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Moreno v. National Oilwell Varco, L.P.

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

November 30, 2017

HECTOR MORENO, Individually and on Behalf of All Others Similarly Situated, Plaintiff


          Dena Hanovice Palermo United States Magistrate Judge

         Pending before the Court is Plaintiff's Motion for Conditional Certification. ECF No. 24.[1] After considering the Motion, the responses, and all applicable law, the Court determines that Moreno's motion should be granted in part and denied in part.[2]

         I. BACKGROUND

         On March 13, 2017, Plaintiff Hector Moreno (“Moreno”) filed this action against National Oilwell Varco, L.P. (NOV) on behalf of himself and others similarly situated to recover unpaid overtime compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 207(a), 216(b). Am. Compl., ECF No. 16. Defendant NOV is an onshore and offshore drilling, well-servicing, and workover contracting company. Id. ¶ 12. Moreno worked as a rig welder at NOV's Galena Park location from August 2006 to January 2016. Id. ¶ 13. In that capacity, Moreno alleges he was classified as an independent contractor and not paid additional compensation when he worked more than 40 hours a week. Id. On March 13, June 6, and August 8, 2017, six additional plaintiffs filed notices of consent to join this case. Consents, ECF Nos. 5, 12-14, 22-23. On September 19, 2017, the Court consolidated this case with another collective action Jorge Villanueva filed against NOV. Order, ECF No. 34.

         Plaintiffs seek conditional certification of a class consisting of current and former NOV welders, rig welders, and mechanics who worked at any NOV location during the last three years and were classified as independent contractors. Mot. 2, ECF No. 24. NOV opposes conditional certification and argues that NOV GP Holding, L.P. claims it has not been served with process and did not join in the response or sur-reply. Resp., at 2 n.1, ECF No. 45; ECF No. 52. Moreno does not deny that it has failed to serve NOV GP Holding, L.P. See Reply, ECF No. 48. Consequently, this Order affects only NOV.

         Plaintiffs have failed to meet their burden of establishing that an employee-employer relationship exists and that a class of similarly-situated individuals exists. Resp., ECF No. 45. NOV also argues that if the class certification is warranted, it should be limited in location and job title.


         The FLSA provides that

no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1). The FLSA creates a cause of action for an employee to sue his employer for violating the overtime compensation requirements. It also permits a court to order a case to proceed as a collective action on behalf of “other employees similarly situated.” Id. § 216(b). Section 216(b) provides for an opt-in procedure for other similarly situated employees to join the action. Vaughn v. Document Grp. Inc., 250 F.Supp.3d 236, 239 (S.D. Tex. 2017) (Atlas, J.); Austin v. Onward, LLC, 161 F.Supp.3d 457, 461 (S.D. Tex. 2015) (Hanks, J.). Courts favor FLSA collective actions because they reduce costs for the individual plaintiffs and create judicial efficiency. Austin, 161 F.Supp.3d at 461.

         In deciding whether to certify an FLSA lawsuit, the Fifth Circuit has affirmed use of the lenient two-stage approach. Kibodeaux v. Wood Grp. Prod., No. 4:16-CV-3277, 2017 WL 1956738, at *1 (S.D. Tex. May 11, 2017) (Ellison, J.) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212-16 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)); accord Vaughn, 250 F.Supp.3d at 239. Both stages occur before the court assesses the merits of the case. Vaughn, 250 F.Supp.3d at 239. At neither stage does the court decide factual disputes or make credibility determinations. Id.

         At the first stage, the court decides whether to conditionally certify a class for individuals to opt-in and be bound by the outcome of the case. Id. If so, the court issues notice to potential class members. Kibodeaux, 2017 WL 1956738, at *1. The court makes this decision based on the pleadings and any submitted affidavits. Id.; Austin, 161 F.Supp.3d at 463. Because the court has minimal evidence at the notice stage, the court uses a “fairly lenient standard, [which] typically results in ‘conditional certification' of a representative class.” Kibodeaux, 2017 WL 1956738, at *1 (citations omitted).

