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Sandlin v. Grand Isle Shipyard, Inc.

United States District Court, E.D. Louisiana

May 3, 2018


         SECTION I



         The Fair Labor Standards Act of 1938 (“FLSA”) “mandates the payment of minimum wage and overtime compensation to covered employees.” Citicorp Indus. Credit, Inc. v. Brock, 483 U.S. 27, 32 (1987) (explaining 28 U.S.C. §§ 206, 207). Plaintiff Wesley Sandlin (“Sandlin”) alleges that Grand Isle Shipyard, Inc. (“Grand Isle”) violated this foundational FLSA directive, which he now seeks to vindicate.

         Before the Court is a motion[1] filed by Sandlin to conditionally certify this case as a collective action under the FLSA. Grand Isle opposes[2] the motion.


         The FLSA provides that an action to recover “unpaid overtime compensation . . . may be maintained against any employer . . . by any one or more employees for and [on] behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). But the FLSA does not define “similarly situated” or otherwise explain how the certification of such collective actions should proceed.

         There are two main lines of authority that prescribe different methods of determining whether a case may proceed as a collective action pursuant to § 216(b). See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir. 1995). The first is known as “two-stage class certification, ” which was developed in a line of cases starting with Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), and the second is referred to as “spurious” class certification, as typified by Shushan v. University of Colorado, 132 F.R.D. 263 (D. Colo. 1990). Because the two-stage class certification procedure is routinely used by all sections of this Court, the Court finds that the Lusardi procedure is appropriate in this case. See Wellman v. Grand Isle Shipyard, Inc., No. 14-831, 2014 WL 5810529, at *1-*3 (E.D. La. Nov. 7, 2014) (Africk, J.).

         The Fifth Circuit has explained the typical Lusardi procedure:

Under Lusardi, the trial court approaches the ‘similarly situated' inquiry via a two-step analysis. The first determination is made at the so-called ‘notice stage.' At the notice stage, the district 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.' The action proceeds as a representative action through discovery.

Mooney, 54 F.3d at 1213-14 (footnote omitted); see also Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 518-19 (5th Cir. 2010).

         The second stage of the Lusardi procedure “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. Only the threshold “notice stage” is implicated by the instant motion.

         The notice stage requires “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. at 1214 n.8 (quoting Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). However, “[w]hile the standard at this stage is not particularly stringent, it is by no means automatic.” Lima v. Int'l Catastrophe Solutions, Inc., 493 F.Supp.2d 793, 798 (E.D. La. 2007) (internal quotation marks omitted).

         “At the notice stage, the plaintiff bears the burden of making a preliminary factual showing that at least a few similarly situated individuals exist.” Id. In doing so, “[a] plaintiff need only demonstrate a reasonable basis for the allegation that a class of similarly situated persons may exist.” Id. “However, at least some evidence beyond unsupported factual assertions of a single decision, policy, or plan should be presented.” Id.

         “[A]n FLSA class determination is appropriate when there is a demonstrated similarity among the individual situations . . . [and] some factual nexus which binds the named plaintiffs and the potential class members together as victims of a particular alleged [policy or practice].” Xavier v. Belfor USA Grp., Inc., 585 F.Supp.2d 873, 877-78 (E.D. La. 2008). That determination is usually made based on “the pleadings and any affidavits which have been submitted.” Mooney, 54 F.3d at 1214.

         In making its determination, the Court must remain “mindful that it, like practicing attorneys, has a responsibility to refrain from stirring up unwarranted litigation.” Lima, 493 F.Supp.2d at 799 (quoting Lentz v. Spanky's Restaurant II, Inc., 491 F.Supp.2d 663 (N.D. Tex. 2007)). “Further, employers should not be unduly burdened by a frivolous fishing expedition conducted by the plaintiff at the employer's expenses.” Id.



