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Mairena-Rivera v. Langston Construction, LLC

United States District Court, M.D. Louisiana

June 27, 2017




         This matter is before the Court on a Motion to Proceed as a Collective Action, for Judicial Notice, and for Disclosure of the Names and Addresses of Potential Opt-in Plaintiffs (Doc. 30) brought by the Plaintiff, Bismark Mairena-Rivera. The Defendants[1] filed an Opposition (Doc. 31), and the Plaintiff filed a Reply (Doc. 34). The Court's jurisdiction exists pursuant to 28 U.S.C. § 1331. Oral argument is unnecessary. For the reasons stated herein, the Plaintiff's Motion (Doc. 30) is GRANTED.

         I. Background

         The Plaintiff was employed as a general construction laborer by the Defendants. He alleges that he was not paid one-and-a-half times his straight time rate for the overtime hours he worked in excess of 40 hours. Additionally, he alleges that the unlawful pay practices were commonly applied throughout the Defendants' operations, and that he worked with other individuals similarly situated to him who were not paid the proper overtime rate. Plaintiff now moves to conditionally certify a class of Defendants' employees, and he asks that the Court direct the Defendants to provide the names, phone numbers, and last known addresses of potential opt-in plaintiffs. He also asks the Court to approve the sending of a class notice. Additionally, at least one former employee of the Defendants has already opted-in to this action.[2] Defendants oppose this Motion, making various arguments about why it should be denied, and, even if it is granted, why the notice should be narrowed.

         II. Discussion

         For the reasons that follow, the Court shall grant this Motion. However, because the proposed class is too broad, the Court narrows the class definition. Additionally, the Court finds that certifying a collective action covering a period of three years is appropriate. Further, the Court finds that a 90 day opt-in period is appropriate.

         A. Standard

         Plaintiff claims that Defendants violated the minimum wage and overtime protections of the Fair Labor Standards Act (“FLSA”).[3] An aggrieved employee may sue his or her employer individually or collectively, on behalf of similarly situated employees.[4] Unlike a Federal Rule of Civil procedure 23 class action, in which class members are automatically part of the class unless they affirmatively opt-out, each individual member in an FLSA collective action must opt-in by consenting in writing to become a member of the suit.[5] District courts in the Fifth Circuit have generally employed the Mooney two-tiered approach in determining whether to certify FLSA representative actions.[6] Under this approach, in order to determine whether potential plaintiffs are “similarly situated, ” a court must use a two-stage process.[7]

         The first determination is made at the “notice” stage.[8] At this stage, the court must determine whether to issue notice to potential class members.[9] The district court generally relies on the pleadings and any submitted affidavits.[10] The court uses a “lenient” standard to determine whether similarly situated individuals exist.[11]

         At this early stage, a plaintiff need not show that class members are identical.[12] Rather, the plaintiff must show that putative class members are “similarly situated…in relevant respects given the claims and defenses asserted.”[13] A plaintiff can make this showing by proving either (1) that his job position and duties are similar to those positions held by putative class members or (2) that plaintiff and the putative class members were all subject to the same unified policy, plan, or scheme, that forms the basis of the alleged FLSA violation.[14]

         Generally most plaintiffs satisfy this burden by showing that their job positions and duties are similar to the duties of the putative class members.[15] “The purpose of requiring class members to have similar job positions is to ensure judicial efficiency by avoiding the need for individualized inquiries into whether a defendant's policy violates the FLSA as to some employees but not others. Plaintiffs are generally required to have held similar jobs, because the nature of the work performed by each plaintiff will determine (a) whether an FLSA violation occurred and (b) whether a relevant FLSA exemption applies.”[16] However, in certain instances, a class that is made up of many different job positions may be conditionally certified as long as the differences among the class members are not material to the case.[17] This will occur when the case is premised on a single policy that affected all plaintiffs in exactly the same way.[18]

         The second stage is usually precipitated by a motion for decertification occurring after discovery is completed when a court has much more evidence.[19] At this stage, a court determines whether the plaintiffs are similarly situated again.[20] If the claimants are similarly situated, the district court allows the case to proceed to trial as a representative action; if they are not similarly situated, the court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.[21]

         In terms of conditional certification, the parties have six main disagreements. First, the Defendants argue that the Plaintiff's proposed class is too broad and includes individuals who are not similarly situated to him. Second, the Defendants argue that the Plaintiff has failed to meet his burden of bringing forth “substantial allegations” that potential members were “together victims of a single decision, policy, or plan.”[22] While the Defendants admit that the burden at this stage is not “particularly stringent, ” they argue that the applicable jurisprudence clearly dictates that certifying an FLSA case as a collective action is not tantamount to a rubber stamp.[23] Third, the parties disagree about whether the proposed class should cover two years or three years. Fourth, the parties disagree about the proper information Defendants need to disclose to Plaintiffs to facilitate the class notice. Fifth, the parties disagree over the language that should be included in the notice. Finally, they disagree about the opt-in period.

