Bustillos v. Bd. of Cnty. Comm'rs of Hidalgo Cnty.

• Decision Date: 16 September 2015
• Docket Number: No. CIV 13-0971 JB/GBW,CIV 13-0971 JB/GBW
• Parties: MADONNA BUSTILLOS, FRANCISCO CONTRERAS, CONCEPCION T. HERNANDEZ, MARTHA S. JIMENEZ and AMANDA VOGELSANG-WOLF, on behalf of themselves and all others similarly situated, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF HIDALGO COUNTY, Defendant.
• Court: U.S. District Court — District of New Mexico

MADONNA BUSTILLOS, FRANCISCO CONTRERAS, CONCEPCION T. HERNANDEZ,MARTHA S. JIMENEZ and AMANDA VOGELSANG-WOLF, on behalf ofthemselves and all others similarly situated, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF HIDALGO COUNTY, Defendant.

No. CIV 13-0971 JB/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

September 16, 2015

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Plaintiffs' Motion for Conditional Certification of a Collective Action Under 29 U.S.C. § 216(b)andCertification of a Class Action UnderFed. R. Civ. P. 23(b)(3) and Memorandum in Support, filed September 30, 2014(Doc. 33)("Motion").The Court held a hearing on November 21, 2014.The primary issues are: (i) whether to conditionally certify this case as a collective action under 29 U.S.C. § 216(b); and (ii) whether to certify this case as a class action under rule 23(b)(3) of the Federal Rules of Civil Procedure.As to the first issue, because the Plaintiffs have pled facts that suggest that the proposed class is similarly situated with regard to the alleged violations of the federal Fair Labor Standards Act of 1938,29 U.S.C. §§ 201-219("FLSA"), the Court will conditionally certify the case as a collective action.As to the second issue, because the Plaintiffs have not yet put forth facts showing the proposed class' compliance with rules 23(a)and23(b)(3), the Court will deny the request for class certification without prejudice to allow them to renew it later, when and ifthey can support the motion with evidence.The Court thus grants the Motion in part and denies it in part.

FACTUAL BACKGROUND

The Plaintiffs and proposed class members are correctional officers, sergeants, and lieutenants at the Hidalgo County Detention Center, and emergency dispatchers at the New Mexico Hidalgo County Central Emergency Dispatch Center.SeeComplaint for Violations of the Fair Labor Standards Act, State Wage and Hour Laws, Breach of Contract and Unjust Enrichment Collective Action Complaint(29 U.S.C. § 216(b)) ¶ 1, at 1-2, filedOctober 8, 2013(Doc. 1)("Complaint");id.¶¶ 8-10, at 2-3.The gist of the Plaintiffs' Complaint is that all employees work, and are paid on the basis of, pre-assigned shifts, but (i)they are not allowed to leave until another employee relieves them; and (ii)they are required to do various clerical tasks after the end of their shift, such as "reconcil[ing] call logs."Complaint¶ 10, at 3.The Plaintiffs"are scheduled and paid only for the stated length of their shift," and, despite that they"are consistently required to work longer than the time allotted for their scheduled shift,"they"are not compensated for this extra work time."Complaint¶ 12, at 3.This practice resulted not only in the Plaintiffs losing regular -- i.e., non-overtime -- pay for the work done after the end of their shifts, but, in many cases, resulted in Plaintiffs and proposed class members, whom should be paid overtime wages -- i.e., one and one-half times the regular wage -- losing out on that pay, as well.SeeComplaint¶ 14, at 3.Last, the Plaintiffs are also often required to be "on-call" for certain periods of time when they are not physically at work, and they receive no compensation for this time.Complaint¶ 15, at 4.

PROCEDURAL BACKGROUND

The Plaintiffs filed suit in federal court on October 8, 2013.SeeComplaintat 1.They allege four causes of action: (i) violation of the New Mexico state wage and hour laws, N.M. Stat. Ann. § 50-4-1 to -30 ("NMSA"), Complaint¶¶ 20-22, at 4;(ii) violations of the FLSA, seeComplaint¶¶ 23-27, at 4-5;(iii) breach of their employment contracts, seeComplaint¶¶ 28-31, at 5; and (iv) unjust enrichment, in the form of free hours worked, seeComplaint¶¶ 32-36, at 5-6.The Plaintiffs demand a jury trial, seeComplaint¶ 37, at 6, and ask that the case proceed as a "collective action" under 29 U.S.C. § 216(b) and that they receive compensatory and liquidated damages, including pre- and post-judgment interest, and costs and attorneys' fees, seeComplaint ¶¶ a-f, at 6.

