United States District Court, S.D. Texas, Houston Division
HECTOR MORENO, Individually and on Behalf of All Others Similarly Situated, Plaintiff
NATIONAL OILWELL VARCO, L.P. and NOV GP HOLDING, L.P., Defendants JORGE VILLANUEVA, Plaintiff
NATIONAL OILWELL VARCO, L.P., Defendant
ORDER ON CONDITIONAL CERTIFICATION
Hanovice Palermo United States Magistrate Judge
before the Court is Plaintiff's Motion for Conditional
Certification. ECF No. 24. 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
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.
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.
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.
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.
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
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
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.
A. Motion for Conditional Certification
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.).
Plaintiff sufficiently established that other aggrieved
individuals exist that were subject to an allegedly unlawful
“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.
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.
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).
Plaintiff sufficiently established the other aggrieved rig
welders are similarly situated to 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
Mot., at 2, ECF No. 24.
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
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
The class shall include rig welders who refurbished and