United States District Court, S.D. Texas, Houston Division
EUGENE VAUGHN, Individually and on behalf of all others similarly situated, Plaintiff,
THE DOCUMENT GROUP INC., Defendant.
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.
Fair Labor Standards Act (“FLSA”) case is before
the Court on the Motion for Conditional Certification and for
Notice to Putative Class Members (“Motion”) [Doc.
# 9] filed by Plaintiff Eugene Vaughn. Defendant The Document
Group, Inc. (“TDG”) filed a Response [Doc. # 11],
Vaughn filed a Reply [Doc. # 12], and TDG filed a Sur-Reply
[Doc. # 814]. Having carefully reviewed the record and
the applicable legal authorities, the Court concludes that
the pending Motion should be granted. The Court will
conditionally certify a class consisting of “all
current and former Manual Laborers and Scanner Operators who
were classified as independent contractors and who worked for
The Document Group on or after April 20, 2014, and worked
more than forty hours in a week but were not paid overtime
pay at the rate of one and one-half times their regular
provides litigation support services to law firms and their
clients, including copying, scanning, organizing, and storing
records (“litigation support
work”). TDG asserts, and Vaughn does not dispute,
that the volume of documents and the timeframe in which TDG
is tasked to complete its litigation support work differ from
project to project. It is also undisputed that certain of the
individuals hired by TDG to perform the litigation support
work are classified as employees of TDG, while others are
classified as independent contractors. TDG asserts, without
challenge, that it supplements its workers' ranks as
needed to assist with high-volume projects that have tight
alleges that from March, 2016, until October 4, 2016, he
performed litigation support work, including scanning,
printing, and binding documents for TDG. Vaughn, whom TDG
classified as an independent contractor, filed this lawsuit
under the FLSA, alleging that he regularly worked in excess
of forty hours and was not paid overtime wages for the hours
worked in a week in excess of forty. Vaughn now seeks
conditional certification of a class comprised of all Manual
Laborers and Scanner Operators (“litigation support
workers”) TDG employed as independent contractors
within the past three years, which class the Court interprets
to be limited to those who worked in excess of forty hours in
a week and were not paid overtime at the rate of one and
one-half times their regular hourly rate.
in support of his Motion, relies on evidence, such as his own
affidavit and the affidavit of another worker TDG classified
as an independent contractor. The Motion has been fully
briefed and is now ripe for decision.
APPLICABLE LEGAL PRINCIPLES
FLSA provides that “no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless
such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). An employee may
sue his employer under the FLSA on “behalf of himself
... and other employees similarly situated.” 29 U.S.C.
§ 216(b). Similarly situated employees can
“opt-in” to a lawsuit under § 207(a) to
benefit from a judgment.
Standard for Conditional Certification
considering whether to certify a lawsuit under the FLSA as a
collective action, courts in this federal district generally
use a “two-stage approach.” See Austin v.
Onward, LLC, 161 F.Supp.3d 457, 461 (S.D. Tex. 2015);
see also Caballero v. Kelly Servs., Inc., Civil
Action No. H-14-1828, 2015 WL 12732863, *3 (S.D. Tex. Oct. 5,
2015); Diaz v. Applied Machinery Corp., Civil Action
No. H-15-1282, H-15-2674, 2016 WL 3568087, *4 (S.D. Tex. June
24, 2016); Walker v. Honghua Am., LLC, 870 F.Supp.2d
462, 465 (S.D. Tex. 2012). At the first stage, the Court
decides whether to conditionally certify a class into which
individuals may opt if they seek to benefit and be bound by
the outcome of the case. At this stage, in essence, the Court
is deciding whether to issue notice to potential class
members. See Walker, 870 F.Supp.2d at 465. The
second stage occurs when discovery is largely complete. If it
chooses, the defendant may move to “decertify”
the conditionally certified class. See Id. at 466.
“Neither stage of certification is an opportunity for
the court to assess the merits of the claim by deciding
factual disputes or making credibility determinations.”
McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 802
(S.D. Tex. 2010).
notice stage, the Court's decision is generally based on
the pleadings, affidavits, and other limited evidence.
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th
Cir. 1995), overruled on other grounds by Desert Palace,
Inc. v. Costa, 539 U.S. 90 (2003); Walker, 870
F.Supp.2d at 465. At this stage, the plaintiff is required to
show that “(1) there is a reasonable basis for
crediting the assertions that aggrieved individuals exist,
(2) that those aggrieved individuals are similarly situated
to the plaintiff in relevant respects given the claims and
defenses asserted, and (3) that those individuals want to
opt-in to the lawsuit.” Walker, 870 F.Supp.2d
at 465-66; see also Andel v. Patterson-UTI Drilling Co.,
LLC, 280 F.R.D. 287, 289 (S.D. Tex. 2012).
“Although collective actions under the FLSA are
generally favored, the named plaintiff(s) must present some
factual support for the existence of a class-wide policy or
practice.” Carey v. 24 Hour Fitness USA, Inc.,
2012 WL 4857562, at *1 (S.D. Tex. Oct. 11, 2012) (citing
Walker, 870 F.Supp.2d at 466). Conclusory
allegations that other employees are similarly situated are
insufficient to justify conditional certification.
