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Miller v. MV Transportation, Inc.

United States District Court, W.D. Texas, Austin Division

May 14, 2019

WAYNE MILLER, on behalf of himself and all others similarly situated, Plaintiff,



         Before the Court is Plaintiff Wayne Miller's (“Miller”) Motion for Conditional Certification. (Dkt. 16). Having considered the parties' arguments, the record, and the relevant law, the Court finds that the motion should be granted in part.

         I. BACKGROUND

         This is a Fair Labor Standards Act (“FLSA”) action concerning overtime compensation for employees of Defendant MV Transportation, Inc. (“MVTI”), a services contractor for Austin's Capital Metro. (Am. Compl., Dkt. 27, at 1). Plaintiff Wayne Miller (“Miller”) alleges that he and similarly situated employees were denied overtime because MVTI shaved their time and deducted time for meal breaks that were actually spent working. (Id. at 4-5). Miller seeks to certify this action as a collective action under the FLSA. (Mot. Certify, Dkt. 16, a 4 (citing 29 U.S.C. § 216(b))). To that end, he asks the Court to certify the following class and send order that notice be sent to potential class members:

All current and former maintenance employees who were treated by Defendant as FLSA non-exempt and who worked for Defendant in Austin, Texas[, ] within the past three years.

(Id. at 3). In subsequent briefing, Miller agrees to limit the class to “only those employees who worked at the facility where [Miller] worked: the UT Shuttle Division.” (Reply Mot. Certify, Dkt. 33, at 2 n.1). MVTI opposes class certification on several grounds. (See Resp. Mot. Certify, Dkt. 29).


         The FLSA permits 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). Under this provision, other similarly situated employees “do not become plaintiffs in the action unless and until they consent in writing.” Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 (5th Cir. 2008). “To keep the opt-in process efficient, district courts ‘have discretion' to ‘facilitat[e] notice to potential plaintiffs.'” In re JPMorgan Chase & Co., 916 F.3d 494, 500 (5th Cir. 2019) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). The Fifth Circuit has approved of two different methods for certifying an FLSA collective action, Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), and this Court uses the “two-step conditional certification process known as the Lusardi approach.” Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510, 513 (W.D. Tex. 2015).

         The two stages of the Lusardi approach are the “notice stage” and the “decertification stage.” Mooney, 54 F.3d at 1216. At the notice stage, the district court determines whether “the putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class.” Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010). Because the Court has “minimal evidence” at this stage, the determination is made “using a fairly lenient standard, ” resulting in only the “conditional certification” of a representative class. Dyson, 308 F.R.D. at 513 (quoting Mooney, 54 F.3d at 1214). “After the class members have opted in and discovery is complete, the defendant may then file a decertification motion-the second stage of the Lusardi approach-asking the court to reassess whether the class members are similarly situated.” Id. at 512-13 (citing Mooney, 54 F.3d at 1214).

         Miller's motion brings this action to the notice stage. At this stage, several considerations apply. First, Miller bears the burden of making the preliminary factual showing that a similarly situated group of potential plaintiffs exists. Tice v. AOC Senior Home Health Corp., 826 F.Supp.2d 990, 995 (E.D. Tex. 2011). But that burden is a lenient one:[1] Miller must establish nothing more than “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination.” Mooney, 54 F.3d at 1214 n.8. To determine whether an FLSA plaintiff has met his or her burden, courts often look at “whether potential plaintiffs were identified, . . . whether affidavits of potential plaintiffs were submitted, . . . and whether evidence of a widespread discriminatory plan was submitted.” H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (citations omitted).

         Second, in evaluating Miller's motion, the Court's determination at this stage is “based on the pleadings and affidavits of the parties.” In re JPMorgan Chase & Co., 916 F.3d at 500. The Court “does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Lay v. Gold's Gym Int'l, Inc., SA-12-CV-754-DAE, 2013 WL 5595956, at *5 (W.D. Tex. Oct. 4, 2013) (quoting Brasfield v. Source Broadband Servs., LLC, 257 F.R.D. 641, 642 (W.D. Tenn. 2009)). Indeed, at this stage, “courts must be scrupulous to respect judicial neutrality, ” and must therefore “take care to avoid even the appearance of judicial endorsement of the merits of the action.” Hoffmann-La Roche, 493 U.S. at 174.

         That said, where-as here-an arbitration agreement may prevent potential plaintiffs from participating in the collective action, a district court must ensure at Lusardi step one that notice is not sent to them. In re JPMorgan Chase & Co., 916 F.3d at 501. If there is a genuine dispute as to the existence or validity of an arbitration agreement, the employer has the burden to prove the agreement's existence and validity by a preponderance of the evidence. Id. at 502-03. A court may consider additional evidence at Lusardi step one to resolve such disputes. Id. at 503.

         Finally, a district court may modify the proposed class definition if it is overly broad. See Baldridge v. SBC Commc'ns, Inc., 404 F.3d 930, 931-32 (5th Cir. 2005) (recognizing a court's power to “limit the scope” of a proposed FLSA action).


         Miller was a parts manager for MVTI's maintenance division from October 2015 until March 2018. (Miller Decl., Dkt. 16-1, ¶ 1). He says that he was an hourly employee who often worked more than 40 hours per week, but that MVTI would “shave” his hours-reduce the hours reported on his time cards-to deny him overtime compensation. (Id. ¶¶ 3-4; Am. Compl., Dkt. 27, at 4). He also says that MVTI would automatically reduce his time worked by 30 minutes for lunch, even on days when he worked through some or all of his lunch break. (Miller Decl., Dkt. 16-1, ¶¶ 3- 4). According to Miller, other maintenance department employees told him that they had experienced the same problems. (Id.). One of those other employees, James Ortego, filed a declaration lodging essentially the same allegations. (Ortego Decl., Dkt. 16-2). Miller believes that the time-shaving and lunch-docking constituted a de facto company policy because the practice was commonly practiced and widely known, but never remedied. (Miller Decl., Dkt. 33-1, ΒΆ 10). In sum, Miller and ...

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