United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER
Tagle Senior United States District Judge.
Court has before it Plaintiff's Motion for Conditional
Certification in this putative collective action under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201, et seq. Dkt. No. 24. After considering
the motion, the complaint, the accompanying evidence, the
parties' arguments, and the applicable law, the Court
GRANTS IN PART and DENIES IN PART Plaintiff's motion.
Laura A. Malaska (“Malaska”) brings this
wage-and-hour case against Defendant Saldivar Coastal
Services, Inc. (“SCSI”) under the
collective-action provision of the FLSA, 29 U.S.C. §
216(b). SCSI provides in-home services to elderly and infirm
clients. To provide these services, SCSI employs domestic
service workers called “providers.” Malaska was
employed by SCSI as a provider from approximately October
2009 until June 2016. Malaska filed her complaint on April
12, 2016. On October 4, 2016, Malaska filed the instant
Motion for Conditional Certification. Dkt. No. 24. Malaska
defines the proposed class as follows:
All Providers employed by Saldivar Coastal Services, Inc.
during any workweek during the period of January 1, 2015 to
Dkt. No. 24-5 at 1.
November 21, 2016, SCSI filed its response in opposition to
the Motion for Conditional Certification. Dkt. No. 29. SCSI
also filed objections to a declaration made by Malaska in
support of her motion. Dkt. No. 30 (objecting to Dkt. No. 24,
Ex. 1). On December 2, 2016, Malaska filed her reply in
support of the motion and a response to Defendant's
objections to her declaration. Dkt. Nos. 31, 32.
employs approximately 1, 400 Providers and provides domestic
care services in thirty-four (34) counties in Texas.
SCSI's Providers offer bathing care, grooming and
toiletry care, transfer and ambulation care, meal
preparation, and cleaning and laundry services to their
clients. Dkt. No. 24 at 5; Dep. of Margot Saldivar
(“Saldivar”), SCSI's President, Dkt. No. 24,
Ex. 2, p. 9, line 9 to p. 10, line 5. Malaska alleges that
SCSI is in violation of the FLSA because (1) it did not pay
Providers for all of the hours that they worked, including
time spent driving between clients' homes and attending
mandatory meetings, and (2) Providers were not paid the
correct overtime rate of pay when they worked more than forty
hours in a work week. See Dkt. No. 24 at 6-8; Dkt.
No. 24-3 at 1. Malaska seeks to certify as a class all of
SCSI's 1, 400 providers.
regards to the off-the-clock claim, the parties are in
agreement that SCSI's providers were only permitted to
record the time that they actually spent at their
clients' homes, and were not permitted to record the time
spent driving in between clients' homes. Dkt. No. 24 at
6; Saldivar Dep., Dkt. No. 24, Ex. 2, p. 63, lines 18-25 and
p. 64, line 21 to p. 65, line 20. Malaska argues that this
violates the FLSA wage and hour provisions. Dkt. No. 24 at
6-7. Additionally, the evidence is uncontested that SCSI
issued a memorandum notifying SCSI providers about a
“mandatory” meeting to orient providers on how to
use a new time-keeping system, the Electronic Visit
Verification (“EVV”) system. Dkt. No. 24, Ex.
1-F; Saldivar Dep., Dkt. No. 24, Ex. 2, p. 74, lines 16-25.
SCSI did not permit Malaska or other providers to record
their time at the meeting and did not pay Malaska or the
other providers for attending the meeting. Dkt. No. 24 at 7;
Saldivar Dep., Dkt. No. 24, Ex. 2, p. 74, line 16 to p. 75,
line 12. SCSI did not pay any of its providers (or
administrative staff) who attended the meetings at other
locations. Id. Dkt. No. 24 at 7; Saldivar Dep., Dkt.
