Vasquez v. Am. Bor-Trench, Inc.

• Decision Date: 23 January 2014
• Docket Number: CIVIL ACTION NO. 4:12-CV-3181
• Parties: MARCOS VASQUEZ, Plaintiff, v. AMERICAN BOR-TRENCH, INC., et al, Defendants.
• Court: U.S. District Court — Southern District of Texas

MARCOS VASQUEZ, Plaintiff, v. AMERICAN BOR-TRENCH, INC., et al, Defendants.

CIVIL ACTION NO. 4:12-CV-3181

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

SIGNED: January 23, 2014

OPINION AND ORDER

Pending before the Court is Plaintiff Marcos Vasquez's (Vasquez) motion for conditional class certification and notice pursuant to 29 U.S.C. § 216(b) (Doc. 33). Vasquez filed this suit on behalf of himself and those similarly situated against Defendants American Bor-Trench, Inc., Keith Murrell, Darwin Bonilla, individually and d/b/a/ D&B Cable, and David Parades (collectively, Defendants). Vasquez alleges that Defendants failed to pay him and the other putative class members overtime wages for hours worked in excess of forty per week. He now moves to certify a class that includes "all individuals who, at any point, during the past three years prior to the filing of this lawsuit, worked for Defendants more than forty hours per week on any of Defendants' commercial construction projects and did not receive overtime pay." Doc. 33 at 7. All Defendants except David Parades filed a collective response on procedural grounds (Doc. 34) asking that the Court strike Plaintiffs' motion as untimely, and an additional response in opposition to Plaintiffs' motion for conditional certification (Doc. 35) arguing that Plaintiff has failed to meet his burden to demonstrate that class treatment is appropriate in this case. Plaintiff filed replies to both of Defendants' responses (Docs. 36 and 37). Upon review and consideration of the motion and the responses and replies thereto, the relevant legal authority, and for the reasons stated below, the Court concludes that the motion should be denied.

I. Background

According to Vasquez's motion, he worked for Defendants from January 2010 until November 2012, digging trenches and laying piping and cables. Decl. of Marcos Vasquez, July 29, 2013 ¶ 3 (Doc. 33-4). Defendant American Bor-Trench, Inc., (Am. Bor-Trench) is a general contractor engaged in underground wire and cable laying services. Pl.'s First Amended Compl., Doc. 6 ¶ 13; Doc. 37 at 3. Defendant Keith Murrell ("Murrell") is the owner and operator of Am. Bor-Trench. Doc. 6 ¶ 9. Defendant Darwin Bonilla ("Bonilla") owns Defendant D&B Cable, which is a sub-contractor for Am. Bor-Trench. Doc. 6 ¶ 7; Doc. 35 ¶ 23. From December 2008 until May 2009, D&B Cable employed its own subcontractor, Ferraris Utility Service ("Ferraris"), which is owned and operated by Defendant David Parades ("Parades"). Doc. 35 ¶ 23. Vasquez alleges that Defendants are joint employers under the FLSA since they jointly exercised control over his work schedule, controlled the quality of his work, provided the materials, tools and safety equipment, supervised his daily work, paid his wages, and had the power to terminate his employment. Doc. 6 ¶¶ 15—16. He claims that Defendants maintained a policy of misclassifying him and other similarly situated workers as independent contractors in order to avoid paying them overtime as required by the FLSA, 29 U.S.C. § 207(a)(1). Doc. 33 at 2. Doc. 6, ¶ 7; Aff. Of David Parades, November 14, 2012 (Doc. 35, Ex. A). Vasquez states that he and other similarly situated employees worked approximately seventy-six hours per week and were paid a fixed salary of approximately $100.00 per day, or $600.00 per week, regardless of the number of hours worked. Doc. 6 ¶ 17—18. They were not paid a rate of one-and-one-half times their regular rate for hours worked in excess of forty per week. Doc. 6 ¶ 18.

On August 20, 2013, Vasquez filed this motion to conditionally certify the proposed class, and Esteban Efrain Rios ("Rios"), another employee of Defendants who worked diggingtrenches and laying piping and cables, filed his consent to join a collective action (Doc. 31). Defendants objected to the motion on procedural grounds, claiming that it was untimely filed, and on substantive grounds claiming that the allegations that the companies are "affiliated" is insufficient to warrant certification of a class that includes all employees of three different entities. Doc. 35 ¶ 44. Additionally, Defendants object that the class is not limited to only manual laborers or only employees of Parades since it is only his employees who worked as manual laborers who have joined the suit.¹ Doc. 35 ¶ 52. Defendants argue in the alternative that if the Court does conditionally certify a class in this case, it should be limited to "employees classified as hourly laborers." Doc. 13 ¶ 49.

