United States District Court, N.D. Texas, Amarillo Division
MEMORANDUM OPINION AND ORDER
LOU ROBINSON SENIOR UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs' Motion for Order Authorizing
Notice to Potential Plaintiffs Similarly Situated Pursuant to
29 U.S.C. § 216(b), filed on February 13, 2017.
Defendants responded on April 3, 2017, and Plaintiffs replied
on April 27, 2017. Plaintiffs request that the Court
conditionally certify the class of plaintiffs who worked in
Defendants' Amarillo facility as drivers, and authorize
notice to potential class members. For the reasons stated
below, this Motion is GRANTED, provided certain conditions
FLSA Claims and Basic .Factual Allegations
were employed as drivers and paid hourly in Defendants'
Amarillo waste-management facility from 2014 until late 2016,
and filed suit individually and on behalf of other persons
similarly situated. Plaintiffs allege that Defendants
violated the Fair Labor Standards Act (FLSA) by not paying
Plaintiffs for regular time and overtime for all hours
worked. Specifically, Defendants allegedly deducted thirty
minutes for lunch when Plaintiffs did not take a lunch and
altered time sheets to inaccurately reflect the number of
actual hours worked.
argue that the class should not be certified because there is
already pending litigation in the Southern District of Texas
to which this potential class is a subset. Defendants also
contend that certifying this class is not proper because
Plaintiffs "have not demonstrated that they and the
proposed collective-action members together were victims of a
common policy or plan that violates the FLSA."
Defendant's Response, p. 2. Next, Defendants
state that each potential class member's claim
"would involve numerous, highly individualized and
fact-intensive questions, " rendering the case
unsuitable for class certification. Id. at 3.
Defendants also point out several alleged deficiencies with
Plaintiffs' proposed notice, and request time to confer
with Plaintiffs and submit a joint proposed notice form.
216(b) of the FLSA authorizes a plaintiff to bring a
collective action on behalf of himself and others similarly
situated, provided that any person who desires to become a
part of the collective action provides written consent. 29
U.S.C. § 216(b). District courts have discretion to
facilitate notice to potential plaintiffs in implementing
collective action procedures. See, e.g., Hoffmann-La
Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989);
Songer v. Dillon Res., Inc., 569 F.Supp.2d 703, 705
(N.D. Tex. 2008). The plaintiff bears the burden of proving
that notice is appropriate and that a class of similarly
situated employees exists. See Aufleger v. Eastex Crude
Co., No. 2:05-CV-0310-J, 2006 WL 2161591, at *1 (N.D.
Tex. July 31, 2006) (Robinson, J.). Although the Fifth
Circuit has declined to adopt a specific test to determine
when courts should exercise their discretion to certify a
collective action or facilitate notice, this Court has
adopted the prevailing two-step test. See Hernandez v.
Bob Mills Furniture Co. of Texas, LP, No.
2:10-CV-0243-J, 2011 WL 915788, at *2 (N.D. Tex. Mar. 15,
2011) (Robinson, J.); see also Sandoz v. Cingular
Wireless LLC, 553 F.3d 913, 915 n. 2 (5th Cir. 2008)
(noting that collective actions "typically proceed"
this way); Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1216 (5th Cir. 1995) (finding no abuse of discretion
when district court applied this standard), overruled on
other grounds by Desert Palace, Inc. v. Costa, 539 U.S.
90, 90-91 (2003).
this test, a two-step analysis is used to answer whether
plaintiffs provided sufficient evidence that the potential
plaintiffs are similarly situated to warrant
court-facilitated notice. The district court makes the
decision on whether to authorize notice based only on the
pleadings and any affidavits. This step results in
"conditional certification" of a class. The second
step is generally precipitated by a motion for
"decertification" after notice, time for opting in,
and discovery have taken place. If the court finds that the
plaintiffs in the class are no longer similarly situated, the
court can at that time decertify the class and dismiss the
opt-in plaintiffs without prejudice. Mooney, 54 F.3d
at 1213-1214; Songer, 569 F.Supp.2d at 706.
