Lee v. Metrocare Servs.

• Decision Date: 30 October 2013
• Docket Number: Civil Action No. 3:13–cv–2349–O.
• Citation: 980 F.Supp.2d 754
• Parties: Mario LEE et al., Plaintiffs, v. METROCARE SERVICES, Defendant.
• Court: U.S. District Court — Northern District of Texas

980 F.Supp.2d 754

Mario LEE et al., Plaintiffs,

v.METROCARE SERVICES, Defendant.

Civil Action No. 3:13–cv–2349–O.

United States District Court,

N.D. Texas,

Dallas Division.

Oct. 30, 2013.

John Henry Crouch, IV, Ashley E. Tremain, Kilgore & Kilgore, Dallas, TX, for Plaintiffs.

Joel E. Geary, Kathryn E. Long, Ramona Soto, Vincent Lopez Serafino Jenevein PC, Dallas, TX, for Defendant.

ORDER

REED O'CONNOR, District Judge.

Before the Court are Plaintiffs Mario Lee, Patricia Lopez, and Amy Coaxum's (collectively “Plaintiffs”) Motion for Conditional Certification of Representative Action (ECF No. 8), filed July 18, 2013; Lee's Brief in Support of Motion for Conditional Certification of Representative Action (ECF No. 9), filed July 18, 2013; Defendant Metrocare Services's (“Metrocare”) Response to Plaintiff's Motion for Conditional Certification of Representative Action (ECF No. 16), filed August 23, 2013; Metrocare's Brief in Support of Response to Plaintiff's Motion for Conditional Certification of Representative Action (ECF No. 17), filed August 23, 2013; and Lee's Reply in Support of Motion for Conditional Certification (ECF No. 27), filed September 6, 2013. Also before the Court are Metrocare's Motion to Strike and Brief in Support (ECF No. 19), filed August 23, 2013; and Lee's Response to Defendant's Motion to Strike Declarations (ECF No. 29), filed September 13, 2013. Having reviewed the pleadings and the applicable law, the Court finds Plaintiffs' Motion for Conditional Certification of Representative Action (ECF No. 8) should be and is hereby GRANTED. The Court also finds that Metrocare's Motion to Strike Declarations (ECF No. 29) should be and is hereby DENIED.

I. BACKGROUND

Plaintiffs brought an action against Metrocare asserting claims to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Pls.' 1st Am. Compl. ¶ 1, ECF No. 12. Plaintiffs are current and former “Service Coordinators” of Metrocare, a non-profit organization that provides mental health care services to residents in Dallas County. Id. at ¶¶ 4–5; Def.'s Answer ¶ 5, ECF No. 14.

Plaintiffs also moved for a collective action under Section 216(b) of the FLSA and seek to represent “[a]ll non-supervisory, non-exempt employees of Metrocare ... at any time since June 20, 2010.” Pls.' 1st Am. Compl. ¶ 6, ECF No. 12; see also29 U.S.C. § 216(b). Plaintiffs allege that Service Coordinators' job duties are similar to case managers because their primary duties include meeting and working with consumers and their families to gather information, assessing consumer needs and costs of care, preparing a plan of care for the consumers, and identifying and implementing services to meet the consumer's needs. Id. at ¶ 12. Service Coordinators do not personally deliver or administer health services, rather they are responsible for planning and helping consumers obtain health care services. Id. The Service Coordinators were divided into approximately five separate teams, and Plaintiffs assert that each team had essentially the same responsibilities and each team reported to the Rights Protection Officer, Linda Thompson (“Thompson”), and the Interim Chief Executive Officer. Id. at ¶ 13. Plaintiffs allege that although their duties as Service Coordinator took approximately fifty to sixty hours per week to perform, Metrocare did not pay the Service Coordinators overtime. Id. at ¶¶ 14, 19.

Plaintiffs allege that Metrocare violated Plaintiffs and potential class members' rights under the FLSA by failing to pay overtime. Id. at ¶ 32. Accordingly, Plaintiffs filed the instant Motion for Conditional Certification of Representative Action (ECF No. 8), on behalf of themselves and other similarly situated individuals. Plaintiffs also request that the Court toll the statute of limitations for potential opt-in plaintiffs and allow current and former Metrocare employees to opt-in if they were employed by Metrocare at any time from three years prior to the date of the filing of this action. Id. at 9.

II. LEGAL STANDARD

The FLSA provides that “[a]n action to recover the liability prescribed in [Section 216] may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Accordingly, the district court may, in its discretion, facilitate notice to potential class members of their right to opt in to a collective action under Section 216(b). See Valcho v. Dall. Cnty. Hosp. Dist., 574 F.Supp.2d 618, 621 (N.D.Tex.2008) (citing Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)).