No. 24, Ex. 2, p. 78, lines 13-24.
the unpaid overtime claim, Malaska alleges that, even without
counting travel time between clients' homes, SCSI does
not pay Malaska or the other Providers the correct overtime
rate of pay for overtime hours worked. Dkt. No. 24 at 8. SCSI
alleges that it only employs around fifty (50) full-time
providers, and attaches the deposition of Saldivar stating
that SCSI employs “maybe 50” full-time providers,
whose “schedule[s] [are] set 40 hours or 41
hours.” Dkt. No. 29, Ex. 1, p. 25, line 23 to p. 27,
line 20. Malaska replies by pointing out that SCSI ignores
the fact that the travel time could have pushed certain
workers into an overtime opportunity, thereby creating more
than 50 employees who are not receiving adequate overtime
wages. Dkt. No. 32 at 6. Malaska further argues that notice
“should go out to all 1, 400 providers in order to
advise them of the wage violations alleged and invite them to
join the lawsuit . . . . Once they join, discovery will be
conducted to determine the extent of each opt in
claimaint's damages.” Id. at 6-7.
FLSA establishes federal minimum-wage, maximum-hour, and
overtime guarantees that cannot be modified by
contract.” Genesis Healthcare Corp. v.
Symczyk, 133 S.Ct. 1523, 1527 (2013). Section 216(b)
creates a cause of action for employees against employers
violating FLSA requirements.
An action . . . may be maintained . . . by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated. No employee shall be a
party plaintiff to any such 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) (2016). Courts routinely refer to
FLSA actions brought by an employee for and on behalf of
other employees under this provision as “collective
actions.” Genesis Healthcare, 133 S.Ct. at
1527 (citing Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 169-70 (1989)). Unlike a class certified pursuant
to Federal Rule of Civil Procedure 23, under the FLSA,
“ ‘conditional certification' does not
produce a class with an independent legal status, or join
additional parties to the action.” Id. at
1530. Rather, the “sole consequence” of
conditional certification is the sending of court-approved
written notice to employees, who in turn become parties to a
collective action only by filing written consent with the
court. Id.; see also Hoffmann-La Roche, 493
U.S. at 171-72. District courts have discretion in deciding
whether to order notice to potential plaintiffs. Aguirre
v. SBC Communications, Inc., No. H-05-3198, 2006 U.S.
Dis. LEXIS 22211, at *15 (S.D. Tex. April 11, 2006)
(Rosenthal, J.) (citing Hoffmann-La Roche, 493 U.S.
courts generally take one of two different approaches to
conditional certification. Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1213 (5th Cir. 1995). The first is
commonly referred to as the “Shushan approach, ”
which treats certification of a collective action under the
FLSA and certification of a class under Rule 23 identically,
requiring the plaintiff to establish numerosity, commonality,
typicality, and adequate representativeness. See Shushan
v. Univ, of Colo. at Boulder, 132 F.R.D. 263 (D. Colo.
1990). The second is a “two-step ad hoc approach”
that was utilized in Lusardi v. Xerox Corp., 118
F.R.D 351 (D. N.J. 1987).
Fifth Circuit has not determined which method is most
appropriate; however, since Mooney, the Fifth
Circuit has acknowledged the inapplicability of Rule 23 to
§ 216(b) actions. Baldridge v. SBC Commc'ns,
Inc., 404 F.3d 930, 932 (5th Cir. 2005). This Court
routinely utilizes the Lusardi approach. Jaso v.
Bulldog Connection Specialists, LLC, 2015 WL 11144603 at
*2 (S.D. Tex. Oct. 15, 2015) (Tagle, J.); see also Perez
v. Valdez, No. 1:13-CV-149, Slip Op. at 5 (S.D. Tex.
Sept. 26, 2014) (Tagle, J.). The parties to this action do
not dispute that district courts in the Fifth Circuit
typically use the Lusardi approach. See
Dkt. No. 24 at 3; Dkt. No. 29 at 1.
and its progeny are remarkable in that they do not set out a
definition of ‘similarly situated, ' but rather
they define the requirement by virtue of the factors
considered in the [two-stage] analysis.”
