Marshall v. Louisiana
| Decision Date | 22 January 2016 |
| Docket Number | CIVIL ACTION CASE NO. 15-1128 SECTION: "G"(2) |
| Parties | DONALD L. MARSHALL, JR. v. STATE OF LOUISIANA, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is Plaintiff Donald L. Marshall, Jr.'s ("Marshall") "Motion to Proceed As a Collective Action, for Court-Authorized Notice, and for Disclosure of the Names and Addresses of the Potential Opt-In Plaintiffs."1 Having considered the motion, the opposition, the record, and the applicable law, the Court will conditionally certify this action as a collective action pursuant to 29 U.S .C. § 216(b) and notice shall be sent to: "All individuals employed as a sheriff's deputy by Marlin N. Gusman, in his official capacity as Sheriff of Orleans Parish, and the Law Enforcement District for the Parish of Orleans, who worked on a tour of duty shift schedule at any of the following: Civil District Court; Criminal District Court; Municipal District Court; the Temporary Detention Center; the Orleans Parish Prison; Templeman Phase V; the Tents; and the Conchetta Facility, in the three years directly preceding April 9, 2015, and who are or were eligible for overtime pursuant to the Fair Labor Standards Act, 29 U.S.C. § 207, and who did not receive overtime pay or straight time pay for hours actually worked."
On April 9, 2015, Plaintiff filed a putative class action complaint against Sheriff Marlin N. Gusman, in his official capacity as Sheriff of Orleans Parish, and the Law Enforcement District for the Parish of New Orleans (collectively, "Defendants"), seeking unpaid wages and overtime underthe Fair Labor Standards Act ("FLSA").2 Marshall alleges that, in the three years prior to filing his complaint, he worked for Defendants as a deputy sheriff, and that he and other similarly situated individuals were not paid in compliance with the FLSA.3
On November 4, 2015, Plaintiff filed the instant motion.4 Defendants filed an opposition to Marshall's motion on November 17, 2015.5
In his motion, Plaintiff argues that he was hired by Orleans Parish Sheriff's Department to work as a deputy, with duties including prisoner transport, supervision, and paperwork.6 Marshall claims that, under policies that were uniform throughout Defendants' operations, he and other similarly situated employees were not paid the proper overtime or straight time wages for their work for Defendants.7 Therefore, Plaintiff seeks to certify a collective action for the following class:
All individuals who worked or are working for Defendants, Marlin N. Gusman, in his official capacity as Sheriff of Orleans Parish and the Law Enforcement District for the Parish of Orleans performing the duties of a sheriff's deputy, and working on a tour of duty shift schedule, for three years directly preceding the April 9, 2015 [sic], and who are or were eligible for overtime pursuant to the FLSA, 29 U.S.C. § 207 and who did not receive overtime pay or straight time pay for hours actually worked.8
According to Plaintiff, at the "notice stage" of this litigation, his burden of showing a class of similarly situated plaintiffs entitled to receive opt-in notice of the action is minimal due to a fairly lenient standard.9 Marshall argues that district courts in the Fifth Circuit generally apply the two-tiered "Lusardi approach" when certifying a collective action under the FLSA.10 Plaintiff asserts that, under the first step of the Lusardi approach, a district court makes a decision, usually based only on the pleading and any affidavits that have been submitted, whether notice of the actions should be given to potential class members.11 Plaintiff claims that, at the first stage, courts have minimal evidence and therefore make a determination using a fairly lenient standard, which typically results in "conditional certification" of a representative class, whereby class members are given notice and the opportunity to "opt-in."12
According to Marshall, at the second stage, a defendant may move to decertify the class after discovery is largely completed and the matter is ready for trial.13 Thus, Marshall claims, in order to secure conditional certification at this stage, he need only make a preliminary showing that at least a few similarly situated individuals exist, which he can do via pleadings, affidavits, and other supporting documentation.14 Plaintiff claims that the "similarly situated" standard does not requirea showing that each potential plaintiff is in an identical situation, but only that they are "similar."15 According to Marshall, the FLSA requires only "some factual nexus" binding the plaintiff and potential plaintiffs as victims of a particular alleged policy or practice.16
