United States District Court, S.D. Texas, Houston Division
Larry Felder, Individually and on Behalf of Those Similarly Situated, Plaintiff,
QED International, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge
Pending before the court are (1) a motion for conditional
certification filed by plaintiff Larry Felder (Dkt. 17); and
(2) an unopposed motion for leave to file a supplemental
reply filed by Felder (Dkt. 27). The unopposed motion to file
a supplemental reply (Dkt. 27) is GRANTED. After considering
the motion, response, reply, supplemental reply filed at
docket entry 27-1, and the applicable law, the court is of
the opinion that the motion for conditional certification
should be DENIED.
a Fair Labor Standards Act (“FLSA”) case.
Plaintiff Larry Felder worked for defendant QED
International, LLC (“QEDI”) as a Commissioning
Manager. Dkt. 17. He contends that he and other similarly
situated employees of QEDI regularly worked more the forty
hours a week but were not guaranteed a salary. Id.
He asserts that he and these other employees were
misclassified as exempt. Id. He seeks preliminary
certification of a class consisting of “[a]ll hourly
employees of QEDI who were at any point in the past 3 years
paid ‘straight time for overtime.'”
Id. He requests to send court-approved notice of
this lawsuit to the putative class members. Id.
argues that Felder has not met his burden of showing that
there are other individuals who are eligible to join this
action who want to opt in. Dkt. 23. It asserts that Felder
provides no declarations for other potential opt-in
plaintiffs and instead merely provides his own declaration
stating that he has spoken with former co-workers who were
also paid straight time for overtime and that he knows there
is a general interest from these employees in recovering back
wages. Id. (citing Dkt. 17-3 (Felder's
Declaration)). QEDI additionally argues that Felder fails to
show that there is a factual nexus between himself and the
putative class members to show they are similarly situated.
Id. QEDI contends that Felder's declaration
provides no details about his experiences, observations, and
conversations that purportedly establish that he and other
class members are similarly situated. Id.
the motion for conditional certification was pending, Felder
advised the court that the parties had a discovery dispute
pursuant to the court's discovery dispute procedure.
See Judge Gray H. Miller, Court Procedures,
Procedure 6.C (Discovery and Scheduling Disputes/Pre-Motion
Conferences). The court referred the dispute to the
Magistrate Judge, who set a hearing for May 3, 2019. Dkt. 21.
The dispute related to Felder's request that QEDI provide
Felder with contact information for its employees for the
past three years. See Dkt. 27-1. Felder sought this
information so that he could find other employees who wanted
to opt into the lawsuit. Id. QEDI did not want to
provide information about employees who had not filed
consents to join Felder's lawsuit. Id.
hearing, the Magistrate Judge ordered QEDI to turn over the
last known contact information for three individuals who
Felder identified at the hearing. Dkt. 25. Felder contends
that the Magistrate Judge “appeared to believe that
additional class discovery was unnecessary.” Dkt. 27-1.
After the hearing, QEDI was only able to provide contact
information for two of the three people Felder identified
during the hearing, as there was no employee by the third
name. See Id. The two employees did not opt in, and
Felder argues that he has been unable, “through no
fault but time and memory, to find additional class members
willing to join his action.” Id. He requests
that the court either not require a showing that there are
other similarly situated employees who want to opt in or
require QEDI to provide his requested discovery. Id.
motion for conditional certification is now ripe for
207(a) of the FLSA requires covered employers to compensate
nonexempt employees at overtime rates for time worked in
excess of forty hours per week. 29 U.S.C. § 207 (a)
(2012). Section 216(b) creates a cause of action against
employers who violate the overtime compensation requirements.
Id. § 216 (b). Section 216(b) also permits an
employee to bring a collective action lawsuit against an
employer on “behalf of himself . . . and other
employees similarly situated.” Id. Employees
who wish to participate in a § 216(b) collective action
must affirmatively “opt-in” to the action by
filing a written consent with the court. Id. The
“opt-in” procedure of § 216(b) illustrates
its “fundamental, irreconcilable difference” from
a class action under Federal Rule of Civil Procedure
23©); in a Rule 23 proceeding, persons within the class
description are automatically considered class members and
must “opt-out” of the suit if they do not wish to
participate. LaChapelle v. Owens-Ill., Inc., 513
F.2d 286, 288 (5th Cir. 1975).
Fifth Circuit has declined to adopt a specific test to
determine when a court should certify a collective action or
grant notice in an FLSA collective action, but most federal
courts (including this court) have adopted the
Lusardi test. Badgett v. Tex. Taco Cabana,
L.P., No. H-05-3624, 2006 WL 2934265, at *1-2 (S.D.
Tex. Oct. 12, 2006) (Miller, J.). Under the Lusardi
test, a district court engages in a two-step analysis to
determine whether the potential plaintiffs are
“similarly situated.” Id. at *1.
stages of the Lusardi test are the “notice
stage” and the “decertification stage.”
Id. At the notice stage, the court makes a decision,
usually solely based on the pleadings and any submitted
affidavits, whether to conditionally certify a collective
action and give notice to potential class members. See
Mooney v. Aramco Servs, 54 F.3d 1207, 1213 (5th Cir.
1995). At this stage, the court applies a “fairly
lenient standard” because there is often minimal
evidence available. Id. at 1214. Courts, in fact,
“appear to require nothing more than substantial
allegations that putative class members were together the
victims of a single decision, policy or plan.”
Id. (quoting Sperling v. Hoffmann-La Roche,
Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). Thus, the
notice stage analysis typically results in conditional
certification of a representative class. Badgett,
2006 WL 2934265, at *1. After conditional certification, the
“putative class members are given notice and the
opportunity to ‘opt-in.'” Mooney, 54
F.3d at 1214.
second stage-the “decertification stage”-is
typically precipitated by the defendant filing a motion to
decertify after the opt-in period has concluded and discovery
is largely complete. Id. “At this stage, the
court has much more information on which to base its
decision, and makes a factual determination on the similarly
situated question.” Id. If the court finds the
claimants are no longer made up of similarly situated
persons, it decertifies the class and dismisses the opt-in
plaintiffs without prejudice. Id. If the class is
still similarly situated, the court allows the collective
action to proceed. Id.
“decision to certify, even if subject to correction at
the decertification stage, is not without consequences”
as “[t]oo much leniency at the notice stage can lead to
a ‘frivolous fishing expedition conducted by the
plaintiff at the employer's expense'” and
“extreme leniency at the notice stage can result in
conditional certification that must later be revoked at the
eve of trial . . . when it becomes obvious that manageability
concerns make collective action impossible.” Lang
v. DirecTV, Inc., No. 10-1085, 2011 WL 6934607, at *6
(E.D. La. Dec. 30, 2011) (citations omitted). Therefore,
while the notice stage standard is lenient, it is not
automatic. Badgett, 2006 WL 2934265, at *2. The
plaintiff bears the burden of making a preliminary factual
showing that a similarly situated group of potential
plaintiffs exists. Id. To establish this, the
plaintiff must make a minimal showing that: “(1) there
is a reasonable basis for crediting the assertion that
aggrieved individuals exist; (2) those aggrieved individuals
are similarly situated to the plaintiff in relevant respects
given the claims and defenses asserted; and (3) those
individuals want to opt in to the lawsuit.” Maynor