United States District Court, S.D. Texas, Houston Division
Louis Sheffield, Individually and on behalf of all Others Similarly Situated, Plaintiff,
Stewart Builders, INC., Defendant.
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge
before the court is plaintiff Louis Sheffield's (1)
motion for conditional certification of a collective action,
(Dkt. 9); and (2) motion for approval and distribution of
notice and for disclosure of contact information (Dkt. 10).
After reviewing the motions, oppositions, replies, relevant
exhibits, and applicable law, the court is of the opinion
that the motion for conditional certification should be
DENIED and the motion for court approved notice and for
disclosure of contact information should be DENIED AS MOOT.
Fair Labor Standards Act (“FLSA”) case, Stewart
Builders, INC (“Stewart Builders”) is a
commercial concrete construction company, doing business in
the state of Texas under the under the d/b/a Keystone
Concrete Placement. Dkt. 1 at 3. Sheffield, a former employee
of Stewart Builders, brought this lawsuit individually and on
behalf of all other similarly situated employees who may wish
to opt into the suit. Dkt. 9. Sheffield worked for Stewart
Builders as a salaried pump operator (“Pump
Operator”) and subsequently as a salaried pump
supervisor (“Pump Supervisor”). Dkt. 1.
at 3. Sheffield alleges that he and other similarly situated
individuals regularly worked over forty hours per week, were
misclassified as exempt from overtime pay, and were paid
salaries when they “never agreed that their salary
would be sufficient to cover all hours worked.”
Id. at 6. Sheffield further alleges that when he and
other similarly situated employees started working for
Stewart Builders, they did not sign a contract relating to
pay. Id. at 7.
instant motions, Sheffield seeks an order granting
conditional certification under the FLSA, requiring Stewart
Builders to disclose all contact information for all
similarly situated employees, and permitting distribution of
notice of this suit to all similarly situated employees by
text, email, physical mail, and posting notice at Stewart
Builders' place of business. Id. at 10; Dkt.10.
Sheffield further requests that the court not require a
showing that there are other similarly situated employees who
want to opt in. Dkt. 9 at 6.
motion for conditional certification and the motion for court
approved notice and disclosure of contact information are
ripe for disposition.
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(c);
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.); see also Yoakum v.PBK
Architects, Inc., No. H-10-00278, 2010 WL 4053956, at *3
(S.D. Tex. Oct. 14, 2010) (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) overruled on other grounds by Desert Palace, Inc.
v. Costa, 539 U.S. 90, 123 S.Ct. 2148 (2003);
Acevedo v. Allsup's Convenience Stores, 600 F.3d
516, 518-19 (5th Cir. 2010). At this stage, the court applies
a “fairly lenient standard” because there is
often minimal evidence available. Mooney, 54 F.3d 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.”
Hernandez v. Helix Energy Sols. Grp., Inc., No.
H-18-1588, 2018 WL 6067293, at *2 (S.D. Tex. Nov. 20, 2018)
(Rosenthal, J.) (citing Maynor v. Dow Chem. Co., No.
G-07-0504, 2008 WL 2220394, at *6 (S.D. Tex. May 28, 2008)
(Rosenthal, J.)); Simmons v. T-Mobile USA, Inc., No.
H-06-1820, 2007 WL 210008, at *5 (S.D. Tex. Jan. 24, 2007)
(Atlas, J.); Walker v. Honghua Am., LLC, 870
F.Supp.2d 462, 466 (S.D. Tex. 2012) (Ellison, J.). But
see, e.g., Jones v. Cretic Energy Servs., LLC,
149 F.Supp.3d 761, 767 (S.D. Tex. 2015) (Lake, J.) (not
requiring the third element); (Luvianos v. Gratis
Cellular, Inc., No. H-12-1067, 2012 WL 6743559 (S.D.
Tex. Dec. 28, 2012) (Lake, J.) (same).
the first two prongs of the conditional certification test
are contested, the main issue before the court is whether
there is sufficient evidence that other similarly ...