United States District Court, N.D. Texas, Dallas Division
SHARON WILSON and LILLIE JONES, on behalf of all others similarly situated, Plaintiffs,
ETECH GLOBAL SERVICES LLC, ETECH TEXAS LLC, ETECH, INC., DALLAS CENTER, LLC, and MATTHEW F. ROCCO, Defendants.
MEMORANDUM OPINION AND ORDER
J. BOLEY UMTED STATES DISTRICT JUDGE.
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.
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.
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. 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.
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.
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.
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.
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).
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).
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.
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. ...