Opinion
Case No. 4:11cv224
01-26-2012
ROBERT CRIPE individually and on behalf of all others similarly situated Plaintiff, v. DENISON GLASS & MIRROR, INC. and MARK A. GAMPPER Defendants.
ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Now before the Court are Plaintiff's Motion for Conditional Certification and Notice to Potential Class Members (Dkt. 22) and Plaintiff's Unopposed Motion for Leave to Exceed Page Limits for Plaintiff's reply in Support of Conditional Certification (Dkt. 37). In light of the issues before the Court and lack of opposition to it, Plaintiff's Unopposed Motion for Leave to Exceed Page Limits for Plaintiff's Reply in Support of Conditional Certification (Dkt. 37) is GRANTED and the Court will consider the reply as it was filed. Further, as set forth fully below, having reviewed the record before it, the Court finds that Plaintiff's Motion for Conditional Certification and Notice to Potential Class Members (Dkt. 22) should be GRANTED.
BACKGROUND
Since 1999, Plaintiff Robert Cripe has been an hourly-paid employee of Denison Glass & Mirror, Inc., a business in Dallas and Denison, Texas which sells and installs windows and mirrors. In this action under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., Plaintiff alleges that Denison Glass & Mirror, Inc. and its president/owner Mark Gampper failed to pay him and other similarly situated employees mandatory overtime pay for "drive time" when they worked more than 40 hours in a workweek. Plaintiff seeks conditional class certification. Defendants oppose.
STANDARD
Section 216(b) of the Fair Labor Standards Act authorizes a plaintiff to bring a collective action on behalf of similarly situated persons, provided that any person who desires to become a part of the collective action files a written consent in the court. 29 U.S.C. § 216(b). District courts have the discretionary power to conditionally certify a collective action and to authorize the sending of notice to potential class members pursuant to § 216(b), but certification is not mandatory. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S. Ct. 482, 107 L. Ed.2d 480 (1989).
Two approaches are used by courts to determine whether collective treatment under § 216(b) is appropriate: (1) the two-stage class certification set forth in Lusardi v. Xerox, Corp., 118 F.R.D. 351 (D. N.J. 1987); and (2) the "Spurious Class Action" method outlined in Shushan v. Univ. of Colorado, 132 F.R.D. 263 (D. Colo. 1990). Under the Lusardi two-step approach, certification for collective action is divided into two phases: (1) the notice stage; and (2) the opt-in, or merits, stage. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995). In the notice stage, a court must determine whether the plaintiff has provided sufficient evidence of similarly-situated plaintiffs to warrant court-facilitated notice of the proposed class. Valcho v. Dallas Cnty. Hosp. Dist., 574 F. Supp.2d 618, 621 (N.D. Tex. 2008). If the plaintiff has, the court "conditionally certifies" the class and facilitates notice to the potential plaintiffs. Id. This standard is "fairly lenient" and usually results in conditional certification. Mooney, 54 F.3d at 1213. Then, after discovery has taken place and after potential class members have the opportunity to opt-in, the court reexamines the class, typically in response to a motion for decertification. Valcho, 574 F. Supp.2d at 621. If the court finds that the class is no longer made up of similarly-situated persons, the class is decertified. Id.
The Fifth Circuit has discussed the two approaches, but has not adopted a specific approach. See Mooney, 54 F.3d at 1212 (finding it unnecessary to choose between the tests because either way district court erred in finding plaintiffs were not similarly situated); see also Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519, n. 1 (5th Cir. 2010) (noting that the Fifth Circuit has "not adopted any of the varying approaches for determining whether employees' claims are sufficiently similar to support maintenance of a representative action"). The Lusardi approach is the more generally accepted method of analysis among federal courts and is the one the Court will apply in this case. See e.g. Hickson v. U.S. Postal Serv., 2010 WL 3835887, 5-6 (E.D. Tex. 2010); Castillo v. Hernandez, 2010 WL 4595811, 2-4 (W.D. Tex. 2010); Aguilar v. Complete Landsculpture, Inc., 2004 WL 2293842, 1 (N.D. Tex. Oct. 7, 2004); Barnett v. Countrywide Credit Indus., Inc., 2002 WL 1023161, 1 (N.D. Tex. 2002).