The Fifth Circuit has applied two different approaches to determine whether certification of an FLSA collective action can be approved. See Ryan v. Staff Care, Inc., 497 F.Supp.2d 820, 823 (N.D.Tex.2007) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213–14 (5th Cir.1995), overruled on other grounds by Desert Palace v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)); see also Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 518–19 (5th Cir.2010); Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D. 447, 449 (N.D.Tex.2011). The first approach requires a certification process similar to that of Federal Rule of Civil Procedure 23, whereby the plaintiffs must establish numerosity, commonality, typicality, and representativeness to certify an FLSA class. See Ryan, 497 F.Supp.2d at 823 (citing Mooney, 54 F.3d at 1214;Shushan v. Univ. of Colo. at Boulder, 132 F.R.D. 263 (D.Colo.1990)); see alsoFed.R.Civ.P. 23. The other approach, introduced in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987), employs a two-stage certification process consisting of (1) the notice stage and (2) the certification stage. Ryan, 497 F.Supp.2d at 824.

The Fifth Circuit has not adopted either approach, but has noted that there is a “fundamental, irreconcilable difference” between “opt-in” collective actions under Section 216(b) of the FLSA and Rule 23 “opt-out” actions. See Clark v. City of Fort Worth, 800 F.Supp.2d 776, 779 (N.D.Tex.2011) (citing LaChapelle v. Owens–Ill., Inc., 513 F.2d 286, 288 (5th Cir.1975)); see also Mooney v. Aramco Servs. Co., 54 F.3d at 1216;Songer v. Dillon Res., Inc., 569 F.Supp.2d 703, 706 (N.D.Tex.2008). A majority of federal courts, including this district, have applied the Lusardi approach. See Ryan v. Staff Care, Inc., 497 F.Supp.2d at 824 (citing other Northern District of Texas cases stating that the Lusardi approach is the “prevailing test among federal courts”) (internal quotations omitted). Furthermore, both parties briefed the Lusardi approach. See Pls.' Br. Supp. Mot. 6, ECF No. 9; Def.'s Br. Supp. Resp. 3, ECF No. 17. Accordingly, the Court will analyze the instant motion for conditional certification under the Lusardi two-stage approach.

During the first stage of the Lusardi approach, the notice stage, the plaintiff must establish that there are other potential class members who are “similarly situated in their job requirements and pay provisions.” Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D. at 449 (internal quotations omitted); see also Lentz v. Spanky's Rest. II, Inc., 491 F.Supp.2d 663, 669 (N.D.Tex.2007) (“The court must satisfy itself that other ‘similarly situated’ individuals justify notice because they desire to opt-in and are ‘similarly situated’ with respect to job requirements and with regard to their pay provisions.”). “[T]he court need not find uniformity in each and every aspect of employment” to find that the plaintiff and the potential class members are “similarly situated.” Jones v. SuperMedia Inc., 281 F.R.D. 282, 288 (N.D.Tex.2012). “A factual basis for the allegations must be presented, and there must be a showing of some identifiable facts or legal nexus that binds the claims so that hearing the cases together promotes judicial efficiency.” Id. at 287 (internal quotations omitted); see also Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D. at 449. This approach requires that the plaintiff provide “substantial allegations” that the potential class members were together victims of a “single decision, policy or plan infected by discrimination.” Jones, 281 F.R.D. at 287;see also Clark v. City of Fort Worth, 800 F.Supp.2d at 779 (citing H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D.Tex.1999)) (same); Songer v. Dillon Res., Inc., 569 F.Supp.2d at 707 (same).

At the notice stage, the decision to facilitate notice of the action to potential class members is usually based only on the parties' pleadings and affidavits. Clark v. City of Fort Worth, 800 F.Supp.2d at 778–79 (citing Mooney v. Aramco Servs. Co., 54 F.3d at 1213–14). The court's determination at this stage is made using a “fairly lenient standard” because the court generally has minimal evidence. Jones v. SuperMedia Inc., 281 F.R.D. at 287;see also Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D. at 449 (noting that the Lusardi standard is “admittedly lenient”). However, while the notice stage typically results in conditional certification, Jones, 281 F.R.D. at 287, it is by no means mandatory. Valcho v. Dall. Cnty. Hosp. Dist., 574 F.Supp.2d at 621;see also Clark, 800 F.Supp.2d at 779 (quoting Songer v. Dillon Res., Inc., 569 F.Supp.2d at 706) (“While the plaintiffs' burden at [the notice] stage is not onerous, neither is it invisible.”).

At stage two, the certification stage, the court determines whether the class should be maintained through trial. Ryan v. Staff Care, Inc., 497 F.Supp.2d at 824. This stage typically begins when the defendant moves to decertify the class after discovery is largely complete. Lentz v. Spanky's Rest. II, Inc., 491 F.Supp.2d at 668. The collective action will proceed if the court finds the potential class members similarly situated, but the class will be decertified if discovery fails to adequately identify “a pool of claimants that are...