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Cardona v. Cooper Aerobics Enterprises Inc.

United States District Court, N.D. Texas, Dallas Division

June 15, 2018




         Pretrial Management

         By Standing Order of Reference dated June 6, 2017, this case was referred for full case management, including the determination of non-dispositive motion and issuance of findings of fact and recommendations on dispositive motions. Before the Court for determination is Plaintiff's Motion for Conditional Certification Pursuant to 29 U.S.C. § 216(b) and Request for Specific Briefing Schedule, filed November 16, 2017 (doc. 27). Based upon the relevant filings and applicable law, the motion is DENIED.

         I. BACKGROUND

         Socorro Cardona (Plaintiff) brings this collective action under the Fair Labor Standards Act (FLSA) to recover unpaid overtime compensation against several defendants by whom she was allegedly employed and their owners/managers, including Cooper Aerobics Enterprises, Inc. (Cooper), David Carpenter (Carpenter), Allstar Hospitality Services of Texas, LLC (Allstar), Staff Pro, LLC a/k/a SP Workforce Solutions, LLC (Staff Pro), Richard Booth (Booth), Reginald G. Walker (Walker), Jose Rodriguez (Rodriguez), Juan Pablo Silva (Silva), Nilda Ramirez (Ramirez), Troy Sloppy (Sloppy), and David Little (Little) (collectively, Defendants).[1] (docs. 1 at 1-3, 43 at 1-5.)[2]

         Plaintiff contends that Defendants violated 29 U.S.C. § 207(a)(1) by failing to pay her, and others like her, the overtime and minimum wages required under the FLSA for work performed in excess of 40 hours per week. (doc. 43 at 5-9.) She alleges that Cooper used Allstar and Staff Pro as “intermediate staffing services” to employ the hourly housekeeping workers at its hotel from April 6, 2013, to April 1, 2016, where each entity was her “joint employer . . . while [she] was working at the hotel operated by [Cooper].” (Id. at 7.) She specifically alleges that Ramirez, who is identified as a “supervisor/manager” with Cooper, instructed her to work off the clock and without pay for “an average of 2.5 hours per day, Monday through Friday each week.” (Id. at 8.) From December 15, 2006, to “about” April 1, 2016, Plaintiff claims to have worked an average of 52.5 hours per week, Monday through Friday, where she was paid an average of $13.00 per hour for the first 40 hours worked Monday through Friday, but she was not compensated for any hours worked above 40 hours in a week as required by the FLSA. (Id. at 9.) She seeks the “time-and-a-half overtime rate” for an average of 12.5 hours of unpaid overtime worked above 40 hours in a work week, as well as “double damages” and attorney's fees as provided by the FLSA. (Id. at 9-10.)

         Plaintiff now moves under 29 U.S.C. § 216(b) of the FLSA for conditional certification of a collective action class comprised of “employees including housekeeping employees who worked at Cooper Hotel & Conference Center from April 7, 2013, to the present and ongoing.”[3] (doc. 27 at 9.) She provides Cooper's interrogatory answer that identifies Ramirez as one of the managers of housekeeping operations at its hotel. (Id.) She also claims that “discovery responses and documents produced by Defendants, ” including time sheets for her work at Cooper's hotel, support a finding that this “practice of not paying wages in accordance with the FLSA to the housekeeping staff at the hotel operated by [Cooper] was a company-wide practice.” (Id. at 2.) Plaintiff has not submitted any of these discovery responses or documents, however, because certain Defendants have “indicated” that they may propose the entry of a protective order in this case. (Id.) She moves for a “specific briefing schedule” requiring Defendants “to move for entry of . . . [a] protective order pursuant to which the documents may be filed with the Court under seal, or submit a notice to the Court affirmatively stating that the documents produced so far should not be subject to a protective order.” (Id. at 2, 10.) No motion for protective order has been filed by any of the parties in this suit, and Cooper attached a redacted version of the discovery documents at issue, including Plaintiff's time sheets, to its response. (docs. 29, 30.)

         With timely responses (docs. 29, 32) and reply (doc. 34), Plaintiff's motion for conditional certification is ripe for determination.


         The FLSA provides that a suit may be instituted by “one or more employees for and in behalf of himself or themselves and other employees similarly situated” to recover unpaid minimum wages, overtime compensation, and liquidated damages from employers who violate the statute's provisions. 29 U.S.C. § 216(b). This type of collective action follows an “opt-in” procedure in which “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”[4] Id.

         Under the FLSA, courts have discretion to allow a party asserting claims on behalf of others to notify potential plaintiffs that they may choose to “opt-in” to the suit. See Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). Although the Fifth Circuit has not adopted a specific standard to be used in determining the propriety of class certification under the FLSA, courts in this district utilize a two-stage approach that involves a “notice” stage and a “decertification” stage with different evidentiary thresholds applying at each. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); Valcho v. Dallas Cnty. Hosp. Dist., 574 F.Supp.2d 618, 621 (N.D. Tex. 2008) (noting that district courts in the Northern District of Texas apply the two-stage test).[5]

         At the “notice” stage, a plaintiff files a motion to authorize notice of the lawsuit to potential class members. See Mooney, 54 F.3d at 1213-14. The evidentiary standard at this stage is lenient, requiring “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan . . . .” Id. at 1214 n.8. However, a court should be mindful of the “responsibility to avoid the ‘stirring up' of litigation through unwarranted solicitation.” Crane v. J & M Commc'ns, Inc., No. 3:16-CV-2855-L-BH, 2017 WL 2882593, at *4 (N.D. Tex. July 6, 2017) (quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266-67 (D. Minn. 1991)). If the motion is granted, the district court will conditionally certify the class so that putative class members are given notice and the opportunity to “opt-in” to the lawsuit. Mooney, 54 F.3d at 1214. The action then proceeds as a representative action throughout discovery. Id. Once discovery is complete, the case proceeds to the second stage of litigation, in which the court revisits the issue of certification, usually when the defendant files a motion to decertify the class. Id.

         To demonstrate that conditional certification and notice to potential plaintiffs is proper,

a plaintiff must make a minimal showing that (1) there is a reasonable basis for crediting the assertions that aggrieved individuals exist, (2) [ ] those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses ...

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