United States District Court, S.D. Texas, Houston Division
JAMES RADFORD, on behalf of himself and others similarly situated, Plaintiffs,
PEVATOR COMPANIES, LTD. d/b/a/ BRAKE CHECK, Defendant.
MEMORANDUM AND ORDER [*]
Rosenthal Chief United States District Judge
defendant, Brake Check (the trade name of Pevator Companies),
asks the court to decertify a conditionally certified
collective action for unpaid overtime wages under the Fair
Labor Standards Act, 29 U.S.C. § 216(b). (Docket Entry
No. 92). James Radford, a Brake Check Service Manager, sued
on behalf of himself and other Service Managers, alleging
that Brake Check improperly classified them as exempt from
the Act's overtime compensation requirements. (Docket
Entry No. 77). This court conditionally certified a class of
current and former Service Managers who worked at Brake Check
during the three years before the filing of this lawsuit.
(Docket Entry Nos. 19, 32). Radford and two of the opt-in
plaintiffs, DaJuan Jones and Michael Murehead, also asserted
retaliation claims under the Act. (Docket Entry No. 77 at
¶¶ 7.10-7.24). After representative discovery,
Brake Check moved for decertification, for sanctions against
Murehead, for summary judgment, and for attorneys' fees
and costs. (Docket Entry Nos. 92, 99, 104).
on the pleadings, the motions, the record, and the applicable
law, the court grants Brake Check's motion for
decertification, dismisses the claims of the plaintiffs other
than Radford without prejudice, grants Brake Check's
motion for summary judgment as to Radford's claims, and
denies Brake Check's motion for sanctions. The statute of
limitations as to the dismissed plaintiffs' claims is
tolled until February 25,
2020. Brake Check's requests for
attorneys' fees and costs are denied. The reasons for
these rulings are set out below.
Check is a chain automotive repair shop that does oil
changes, brake work, and alignments. (Docket Entry No. 77 at
¶ 6.1). Brake Check locations have two operational
structures. (Docket Entry No. 28-2 at 3). In the first
structure, “the Store Director is the highest-level
employee in charge of the store.” (Id.). The
Store Director reports to a Corporate Director located at a
different Brake Check location. (Id.). Service
Managers report to Store Directors and the Automotive
Technicians report to Service Managers. (Id.). In
the second operational structure, a Corporate Director
manages the store without a Store Director and Service
Managers report directly to the Corporate Director.
(Id.). When the Store or Corporate Director is
absent, the Service Manager runs the store. (Id.).
plaintiffs are 45 Service Managers from Brake Check locations
throughout Texas. After this court permitted discovery as to
ten representative plaintiffs, Brake Check designated two
individuals from locations in Austin, Corpus Christi,
Houston, Missouri City, and San Antonio as the representative
plaintiffs from whom it wanted discovery. (Docket Entry No.
One representative plaintiff, Eric Sanchez, withdrew from the
case. (Docket Entry No. 90).
revealed some undisputed facts. Each Service Manager had the
same job description and the same pay schedule. (Docket Entry
No. 104-17 at 12-13). Service Managers performed a variety of
tasks, including making general car repairs, training new
team members, interacting with customers, managing inventory,
and ordering new parts. Id. Service Managers also
assigned tasks to Automotive Technicians; ensured that the
Technicians safely performed their tasks; opened and closed
the stores; and ran the stores when Store or Corporate
Directors were absent. Service Managers are paid $600 per week
plus a potential monthly bonus based on a store's
profits. (Docket Entry No. 106-18, Hakes Dep. at 24:20-21;
Docket Entry 94-19 at 3; Docket Entry No. 104-17 at 13).
Check deposed the nine remaining representative plaintiffs,
plus opt-in plaintiff Stephen Gordon James and the three
plaintiffs who asserted retaliation claims under the Act-
Radford, Jones, and Murehead. (Docket Entry No. 104 at 7-8).
Radford deposed Allen Hakes, Brake Check's Vice President
of Operations and corporate representative for this case, and
obtained over 4, 000 pages of records from Brake Check.
(Id. at 8). After the representative discovery,
Brake Check moved to decertify the class, arguing that the
class members are not similarly situated. (Docket Entry No.
92). Brake Check also moved for sanctions against Murehead,
contending that his claims should be dismissed with prejudice
because he committed perjury in his February 14, 2019,
declaration. (Docket Entry No. 99). Finally, Brake Check
moved for summary judgment, arguing that it properly
classified the Service Managers as exempt from the Act's
overtime requirements and that it fired the three Service
Managers asserting retaliation claims for legitimate reasons.