Under the second method, the court simply looks to Rule 23 factors - numerosity, commonality, typicality, and adequacy - to determine class certification, without dividing the process into two steps. See Mooney, 54 F.3d at 1214.
ANALYSIS
In accordance with the Lusardi two-step approach, the Court must determine whether Plaintiff here has provided sufficient evidence of similarly situated Denison Glass & Mirror employees who also claim that they were not paid for overtime drive time. Plaintiff bears the burden of presenting preliminary facts to show that there is a similarly situated group of potential plaintiffs. See Hickson, 2010 WL 3835887 at 6.
In evaluating Plaintiff's allegations, "the court should consider factors such as whether potential plaintiffs were identified, whether affidavits of potential plaintiffs were submitted, and whether evidence of a widespread plan was submitted." Allen v. McWane, Inc., 2006 WL 3246531, 2 (E.D. Tex. 2006). "The court should satisfy itself that there are other employees of the defendant who are 'similarly situated' with respect to their job requirements and pay provisions." Hickson, 2010 WL 3835887 at 5-6; see also H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) ("Courts ... have considered factors such as ... whether affidavits of potential plaintiffs were submitted ... [and have required] a factual showing suggesting that [the potential plaintiffs] were similarly situated.") (citations omitted). Although there is no specific definition of "similarly situated" in the FLSA, the court should determine whether Plaintiff's pleadings and affidavits show that: (1) there is a reasonable basis to believe that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in light of the claims and defenses asserted; and (3) those individuals would want to opt in to the lawsuit. Castillo, 2010 WL 4595811 at 2-4. Plaintiff need not show his position is identical, only similar. See Hickson, 2010 WL 3835887 at 5-6
In this case, Plaintiff seeks to certify a class of employees who were not paid overtime hours for time classified as "drive time." In support of his allegations, Plaintiff offers: (1) Denison Glass and Mirror, Inc.'s Policies of Employees and Employment; (2) Declarations of Robert Cripe; (3) Declaration of Russell Eskew; (4) Declaration of Rich Watts; (5) Declaration fo John Thibodeau; (6) 12/24/10 Paystub of R. Cripe; (7) Declaration of John Gill; (8) Declaration of Josh Runyan; (9) Declaration of Russell Rogers; and (10) Declaration of Randy Dodson. Dkts. 22-1 - 22-6; 35-1 - 35-4. Additionally, since the suit was filed, Josh Runyan, John Thidodeau, Russell Eskew, Richard Watts, Randy Dodson, Joseph Harrell, Noel Greenhaw, and Russell Rogers have filed opt-in notices in the case. See Dkts. 11, 16, 18, 40, 41 & 42.
Having conducted an exhaustive review of the evidence submitted by Plaintiff in support of his contention that there are more similarly situated plaintiffs in existence to support conditional certification of a class, the Court finds that the class should be conditionally certified. Significantly, Plaintiff has offered undisputed evidence of Defendant's Overtime Policy, effective at least from November 2006 until approximately January 2011. This provision contained in "Denison Glass and Mirror, Inc.'s Policies of Employees and Employment" appears to be a "common compensation policy" applicable to all employees and - on its face - specifically excludes "drive time" from overtime pay. See Gibson v. NCRC, Inc., 2011 WL 2837506, 6 (S.D. Tex. 2011). It provides:
Overtime: Overtime is considered to be over (40) forty hours per week of work time; this does not include drive time.Dkt. 22-1 (emphasis added).
Drive time: Drive time is considered to be the time it takes to reach the job site location when the job is out of town.
Plaintiff's other evidence demonstrates the application of the Overtime Policy to employees who logged drive time. Indeed, the two paystubs attached to Plaintiff's motion show that the "Drive Time" declination was formally made in accordance with the written policies in the paychecks issued to employees and that employees were paid at a regular payrate for drive time even if their total hours worked exceed 40 hours per week. See Dkts. 22-6, 22-7.