Mooney, 54 F.3d at 1213. The Lusardi
“two-step” method involves a dual step analysis
of Section 216(b)'s “similarly situated”
requirement. Mooney, 54 F.3d at 1214; Kaluom v.
Stolt Offshore, Inc., 474 F.Supp.2d 866, 871 (S.D. Tex.
Feb. 7, 2007). The two steps consist of a lenient
“conditional certification” decision made at the
so-called “notice stage, ” followed by a more
rigorous analysis of the similarly situated issue typically
precipitated by a motion for “decertification”
after discovery is largely complete and the matter is ready
for trial. Mooney, 54 F.3d at 1214.
first Lusardi stage, the district court makes a
decision-usually based only on the pleadings and any
affidavits that have been submitted-whether notice of the
action should be given to potential class members.
Jaso, No. 2:15-CV-269, 2015 WL 11144603, at *3
(citing Mooney, 54 F.3d at 1213-14). The district
court makes its stage one decision by “determin[ing]
whether the putative class members' claims are
sufficiently similar to merit sending notice of the action to
possible members of the class.” Id.; see
also Acevedo v. Allsup's Convenience Stores, Inc.,
600 F.3d 516, 519 (5th Cir. 2010) (citing Mooney, 54
F.3d at 1213-14). Because the court has minimal evidence
before it at this stage, the district court's
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. Mooney,
54 F.3d at 1214 n.8; McKnight v. D. Houston, Inc.,
756 F.Supp.2d 794, 801 (S.D. Tex. 2010). If a court
conditionally certifies a class, the action proceeds as a
collective action during discovery. Aguirre, No.
H-05-3198, 2006 U.S. Dis. LEXIS 22211, at *16 (citing
Mooney, 54 F.3d at 1214).
second stage of the Lusardi approach-the
“decertification stage”-is typically precipitated
by the defendant filing a motion to decertify after the
opt-in period has concluded and discovery is largely
complete. Id. (citing Mooney, 54 F.3d at
1214). “At this stage, the court has much more
information on which to base its decision, and makes a
factual determination on the similarly situated
question.” Id. If the court finds the
claimants are no longer made up of similarly situated
persons, it decertifies the class and dismisses the opt-in
plaintiffs without prejudice; if the class is still similarly
situated, the court allows the collective action to proceed.
Id. At no point in the certification process may the
court “address the merits of the claims . . . by ruling
on factual disputes or making credibility
determinations.” Nieddu v. Lifetime Fitness,
Inc., 977 F.Supp.2d 686, 691 (S.D. Tex. 2013) (citing
Mooney, 54 F.3d at 1214); accord. McKnight,
756 F.Supp.2d at 802.
the notice stage standard is lenient, it is not automatic.
In re Wells Fargo Wage & Hour Employment Practices
Litig. (No. III), No. H-11-2266, 2012 WL 3308880, at *24
(Miller, J.) (citing Badgett v. Tex. Taco Cabana,
L.P., No. H-05- 3624, 2006 WL 2934265, at *2 (S.D. Tex.
Oct. 12, 2006)). The plaintiff bears the burden of making a
preliminary factual showing that a similarly situated group
of potential plaintiffs exists. Id. To establish
this, the plaintiff must make a minimal showing 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. Jaso, No.
2:15-CV-269, 2015 WL 11144603, at *2 (Tagle, J.); Rueda
v. Tecon Services, Inc., No. H-10-4937, 2011 WL 2566072,
at *2 (S.D. Tex. June 28, 2011) (Rosenthal, J.); Maynor
v. Dow Chem. Co., No. G-07-0504, 2008 WL 2220394, at *6
(S.D. Tex. May 28, 2008); Aguirre, No. H-05-3198,
2006 U.S. Dis. LEXIS 22211, at *19.
factual basis for the allegations is needed to satisfy this
first step.” Rueda, No. H-10-4937, 2011 WL
2566072, at *2; Hall v. Burk, 2002 U.S. Dist. LEXIS
4163, at *3 (N.D. Tex. Mar. 11, 2002) (stating that
“unsupported assertions of widespread violations are
not sufficient to meet Plaintiff's burden.”).
