United States District Court, S.D. Texas, Houston Division
FELICIA HENDRIX, CYNTHIA BROWN, OMAR MOHAMMAD, CARUM ROGERS, JOHN EBERLE, DOUG SHIPE, BRIAN QUINN, and MICHELLE YARBOROUGH, on behalf Of themselves and others similarly Situated, Plaintiffs,
SHIPCOM WIRELESS, INC., Defendant.
MEMORANDUM AND ORDER ON PLAINTIFFS' REQUEST FOR
CLASS CERTIFICATION AND MOTION FOR NOTICE TO POTENTIAL CLASS
MILLOY, UNITED STATES MAGISTRATE JUDGE
before the court is Plaintiffs' request for an order
allowing their claims to proceed as a representative
collective action under the Fair Labor Standards
("FLSA"), and their Motion for Notice to Potential
Class Members ("Plaintiffs' Motion, " Docket
Entry # 19). The court has considered the motion, the
response by Defendant Shipcom Wireless, Inc.
("Shipcom"), all other relevant filings, and the
applicable law. For the reasons set forth below,
Plaintiffs' Motion is GRANTED.
a claim for unpaid overtime wages by eight former employees
of Shipcom. Seven of these Plaintiffs were employed as
"blueprinters." (Plaintiffs Motion at 3-7). The
blueprinters were also referred to as inventory location
designers, inventory room designers, or inventory design
specialists. (Id. at 3, Defendant's Response at
3). Blueprinters were responsible for designing and
re-organizing the supply areas and operating rooms at various
medical facilities run by the Veterans Health Administration.
(Plaintiffs' Motion at 3). This position is classified as
"exempt" by Shipcom, and because of that the
Plaintiffs did not receive overtime pay for any work in
excess of 40 hours a week.
Felicia Hendrix worked as a blueprinter for Shipcom from July
2014, until June 2016. (Plaintiffs Motion at 2). She claims
to have routinely worked more than 70 hours a week during her
employment with Shipcom. (Id.). She was never paid
overtime, because she was classified by the company as an
"exempt employee" under the Fair Labor Standards
Act. (Id.) Hendrix claims that there were
approximately 100 other blueprinters who worked for Shipcom,
either directly or as contractors, during her time with the
company. She alleges that the other blueprinters were also
classified as exempt employees, and did not receive overtime
pay even though each worked more than 40 hours a week.
(Plaintiffs Motion at 3).
Cynthia Brown worked for a staffing company that placed her
with Shipcom as a blueprinter, from August 2014, until March
2016. (Plaintiffs Motion at 3). In March 2016, Shipcom hired
her directly to continue her work as a blueprinter until she
was "furloughed, " one month later, in April 2016.
(Id.). She claims to have worked 60 hours, or more,
each week during her employment at Shipcom. (Id.).
Omar Mohammed was a blueprinter for Shipcom from August 2014,
until June 2016 and he states that he routinely worked 50-60
hours a week. (Plaintiffs' Motion at 4). Carum Rogers
also worked for the company as a blueprinter from December
2014, until June 2016. He also claims that he worked more
than 70 hours a week at Shipcom. (Id.). Doug Shipe
and Brian Quinn were blueprinters for Shipcom from November
2014, until July 2016. (Id. at 5-6). Both men claim
to have worked in excess of 50 hours a week at Shipcom.
(Id.). John Eberle worked for Shipcom from January
2014, until July 2016. (Id. at 5). He was hired to
be a "team lead, " but was eventually made a
blueprinter. (Defendant's Response at 4-5). He says that
he worked more than 60 hours a week. (Id.). None of
these men received overtime compensation, because they were
considered to be, and were classified as, exempt employees by
Shipcom. (Plaintiffs' Motion at 3-7).
filed this lawsuit on September 7, 2016, alleging that they,
and other blueprinters, had been misclassified as exempt
employees and denied overtime pay in violation of the Fair
Labor Standards Act. (Plaintiffs' Complaint, Docket Entry
#1). Each Plaintiff has filed a "Consent to Become a
Party Plaintiff." (Docket Entry #1, Exhibits A-F). On
March 1, 2017, Plaintiffs filed their Motion for Notice to
Potential Class Members. (Docket Entry #19). Plaintiffs are
asking the court: (1) to authorize an approved notice of this
action and a consent form, to be sent to all current and
former blueprinters, who were employed by Shipcom between
September 7, 2013 and the present, and who worked more than
40 hours a week without receiving overtime pay; and (2) to
order Shipcom to provide the names and addresses of all
current and former blueprinters employed by Shipcom from
September 7, 2013, to the present. (Plaintiffs' Motion at
16). Implicit in this request is a threshold finding by the
court that this matter is appropriate for certification, at
least conditionally, as a collective action, which would
justify a notice to potential class members.
support of the motion, each Plaintiff filed a declaration.
(Plaintiffs' Motion, Exhibits A-F). Each of these
claimants describe similar job responsibilities in their
positions as blueprinters, and all claim to have worked more
than 40 hours a week without receiving overtime pay. Each
person also states that he or she knows that there are other
blueprinters at Shipcom who also worked more than 40 hours a
week, and were also denied overtime compensation.
(Id. at Exhibits A-F).
considering Plaintiffs' motion, Defendant's response,
the pleadings, the evidence submitted, and the applicable
law, the court GRANTS conditional class certification, and
GRANTS the request for notice to potential class members as
MOTION FOR CONDITIONAL CERTIFICATION
Conditional Certification under FLSA
Fair Labor Standards Act requires employers to pay nonexempt
employees for any work hours that exceed defined maximum
hours. 29 U.S.C. § 207(a). Section 216(b) allows
employees to pursue a cause of action against those employers
who have violated that requirement. Id. §
216(b). In fact, an employee may bring a collective action
against his employer on "behalf of himself. . . and
other employees similarly situated." 29 U.S.C. §
216(b). But before a case may proceed as a collective action,
the plaintiff must make an initial showing that the matter is
appropriate for collective action treatment for
"similarly situated" claimants. Hoffmann-La
Roche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482,
107 L.Ed.2d 480 (1989).
are two tests that a court may use to determine whether to
certify a collective action under the FLSA: the so called
Shushan approach, or the Lusardi approach.
Walker v. Honghua Am., LLC,870 F.Supp.2d 462, 465
(S.D. Tex. 2012). See generally Shushan v. Univ. of Colo,
at Boulder,132 F.R.D. 263 (D. Colo. 1990); Lusardi
v. Xerox Corp.,118 F.R.D. 351 (D. N.J. 1987). Under the
Shushan approach, "similarly situated"
plaintiffs are those ...