(Docket Entry No. 104).
motion is analyzed below.
courts in this circuit use the two-step Lusardi
approach to determine whether employees are “similarly
situated” for certification under § 216(b).
Cruz v. Conocophillips, 208 F.Supp.3d 811, 815 (S.D.
Tex. 2016) (citing Lusardi v. Xerox Corp., 118
F.R.D. 351 (D.N.J. 1987)). The Fifth Circuit has not defined
“similarly situated” or endorsed a particular
test, but it has affirmed district courts using the
Lusardi method. Acevedo v. Allsup's
Convenience Stores, Inc., 600 F.3d 516, 518-21 (5th Cir.
2010); Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1213, 1216 (5th Cir. 1995), overruling on other grounds
recognized by Rachid v. Jack In The Box, Inc., 376 F.3d
305, 311 n.10 (5th Cir. 2004). At the first stage, the court
conditionally certifies the class based on minimal record
evidence. Mooney, 54 F.3d at 1213-14. The court did
that in this case. (Docket Entry No. 32). “The second
determination is typically precipitated by a motion for
‘decertification' by the defendant usually filed
after discovery is largely complete and the matter is ready
for trial.” Mooney, 54 F.3d at 1214.
motion to decertify is filed, the court must thoroughly
review the evidence to determine whether the action should
continue to proceed collectively. Id. Lusardi
factors include: (1) the “factual and employment
settings of the individual plaintiffs”; (2) whether
“the various defenses available to [the defendant] . .
. appear to be individual to each plaintiff”; and (3)
fairness and procedural concerns (along with a factor
specific to Age Discrimination in Employment Act cases).
Id. at 1213 n.7 (citing Lusardi, 118 F.R.D.
at 359). If the class members are not similarly situated, the
opt-in plaintiffs' claims are dismissed without
prejudice, and the original party or parties may proceed
individually. Id. at 1214; Acevedo, 600
F.3d at 519; see, e.g., Buehlman v. Ide Pontiac,
Inc., 345 F.Supp.3d 305, 314-15 (W.D.N.Y. 2018)
(“Defendants' motion for . . . decertification of
the matter as a collective action . . . is granted . . . .
The Opt-In Plaintiffs' claims are dismissed without
prejudice, and the statute of limitations as to those claims
is tolled for 30 days from entry of this Decision and Order.
Defendants are granted summary judgment as to Plaintiff's
unpaid overtime claims under both the [Fair Labor Standards
Act] and the [New York Labor Law].”).
Factual and Employment Settings of the Individual
plaintiffs contend that Service Managers all held the same
position in Brake Check, performed comparable work, and
worked similar schedules. (Docket Entry No. 94 at 4-12).
Brake Check argues that even if there is a common job
description, each plaintiff's daily work is highly
individualized depending on the Brake Check location where
the plaintiff worked. (Docket Entry No. 92 at 9-15).
not specifically required by the Fifth Circuit, evidence of a
common policy, plan, or practice is often critical to showing
that all plaintiffs have a similar employment setting.
Falcon v. Starbucks Corp., 580 F.Supp.2d 528, 535
(S.D. Tex. 2008). “[A]t a minimum, there must be
meaningful identifiable facts or [a] legal nexus [that]
bind[s] the claims, . . . so that hearing the cases together
furthers the purposes of section § 216, is fair to both
parties, and does not result in an unmanageable trial.”
Id. (quotation marks and citation omitted). The
plaintiffs had the same job title and written job
description, but their daily responsibilities varied
substantially. See Aguirre v. SBC Commc'ns,
Inc., No. H-05-3198, 2007 WL 772756, at *12 (S.D. Tex.
Mar. 12, 2007) (“[E]mployees with the same job title
are not ‘similarly situated' for the purposes of an
‘opt-in' [Fair Labor Standards Act] class if their
day-to-day job duties vary substantially.”).
explained above, Brake Check locations have two different
managerial structures. Some locations have a Store Director;
at other locations, the Service Managers report directly to a
Corporate Director. Some Brake Check locations perform a
wider range of automotive repair functions, such as strut
services or transmission replacements, than others. (Docket
Entry No. 106-18, Hakes Dep. at 56:6-25). The size of the
locations and the customer volumes also vary. (Docket Entry
No. 106-3, Radford Dep. at 111:6-113:9; Docket Entry No.