Marshall argues that he has alleged, through his complaint and affidavit, that he and others similarly situated were not paid proper wages, overtime or otherwise, for the hours worked for Defendants.17 According to Marshall, mandatory roll calls for deputies occurred immediately prior to each shift, for which compensation was not afforded.18 Furthermore, Plaintiff avers, this is due to an institutional policy wherein no pre-shift or post-shift overtime would be approved or paid unless it exceeded 30 minutes in duration, despite the policy that no deputy may leave their post until relieved by the oncoming shift deputy.19 Plaintiff claims that other potential plaintiffs are ready and willing to join in the lawsuit, and only wait for certification due to the fear of retaliation.20
According to Marshall, in Johnson v. TGF Precision Haircutters, Inc., a Southern District of Texas case, the court authorized conditional certification for all TGF stylists and receptionists who worked for the company on the basis of the plaintiff's affidavit and the employee handbook, which the court believed showed a common policy violating the FLSA.21 Marshall avers that, in Kaluom v. Stolt Offshore, Inc., another section of the Southern District of Texas held that, althoughthere was minimal evidence that other aggrieved individuals existed, it was unlikely that the defendants' pay procedures uniquely affected only the representative plaintiff.22 Marshall argues that, in Kaluom, which involved maritime workers, the court did not limit the class to individuals who were on the same vessel as the plaintiff, finding that any current or former employee who worked as a rigger or pipe-facing machine operator for the defendant could be considered a potential opt-in plaintiff.23 As in Kaluom, Marshall argues, the fact that a deputy may have been employed at different locations than him does not change the nature of their work, nor the fact that the agency-wide policy affected them in substantially the same way.24
Next, Marshall contends that the Court should authorize the notice to be sent to potential opt-in plaintiffs.25 Plaintiff argues that prompt certification and notice are essential, as the statute of limitations on individual opt-in plaintiffs' claims are not automatically tolled until that individual worker files his or her consent-to-sue form with the Court.26 Furthermore, Plaintiff argues, the Court should order Defendants to provide the names, last-known addresses of potential plaintiffs, and dates of employment, for the purpose of facilitating the Court-approved notice, within two weeks of the signing of this Order.27
Finally, Plaintiff argues that the Court should allow for an opt-in period of 90 days.28 Marshall argues that a 90-day opt-in period will allow dispersal of the notice throughout publications in the greater New Orleans area.29 According to Marshall, providing notice through local publications will keep the cost of notice at a minimum, and a 90-day period will allow time for potential opt-in plaintiffs to gain knowledge of the notice.30 Plaintiff claims that 90-day opt-in periods, or similarly long windows, have been issued in other FLSA cases in order to allow time for adequate notice to potential opt-in plaintiffs.31 According to Plaintiff, a 90-day opt-in period in this case will allow for time to notify potential opt-in plaintiffs while reducing the cost of providing notice.32
In opposition, Defendants state that Marshall is a former deputy sheriff who was employed with the Law Enforcement District for the Parish of Orleans ("Sheriff's Office") on three separate occasions: January 27, 2003-September 13, 2004, March 13, 2006-September 29, 2008, and August 20, 2010-December 30, 2014.33 Defendants claim that Marshall resigned from his employment with the Sheriff's Office on December 30, 2014 after being elected as constable for Tangipahoa Parish.34 According to Defendants, for the purposes of this lawsuit, the conditionally certified class, if any,should be limited to the dates of April 9, 2013-April 9, 2015, rather than a three-year statute of limitations as authorized by 29 U.S.C. § 255(a), because Plaintiff "has failed to put forth even a prima facie case of willfulness such that the three (3) year statute of limitations would apply," and "[a]s such, the relevant time period is two (2) years prior to the filing of the lawsuit by Plaintiff."35
Defendants argue that, to properly evaluate Marshall's motion for conditional certification, the Court must compare and contrast the various responsibilities of deputy sheriffs in Orleans Parish based upon their particular work assignments because the duties and responsibilities of deputy sheriffs are divergent and dissimilar.36 According to Defendants, deputy sheriffs are assigned to work in one of the following locations: Criminal District Court, Civil District Court, Municipal Court, the Temporary Detention Center, the Tents, the Intake Processing Center, the Reentry Program, the Orleans Parish Prison, Templeman Phase V, the Electronic Monitoring Program, McDaniels Transitional Work Center, and the Conchetta...
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