on behalf of others similarly situated Plaintiff,


         Pending before the court[1] is Plaintiff's Motion to Certify Class (Doc. 59). The court has considered the motion, Defendant's response (Doc. 63), Plaintiff's reply (Doc. 65), all other relevant filings, and the applicable law. For the reasons set forth below, the court GRANTS Plaintiff's motion with the modifications to the proposed class notice as discussed herein.

         I. Case Background

         Darnell Senegal (“Plaintiff”) filed this action against Fairfield Industries, Inc. (“Defendant”) under the Fair Labor Standards Act[2] (“FLSA”).[3] Plaintiff alleged that Defendant violated the FLSA by failing to pay Plaintiff and other similarly situated employees for hours worked over forty in a week.[4]

         A. Factual Background

         Defendant offers geological survey services to the oil and gas industry by using oceanographic seismic vessels to perform the surveys.[5] These vessels had a marine crew and a seismic crew.[6]Plaintiff worked as part of the seismic crew, which consisted of observers, the gun department, mechanics, navigators, and marine mammal observers.[7] The observers “were generally responsible for hanging the ‘nodes' on the lines and deploying and retrieving them” as well as “remov[ing] the nodes after they were retrieved and secur[ing] and stor[ing] the lines and nodes.”[8] The gun department's role was to set up the air guns that were towed behind the vessel on strings, to bring the air guns back on the vessel for storage, and maintain the air guns and firing lines.[9] The mechanics maintained the survey equipment, including the compressor for the air guns and the conveyor used in the release and return of the nodes.[10] The navigators oversaw the gun mechanics and observers in the collection of data.[11] Plaintiff was employed by Defendant from August 1994 to May 2016, and worked as a lineman, boat operator, gun mechanic helper, and gun mechanic shift leader.[12]

         Everyone on the seismic crew was employed by Defendant, and the seismic crew had consistent duties on all of Defendant's ships.[13] When Plaintiff was hired, he was told that he would work a twenty-eight day hitch, followed by twenty-eight days off.[14]Plaintiff averred that he was paid on a day-rate basis for twelve hours of work, and that Defendant told him that he would receive overtime if he exceeded twelve hours in a day.[15] Plaintiff was scheduled to work twelve hours a day, seven days a week and was additionally required to spent his time off participating in other activities, such as training sessions or unloading food and other supplies.[16] Plaintiff averred that he often worked more than twelve hours a day but did not receive compensation for this overtime.[17]When Plaintiff was not on board the vessel, he attended licensing classes, submitted to physical exams, and unloaded equipment.[18] Plaintiff never recorded his hours while working for Defendant.[19]

         Comb averred that the day-rate included weekly compensation for 47.5 hours of overtime, and that employees had to receive authorization to work more than 87.5 hours a week.[20] Defendant paid Plaintiffs pursuant to this day-rate plan from 2000 through December 2015.[21] Defendant ceased all operation and ownership of vessels in May 2016.[22]

         B. Procedural Background

         Plaintiff filed his complaint on July 15, 2016, alleging violations of the FLSA.[23] Forty other putative class members have opted into the lawsuit as of the date of this opinion.[24] Plaintiff filed an amended complaint on September 26, 2016.[25]

         Plaintiff filed the pending motion to certify class on November 14, 2016, seeking to certify the following class: “All current and former seismic crewmembers employed by [Defendant] and paid on a day-rate basis at any time during the last three years.”[26] The proposed class of seismic crewmembers includes: “observers (i.e., the linesman (or line chiefs), junior observers, shift lead observers, chief observers, and party managers); the gun department (i.e., gun mechanic helpers, gun mechanic trainees, gun mechanics, gun shift leaders, and gun mechanic chiefs); the mechanics (i.e., compressor mechanics and back deck mechanics); the navigators (i.e., the navigators, shift lead navigators, and chief navigators); and marine mammal observers.[27] Plaintiff asks the court to (1) conditionally certify the proposed class; (2) authorize notice to potential class members; and (3) order Defendant to provide contact information for all seismic crew members who were employed by Defendant, its parent, subsidiaries, or affiliates within the last three years.[28]

         Defendant responded to Plaintiff's motion to certify class on December 12, 2016, challenging the class and Plaintiff's form of proposed notice.[29]

         II. Legal Standard

         The FLSA requires covered employers to pay non-exempt employees for hours worked in excess of defined maximum hours. 29 U.S.C. § 207(a). It allows employees to bring an action against their employers for violation of its hour and wage provisions. See 29 U.S.C. §§ 215-216. An employee may bring this action against his employer on “behalf of himself . . . and other employees similarly situated. No employee shall be a party plaintiff to any such an 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.” 29 U.S.C. § 216(b). Courts have the authority to implement the representative action process by facilitating notice to potential plaintiffs, in other words, to persons alleged to be “similarly situated” to the named plaintiff(s). Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 171-74 (1989).