II. Legal Standard

Under the FLSA, no employer shall employ any nonexempt employee in excess of forty hours per week without compensation at one and one-half times the regular rate. 29 U.S.C. § 207(a). Section 216(b) of the FLSA permits an employee to bring an action "for and [on] behalf of himself . . . and other employees similarly situated." Id. at § 216(b). Collective actions serve the purpose of decreasing litigation costs by efficiently resolving common issues of law and fact in a single proceeding. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). To certify a collective action under the FLSA, two requirements must be satisfied. "First, the named representative and the putative members of the prospective FLSA class must be similarly situated. Second, the pending action must have a general effect." England v. New Century Fin.Corp., 370 F.Supp. 2d 504, 507 (M.D. La. 2005). Class treatment is not appropriate where the action arises from circumstances that are "purely personal to the plaintiff, and not from any generally applicable rule or policy." Id.

The Fifth Circuit has noted the two different tests that courts apply to determine if the putative class members are "similarly situated." Mooney v. Armaco Srvcs. Co., 54 F.3d at 1213—14 (5th Cir. 1995). Like most district courts, this Court has generally adopted the two-stage approach articulated in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), which consists of (i) a notice stage, followed by (ii) a decertification stage.² See Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n.2 (5th Cir. 2008) (finding that "collective actions typically proceed in two stages"). At the notice stage of the Lusardi approach, the district court first makes a preliminary determination of whether potential plaintiffs are similarly situated to the named plaintiff. Mooney, 54 F.3d at 1213—14. If they are, then the court conditionally certifies the action and authorizes notice to potential plaintiffs to opt in, and the suit "proceeds as a representative action throughout discovery." Id. at 1214. Generally, after the close of discovery, the defendant initiates the second stage by filing a motion for "decertification." Id. At the decertification stage, the Court makes a factual determination of whether the plaintiffs are "similarly situated" based on the discovery evidence. Id. If the court determines from the discovery evidence that the plaintiffs are in fact similarly situated, then the case continues as a representative action. Id. If the court finds that the plaintiffs are not similarly situated, then the class is decertified, the "opt-in" plaintiffs are dismissed without prejudice, and the original plaintiffs proceed to trial on their individual claims. Id. at 1213—14.

The instant case concerns the first step of Lusardi—the notice stage. At the notice stage,plaintiffs bear the burden to establish that they are similarly situated to other employees in the proposed class. England, 370 F. Supp. 2d at 507. Plaintiffs are similarly situated when they have the same job requirements and pay provisions. Aguilar v. Complete Landsculpture, Inc., 3:04-cv-0776-d, 2004 WL 2293842, at *1 (N.D. Tex. Oct. 7, 2011). Courts determine whether the burden has been met using a "fairly lenient standard," requiring only "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan..." Mooney, 54 F.3d at 1214, n.8 (citing Sperling, 118 F.R.D. at 407); see also England, 370 F. Supp. 2d at 507—08 (Plaintiffs must offer support of "some factual nexus which binds the named plaintiffs and the potential class members together as victims of a particular alleged [policy or practice]."). A court will customarily make its decision "based only on the pleadings and any affidavits which have been submitted." Mooney, 54 F.3d at 1213—14. Generally, to meet this burden, a plaintiff must show "(1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit³." Morales v. Thang Hung Corp., No. 4:08-2795, 2009 WL 2524601, at *2 (S.D. Tex. Aug. 14, 2009) (citing Maynor v. Dow Chemical Co., No. G-07-0504, 2008 WL 2220394, at *6 (S.D. Tex. May 28, 2008)); Aguirre v. SBC Commc'ns, Inc., No. Civ.A.H-05-3198, 2006 WL 964554, at *6 (S.D. Tex. Apr. 11, 2006) (same). "[C]ourts who have faced the question of whether movants established substantial allegations have considered factors such as (1) whether potential plaintiffs were identified; (2) whether affidavits of potential plaintiffs were submitted; and (3) whether evidence of a widespread discriminatory plan was submitted." England, 370 F. Supp. 2d at 508 (quoting H&R Block, Ltd. v. Housden, 186 F.R.D. 399 (E.D.Tex. 1999)).

III. Discussion

Defendants argue that Vasquez's conditional certification motion should be denied as untimely on the grounds that the Court's scheduling order set June 3, 2013 as the deadline to file motions for leave to amend pleadings and join new parties. Doc. 34. The Court addressed this exact argument in Garcia v. Triple D Sec. Corp., NO. H-10-4231, 2012 WL 906809, at *2 (S.D. Tex. 2012, Mar. 6, 2012). As stated therein, the scheduling order contemplates the addition of parties pursuant to Federal Rules of...