United States District Court, W.D. Texas, El Paso Division
ORLANDO ZAPATA, on behalf of himself and all others similarly situated, Plaintiff,
CANINE FRIENDLY COALITION, INC. d/b/a DESERT STAR HOME HEALTH, and ROBERTO HERRERA, individually, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING CONDITIONAL
R. MARTINEZ UNITED STATES DISTRICT JUDGE
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.
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.
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
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,
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.
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.
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)).
Whether There is a Reasonable Basis for Crediting
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.
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. 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.” ...