         B. Class Definition

         In his Motion, Plaintiff asks this Court to conditionally certify a class of Defendants' employees limited to: “All individuals who worked or are working for Langston Construction, LLC or Composite Architectural Design Systems, LLC during the previous three years and who are eligible for overtime pay pursuant to the FLSA, 29 U.S.C. § 207 and who did not receive full overtime compensation.”[24] Defendants argue that this class is too broad because it would appear to include, for example, “office personnel tasked with such responsibilities as bookkeeping, payroll, secretarial duties and other non-manual work-clearly not one deemed ‘similarly situated' to the Plaintiff, a general construction laborer who installed and fabricated materials and who was paid on an hourly basis.”[25] The Plaintiff effectively asserts that these job distinctions among the potential members are immaterial to his case because he is alleging that Defendants employed a two-company, two-check scheme to disenfranchise all of its employees of the FLSA-not just manual laborers.

         After reviewing Plaintiff's Amended Collective Action Complaint[26] and his Declaration[27], the Court agrees that the proposed class is too broad for two main reasons. First, the proposed class will likely require the Court to engage in individualized inquiries into whether the Defendants' policy violates the FLSA as to some employees but not others.[28] While this is a speculative concern, the Plaintiff has not introduced any evidence that other employees, besides the manual laborers, were subjected to this two-check policy in which they were not paid time-and-a-half for every hour worked over forty hours.[29] “[I]f there is sufficient evidence of an employer's pattern of subjecting employees to the same improper practice, that would be sufficient to warrant a finding of similarity justifying collective adjudication.”[30] However, here, the Court finds that the Plaintiff has not presented sufficient evidence that this scheme affected any other employees besides the laborers. In the absence of evidence about these other employees, even at this early stage, the Court will not certify such a broad class.

         Second, the Court finds that the proposed class is too broad because the Plaintiff implicitly concedes that the class should be limited to laborers. His submitted evidence defeats his own argument for a broad class. In support of his broad class, the Plaintiff argues that he has alleged “an explicit scheme whereby two commonly-owned, but allegedly separate business entities issued multiple checks to disguise FLSA violations. Nowhere in Defendants' opposition is there any refutation or explanation of this practice. Nor is this any reason to believe that the two-check scheme was unique to Plaintiff…This is reinforced by Plaintiff's declaration, wherein he alleges other victims of the same scheme.”[31] While this argument appears to support the proposition that the Court should recognize a broad class, the evidence Plaintiff cites to in support of a broad class undercuts his argument. Plaintiff cites to his declaration. In his declaration, he attests to the following:

I worked as a general construction laborer. My duties were fabricating and installing materials for Langston's various construction projects. All of the other Langston laborers did the same thing I did. Langston employed groups of laborers to work at different construction projects. The groups had between 4 and 12 laborers in them and were supervised by a Langston employee…Langston alternately paid me checks from Langston Construction LLC and Composite Architectural Design Systems LLC. I never knew which entity's name would be on the check. I know from my conversations with other workers, and also from my personal observations, that other Langston laborers did not get paid overtime. They were all paid their regularly hourly rate for all hours worked. One of the laborers I worked with at Langston was named Juan. Juan performed the same basic duties that I did at Langston and he also was not receiving overtime wages.[32]

         Plaintiff's own declaration makes clear that the proper class for conditional certification consists of laborers who were not paid overtime, not all hourly employees. He presents no evidence that non-laborer employees were subject to this scheme. He makes the conclusory allegation that there is no reason to believe this scheme was unique to laborers, but this is not evidence. Additionally, his own brief works against him: “These allegations establish that there is sufficient evidence to show that a substantial class of other manual laborers employed by the Defendants were likely treated similarly, if not identically…The Notice specifically explains that the only employees of Defendants who are able to join are those who: (1) were employed by the Defendants as manual laborers within the past three years, and (2) were not paid overtime for the hours that they worked in excess of 40 hours during any work week.”[33] Accordingly, the Court modifies the proposed class definition as follows[34]:

All individuals who worked or are working for Langston Construction, LLC or Composite Architectural Design Systems, LLC performing manual labor during the previous three years[35] and who are eligible for overtime pay pursuant to the FLSA, 29 U.S.C. § 207, and who did not receive full overtime compensation.”[36]

         C. Sufficiency of Proof

         In addition to arguing for a narrower class, Defendants assert that Plaintiff has failed to satisfy his burden which would allow the Court to certify any class. Specifically, they argue that the Plaintiff has failed to bring forth “substantial allegations” that potential members were “together victims of a single decision, policy, or plan.” After reviewing the evidence discussed above, the Court disagrees and finds that Plaintiff submitted sufficient evidence to support conditional class certification for the class described above. Courts routinely certify FLSA classes based on a complaint and the declaration of the plaintiff.[37]

         D. Temporal Scope of the Opt-in Class

         Plaintiff asserts that the opt-in class should include employees who were denied overtime for the past three years, while Defendants argue that any notice that issues should be limited to two years. A court in the Eastern District of Louisiana recently summarized the appropriate inquiry that a ...

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