United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs' Motion for Conditional
Certification and Court-Authorized Notice (Doc. No. 18).
After considering the Motion, the responses thereto, and all
applicable law, the Court determines that the Motion should
be granted in part.
Wood Group provides personnel and support services to
the oil and gas industry, including by providing various
types of consultants for its clients. (Doc. No. 18 at 2; Doc.
No. 21 at 2.) Plaintiff Michael Kibodeaux worked as a
Construction Consultant for Defendant Wood Group from 2014 to
2016. (Doc. No. 18-1 ¶ 2.) In that capacity, Mr.
Kibodeaux was classified as an independent contractor and
paid a day rate. (Doc. No. 18 at 2; Doc. No. 21 at 6.) On
November 6, 2016, Mr. Kibodeaux filed this action on behalf
of himself and all similarly situated workers, alleging that
Defendant's payment of those workers at a day-rate
violated the overtime provisions of the Fair Labor Standards
Act (FLSA). (Doc. No. 1.) On January 11, 2017, Brad Sims, a
former Completions Consultant for Defendant, filed a notice
of consent to join the case. (Doc. No. 11.)
seek conditional certification of a class consisting of
“[a]ll persons who worked for Wood Group Production and
Consulting Services, Inc., as Drilling Consultants,
Completions Consultants, and/or Construction Consultants who
were classified as independent contractors and paid a
day-rate at any time from ___, 2014 to the present.”
(Doc. No. 18 at 1.) Plaintiffs request that the starting date
be set at three years prior to the date of distribution of
any Court-approved notice. (Doc. No. 18 at 1 n. 1.) Defendant
opposes conditional certification and argues that briefing on
the content, form, and method of distribution of any notice
is premature. (Doc. No. 21.)
motions for collective action certification in FLSA cases,
the Fifth Circuit has affirmed district courts' use of
the lenient standard adopted by the United States District
Court for the District of New Jersey in Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987). See, e.g.,
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-16
(5th Cir.1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). The
Lusardi approach includes two steps: (1) the
plaintiff's motion for conditional certification, and (2)
the defendant's motion for decertification.
first stage, the Court must decide whether notice of the
action should be given to potential class members.
Id. at 1213-14. The court's decision at this
stage is usually based on the pleadings and affidavits that
have been submitted, and is made using a “fairly
lenient standard, [which] typically results in
‘conditional certification' of a representative
class.” Id. at 1214; see also Tolentino v.
C & J Spec-Rent Servs. Inc., 716 F.Supp.2d 642, 647
(S.D. Tex. 2010) (“The remedial nature of the FLSA and
§ 216 militate strongly in favor of allowing cases to
proceed collectively.”). A plaintiff may proceed
collectively only if the challenged conduct is a generally
applicable rule, policy, or practice. McKnight v.
D.Houston, Inc., 756 F.Supp.2d 794, 801 (S.D. Tex. 2010)
(quoting England v. New Century Fin. Corp., 370
F.Supp.2d 504, 507 (M.D. La. 2005)). Therefore, conditional
certification should be denied when the action arises from
circumstances purely personal to the plaintiff. Id.
order to obtain conditional certification, the plaintiff must
make a “minimal showing” that: (1) there is a
reasonable basis for crediting the assertions 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. Aguirre v.
SBC Commc'ns, Inc., No. H-05-3198, 2006 WL 964554,
at *6 (S.D. Tex. April 11, 2006). With regard to the second
factor, “the relevant inquiry is whether the potential
class members performed the same basic tasks and were subject
to the same pay practices.” Tice v. AOC Senior Home
Health Corp., 826 F.Supp.2d 990, 995-96 (E.D. Tex.
2011). In making this assessment, “the court need not
find uniformity in each and every aspect of employment to
determine that a class of employees is similarly
situated.” Jones v. SuperMedia Inc., 281
F.R.D. 282, 288 (N.D. Tex. 2012).
second stage of the Lusardi approach is usually
prompted by a defendant's motion for decertification
after some or all discovery has been completed. At that time,
a court considers additional evidence submitted by the
parties in determining whether to decertify the class on the
ground that its members are not similarly situated.
Mooney, 54 F.3d at 1214.
Plaintiffs have satisfied their burden to show that other
similarly situated individuals exist.
order to establish whether members of a proposed FLSA class
are similarly situated, the Court assesses whether they
“performed the same basic tasks and were subject to the
same pay practices.” Tice v. AOC Senior Home Health
Corp., 826 F.Supp.2d 990, 995-96 (E.D. Tex. 2011).
Defendant does not dispute that members of the potential
class were subject to the same pay practices, that is, that
they were classified as independent contractors and paid a
day rate. (Doc. No. 21 at 6.) Defendant does, however,
dispute that members of the proposed class are similarly
situated in terms of job duties. Defendant notes that the
work performed by these consultants varies by consultant type
(Drilling Consultant, Completions Consultant, or Construction
Consultant), client, and project location, in part because
clients request consultants with particular skills for
particular projects. Id. at 3-4. According to
Defendant, consultants' duties can range from overseeing
the building of roads to supervising third-party completions
Court is satisfied, however, that the duties of class members
are sufficiently similar for purposes of conditional
certification. To meet their burden, the Plaintiffs must show
that the positions are similar, not that they are identical.
Tolentino v. C & J Spec-Rent Servs. Inc., 716
F.Supp.2d 642, 649-50 (S.D. Tex. 2010). This requirement is
intended to deny conditional certification only when the
action arises from circumstances purely personal to the
plaintiff. Id. Here, though some job duties varied,
all consultants performed a similar function of supervising
the completion of a project by coordinating the efforts of
various stakeholders. See Doc. Nos. 18-1, 18-2.
Across different projects and consultant types, Wood
Group's consultants were referred to onsite as the
“company man, ” that is, as a representative of
the well's owner. Id. As such, although
potential class members may have had different areas of
expertise, Plaintiffs' claims do not appear to arise from
circumstances purely personal to Mr. Kibodeaux and Mr. Sims.