         Sandlin requests that the Court conditionally certify two classes:

• A “Misclassification Class, ” which Sandlin defines to include “‘Life Representatives' who were misclassified from October 2014 through April 2016, ” and
• An “Off-the-Clock Class, ” which Sandlin defines to include “‘Life Representatives' who were required to work unpaid overtime whenever they worked over 50 hours a week.”[3]

         As an initial matter, Grand Isle objects to conditional certification of Sandlin's proposed “Off-the-Clock Class” on the ground that Sandlin's complaint “is devoid of any mention of ‘off-the-clock' work whatsoever.”[4] According to Grand Isle, it “has not been put on notice as to any allegations of ‘off-the-clock' work prior to the current [m]otion, and has not had the opportunity to traverse allegations of ‘off-the-clock' work through responsive pleadings or discovery.”[5] Grand Isle urges the Court to “hold [Sandlin] to the clear allegations made in his [c]omplaint, and limit any purported class to employees who were allegedly ‘misclassified' as ‘exempt.'”[6]

         Sandlin filed a reply[7] that addressed a number of issues that Grand Isle raised in its opposition. This failure-to-plead issue was not one of them.

         After reviewing Sandlin's complaint, the Court agrees with Grand Isle that Sandlin did not plead factual allegations in his complaint to support his self-styled “Off-the-Clock Class.” Instead, Sandlin's complaint focuses exclusively on the contention that, until May 2016, he and other Life Representatives employed by Grand Isle “were not paid overtime compensation as they were misclassified as salaried exempt.”[8]

         The Federal Rules of Civil Procedure “contemplate that the pleadings will refer to the occurrences sued upon and give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Matherne v. Cytec Corp., No. 00-2937, 2002 WL 506816, at *8 (E.D. La. Mar. 28, 2002) (Engelhardt, J.) (internal quotation marks omitted). With respect to his proposed “Off-the-Clock Class, ” Sandlin-who, by the way, has never sought to amend his complaint-did not provide fair notice to Grand Isle. Indeed, Sandlin has not even attempted to argue otherwise.

         The Court concludes that Sandlin “cannot in the instant motion expand the scope of the proposed class beyond that which is contained in [his] [c]omplaint.” Castillo v. P & R. Enters., Inc., 517 F.Supp.2d 440, 446 (D.D.C. 2007). Therefore, the Court will not conditionally certify Sandlin's proposed “Off-the-Clock Class.”


         With respect to Sandlin's proposed “Misclassification Class, ” Grand Isle concedes Sandlin's core factual allegation: that Grand Isle paid Sandlin and other Life Representatives on a salary basis until the spring of 2016, at which time Grand Isle began paying them on an hourly basis.[9] “So, given this concession, ” Grand Isle “really does not have an argument that the policy or practice” that forms the basis of this FLSA case “is purely personal to” Sandlin. Dearmond v. Alliance Energy Servs., LLC, No. 17-2222, 2017 WL 3173553, at *2 (E.D. La. July 26, 2017) (Africk, J.).

         Rather, Grand Isle advances two principal arguments why the Court should refuse to conditionally certify this class: (1) Sandlin “has failed to allege with specificity or clarity a clear definition of the purported class, ” and (2) Sandlin “fails to allege that he is similarly situated to putative class members.”[10] Those arguments are unpersuasive.

         Sandlin has offered an unambiguous and detailed definition of his proposed “Misclassification Class”: “‘Life Representatives' who were misclassified from October 2014 through April 2016.”[11] This definition identifies the Grand Isle policy about which Sandlin complains (classification as exempt from overtime under the FLSA), the group of Grand Isle employees subjected to the policy (Life Representatives), and a time period during which the policy applied to this group of Grand Isle employees (October 2014 through April 2016). This definition is also consistent with the allegations that Sandlin made in this complaint.[12] Grand Isle's apparent confusion between Sandlin's proposed “Misclassification Class” definition and Sandlin's suggestion as to the group of Grand Isle employees who should receive notice of this case[13]-the latter of which Sandlin formulated against the backdrop of his request that the Court conditionally certify two classes-will not stand in the way of conditional certification of a “Misclassification Class.”

         Further, Sandlin's proposed “Misclassification Class” definition-“‘Life Representatives' who were misclassified from October 2014 through April 2016”- clearly identifies putative class members who are similarly situated to him. It does not, as Grand Isle suggests, include Life Representatives who were hired by Grand Isle after Grand Isle began paying its Life Representatives an hourly wage.[14]

         Grand Isle argues that conditional certification of a “Misclassification Class” consisting of Life Representatives is inappropriate, because “Life [R]epresentatives have a wide range of authority, duties, assignments, work hours, and are paid pursuant to different methods depending upon the specific job to which they are assigned.”[15] In support of this position, Grand Isle references an affidavit executed by Eric Callais (“Callais”), Grand Isle's Corporate Health, Safety and Environmental and Human Resources Director.[16] Callais supervises the Life Representatives.[17] The Court rejects this argument.

