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Wilson v. Etech Global Services LLC

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

June 13, 2019

SHARON WILSON and LILLIE JONES, on behalf of all others similarly situated, Plaintiffs,



         Before the Court is Plaintiffs' Motion for Notice to Potential Plaintiffs and Conditional Certification. Doc. 10. For the following reasons, the Court GRANTS the Motion and directs the parties to meet and confer as to a proposed notice and consent form.



         This is a Fair Labor Standards Act (FLSA) case brought by Sharon Wilson and Lillie Jones, on behalf of themselves and all other similarly situated employees (collectively “Plaintiffs”) against Etech Global Services LLC; Etech Texas LLC; Etech, Inc.; Dallas Center, LLC; and Matthew F. Rocco (collectively “Defendants”). Plaintiffs bring suit seeking unpaid wages resulting from Defendants' alleged failure to pay Plaintiffs in accordance with the FLSA's overtime pay requirements. Doc. 4-2, Pls.' Original Pet., ¶¶ 22-24.

         As part of their suit to recover unpaid wages, Plaintiffs seek conditional certification as a class of customer service agents (hereinafter “Chat Agents”), employed by Defendants, who were allegedly paid in violation of the FLSA. Doc. 10, Pls.' Mot. Cond. Cert., 2, 12. Plaintiffs worked for Defendants as Chat Agents on Defendants' Verizon account. Doc. 4-2, Pls.' Original Pet., ¶¶ 12-16. Defendants track Chat Agents' compensable work hours through a program called Nuance/TouchCommerce (hereinafter the “time-keeping system”). Doc. 30, Defs.' Resp., 7. This time-keeping system tracks the hours when Chat Agents are communicating with customers or are waiting to be connected with a customer. Doc. 31-1, Defs.' App., ¶¶ 4, 7-10. All other compensable hours are tracked through an “exception-time” policy that includes hours when Chat Agents are in training, meetings, counseling sessions, and time when their computers are not functioning. Doc. 31-1, Defs.' App., ¶¶ 11-17. To track exception-time, Chat Agents would use dry-erase boards to list how many hours of exception time they worked for on a given day; however, the dry-erase boards would be recycled and erased every 24 hours.[2] Doc. 31-1, Defs.' App., ¶ 14; Doc. 31-5, Defs.' App., 139 (Wilson Depo. 90-93). Exception-time hours are only granted after they are approved and signed by supervisors. Doc. 10-6, Pls.' App., ¶ 11.

         Defendants paid Plaintiffs an hourly rate; however, Plaintiffs allege that Defendants failed to pay Plaintiffs any overtime pay for hours worked over 40 hours in a work week. Doc. 10, Pls.' Mot. Cond. Cert., 2. Specifically, Plaintiffs argue that Defendants failed to pay overtime due to the use of the allegedly unlawful time-keeping system in conjuncture with the exception-time policy, which resulted in Defendants' failure to accurately record all of a Chat Agent's compensatory time. Id. In addition to not accurately recording the time, Plaintiffs claim that the allegedly faulty system was exacerbated by managers who were instructed to exclude and limit exception-time hours from Chat Agents' paychecks. Id. at 4-5.

         Plaintiffs assert that the Court should grant their Motion because they are similarly situated for FLSA purposes and estimate that there are 35-40 Chat Agents who worked on the Verizon account at 8700 Stemmons Fwy., 2nd Floor, Dallas, Texas 75247 (hereinafter the “Dallas Center”). Id. at 3. Defendants argue that conditional certification is not warranted in part because Plaintiffs have not pointed to a company-wide decision, policy, or plan to deny Chat Agents' payment for their overtime hours. Doc. 30, Defs.' Resp., 21. Instead, Defendants assert that the claims are based on purely personal circumstances due to Wilson's purposeful test of the accuracy of the time-keeping system during a one-week period when she worked overtime, rogue managers, and general human error. Id. at 21-27.

         Plaintiffs filed their Original Petition in state court on January 16, 2018. Since then, Defendants removed the action to this court and two opt-in plaintiffs have consented to join Wilson and Jones's suit: Taurean Persaud and Kamesha McFail. Doc. 10-1, Notice of Consent, 3 (Persaud Consent); Doc. 34, Notice of Consent (McFail Consent); Doc. 35, Pls.' Reply, 7-8. Like Plaintiffs, Persaud and McFail also worked as Chat Agents at the Dallas Center. Doc. 10-5, Pls.' App., ¶ 2. On February 1, 2019, Plaintiffs moved to conditionally certify their class under the FLSA. Doc. 10. On April 29, 2019, Defendants filed their joint Response in opposition to Plaintiffs' Motion for Conditional Certification. Doc. 30. On May 16, 2019, Plaintiffs filed their joint Reply. Doc. 35. After the close of the briefing, Defendants filed an unopposed Motion to file a Sur-Reply, which the Court granted. Doc. 39. Therefore, Plaintiffs' Motion is ripe for this Court's review.



         Section 216(b) of the FLSA “authorizes a plaintiff to bring a collective action on behalf of similarly situated persons, provided that any person who desires to become a part of the collective action files a written consent in the court.” Valcho v. Dall. Cty. Hosp. Dist., 574 F.Supp.2d 618, 621 (N.D. Tex. 2008). When a plaintiff seeks to bring a collective action, district courts have the discretion to implement § 216(b) by facilitating notice to potential plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989).

         The FLSA authorizes a plaintiff to bring an action on behalf of similarly situated persons, but the FLSA does not define “similarly situated.” And the Fifth Circuit has declined to adopt any specific test to determine when plaintiffs are similarly situated. Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 n.1 (5th Cir. 2010). But district courts in the Northern District of Texas have adopted the two-step approach outlined in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), which consists of a notice stage and a decertification stage. See, e.g., Ecoquij-Tzep v. Hawaiian Grill, 2017 WL 2672328, at *2 (N.D. Tex. June 21, 2017).

         Under the Lusardi approach, the first step-the notice stage-requires a preliminary determination, usually based only on the pleadings and submitted affidavits, of whether potential class members are similarly situated to the named plaintiff. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995). If they are similarly situated, then the court can conditionally certify the action and authorize notice to potential plaintiffs to opt in, and the suit “proceeds as a representative action throughout discovery.” Id. at 1214. After discovery is largely complete, the defendant may move for decertification, at which point the court proceeds to the second step-the decertification stage-and considers again whether the plaintiffs are similarly situated. Id. If the court finds that the plaintiffs who opted in are not similarly situated with the named plaintiff, then the class is decertified, the opt-in plaintiffs are dismissed without prejudice, and the original named plaintiff proceeds to trial on her individual claims. Id. at 1213-14.

         At the notice stage, a court usually has minimal evidence, so “the determination is made using a fairly lenient standard and typically results in conditional certification of a representative class.” Jones v. SuperMedia Inc., 281 F.R.D. 282, 287 (N.D. Tex. 2012). Courts generally “require nothing more than substantial allegations that the putative class members were together victims of a single decision, policy, or plan.” Mooney, 54 F.3d at 1214 n.8. A factual basis, however, must exist, and a plaintiff must show some “identifiable facts or legal nexus that binds the claims so that hearing the cases together promotes judicial efficiency.” Jones, 281 F.R.D. at 287. ...

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