Tolentino v. C & J Spec-rent Serv. Inc.

• Decision Date: 26 May 2010
• Docket Number: Civil Action No. C-09-326.
• Citation: Tolentino v. C & J Spec-Rent Servs. Inc., 716 F.Supp.2d 642 (S.D. Tex. 2010)
• Parties: Michael TOLENTINO, et al., Plaintiffs, v. C & J SPEC-RENT SERVICES INC.; aka C & J Energy Services, Inc., Defendant.
• Court: U.S. District Court — Southern District of Texas

716 F.Supp.2d 642

Michael TOLENTINO, et al., Plaintiffs,

v.C & J SPEC-RENT SERVICES INC.; aka C & J Energy Services, Inc., Defendant.

Civil Action No. C-09-326.

United States District Court,

S.D. Texas,

Corpus Christi Division.

May 26, 2010.

Jon D. Brooks, Brooks LLP, Corpus Christi, TX, for Plaintiffs.

Scott Kneeland Davidson, John Michael Rose, Locke Lord et al., Houston, TX, for Defendant.

ORDER

JANIS GRAHAM JACK, District Judge.

On this day came on to be considered Plaintiffs' Opposed Motion for Notice to Potential Class Members (the “Motion”).(D.E. 21.)For the reasons stated herein, Plaintiffs' Motion is GRANTED IN PART AND DENIED IN PART.

I.Jurisdiction

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331(federal question) as Plaintiffs bring suit pursuant to the Fair Labor Standards Act,29 U.S.C. §§ 201 et seq.(“FLSA”).

II.Factual and Procedural Background

PlaintiffMichael Tolentino filed this action on November 23, 2009 against C & J Energy Services, Inc.(D.E. 1.)Plaintiff filed a First Amended Complaint (D.E. 10) on January 14, 2010 naming his actual former employer C & J Spec-Rent Services, Inc.(“C & J” or “Defendant”), as the proper Defendant.¹On February 9, 2010, Plaintiff Tolentino, now joined by PlaintiffsJuan Pacheco and Javier Garcia, filed a Second Amended Complaint.(D.E. 19.)

Plaintiffs allege that they and other similarly situated present and former C & J employees at Defendant's Robstown and Marshall, Texas locations were improperly classified as “exempt” employees, and thus denied overtime pay in violation of the FLSA.Based on the nature of their employment, job duties, and responsibilities, they were or are presently blue-collar workers, without managerial or supervisory duties and responsibilities.(D.E. 19at 2-3.)Plaintiff Tolentino was employed by Defendant from October 2005 to February 2009, first as a pump operator and coil tubing operator, then as a supervisor, although he states that his duties remained much the same as when he was an operator.(D.E. 19at 3.)Tolentino states that he was paid a fixed salary, and regularly worked more than 96 hours per week, yet never received overtime pay for time worked in excess of 40 hours per week.(D.E. 19at 3.)Plaintiff Pacheco was employed by Defendant from August 2006 to March 2007, and from August 2007 to August 2008, as a “pump operator.”He alleges that he was paid a fixed salary but regularly worked more than 100 hours a week, sometimes 24 hours straight, and never received overtime pay.(D.E. 19at 3-4.)Plaintiff Garcia was employed by Defendant from January 2006 to November 2007, and from May 2008 to November 2008, as an “operator.”Like Pacheco, he claims that he regularly worked more than 100 hours a week, sometimes 24 hours straight, but did not receive overtime pay.Garcia states that he began being paid hourly shortly before November 2008.(D.E. 19at 3-4.)

Plaintiffs allege that Defendant violated Section 207(a) of the FLSA by failing to pay Plaintiffs and other employees proper overtime wages of not less than one and one-half times the regular rate for any work in excess of forty hours per week.29 U.S.C. § 207(a)(1).²Plaintiffs also allege that Defendant's actions were neither reasonable nor taken in good faith, and therefore Plaintiffs and putative class members are entitled to unpaid wages and overtime compensation under the FLSA and all other liquidated damages.(D.E. 19at 5-6.)

Plaintiffs allege that there exists a putative class of present or former employees at Defendant's Robstown and Marshall locations who were paid a fixed salary but regularly worked in excess of 40 hours per week, and were not paid overtime wages.They further allege that these putative class members were similarly situated to Plaintiffs, since “they all shared the same or substantially similar job duties.”(D.E. 19at 4.)Further, they claim that the failure to pay overtime wages was a result of “generally applicable policies and practices,” and did not “depend on the personal circumstances of the Plaintiffs and the Putative Class Members.”(D.E. 19at 4-5.)Despite somewhat differing job responsibilities, all employees were entitled to proper overtime pay, Plaintiffs argue.(D.E. 19at 5.)