106-7, Jones Dep. at 136:23- 137:14; Docket Entry No. 106-10,
James Dep. at 85:14-86:12; Docket Entry No. 106-33, Eskridge
Dep. at 27:4-28:7). At busier locations or times, or when
Technicians were unavailable, short-staffed, or unable to do
certain jobs, Service Managers spent more time working on
cars. (Docket Entry No. 106-3, Radford Dep. at 101:5-102:13;
Docket Entry No. 106-7, Jones Dep. at 137:21- 139:8; Docket
Entry No. 106-32, Tung Dep. at 36:22-37:17; Docket Entry No.
106-34, Campirano Dep. at 35:1-13; Docket Entry No. 106-36,
Lopez Dep. at 64:22-67:24).
plaintiffs' diverse testimony on the types and frequency
of Service Managers' tasks shows that there was no common
work routine among the class members during the class period.
David Tung, a representative plaintiff from the Austin
location, testified that he spent approximately 10 to 20% of
his time servicing cars; Johnny Binder from Houston testified
that he spent 85% of his time doing the same. (Docket Entry
No. 106-32, Tung Dep. at 36:22-37:17; Docket Entry No.
106-13, Binder Dep. at 40:24-41:3). Remigio Jesus Campirano
from the San Antonio location estimated that he spent
approximately 20% of his time working on vehicles. (Docket
Entry No. 106-34, Campirano Dep. at 35:1-13). Veronica Lopez,
also from the San Antonio store, testified that the amount of
time she spent on cars varied depending on how busy the store
was and who was on staff. (Docket Entry No. 106-36, Lopez
Dep. at 64:22-67:24). Brake Check's policies allowed
Service Managers to do a range of work. (Docket Entry No.
106-18, Hakes Dep. at 56:6-25; but see Docket Entry
No. 106-7, Jones Dep. at 137:15-21 (not agreeing that Service
Managers' duties varied)).
plaintiffs have not identified a consistent plan by Brake
Check to deny Service Managers managerial responsibilities in
favor of more menial work. See Johnson v. Big Lots
Stores, Inc., 561 F.Supp.2d 567, 579 (E.D. La. 2008)
(“Even though plaintiffs pitched their case as
involving a uniform policy or practice of misclassifying
[Assistant Store Managers], they produced no direct evidence
suggesting a conscious corporate intention to deny [them]
managerial responsibilities.”). Jones testified that he
believed Brake Check instructed Service Managers to stay past
their scheduled work hours so that they, not the Automotive
Technicians, could work on cars, because the Technicians got
overtime and Managers did not. (Docket Entry No. 106-7, Jones
Dep. at 96:7-25). But the plaintiffs did not show that this
was a consistent policy that Brake Check enforced. See
Falcon, 580 F.Supp.2d at 536 (denying decertification,
in part, because all assistant store managers worked
off-the-clock or had time “shaved off” by their
store managers). Based on the disparate testimony and other
record evidence, the court finds that the individual
plaintiffs' job experiences were too diverse to sustain a
Check intends to invoke various exemption defenses if this
case proceeds to trial. “Exemption defenses are
‘the most fact-intensive' part” of a Fair
Labor Standards Act lawsuit. Kelly v. Healthcare Servs.
Grp., Inc., 106 F.Supp.3d 808, 828 (E.D. Tex. 2015)
(quoting Clark v. Centene Co. of Tex., L.P., 44
F.Supp.3d 674, 689 (W.D. Tex. 2014)). Considering the
differences in the plaintiffs' testimony, trial on the
exemption defenses would vary depending on the amount of time
each plaintiff spent on nonexempt work. See Marshall v.
Eyemasters of Tex., Ltd., 272 F.R.D. 447, 450 (N.D. Tex.
2011) (denying conditional certification under the more
lenient standard of Lusardi step one because the
declarations from the employees showed that “employees
holding the same job title were performing different duties
at different stores”).
plaintiffs argue that the court can adjudicate the exemption
defenses collectively. (Docket Entry No. 94 at 24-26).
Collective adjudication of exemption defenses is proper when
the plaintiffs assert homogenous facts. See Johnson,
561 F.Supp.2d at 586 (“[T]he dissimilarity of
plaintiffs' self-reported job duties makes it exceedingly
difficult for Big Lots to assert its statutory exemption
defense on a collective basis.”); id. at 587
(“One of the purposes of trying several overtime pay
claims in a collective action is to avoid the inefficiencies
of conducting multiple individual trials on the same factual
and legal issues.”). The plaintiffs gave different
accounts of the amount of time they spent on different tasks.
Without a more homogenous class, there can be no collective
determination on the exemption defenses Brake Check asserts.