         First, the “policy or practice” at issue in this case is the classification of Life Representatives as “salaried exempt” between October 2014 and April 2016[18]-a “policy or practice” that, again, Grand Isle concedes was in place until the end of April 2016.[19] With respect to this “policy or practice, ” Callais' affidavit says nothing. Rather, Callais only addresses the operation of Grand Isle's post-April 2016 policy of paying Life Representatives by the hour.[20] Such information is immaterial with respect to Sandlin's proposed “Misclassification Class.”

         In addition, Grand Isle's fuss over the job duties of Life Representatives is suspect. Grand Isle points to the job description of a “Life Representative, ” which it suggests “contains no less than nine essential duties and responsibilities and dozens of requires competencies.”[21] It then argues that, “[a]t any given time, a [L]ife [R]epresentative may be performing any one of these various tasks mentioned in the [j]ob [d]escription, which makes their job duties and responsibilities dissimilar to each other.”[22]

         In short, Grand Isle is not disputing that Life Representatives all share the same slate of job duties. Rather, Grand Isle suggests that the mere fact that, on any given day, the tasks performed by any one Life Representative may vary from that of any other renders them dissimilar for purposes of conditional certification.

         Yet if the Court accepted Grand Isle's position, then it is hard to imagine any group of employees at any place of business being able to band together in litigation under the FLSA. For example, non-management fast-food workers share the same slate of job duties: working the front cash register, working the grill, working the sandwich line, working the drive-through window, et cetera. However, on any given day, those workers will be assigned to perform different duties from each other. Such daily assignment differences between fast-food workers who share the same slate of job duties, however, do not render them materially dissimilar for FLSA collective action purposes where they are subjected by their employer to the same allegedly unlawful “policy or practice.” Cf. Prejean v. O'Brien's Response Mgmt., Inc., No. 12-1045, 2013 WL 5960674, at *7 (E.D. La. Nov. 6, 2013) (Barbier, J., adopting the report and recommendation of Wilkinson, M.J.) (observing that “the focus” of the “similarly situated” requirement for an FLSA collective action “is on whether the employees were impacted by a common policy” and so features such as “[g]eographic commonality” are not required).

         Finally, Grand Isle argues that “numerous [L]ife [R]epresentatives . . . have already received notice of this lawsuit and signed irrevocable waiver[s] and releases of their FLSA claims.”[23] According to Grand Isle, “[a]ny potential class plaintiffs who signed releases are not similar” to Sandlin and thus should be excluded from the “Misclassification Class.”[24]

         “The general rule establishes that FLSA claims . . . cannot be waived.” Bodle v. TXL Mortg. Corp., 788 F.3d 159, 164 (5th Cir. 2015) (citing Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697 (1945)). To understand the contours of this rule, the foundational Supreme Court case concerning releases of one's FLSA rights, Brooklyn Savings Bank v. O'Neil, 324 U.S. 697 (1945), is instructive.

         The petitioner in Brooklyn Savings “owned and operated an eleven story office building in which the respondent was employed as a night watchman during a two year period from November 5, 1938, to August 30, 1940.” 324 U.S. at 699.

Since a substantial portion of that building was devoted to the production of goods for commerce, the respondent was entitled to overtime compensation under the provisions of Section 7 of the [FLSA]. No such compensation was paid at that time. However, in November, 1942, over two years after the respondent had left petitioner's service, the petitioner computed the statutory overtime compensation due the respondent and offered him a check for $423.16 in return for a release of all of his rights under the [FLSA]. The respondent signed the release and took the check.

Id. at 699-700 (internal citations omitted). The respondent later instituted an action to recover liquidated damages under the FLSA.

         The Supreme Court first considered “whether respondent's release was given in settlement of a bona fide dispute between the parties with respect to coverage or amount due under the Act or whether it constituted a mere waiver of his right to liquidated damages.” Id. at 703. After determining that “the release was not given in settlement of a bona fide dispute between employer and employee, ” the justices then turned to the key issue: “whether an employee, accepting from his employer a delayed payment of the basic ...

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