Rodriguez v. Flower Foods, Inc., Civil
Action No. 4:16-CV-245, 2016 WL 7210943, at *2 (S.D. Tex.
Dec. 13, 2016).
“similarly situated, ” there must be
“substantial allegations that potential members
‘were together the victims of a single decision,
policy, or plan.'” McKnight, 756 F.Supp.2d
at 801 (quoting Mooney, 54 F.3d at 1213).
Certification should be denied “‘if the action
arises from circumstances purely personal to the plaintiff,
and not from any generally applicable rule, policy, or
practice.'” Id. (quoting England v.
New Century Fin. Corp., 370 F.Supp.2d 504, 507 (M.D. La.
2005)). Where minimal evidence is advanced at the notice
stage, the conditional class determination “is made
using a fairly lenient standard, and typically results in
‘conditional certification' of a representative
class” that provides potential class members with
notice and the opportunity to opt in. See Id.
(quoting Mooney, 54 F.3d at 1214 n.8); see also
Walker, 870 F.Supp.2d at 465.
Evidence that Other Aggrieved Individuals Exist
satisfy the first element under the analysis Vaughn need only
show that there is a reasonable basis for believing that
other aggrieved individuals exist. See
Heeg, 907 F.Supp.2d at 862. In addition to his own
affidavit, Vaughn has submitted an affidavit from Naseem
Roberson, in which Roberson affirms his intention to join the
lawsuit as a plaintiff. Roberson, like Vaughn, states that he
performed litigation support work for TDG and that TDG
classified Roberson as an independent contractor and did not
pay him overtime wages. Roberson also states that he estimates
at least fifteen TDG workers whose duties were similar to
those Roberson performed and who were not paid overtime for
hours worked in excess of forty, and identifies three by
name. TDG does not challenge Vaughn or
Roberson's averments that other aggrieved individuals
exist. The Court finds that Vaughn has provided sufficient
evidence to credit his assertion that aggrieved individuals
exist. See Heeg, 907 F.Supp.2d at 862; cf.
Rodriguez, 2016 WL 7210943, at *2 (“[t]o show that
there are similarly situated employees, a plaintiff would
ideally produce affidavits from potential class members
affirming their intention to join the lawsuit.” (citing
McKnight, 756 F.Supp.2d at 805 (S.D. Tex.
2010)). The first element for conditional
certification is satisfied.
Existence of Similarly Situated Individuals
noted, Vaughn seeks conditional certification of a class
comprised of all litigation support workers TDG employed as
independent contractors within the past three
years. Vaughn alleges he and the other putative
class members are similarly situated because, first,
“Defendant has a common policy of mischaracterizing
workers as independent contractors and thereby paying them
straight time instead of the statutorily required overtime
pay for hours worked above forty (40) each week, ”
and, second, “Plaintiff and putative class members
performed the same job duties and were paid straight time
instead of time and a half for overtime hours
worked.” These arguments are intertwined and will
be addressed in tandem.
disputes that conditional certification is warranted. TDG
asserts that Vaughn fails to identify “a single
decision, policy or plan that TDG purportedly subjected
Plaintiff and putative class members to in their relationship
with TDG.”Moreover, TDG argues, the similarity
determination requires an individualized analysis that
renders this suit inappropriate for class
“similarly situated, ” there must be
“‘substantial allegations that potential members
were together the victims of a single decision, policy, or
plan.'” Caballero v. Kelly Servs., Inc.,
Civil Action No. H-14-1828, 2015 WL 12732863, at *3 (S.D.
Tex. 2015) (quoting McKnight, 756 F.Supp.2d at 801).
Additionally, “[f]or the class representative to be
considered similarly situated to the potential opt in class
members, the class representative must be similarly situated
in terms of job requirements and similarly situated in terms
of payment provisions.” Vanzzini v. Action Meat
Distribs., Civil Action No. H-11-4173, 2012 WL 1941763,
at *3 (S.D. Tex. May 29, 2012) (quoting Ryan v. Staff
Care, Inc., 497 F.Supp.2d 820, 825 (N.D. Tex. 2007)).
“Plaintiffs ‘need only show that their positions
are similar, not identical, to putative
plaintiffs.'” Walker, 870 F.Supp.2d at 468
(quoting Jesiek v. Fire Pros, Inc., 275 F.R.D. 242,
246 (W.D. Mich. 2011)). However, “if the job duties
among potential members of the class vary
significantly, then class certification should not
be granted.” See Dreyer, 2008 WL 5204149, at
*2 (emphasis in original).
Court determines that Vaughn and members of the putative
class are sufficiently similarly situated to one another with
respect to their work for TDG and TDG's pay practices to
satisfy this factor. Vaughn has adequately alleged a TDG
policy with respect to the putative class, namely, that TDG
misclassified certain litigation support workers as
independent contractors in order to avoid paying those
individuals overtime. Vaughn also has adduced evidence of
similarity in job requirements and pay provisions among the
class, pointing to spreadsheets supplied to Vaughn by TDG in
the course of litigation that detail the job descriptions of
and pay accorded to prospective members.See
Diaz, 2016 WL 3568087, at *8-9; Heeg, 907
F.Supp.2d at 865. In 2017, for example, the job requirements
of litigation support workers TDG classified as independent
contractors are described as “[s]can despeckle, ...