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Arceo v. Orta

United States District Court, N.D. Texas, Dallas Division

November 1, 2017

ALEJANDRO ARCEO, et al., Plaintiffs,



         In this putative collective action seeking unpaid overtime pay under the Fair Labor Standards Act ("FLSA"), plaintiffs move for conditional certification and court-facilitated notice to potential class members, and they seek limited discovery of the names, last known addresses, and email addresses of potential class members. For the reasons that follow, the court grants the motion for conditional certification and court-facilitated notice, and it grants in part and denies in part plaintiffs' request for limited discovery.


         Alejandro Arceo and several other plaintiffs bring this putative collective action against defendants Alfredo Moises Orta, individually and d/b/a Four Diamond Staffing and Five Star Services ("Orta"), and Omni Hotels Management Corporation ("Omni"). Plaintiffs seek unpaid overtime pay under 29 U.S.C. § 216(b), a provision of the FLSA.[1] The 15 named plaintiffs are housekeepers employed by Orta, 12 of whom were assigned to work at Omni's downtown Dallas hotel. The other three plaintiffs worked for Orta at other local hotels, including Homewood Suites. Ten of the named plaintiffs stated in declarations that "Orta did not pay me at all for some of the hours I worked, " and "[w]hen I worked more than 40 hours in a week, I was not paid 1.5 times my regular rate of pay." Decl. of George, Martinez, Mancia, Gonzales, Merino-Cruz, Mexicano, Palacios, Perez, Torres, Valentino. Ten of the named plaintiffs also observed "Omni's Housekeeping Supervisor would review my work and was therefore aware of the hours I was working." Id. Although Omni paid Orta directly for the services of the plaintiff class, plaintiffs allege in their complaint that Omni and Orta acted as joint employers.

         Plaintiffs move the court to conditionally certify this collective action and approve court-facilitated notice to a class defined as follows: "All current and former housekeepers employed by Orta at hotels located in the Dallas / Fort Worth area, including those assigned to work for Omni." Ps. Mot. at 15. In their reply to Omni's response, plaintiffs ask the court to limit the proposed class to "the period of three years prior to the granting of Plaintiffs' Motion." Ps. Reply at 10. They ask the court to approve the proposed notice and consent forms and to allow plaintiffs to send the forms by "mail. . . email, Facebook message, and a webpage solely dedicated to disseminating the notice[.]" Ps. Mot. at 14. Plaintiffs also ask that the court require defendants to post the notice and consent forms at each of their "locations that employ housekeepers." Id. at 15. To facilitate notice, plaintiffs further request that the court order defendants to produce "a computer-readable data file containing the names, all known addresses (including any addresses in home countries for any guest workers who are potential opt-in plaintiffs), all email addresses, all telephone numbers (home, mobile, etc.) of all the potential opt-in Plaintiffs" within ten days from the entry of the court's order. Id. at 14. Omni opposes the motion.


         The court must first decide whether plaintiffs have provided sufficient evidence of the existence of similarly-situated potential plaintiffs and whether a class should be conditionally certified.


         Section 216(b) of the FLSA authorizes a plaintiff to bring a collective action on behalf of similarly-situated persons, provided that any person who desires to become a part of the collective action files a written consent in court. See 29 U.S.C. § 216(b). When a plaintiff seeks to bring a collective action, a district court can in its discretion facilitate notice to potential plaintiffs of their right to opt in to the suit. Behnken v. Luminant Mining Co., 997 F.Supp.2d 511, 515 (N.D. Tex. 2014) (Fitzwater, C.J.) (citing Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989); Barnett v. Countrywide Credit Indus., Inc., 2002 WL 1023161, at * 1 (N.D. Tex. May 21, 2002) (Lynn, J.) (applying Hoffman-La Roche to FLSA context)). "Although the Fifth Circuit has declined to adopt a specific test to determine when courts should exercise their discretion to facilitate notice or certify a collective action, this court has adopted the prevailing two-stage test." Behnken, 997 F.Supp.2d at 515 (citing Aguilar v. Complete Landsculpture, Inc., 2004 WL 2293842, at * 1 (N.D. Tex. Oct. 7, 2004) (Fitzwater, J.) (adopting prevailing standard)); see also Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008) (noting that collective actions are "typically" analyzed this way); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (declining to adopt specific standard, but finding no abuse of discretion where district court applied prevailing standard), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 90-91 (2003); Valcho v. Ball. Cnty. Hosp. Dist, 574 F.Supp.2d 618, 621-22 (N.D. Tex. 2008) (Fitzwater, C.J.) (reaffirming decision in Aguilar).