Hidalgo County answered the Complaint within one month.SeeDefendant's Answer to Plaintiff's Complaint for Violations of the Fair Labor Standards Act, Stage Wage and Hour Laws, Breach of Contract and Unjust Enrichment Collective Action Complaint (29 U.S.C. § 216(b)), filed November 7, 2013(Doc. 5)("Answer").It admits that all of the Plaintiffs and the proposed class members -- both the detention-center employees and the emergency dispatchers -- are not allowed to leave their posts until relieved by the incoming employee for the next shift, seeAnswer¶¶ 9, 11, at 3, but it denies that the dispatchers are required to reconcile call logs after the end of their shift, seeAnswer¶ 10, at 3.Hidalgo County contends that, in fact, the dispatchers "are required to reconcile call logs at the end of each call."Answer¶ 10, at 3.It "admits Plaintiffs are scheduled and paid for the length of their shifts for time actually worked by each employee," but it "denies the . . . allegations" that the Plaintiffs are required to work beyond their scheduled shift.Answer¶ 12, at 3.It also categorically denies the Plaintiffs' claims ofgoing unpaid for on-call time, asserting that "only detectives and corporals are on call."Answer¶ 15, at 4.

The Plaintiffs filed the Motion on September 30, 2014.SeeMotionat 1.They request that the Court"conditionally" certify Count II, the FLSA claim, as a collective action under 29 U.S.C. § 216(b), and that the Court certify the other three claims as a class action under rule 23(b)(3).Motionat 7.SeeMotionat 3.They define their proposed class action and their proposed collective action in identical terms.SeeMotionat 3.They define the class by way of two subclasses -- the union of which the Court presumes to be the class definition:

[SUB]CLASS 1: All current and former employees of Hidalgo County employed at the Hidalgo County Detention Center within the past three years as a Detention Officer who have, at any time in the relevant period, worked at a post that required pre- or post-shift briefing, and work related to on-coming or out-going employees in that post, or who worked "on call" shifts.

[SUB]CLASS 2: All current and former employees of Hidalgo County employed at the Hidalgo County Dispatch Center within the past three years as a Dispatch Operator who have, at any time in the relevant period, worked at a post that required pre- or post-shift briefing, and work related to on-coming or out-going employees in that post, or who worked "on call" shifts.

Motionat 3-4.

The Plaintiffs describe significant facts in their Motion that they did not plead in their Complaint:

Plaintiffs represent two distinct subclasses of employees.The first set of Plaintiffs, and other similarly situated employees, fill certain "posts" at the Detention Center and rotate on one of three shifts -- day, night, and graveyard.(At previous times, Detention Officers have worked on 12-hour shifts.)Defendant has had a policy and practice of requiring these employees to arrive at least five minutes prior to their scheduled shift to perform work and receive a pre-shift briefing.Employees were not compensated for this time, much of which was performed at overtime rates.Through this practice, for virtually every shift on every "post," employees' work schedules overlap for up to five to fifteen minutes, yet Defendant compensates only one of the two employees for this time.In addition, Detention Center employees at times are expected to be "on call," requiring them to remain close to the facility and available by phone at all times.

Employees were not compensated for this time, even when they responded to Detention Center inquiries and emergencies by phone, helping resolve work issues that arise.

A similar policy is in place in the Dispatch Center, where written policies require all operators to arrive at least five minutes prior to their scheduled shift to perform work and receive a pre-shift briefing.Dispatch Operators rotate on one of three shifts -- day, night, and graveyard.(At previous times, Dispatch Operators have worked on 12-hour shifts.)These Dispatch Center employees also were not compensated for this time, much of which was performed at overtime rates.Dispatch employees also are expected to be "on call" at times, requiring them to remain close to the facility and available by phone at all times.Employees were not compensated for this time, even when they responded to Dispatch Center inquiries and emergencies by phone, helping resolve work issues that arise.

Motionat 2-3.

The Plaintiffs state that, "[w]ithin the sub-classes, Detention Officers perform largely the same duties, with Corporals considered lead employees who have administrative and oversight duties in addition to working the same shifts and performing the same duties as regular officers."Motionat 5.They assert that all "Detention Officers are required to be at their post assigned at the beginning of their shift," but that:

[B]efore arriving at that post, Detention Officers must (1) read post orders and sign a receipt slip indicating those post orders have been read; (2) inspect all equipment and report any discrepancies; and (3) attend a briefing in the control room that includes all out-going and in-coming Detention Officers in an overlap of their shifts.

Motionat 6.The Plaintiffs contend that this pre-shift briefing typically takes between five and fifteen minutes.SeeMotionat 6.

As for the dispatchers, the Plaintiffs assert that their "Policies and Procedure manual explicitly requires" that they report five minutes before each shift.Motionat 6.The Plaintiffs state that:

Before "logging on" to the system to take over the radio operations from the out-going Dispatch Operator -- thus officially relieving that out-going employee from duty," the dispatchers must go through the following pre-shift routine: (1) retrievea

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