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Zapata v. Canine Friendly Coalition, Inc.

United States District Court, W.D. Texas, El Paso Division

January 16, 2018

ORLANDO ZAPATA, on behalf of himself and all others similarly situated, Plaintiff,



         On this day, the Court considered Plaintiff Orlando Zapata's [hereinafter “Plaintiff”] “Motion for Conditional Certification” (ECF No. 20) [hereinafter “Motion”], filed on September 29, 2017, and Defendant Canine Friendly Coalition, Inc.'s [hereinafter “Defendant”] “Response to Plaintiff's Motion for Conditional Certification” (ECF No. 23) [hereinafter “Response”], filed on October 31, 2017, in the above-captioned cause. After due consideration, the Court is of the opinion that Plaintiff's Motion should be granted for the reasons that follow.

         I. BACKGROUND

         Plaintiff was a licensed vocational nurse (“LVN”) who worked for Defendant from “approximately 2012 through July 28, 2016.” Mot. Ex. A, Decl. of Orlando Zapata [hereinafter “Zapata Declaration”]. As an LVN, Plaintiff provided “nursing care to patients at their places of residence.” Id. Plaintiff claims that his various duties included “providing care, driving between patient's houses, and . . . preparing nurses['] notes[.]” Id. He claims that these activities “frequently” caused him to work over forty hours per week, but alleges that Defendant did not pay him overtime wages for any time in excess of forty hours. Id.

         Accordingly, Plaintiff brought this action on behalf of himself and other similarly situated LVNs pursuant to the Fair Labor Standards Act (“FLSA”) to recover for inadequately compensated overtime hours. Mot. 1. Specifically, Plaintiff seeks to join all LVNs that worked for Defendant over a three-year period immediately preceding this suit that “were subjected to the same or similar illegal pay practices for similar work.” Id. at 3. According to Defendant's “First Set of Pre-Certification Interrogatories, ” attached to Plaintiff's Motion as Exhibit B [hereinafter “Interrogatory Responses”], there are at least nine other such LVNs who worked during the three-year class period.


         The FLSA's collective action provision allows one or more employees to bring an action for overtime compensation on “behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). The Fifth Circuit has not set a legal standard for class certification pursuant to the FLSA. Portillo v. Permanent Workers, L.L.C., 662 F. App'x 277, 279 (5th Cir. 2016) (unpublished) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995)). However, many district courts in the Western District of Texas use the Lusardi two-tiered approach to determine whether to certify a collective action under the FLSA. See, e.g., Wilson v. Anderson Perforating, Ltd., No. SA-13-CV-148-XR, 2013 WL 3356046, at *1 (W.D. Tex. July 3, 2013) (citing Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987)); Castillo v. Hernandez, No. EP-10-CV-247-KC, 2010 WL 4595811, at *3 (W.D. Tex. Nov. 4, 2010).

         The Lusardi two-tiered approach involves a preliminary decision regarding whether to send notice of the lawsuit to putative class members and give them a chance to “opt-in” to the litigation. Anderson Perforating, 2013 WL 3356046 at *1. Courts should conditionally certify the FLSA class where there are “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Castillo, 2010 WL 4595811 at *4. This standard has been characterized as “not particularly stringent, ” “fairly lenient, ” and “not heavy.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008). This “low bar [ ] typically results in conditional certification.” Snively v. Peak Pressure Control, LLC, 174 F.Supp.3d 953, 959 (W.D. Tex. 2016). The decision to create an opt-in class “remains soundly within the discretion of the district court.” Anderson Perforating, 2013 WL 3356046 at *1.

         If conditional certification is granted, the case proceeds as a representative action. Id. Upon the completion of discovery, the defendant typically files a motion to decertify the class, and the Court must then determine whether the putative class members are similarly situated. Id. “If so, then the representative action may proceed; if not, then the class should be decertified, the opt-in plaintiffs dismissed, and the class representatives should be allowed to proceed on their individual claims.” Id. For purposes of this Order, the Court must only address the conditional certification tier of the two-tiered approach.

         III. ANALYSIS

         In determining whether Plaintiff has made “substantial allegations” regarding the putative class and existence of an unlawful policy, the Court need only consider Plaintiff's pleadings and affidavits. Anderson Perforating, 2013 WL 3356046 at *1. To determine whether the allegations are substantial, courts may additionally consider whether “(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.” Castillo, 2010 WL 4595811 at *4 (quoting Tolentino v. C & J Spec-Rent Servs. Inc., 716 F.Supp.2d 642, 647 (S.D. Tex. 2010)).

         a. Whether There is a Reasonable Basis for Crediting Plaintiff's Assertions

         Plaintiff alleges that he and other LVNs were required to perform work in excess of forty hours per week. He further alleges that Defendant did not compensate him adequately for this work pursuant to the FLSA's overtime pay provisions. As evidence in support of these allegations, Plaintiff submits two documents. The first document is the Zapata Declaration. In the Declaration, Plaintiff describes his personal experience working for Defendant and his knowledge of how other similar employees were treated. Zapata Decl. The second document is Defendant's Interrogatory Responses. In these responses, Defendant confirms that Plaintiff was its employee and that it paid other LVNs on a “per job” basis, similar to how it paid Plaintiff. Interrog. Resp. 3-7.

         Based on these two documents, the Court finds a reasonable basis for Plaintiff's claim that Defendant inadequately compensated certain individuals for the overtime hours they worked. Plaintiff provides a sworn affidavit claiming he worked in excess of forty hours a week in order to complete certain activities related to the care he provided as a home nurse. However, Plaintiff claims he was not paid overtime wages for the period he worked in excess of forty hours. Defendant has confirmed aspects of these allegations. Defendant confirms that Plaintiff was an employee and that Defendant compensates its employees on a “per job” rather than hourly basis.[1] Defendant also states that it only pays LVNs for “one hour per visit” because one hour is always “sufficient time for LVNs to complete all their job duties for each patient.” ...

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