         In the Fifth Circuit, the determination of whether plaintiffs are similarly situated is generally made by using one of two analyses: (1) the two-step analysis described in Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987); or (2) the “spurious class action” analysis described in Shushan v. Univ. of Colo., 132 F.R.D. 263 (D. Colo. 1990). See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (expressly declining to decide which of the two analyses is appropriate).[30]

         Under the Lusardi approach, the court first “determines whether the putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class.” Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010) (citing Mooney, 54 F.3d at 1213-14). The court makes this determination by using a fairly lenient standard, requiring only “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Mooney, 54 F.3d at 1214 & n.8. If the court determines that the employees are similarly situated, then notice is sent and new plaintiffs may “opt in” to the lawsuit. Acevedo, 600 F.3d at 519 (citing Mooney, 54 F.3d at 1214). Next, once discovery has largely been completed and, thus, more information on the case made available, the court makes a final determination on whether the plaintiffs are similarly situated and whether they can proceed together in a single action. Id.

         According to the Fifth Circuit, the Shushan approach, known as the “spurious class action” analysis, is similar to the class certification procedure used under Federal Rule of Civil Procedure 23 (“Rule 23”):

Shushan espouses the view that [29 U.S.C. § 216(b) (“Section 216(b)”)] merely breathes new life into the so-called “spurious” class action procedure previously eliminated from [Rule 23]. Building on this foundation, the court determined that Congress did not intend to create a completely separate class action structure for the FLSA . . . context, but merely desired to limit the availability of Rule 23 class action relief under . . . [the FLSA]. In application, the court determined that Congress intended the “similarly situated” inquiry to be coextensive with Rule 23 class certification. In other words, the court looks at “numerosity, ” “commonality, ” “typicality” and “adequacy of representation” to determine whether a class should be certified. Under this methodology, the primary distinction between a . . . [FLSA] representative action and a [Rule 23] class action is that persons who do not elect to opt-in to the . . . [FLSA] representative action are not bound by its results. In contrast, Rule 23 class members become party to the litigation through no action of their own, and are bound by its results.

Mooney, 54 F.3d at 1214.

         The Fifth Circuit has not ruled which method the courts should use to determine whether plaintiffs are sufficiently similarly situated to advance their claims together in a single action under Section 216(b). Acevedo, 600 F.3d at 518-19. Although it has stated that not all class action standards are applicable to Section 216(b) actions, the court has explicitly left open the question of whether the Lusardi approach, the Shushan approach, or a third approach should be used in determining whether employees' claims are sufficiently similar to support the maintenance of a representative action. Id. (citing Mooney, 54 F.3d at 1216; LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5th Cir. 1975)).

         However, most courts in this district follow the Lusardi approach in suits brought under Section 216(b). See, e.g., Tolentino v. C & J Spec-Rent Servs., Inc., 716 F.Supp.2d 642, 646 (S.D. Tex. 2010) (collecting cases). The Lusardi approach is consistent with Fifth Circuit dicta stating that the two-step approach is the typical manner in which these collective actions proceed. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008). The Fifth Circuit has also stated that “[t]here is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by [Section 216(b)], ” in other words, the “opt out” procedure for class members under Rule 23 as opposed to the “opt in” procedure under Section 216(b). LaChapelle, 513 F.2d at 288; see also Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981) (“The FLSA procedure, in effect, constitutes a congressionally developed alternative to the [Rule 23] procedures.”). This court, therefore, will analyze Plaintiff's claims using the Lusardi method.

         The present case is at the “notice stage” of the Lusardi analysis. At this stage, the court's decision is “made using a fairly lenient standard;” a plaintiff need only make a minimum showing to guide the court's determination whether to issue notice to potential class members. Mooney, 54 F.3d at 1214.