         At the second stage, after some or all discovery has been completed, a defendant may choose to file a motion for decertification. Id. at *2; Vaughn, 250 F.Supp.3d at 239. At that time, the court considers any additional evidence the parties submitted to determine whether to decertify the class because its' members are not similarly situated. Kibodeaux, 2017 WL 1956738, at *2; Vaughn, 250 F.Supp.3d at 239.

         III. ANALYSIS

          A. Motion for Conditional Certification

         To prevail at this stage, the plaintiff must make a minimal showing of three elements:

(1) there is a reasonable basis for crediting the assertion 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.

Kibodeaux, 2017 WL 1956738, at *2; Vaughn, 250 F.Supp.3d at 240; Austin, 161 F.Supp.3d at 462. The court should deny the motion for conditional certification “if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice.” Walker v. Honghua Am., LLC, 870 F.Supp.2d 462, 465 (S.D. Tex. 2012) (Ellison, J.).

         1. Plaintiff sufficiently established that other aggrieved individuals exist that were subject to an allegedly unlawful policy

         Moreno “need only show that it is reasonable to believe that there are other aggrieved employees who were subject to an allegedly unlawful policy or plan.” Austin, 161 F.Supp.3d at 464 (citing Villarreal v. St. Luke's Episcopal Hosp., 751 F.Supp.2d 902, 916-17 (S.D. Tex. 2010) (Johnson, J.)). To do so, Moreno must, at a minimum, identify other employees who were subject to the same policy or plan. Id.

         Moreno submits four declarations, including his own, in support of his assertion that there were other non-exempt, aggrieved employees who worked at NOV as welders or rig welders, were misclassified as independent contractors, and were not paid overtime wages. Mot., Exs. A-D, ECF No. 24.

         The Court finds that Moreno has provided sufficient evidence to credit his assertion that other individuals exist. See Vaughn, 250 F.Supp.3d at 240 (finding sufficient plaintiff's affidavit along with affidavit of another who stated he was misclassified as an independent contractor, was not paid overtime wages, and estimated fifteen other similar employees exist, naming three); Davis v. Mostyn Law Firm, PC, No. 4:11-CV-02874, 2012 WL 163941, at *6 (S.D. Tex. Jan. 19, 2012) (Ellison, J.) (“Plaintiffs assert that they worked with, knew of, and conversed with other salaried paralegals who worked more than forty hours per week and were also denied overtime pay, ” including one named employee).

         2. Plaintiff sufficiently established the other aggrieved rig welders are similarly situated to Moreno

          Moreno seeks conditional certification of the following class:

All current and former “welders” and “rig welders” and “mechanics” who worked for NOV, its parents, subsidiaries or affiliates at any location (including, without limitation, Galena Park, I-610 and Scott, Navigation, West Little York, Port of Houston, and Baytown) during the last three years and who were classified as independent contractors.

Mot., at 2, ECF No. 24.

         For the class representative to be considered similarly situated to the potential opt-in class members, the representative plaintiff must “present some factual support for the existence of a class-wide policy or practice.” Vaughn, 250 F.Supp.3d at 239. He must show he is similarly situated in terms of job requirements and payment provisions. Id. at 242. Thus, he need only show that they “performed the same basic task and were subject to the same pay practices.” Kibodeaux, 2017 WL 1956738, at *3 (internal citations omitted). The FLSA requires that the positions be similar, not necessarily identical. Vaughn, 250 F.Supp.3d at 241; Kibodeaux, 2017 WL 1956738, at *2 (“the court need not find uniformity in each and every aspect of employment”).

         This inquiry does not focus on job titles. Individuals are similarly situated for FLSA opt-in purposes if the job titles are “superficially different” and have slightly different job duties. Davis, 2012 WL 163941, at *6. Even with the same job title, two individuals are not “similarly situated for the purposes of an opt-in FLSA class if their day-to-day job duties vary substantially.” Id. (internal citations omitted).

         a. The class shall include rig welders who refurbished and repaired ...

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