Without more, general allegations that an employer violated
the FLSA do not ordinarily suffice to establish that other
similarly situated employees exist. Jaso, No.
2:15-CV-269, 2015 WL 11144603, at *3 (citing Haynes v.
Singer Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983));
see also Xavier v. Belfour USA Grp., Inc., 585
F.Supp.2d 873, 877 (E.D. La. 2008) (“Although the
‘similarly situated' standard is lenient at the
notice stage, general allegations that the employer violated
the FLSA are insufficient.”). “Even this lenient
standard appears to require substantial allegations that
potential members ‘were together the victims of a
single decision, policy, or plan.' ”
Aguirre, No. H-05-3198, 2006 U.S. Dis. LEXIS 22211,
at *15 (Rosenthal, J.) (quoting Mooney, 54 F.3d at
1213). “Some courts place an emphasis on finding
‘some identifiable facts or legal nexus [that] bind the
claims so that hearing the cases together promotes judicial
efficiency.' ” Id. (quoting Barron v.
Henry County Sch. Sys., 242 F.Supp.2d 1096, 1103 (M.D.
Ala. 2003)). “A court may deny plaintiffs' right to
proceed collectively 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)); see also
Barron, 242 F.Supp.2d at 1104 (“The mere fact that
violations occurred cannot be enough to establish similarity,
as that would not ultimately be sufficient to establish a
pattern and practice without a showing that the violations
were more than sporadic occurrences.”).
cases where plaintiffs have alleged FLSA violations across a
company's multiple locations, courts have held that
“[i]f there is a reasonable basis to conclude that the
same policy applies to multiple locations of a single
company, certification is appropriate.” Rueda,
No. H-10-4937, 2011 WL 2566072, at *4; see also Vargas v.
Richardson Trident Co., No. H-09-1674, 2010 WL 730155,
at *6 (S.D. Tex. Feb. 15, 2012) (certifying a class of store
managers working in various locations under supervision of
different individuals because there was evidence of a common
policy); Blake v. Colonial Savings, F.A., Civ. A.
No. H-04-0944, 2004 WL 1925535 (S.D. Tex. Aug. 16, 2004)
(approving notice to loan officers in the defendant's
Dallas office and those in remote locations based on evidence
that unlawful overtime policies applied to all locations).
other hand, “FLSA violations at one of a company's
multiple locations generally are not, without more,
sufficient to support company-wide notice.”
Rueda, No. H-10-4937, 2011 WL 2566072, at *4;
see also Harper v. Lovett's Buffet Inc., 185
F.R.D. 358, 362-63 (M.D. Ala. 1999) (refusing to include in a
class employees of a chain's other restaurants when the
evidence of FLSA violations was limited to a single
restaurant); but see Donohue v. Francis Servs.,
Inc., No. Civ. A. 04-170, 2004 WL 1406080 (E.D. La. June
22, 2004) (holding that employers should not be able to
“escape FLSA liability by making sure to underpay vast
numbers” of their employees and then claim that the
class definition is too broad.). In Rueda, the court
denied the plaintiffs' motion to extend their collective
action certification, which had been granted to one subclass
of employees working at one particular site, Garrett Yard, to
include all nonexempt company hourly employees who performed
manual labor. The court reasoned that the four affidavits
submitted in support of extending conditional certification
did not “present[ ] sufficient evidence of a policy of
denying overtime pay outside the Garrett Yard to meet even
the low burden required for conditional certification”
because the affiants merely “asserted awareness of
other workers” complaining they were not paid overtime
wages or for all the hours that they worked.' ”
Rueda, No. H-10-4937, 2011 WL 2566072, at *5
(internal quotations omitted). The court held that these
affidavits did not support certification of a subclass of
thousands of employees who performed manual labor outside the
Garrett Yard site. Id.
have at times refused to certify a class, even conditionally,
when the relevant legal question would “require a
highly individualized, fact-intensive inquiry.”