         In the absence of Fifth Circuit guidance on the appropriate test to use at the notice stage of the Lusardi analysis, courts are split on the appropriate elements to consider in determining whether to grant conditional certification. Some courts use three elements, requiring the plaintiff to show that: (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit. See, e.g., Cantu v. Vitol, Inc., No. H-09-0576, 2009 WL 5195918, at *4 (S.D. Tex. Dec. 21, 2009) (unpublished); Tolentino, 716 F.Supp.2d at 653. Other courts, however, have rejected the third, non-statutory element. See, e.g., Jones v. Cretic Energy Servs., LLC, 149 F.Supp.3d 761, 768 (S.D. Tex. 2015); Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL 5204149, *3 (S.D. Tex. Dec. 11, 2008) (unpublished); Heckler v. DK Funding, LLC, 502 F.Supp.2d 777, 780 (N.D. Ill. 2007).

         This court is persuaded by the latter group of cases that have rejected the third element, as it is not statutorily required. See Jones, 149 F.Supp.3d at 762. This reasoning is consistent with the instruction from the Supreme Court that the FLSA be liberally construed to carry out its purposes. Id. (citing Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296 (1985)). Therefore, the court finds that it is enough for Plaintiff to present evidence that there may be other aggrieved individuals who should be noticed without requiring evidence that those individuals actually want to join the lawsuit.

         III. Analysis

         The court will first address Defendant's challenges to Plaintiff's class certification and then will turn to Defendant's objections to Plaintiff's proposed class notice.

         A. Class Certification

         Defendant argues that Plaintiff's class should not be certified and reminds the court that certification of a class is not automatic. The court agrees that while the burden for a plaintiff is low, class certification not automatic. See Sandel v. Fairfield Indus., Inc., No. H-13-1596, 2014 WL 1379902 (S.D. Tex. Apr. 8, 2014)(unpublished). In order to obtain a class certification, Plaintiff must show “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination.” Mooney, 54 F.3d at 1214 & n. 8. Plaintiff must provide evidence to establish a reasonable belief that aggrieved individuals exist and that the aggrieved individuals are similarly situated. Cantu, 2009 WL 5195918, at *4.

         1. Exemptions

         After this lawsuit was filed, forty individuals filed opt-in notices. Defendant specifically challenges the opt-in marine crew members, arguing that they should be dismissed because, as seamen, they are exempt from the FLSA. Defendant states that despite Plaintiff's agreement that the marine crew members were not proper opt-ins in this case and would be dismissed, no motion to dismiss has been filed. Defendant also contends that some of the putative class members are exempt under 29 U.S.C. § 213(f) because they worked on foreign-flagged vessels in foreign territories. The final exemption Defendant raises is that managerial offshore seismic crew positions were exempt under 29 U.S.C. § 213(a)(1).

         Exemption defenses “are merits-based defenses to FLSA claims that courts in this district typically hold to be irrelevant at this initial, notice stage of the case.” Jones, 149 F.Supp.3d at 768 (S.D. Tex. 2015) (providing examples of other cases supporting this proposition); see also Turner v. Nine Energy Serv., No. H-15-3670, 2016 WL 6638849 (S.D. Tex. Oct. 4, 2016)(unpublished). Even if an exemption defense may apply to a case, that is not enough to prevent conditional certification of a class. Dreyer, 2008 WL 5204149, at *3 (citing Foraker v. Highpoint Sw., Servs., LP, No. H-06-1856, 2006 WL 2585047, at *4 & n. 16 (S.D. Tex. Sept. 7, 2006)(unpublished)); see also Albanil v. Coast 2 Coast, Inc., No. H-08-486, 2008 WL 4937565, at *7 (S.D. Tex. Nov. 17, 2008)(unpublished)(“defendants' assertion of an exemption, alone, is an insufficient basis for denying conditional certification and notice”).

         The second stage of the Lusardi analysis is “typically precipitated by a motion for ‘decertification' by the defendant usually filed after discovery is largely complete . . . [a]t this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question.” Mooney, 54 F.3d at 1214. Exemption defenses are properly considered in the second stage of the Lusardi analysis. Falcon v. Starbucks Corp., 580 F.Supp.2d 528, 534 (S.D. Tex. 2008).

         Therefore, Defendant's arguments that the putative class members are not similarly situated because of the applicability of certain merits-based exemption defenses are not proper to defeat class certification. These ...

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