United States District Court, S.D. Texas, Houston Division
MEMORANDUM & ORDER
KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs Motion for Conditional Certification
and Court-Authorized Notice. (Doc. No. 21.) Plaintiff asks
the Court to conditionally certify a class composed of
Logistics Coordinators and Wellsite Operators and to allow
for notice to be distributed to the class. Defendant asks the
Court to deny the Certification Motion.
a Fair Labor Standards Act ("FLSA") case. Plaintiff
Tyler Saltzman ("Plaintiff') performed work for
Defendant Shell Exploration & Production Company
("SEPCo" or "Defendant"). (Doc. No. 21 at
8.) Plaintiff states that he worked for SEPCo as a Logistics
Coordinator from approximately August 2017 until January
2018, approximately 6 months in total. (Doc. No. 21 at 9.) He
also claims to have worked informally as a Wellsite Operator
in addition to his formal position. Exhibit A at ¶ 2.
is a subsidiary of Shell Oil Company and it employs
third-party staffing companies, such as Petroleum
Co-Ordinators, Inc. ("PCI"), to provide workers for
certain positions and classifies them as independent
contractors. (Doc. No. 21 at 9.) Defendant contracted with
PCI for Plaintiffs services. (Doc. No. 34 at 7.)
claims that Defendant required him and all Logistics
Coordinators and Wellsite Operators to work in excess of 40
hours per workweek without any overtime compensation. (Doc.
No. 21 at 9-10.) Specifically, he alleges that SEPCo, through
PCI, pays both positions a day rate, but disguises this fact
by maintaining pay records that artificially divide the day
rate compensation into straight time pay and overtime pay.
(Doc. No. 21 at 10-11.)
Fair Labor Standards Act allows employees to sue an employer
for violations of the Act's overtime provisions. Suits to
recover overtime pay "may be maintained against any
employer ... by any one or more employees for and on behalf
of himself or themselves and other employees similarly
situated." 29 U.S.C. § 216(b).
determine whether employees are "similarly
situated" under § 216(b), courts in the Fifth
Circuit look to the two-step Lusardi approach.
See e.g., Walker v. Hongua Am., LLC, 870 F.Supp.2d
462, 465 (S.D. Tex. 2012). At the first step of the
Lusardi approach, courts must decide whether notice
of the action should be given to potential class members.
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). The
court's decision at this stage is made using a
"fairly lenient standard, [which] typically results in
'conditional certification' of a representative
class." Id. at 1214; see also Tolentino v.
C & J Spec-Rent Servs. Inc., 716 F.Supp.2d 642, 647
(S.D. Tex. 2010) ("The remedial nature of the FLSA and
§ 216 militate strongly in favor of allowing cases to
proceed collectively."). A plaintiff may proceed
collectively only if the challenged conduct is a generally
applicable rule, policy, or practice. McKnight v.
D.Houston, Inc., 756 F.Supp.2d 794, 801 (S.D. Tex. 2010)
(quoting England v. New Century Fin. Corp., 370
F.Supp.2d 504, 507 (M.D. La. 2005)).
order to obtain conditional certification, the plaintiff must
make a "minimal showing" that: (1) there is a
reasonable basis for crediting the assertions that aggrieved
individuals exist, and (2) those aggrieved individuals are
similarly situated to the plaintiff in relevant respects
given the claims and defenses asserted. Aguirre v. SBC
Commc 'ns, Inc., No. H-05-3198, 2006 WL 964554, at
*6 (S.D. Tex. April 11, 2006). With regard to the second
factor, "the relevant inquiry is whether the potential
class members performed the same basic tasks and were subject
to the same pay practices." Tice v. AOC Senior Home
Health Corp., 826 F.Supp.2d 990, 995-96 (E.D. Tex.
2011). In making this assessment, "the court need not
find uniformity in each and every aspect of employment to
determine that a class of employees is similarly
situated." Jones v. SuperMedia Inc., 281 F.R.D.
282, 288 (N.D. Tex. 2012).
asks the Court to certify a class comprised of both Wellsite
Operators and Logistics Coordinators. Both the Wellsite
Operator and the Logistics Coordinator positions are paid
according to a day rate.
did not formally work as a Wellsite Operator, alleging
instead that he sometimes performed these duties informally.
His evidence of his similarities with Wellsite Operators is
his own observations and experiences. Exhibit A at ¶ 5.
Plaintiffs informal experiences, which lasted no more than
six months, are insufficient evidence for the Court to find
that Plaintiff is representative of a class composed, in
part, of Wellsite Operators. While Plaintiff may have
performed some ...