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Kibodeaux v. Wood Group Production and Consulting Services, Inc.

United States District Court, S.D. Texas, Houston Division

May 11, 2017

MICHAEL KIBODEAUX, Plaintiff,
v.
WOOD GROUP PRODUCTION AND CONSULTING SERVICES, INC., Defendant.

          MEMORANDUM AND ORDER

          HON. KEITH P. ELLISON UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. BACKGROUND

         Defendant Wood Group[1] 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.)

         Plaintiffs 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.)

         II. LEGAL STANDARDS

         On 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.

         At the 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.

         In 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.[2] 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).

         The 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.

         III. ANALYSIS

         A. Plaintiffs have satisfied their burden to show that other similarly situated individuals exist.

         In 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 contractors. Id.

         The 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. ...


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