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Ntuk v. Taylor Smith Consulting, LLC

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

April 20, 2017

CEDRIC NTUK, JOHN CLARK, DRACHAN JOHNSON, and KEVIN MALLARD on behalf of themselves and all others similarly situated, Plaintiffs,


         Pending before the court[1] is Plaintiffs' Motion to Certify Class (Doc. 21). The court has considered the motion, all other relevant filings, and the applicable law. For the reasons set forth below, the court GRANTS Plaintiffs' motion.

         I. Case Background

         Cedric Ntuk, John Clark, Drachan Johnson, and Kevin Mallard (“Plaintiffs”) filed this action against Taylor Smith Consulting, LLC and Tracy T. Smith (“Defendants”) under the Fair Labor Standards Act (“FLSA”).[2] Plaintiffs alleged that Defendants misclassified them as exempt employees under the FLSA and failed to pay overtime.[3]

         A. Factual Background

         Taylor Smith Consulting, LLC, is a domestic limited liability company that provides full service staffing, contracting, and management consulting to customers throughout the United States and Texas.[4] Plaintiffs worked for Defendants at the Pasadena Waste Management site as onsite supervisors between October 2014 and April 2016.[5]

         Along with this motion, Plaintiffs submitted their own declarations alleging that they and other similarly situated employees were entitled to overtime compensation under the FLSA.[6]The following facts are derived from these declarations and Plantiffs' second amended complaint.

         During the relevant time period, Defendants compensated Plaintiffs with a flat salary on a weekly basis.[7] Defendants regularly required them to work on weekends at the discretion of a supervisor and failed to pay Plaintiffs for any work time exceeding forty hours per week.[8] Plaintiffs, as onsite supervisors, were required to work sixty hours per week.[9] When Plaintiffs asked about overtime compensation, representatives of Defendants claimed that onsite supervisors were exempt employees and thus not entitled to overtime.[10] Defendants offered no further justification for categorizing onsite supervisors as exempt.[11]

         All onsite supervisors shared similar responsibilities, including assigning helpers to assist residential waste collection trucks and observing and reporting the activities of helpers.[12] The duties of onsite supervisors also included, but were not limited to, keeping a log of the garbage trucks, ensuring that the helpers were properly attired, and verifying payroll.[13] There was no distinction in duties, responsibilities, or obligations between the work Plaintiffs performed on the weekend and the work they performed during the week.[14]

         B. Procedural Background

         Plaintiffs filed their original complaint on April 28, 2016, alleging violations of the FLSA.[15] Plaintiffs filed an amended complaint on July 20, 2016, and a second amended complaint on October 11, 2016.[16]

         Plaintiffs filed the pending motion to certify class on November 3, 2016, seeking to certify the following class: “all of Defendants' current and former employees employed as Onsite Supervisors and who were paid pursuant to a flat salary with no payment for hours worked beyond 40 hours before the filing of this Complaint up to the present.”[17] Plaintiffs ask the court to (1) conditionally certify the proposed class; (2) authorize notice to potential class members; and (3) order Defendants to provide contact information for all onsite supervisors who were employed by Defendants within the last three years.[18]

         Defendants did not respond to Plaintiffs' motion to certify class.

         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).[19]

         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 ...

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