Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malaska v. Saldivar Coastal Services, Inc.

United States District Court, S.D. Texas, Corpus Christi Division

April 20, 2017



          Hilda Tagle Senior United States District Judge.

         The 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.

         I. Background

         Plaintiff 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 the present.”

Dkt. No. 24-5 at 1.

         On 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.

         SCSI 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.[1] Malaska seeks to certify as a class all of SCSI's 1, 400 providers.

         With 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.[2] 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.[3] 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.

         As to 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.

         II. Legal Rule

         “The 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. at 170-71).

         District 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).

         The 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.

         “Lusardi 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.

         At the 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).

         The 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.

         While 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.

         “A 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.”).

         In 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).

         On the 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.

         Courts 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, at *23.

         However, 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.

         For 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 situated” ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.