See, e.g., Aguirre, No. H-05-3198, 2006
U.S. Dis. LEXIS 22211, at *16. Other courts have noted that a
“decision to certify, even if subject to correction at
the decertification stage, is not without consequences”
because “[t]oo much leniency at the notice stage can
lead to a frivolous fishing expedition conducted by the
plaintiff at the employer's expense” and
“extreme leniency at the notice stage can result in
conditional certification that must later be revoked at the
eve of trial . . . when it becomes obvious that manageability
concerns make collective action impossible.” In re
Wells Fargo Wage & Hour Employment Practices Litig. (No.
III), No. H-11-2266, 2012 WL 3308880, at *20 (quoting
Lang v. DirecTV, Inc., No. 10- 1085, 2011 WL
6934607, at *6 (E.D. La. Dec.30, 2011)) (internal quotations
and alterations omitted). In Aguirre, the Court
denied a motion to certify a class of individuals who worked
as coach leaders and claimed that they were improperly
categorized as exempt employees; the court held that
“[b]ecause the exempt or nonexempt status of the opt-in
plaintiffs would need to be determined on an
employee-by-employee basis, litigating this case as a
collective action would not be efficient.”
Aguirre, No. H-05-3198, 2006 U.S. Dis. LEXIS 22211,
the mere “the possibility that the Court will be drawn
into a series of minitrials on the facts” is not
dispositive of a motion for classification. See
Jaso, No. 2:15-CV-269, 2015 WL 11144603, at *4. In
Jaso, this Court granted plaintiff's motion for
conditional certification of approximately 30 to 50
representatives of an oilfield services company who regularly
worked more than twelve (12) hours in a day and more than
eighty (80) hours in a week, and alleged that they were
underpaid. Id. at *1, *3. This Court rejected the
defendant's argument that it was exempt from the
FLSA's overtime requirements under the applicable
regulations because “[t]he employer, not the employee,
has the burden to prove that an FLSA exemption applies,
” and because the plaintiff “set[ ] forth his
estimate of the number of similarly situated nonexempt
[representatives] based on his ‘personal
knowledge.' ” Id. at *4-*5. “Read
with the light burden applicable at this preliminary stage in
mind, it is reasonable to conclude that Jaso bases his
estimate on personal observations of the job
responsibilities, pay received, and hours worked by other
[representatives] at [the company].” Id.
purposes of conditional certification under the FLSA,
“[s]imilarly situated does not necessarily mean
identically situated.” Id. at *4 (citing
England, 370 F.Supp.2d at 507). Rather, the
plaintiff must show only that he and the employees in the
proposed class are “similarly situated in terms of job
requirements and similarly situated in terms of payment
provisions.” Id. (citing Ryan v. Staff
Care, Inc., 497 F.Supp.2d 820, 825 (N.D. Tex. 2007);
see also Heeg v. Adams Harris, Inc., 907 F.Supp.2d
856, 862 (S.D. Tex. 2012) (quoting and applying this standard
from Ryan); Walker v. Honghua Am., LLC, 870
F.Supp.2d 462, 468 (S.D. Tex. 2012) (same). Conversely,
“if the job duties among potential members of the class
vary significantly, then class certification should not be
granted.” Jaso, No. 2:15-CV-269, 2015 WL
11144603, at *4; Walker, 860 F.Supp.2d at 468
(quoting Dreyer v. Baker Hughes Oilfield Operations,
Inc., No. H-08-1212, 2008 WL 5204149, at *2 (S.D. Tex.
Dec. 11, 2008)). Nonetheless, the “similarly