first step, the granting of "conditional certification,
" the plaintiff must provide substantial allegations of
a single policy of discrimination, and the court may consider
such factors as whether or not potential plaintiffs have been
identified, whether those potential plaintiffs submitted
affidavits, and whether evidence of a widespread
discriminatory plan has been presented. Songer, 569
F.Supp.2d at 706 (citation omitted); Stiles v. FFE
Transp. Servs., Inc., No. 3:09-CV-1535-B, 2010 WL
935469, at *2 (N.D. Tex. Mar. 15, 2010). It is the plaintiffs
burden to show that the proposed class of employees is
similarly situated with respect to job requirements and pay
provisions. See Vacho v. Dallas Cnty. Hosp. Dist.,
574 F.Supp.2d 618, 621 (N.D. Tex. 2008). "The positions
need not be identical, but similar." Aguilar v.
Complete. Landsculpture, Inc., No. 3:04-CV-0776-D, 2004
WL 2293842, at *1 (N.D. Tex. Oct. 7, 2004).
court is generally more lenient with regard to similarity
during the notice stage of the analysis, but "notice is
by no means mandatory." Harris v. Fee Transp.
Servs., Inc., 2006 WL 1994586, at *2 (N.D. Tex. May 15,
2006) (citing Hall v. Burk, No. 3:01-CV-2487-H, 2002
WL 413901, at *2 (N.D. Tex. Mar. 11, 2002)). "[T]he
relevant inquiry in each particular case is whether it would
be appropriate to exercise [the court's] discretion"
to facilitate notice. Id. A primary reason for
exercising this discretion is to ensure that the joining of
other parties occurs in an orderly, sensible, efficient, and
proper way. See Hoffmann-La Roche, 493 U.S. at
170-71. The use of court-facilitated notice can ensure that
information is timely, accurate, and informative, and it can
also guard against abuse by misleading communications.
Id. at 171-72. Although court-facilitated notice can
ensure that information is timely and accurate, the Court has
a responsibility to avoid unwarranted solicitation and undue
burden to an employer. Vacho, 574 F.Supp.2d at 622.
Thus, the Court should be satisfied that there are other
similarly situated employees before granting certification.
Court first considers whether plaintiffs have produced
sufficient evidence that there are similarly-situated
plaintiffs. The Court concludes that they have.
support of their contention that members of the class are
similarly situated with respect to job requirements and pay
provisions, Plaintiffs state in their reply that the members
of the putative class were all employed as drivers in
Defendants' Amarillo facility, and thus subject to the
same 30-minute mandatory lunch policy. Defendants originally
averred this fact in support of their argument against
certifying a broader class that consisted of all hourly
employees (not just drivers). Thus, the Court finds that a
more narrow class consisting only of drivers in
Defendants' Amarillo facility is reasonable in scope and
conducive to judicial efficiency. This conclusion is further
supported by the fact that a court in the Southern District
of Texas has already certified a similar class consisting of
"all waste disposal drivers employed by Republic
Services, Inc. and/or any of its subsidiaries . . . anywhere
in the United States other than North or South Carolina, at
any time during the last three years."
Defendants' Brief in Support, p. 10 (citing
Taylor v. Republic Servs., Inc., No. 2:16-CV-502
(S.D. Tex.)). Because the putative class is narrowly defined
as all drivers in Defendants' Amarillo facility,
plaintiffs have sufficiently demonstrated that all class
members are similarly situated with respect to job
requirements and pay provisions. While the Court agrees that
the putative class is a subset of the class members in
Taylor, this can be remedied by either consolidating
these cases or excluding drivers employed at the Amarillo
facility from the Taylor class.
Plaintiffs must provide evidence that the putative class was
subject to a common policy or plan that violates the FLSA. In
their original complaint, Plaintiffs include two affidavits
that allege that employees were not paid overtime and were
charged for unpaid lunchbreaks that they did not take.
See Declaration of Javier Macias, p. 1; First
Declaration of Joy Hoar, p. 1. Defendants implicitly
concede in their response that the members of the putative
class were subject to a common policy concerning timekeeping
and meal breaks. Although Defendants dispute the legality of
the policy (and what the policy requires of its employees),
they do not contest that the members of the putative class
were subject to the same policies, as reflected in their
brief. See Defendants' Brief in Support, pp.
3-7, 14. At least one plaintiff, Joy Hoar, states that
employees "were not trained properly on how to fill out