         Under this test, the court first determines whether plaintiffs have provided sufficient evidence of similarly-situated potential plaintiffs to warrant court-facilitated notice. Aguilar, 2004 WL 2293842, at *1. If they have, the court "conditionally certifies" the class and facilitates notice to the potential plaintiffs. Id. Second, the court reexamines the class after notice, time for opting in, and discovery have taken place, typically in response to defendant's motion. Id. If the court finds that the class is no longer made up of similarly-situated persons, it decertifies the class. Id. "To establish that employees are similarly situated, a plaintiff must show that they are similarly situated with respect to their job requirements and with regard to their pay provisions. The positions need not be identical, but similar." Id. (internal citation and quotation marks omitted).

         The court is generally more "lenient" with regard to substantial similarity during the "notice" stage of the analysis, id. at *2, but "notice is by no means mandatory." Harris v. Fee Transp. Servs., Inc., 2006 WL 1994586, at *2 (N.D. Tex. May 15, 2006) (Solis, J.) (citing Hall v. Burk, 2002 WL 413901, at *2 (N.D. Tex. Mar. 11, 2002) (Sanders, J.)). "[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. The parties and the court can benefit from settling disputes about the content of the notice before it is distributed, because it may avoid the need to cancel consents obtained in an improper manner. Id. at 172.


         In this case, it is undisputed that plaintiffs perform similar job duties for similar pay. But Omni argues that plaintiffs are not similarly situated because they worked at different hotels, so they were subject to different policies and practices that are too individualized for conditional certification to be appropriate.

         The court is unpersuaded by Omni's argument. To succeed at this stage of certification, plaintiffs are not necessarily required to provide a substantial allegation that the potential class members were subject to a common decision, policy, or plan. See Behnken, 997 F.Supp.2d at 518 n.4 (citation omitted) ("The court notes that other courts have suggested that an allegation of a common decision, policy, or plan may not be required under § 216(b)."). But in this case, plaintiffs have made substantial allegations of such a policy or plan.

         Plaintiffs each aver that defendants did not pay them overtime for work in excess of 40 hours per week. In their declarations plaintiffs do not describe the exact scenarios under which Orta and Omni failed to pay overtime compensation to housekeepers. But no matter what method defendants allegedly used to deny overtime compensation to housekeepers, each was allegedly part of a single policy or plan, applied to all potential class members, not to pay for overtime work. See Ryan v. Staff Care, Inc., 497 F.Supp.2d 820, 825 (N.D. Tex. 2007) (Fish, C.J.) (quoting Donohue v. Francis Servs., Inc., 2004 WL 1161366, at * 1 (E.D. La. May 24, 2004)) ("A court may deny a plaintiffs right to proceed collectively only if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice."); see also Tice v. AOC Senior Home Health Corp., 826 F.Supp.2d 990, 996 n.2 (E.D. Tex. 2011) (holding that plaintiffs presented sufficient evidence of single, decision, policy, or plan where they demonstrated that they were not paid overtime for work in excess of 40 hours per week).

         "Although the need for individual testimony may become apparent at a later stage of this lawsuit, it does not negate that plaintiffs have presented a 'factual nexus' that binds the named plaintiffs and the potential class members." Behnken, 997 F.Supp.2d at 521 (citing Proctor v. Allsups Convenience Stores, Inc., 250 F.R.D. 278, 280 (N.D. Tex. 2008) (Robinson, J.)). That factual nexus is the alleged practice of Orta's failing to pay overtime to housekeepers who worked more than 40 hours ...

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