Cf. Vanzzini v. Action Meat Distribs., Inc., 995
F.Supp.2d 703, 723 (S.D. Tex. 2014) (“The kind of
highly factual, individualized inquiry that determining
whether the MCA exemption applies to Mr. Flanagan would
require . . . counsels against including him in the certified
Fairness and Procedural Concerns
actions often lower costs to plaintiffs, increase their
access to relief, and efficiently resolve claims involving
common issues of law and fact. See Hoffmann-LaRoche Inc.
v. Sperling, 493 U.S. 165, 170 (1989). The burden and
complexity a class action imposes on the parties, the jury,
and the court may frustrate these benefits. See
Lusardi, 118 F.R.D. at 370-71 (discussing “serious
questions . . . concerning the fairness, manageability and
meaningfulness of [many] separate jury trials under the guise
of a class action before a single jury). When the claims
involve individualized legal or factual determinations, the
burdens may outweigh the benefits. See Id. District
courts have “substantial discretion” to
“define, redefine, subclass, and decertify as
appropriate in response to the progression of the case from
assertion to facts.” Richardson v. Byrd, 709
F.2d 1016, 1019 (5th Cir. 1983); Snively v. Peak Pressure
Control, LLC, 347 F.Supp.3d 294, 301 (W.D. Tex. 2018).
Brake Check's exemption defenses will require
fact-intensive mini trials too variable to be addressed by
creating subclasses. See Agostino v. Quest Diagnostics
Inc., 256 F.R.D. 437, 471 (D.N.J. 2009), overruled
on other grounds by Maniscalco v. Brother Intern. (USA)
Corp., 709 F.3d 202, 207-08 (3d Cir. 2013) (“The
Court concludes that there are too many individualized issues
of fact for the . . . Subclass to be considered
cohesive.”). In one case involving exemption defenses,
Johnson, 561 F.Supp.2d at 570, the court held a
bench trial with 43 hours of live testimony and presentations
from attorneys, more than 40 witnesses, and more than one
thousand exhibits. The court decertified the collective
action because ruling on the merits would be
“fundamentally unfair to both sides.”
Id. at 588; see Snively v. Peak Pressure
Control, LLC, 314 F.Supp.3d 734, 743-44 (S.D.
Tex. 2018) (discussing Johnson as a
“cautionary tale”). The risk of waste is greater
here because the trial would be to a jury, making it more
difficult to manage. See Snively, 314 F.Supp.3d at
743 (a bench trial provides flexibility “in juggling a
potentially complex case”). The record does not show
that the plaintiffs are similarly situated enough to continue
to proceed as a collective action.
Check's motion to decertify is granted. The plaintiffs
other than James Radford are dismissed without prejudice.
This case is now an individual action on behalf of Radford.
statute of limitations for the putative class members resumes
running when . . . a certified class is decertified.”
Hall v. Variable Annuity Life Ins. Co., 727 F.3d
372, 375 (5th Cir. 2013) (citing Crown, Cork & Seal
Co., Inc. v. Parker, 462 U.S. 345, 354 (1983)).
“In order to avoid prejudice to opt-in plaintiffs,
courts may toll the statute of limitations in [Fair Labor
Standards Act] collective actions that have been decertified,
and they often do so in cases involving many opt-in
plaintiffs.” McEarchen v. Urban Outfitters,
Inc., No. 13-CV-3569, 2017 WL 3912345, at *2 (E.D.N.Y.
Sept. 6, 2017) (collecting cases and tolling for 60 days when
there were 165 opt-in plaintiffs); see also Buehlman
345 F.Supp.3d at 313-15 (tolling for 30 days when there were
two opt-in plaintiffs in a matter that was “not . . .
particularly complex”). A 45-day tolling period would
be appropriate in this case, which involves 44 plaintiffs
other than Radford, but the court adds an extra 15 days to
account for the holidays. The statute of limitations as to
the dismissed plaintiffs' claims is tolled until
February 25, 2020.
summary judgment motion is now examined against Radford. The
relevant facts are those pertaining to his individual claims.
The court cites other Service Managers' testimony to
provide additional information and context.
The Legal Standard
judgment is appropriate only if ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.'” Vann v. City of
Southaven, 884 F.3d 307, 309 (5th Cir. 2018) (per
curiam) (quoting Hanks v. Rogers, 853 F.3d 738, 743
(5th Cir. 2017)). “A genuine dispute of material fact
exists when ‘the evidence is such that a reasonable
jury could return a verdict for the nonmoving
party.'” Burell v. Prudential Ins. Co. of
Am., 820 F.3d 132, 136 (5th Cir. 2016) (quoting
Savant v. APM Terminals, 776 F.3d 285, 288 (5th Cir.
2014)). “The moving party ‘always bears the
initial responsibility of ...