United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER, UNITED STATES DISTRICT JUDGE.
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
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. 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.
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
court must first decide whether plaintiffs have provided
sufficient evidence of the existence of similarly-situated
potential plaintiffs and whether a class should be
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
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).
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.
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.
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.
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).
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