On March 4, 2010, Plaintiffs filed the Motion presently before the Court.(D.E. 21.)Plaintiffs claim that there are “many former and existing employees” of Defendant who have worked in excess of one hundred hours per week but were not paid overtime wages.Plaintiffs seek to organize a collective action under 29 U.S.C. § 216, and therefore request that this Court order Defendant to disclose current and former employees' contact information and permit Plaintiffs to issue notice of this lawsuit to potential class members.(D.E. 21at 22.)Defendant filed a Response on April 23, 2010.(D.E. 24.)Plaintiffs thereafter filed a Reply (D.E. 28), and Defendant filed a Surreply (D.E. 30).

III.DiscussionA.Collective Action General Principles

The FLSA requires covered employers to pay non-exempt employees for hours they have worked in excess of defined maximum hours.29 U.S.C. § 207(a).It also creates a cause of action for employees against employers who have violated the overtime compensation requirements:

An action ... may be maintained ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.No employee shall be a partyplaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b).“A representative action brought pursuant to this provision follows an ‘opt-in’ rather than an ‘opt-out’ procedure.”Ali v. Sugarland Petroleum,2009 WL 5173508, at *1(S.D.Tex.Dec. 22, 2009).District courts have discretion in deciding whether and how to award “timely, accurate, and informative” notice to prospective plaintiffs.Hoffmann-La Roche Inc. v. Sperling,493 U.S. 165, 172, 110 S.Ct. 482, 107 L.Ed.2d 480(1989).FLSA collective actions “are generally favored because such actions reduce litigation costs for the individual plaintiffs and create judicial efficiency by resolving in one proceeding common issues of law and fact arising from the same alleged ... activity.”Yaklin v. W-H Energy Servs., Inc.,2008 WL 1989795, at *1(S.D.Tex.May 2, 2008)(citingHoffmann-La Roche Inc.,493 U.S. at 170, 110 S.Ct. 482).

Courts presently follow two different approaches in determining whether to authorize notice to employees of their right to join a collective action suit under FLSA Section216(b).Ali,2009 WL 5173508, at *2.The first approach was developed in Lusardi v. Xerox Corp.,118 F.R.D. 351(D.N.J.1987), and involves a two-step process to determine whether employees are similarly situated.SeeMooney v. Aramco Servs. Co.,54 F.3d 1207, 1213-14(5th Cir.1995), overruled on other grounds by( Desert Palace, Inc. v. Costa,539 U.S. 90, 90-91, 123 S.Ct. 2148, 156 L.Ed.2d 84(2003)).The second approach follows Shushan v. University of Colorado,132 F.R.D. 263(D.Colo.1990), and treats the collective action authorization as coextensive with Rule 23 class certification.SeeVillatoro v. Kim Son Rest.,286 F.Supp.2d 807, 809(S.D.Tex.2003).The Fifth Circuit has not yet “ruled on how district courts should determine whether plaintiffs are sufficiently ‘similarly situated’ to advance their claims together in a single § 216(b) action.”Acevedo v. Allsup's Convenience Stores Inc.,600 F.3d 516, 518-19(5th Cir.2010).Despite this uncertainty, courts in this District follow the Lusardi approach rather than the Shushan approach.See, e.g.,Ali, 2009 WL 5173508, at *2;Maynor v. Dow Chem. Co.,2008 WL 2220394, at *4(S.D.Tex.2008);Villatoro,286 F.Supp.2d at 810.This is consistent with the Fifth Circuit's conclusion in LaChapelle v. Owens-Illinois, Inc. that “[t]here is a fundamental, irreconcilable difference between the class action described by [Federal Rule of Civil Procedure] 23 and that provided for by FLSA § 16(b)[29 U.S.C. § 216(b) ],” namely the “opt out” procedure for class members under Rule 23 as contrasted with the “opt in” procedure under Section 216(b).513 F.2d 286, 288(5th Cir.1975);see alsoDonovan v. Univ. of Tex. at El Paso,643 F.2d 1201, 1206(5th Cir.1981)(“The statutory framework of enforcement procedures of the FLSA and those of Title VII are crucially different, but this difference highlights even more why Rule 23 is not needed in FLSA suits.The FLSA procedure, in effect, constitutes a congressionally developed alternative to the F.R. Civ. P. 23 procedures.”).The Fifth Circuit recently referred to the two step approach as the “typical [ ]” manner in which collective actions proceed.

Sandoz v. Cingular Wireless LLC,553 F.3d 913, 915 n. 2(5th Cir.2008).This Court therefore applies the Lusardi approach.

The first step of the analysis is the “notice stage.”During the notice stage, the court“makes a decision-usually based only on the pleadings and any affidavits which have been submitted-whether notice of the action should be given to potential class members.Because the court has minimal evidence, this determination is made using a fairly lenient standard and typically results in ‘conditional certification’ of a representative class.If the district court‘conditionally certifies' the class, putative class members are given notice and the opportunity to ‘opt-in.’ ”Mooney,54 F.3d at 1214;Ali, 2009 WL 5173508, at *2(citingMooney ).At this stage, courts generally “require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination.”54 F.3d at 1214 n. 8.As one court has explained, “[a] factual basis for the allegations must be presented, and there must be a showing of some identifiable facts...