Radford v. Pevator Cos., Ltd.

• Decision Date: 27 December 2019
• Docket Number: CIVIL ACTION NO. 17-3381
• Parties: JAMES RADFORD, on behalf of himself and others similarly situated, Plaintiffs, v. PEVATOR COMPANIES, LTD. d/b/a/ BRAKE CHECK, Defendant.
• Court: U.S. District Court — Southern District of Texas

JAMES RADFORD, on behalf of himself and others similarly situated, Plaintiffs, v. PEVATOR COMPANIES, LTD. d/b/a/ BRAKE CHECK, Defendant.

CIVIL ACTION NO. 17-3381

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

December 27, 2019

MEMORANDUM AND ORDER^*

The 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).

Based 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.

I. Background

Brake 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.).

The 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. 57).¹ One representative plaintiff, Eric Sanchez, withdrew from the case. (Docket Entry No. 90).

Discovery 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;² ensured that the Technicians safely performed their tasks;³ opened and closed the stores;⁴ and ran the stores when Store or Corporate Directors were absent.⁵ 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).

Brake 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 committedperjury 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).

Each motion is analyzed below.

II. Decertification

Most 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.

When a 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 Actcases). 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].").

1. The Factual and Employment Settings of the Individual Plaintiffs

The 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).

While 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.").

As 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).

The plaintiffs' diverse testimony on the types and frequency of Service Managers'...