United States District Court, W.D. Texas, Austin Division
WAYNE MILLER, on behalf of himself and all others similarly situated, Plaintiff,
MV TRANSPORTATION, INC., Defendant.
PITMAN, UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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
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
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).
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.
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.
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).
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, ¶ 10). In sum,
Miller and ...