The Court agrees with Plaintiff here that the written Overtime Policy is sufficient evidence of similarly situated plaintiffs for court-facilitated notice of the proposed class of those who were not paid time-and-a-half for overtime drive time. "Evidence of similar job duties and of a single policy which violates the FLSA has been held to be sufficient to conditionally certify a class." Bernal v. Vankar Enterprises, Inc., 2008 WL 791963, 4 (W.D. Tex. 2008).
The declarations submitted by Plaintiff also support conditional certification. While the Court will disregard any statements within each declaration regarding what other employees were paid because they are not based on personal knowledge, the declarations submitted do indicate that the company's policy - as applied to each of the eight declarants (all of whom were employed by Denison Glass & Mirror when the overtime policy was in effect and made such statements on personal knowledge) - resulted in each declarant not receiving overtime pay for his overtime drive time. Owen v. Golf & Tennis Pro Shop, Inc., 2010 WL 3859640, 4 (E.D. Tex. 2010) (noting that declarations lacking personal knowledge do not suffice even under the lenient Lusardi standard but considering allegations in the declarations regarding the pay practices and job duties at locations where the six declarants worked as proper because they were based on personal knowledge). "For the class representative to be considered similarly situated to the potential opt in class members, the class representative must be similarly situated in terms of job requirements and similarly situated in terms of payment provisions." Ryan v. Staff Care, Inc., 497 F. Supp.2d 820, 824-825 (N.D. Tex. 2007) (noting that when the employer's policies were effectuated on a companywide basis, notice may be sent to all similarly situated persons on a companywide basis). Ultimately here, the declarations sufficiently show that the pay practices were the same as to the declarants and proposed class members. Owen v. Golf & Tennis Pro Shop, Inc., 2010 WL 3859640, 3 (E.D. Tex. 2010); Castillo, 2010 WL 4595811 at 2-4 (finding that plaintiffs' evidence was sufficiently detailed to show single decision, policy or plan).
In Gibson v. NCRC, Inc., the Southern District Court of Texas recently certified a similar class. 2011 WL 2837506, 6 (S.D. Tex. 2011) (certifying a collective action of service technicians whose employer did not include time spent driving between customers' work sites in determining overtime eligibility). And, the evidence here is sufficient to show that "the putative class members were together the victims of a single decision, policy, or plan," Mooney, 54 F.3d at 1214 n. 8 (5th Cir. 1995) (quoting Sperling I, 118 F.R.D. at 407).
Therefore, Plaintiff's Motion for Conditional Certification and Notice to Potential Class Members (Dkt. 22) should be GRANTED as to the conditional certification, and, within ten (10) days of certification by the District Judge, Defendants should be ordered to produce the names, home addresses, home telephone numbers, Drivers License numbers, and dates and locations of employment of current and former hourly paid employees at all locations of Denison Glass & Mirror Inc. who did not receive overtime pay (time-and-one-half) on "drive time." ("Employee Information"). This group should be limited to current and former employees who work(ed) for Denison Glass & Mirror Inc. from three years prior to the date of the certification order to the present.
Plaintiff also seeks Court approval of the notice language to be sent to proposed class members. Defendants submit a substantively different proposed notice. The Court has reviewed the parties' alternative proposed notices and finds that Plaintiff's may be overreaching and Defendants' is likely under-inclusive. The parties are ordered to confer with each other in good faith to resolve their differences regarding the notice. Within 10 days of the issuance of this report, the parties shall either (1) submit a joint proposed class notice to for consideration by the District Judge or (2) file notices with the Court attaching their proposed notices.
The Court will not consider any agreement by Defendants as to the form of the proposed notice to be a waiver of any objections they may have to the actual certification of the class.
Within fourteen (14) days after service of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A. § 636(b)(1)(C).
Failure to timely file written objections to the proposed findings and recommendations contained in this report shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).
SIGNED this 26th day of January, 2012.
/s/_________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE