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Calvillo v. Bull Rogers, Inc.

United States District Court, D. New Mexico

July 25, 2017

PATRICIO CALVILLO, AND ALL OTHERS SIMILARLY SITUATED UNDER 29 USC §216b, Plaintiffs,
v.
BULL ROGERS, INC. and HELEN MARIE WALLACE, individually, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR NOTICE TO POTENTIAL PLAINTIFFS AND CONDITIONAL CERTIFICATION AND ORDER APPROVING IN PART AND STRIKING IN PART PROPOSED FORM OF NOTICE AND PROPOSED CONSENT FORM

         THIS MATTER comes before this Court upon Plaintiffs' Motion for Notice to Potential Plaintiffs and Conditional Certification, filed May 15, 2017 (Doc. 35). Having reviewed the parties' briefs and applicable law, the Court finds that Plaintiff's motion is well taken and, therefore, GRANTED, except for certain language proposed by Plaintiff in the proposed consent form.

         BACKGROUND

         Plaintiff is suing Defendants to recover unpaid overtime wages that Defendants failed to pay in accordance with the FLSA. Defendants are involved in oilfield casing services throughout New Mexico and Texas over the last three years and employ non-exempt employees to help perform casing services.[1] Plaintiff Patricio Calvillo (“Plaintiff”) brings this action individually and on behalf of those similarly situated casing employees (“CE”)[2] pursuant to the FLSA. Plaintiff also brings this action as a Rule 23 class action pursuant to New Mexico Wage Law. The Amended Complaint asserts two counts: Failure to Pay Wages in Accordance with the FLSA (Count I) and Violation of New Mexico Wage Law (Count II). Doc. 29.

         This motion seeks an Order allowing Notice to Potential Plaintiffs and Conditional Certification pursuant to the collective action provision in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §216(b):

No employee shall be a party plaintiff to any [action to recover under the FLSA) 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 USCA § 216(b).

         DISCUSSION

         Plaintiffs seek conditional certification and supervised notice on the grounds that a group of other similarly situated non-exempt employees (“NEE”) exist and that Defendants subjected these individuals to illegal policies under the FLSA, denying overtime for all overtime hours worked and as well as overtime pay at the legally required rate.

         I. Relevant Law

         Under 29 U.S.C. §216(b), an employee may bring a collective action on behalf of “similarly situated” employees. 29 U.S.C. § 216(b). “The purpose of collective action under the FLSA is to give ‘plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources, ' and to benefit the judicial system ‘by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged . . . activity.'” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).Unlike Rule 23 class actions, putative class members under the FLSA must opt into the class rather than opt out. Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir.2001), cert. denied, 536 U.S. 934 (2002). The relevant question here is whether the named Plaintiffs are “similarly situated” to members of the proposed class for purposes of § 216(b). Section 216(b) does not define the term “similarly situated, ” and there is little circuit law on the subject. However, the Court finds that the majority of courts apply the two-step (also called the “two-stage”) ad hoc approach in examining provisional certification of collective actions under § 216(b) of the FLSA. See Thiessen, 267 F.3d at 1105 (“[a]rguably, the [two-step] ad hoc approach is the best of the three approaches outlined because it is not tied to the Rule 23 standards.”); see also Bayles v. American Medical Response of Colorado, Inc., 950 F.Supp. 1053, 1063 (D.Colo.1996) (noting holdings by a number of courts that while modern Rule 23 requirements are instructive, they are not prerequisites to maintaining a collective action under § 216(b)) (citations omitted). The Tenth Circuit recognized that “Congress clearly chose not to have the Rule 23 standards apply to class actions under the ADEA, and instead adopted the “similarly situated standard [utilized by the FLSA].” Thiessen, 267 F.3d at 1105.

         Under an ad hoc approach, a court typically makes an initial “notice stage” determination of whether plaintiffs are “similarly situated.” 267 F.3d at 1102-03. At this stage, a court requires “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. (quoting Bayles, 950 F.Supp. at 1066). If the Court conditionally certifies the class based on these allegations, discovery proceeds on the merits, and the Court then makes a second determination, usually prompted by defendant's motion to decertify, and utilizing a stricter standard of “similarly situated.” Id. at 1102-03; see Bayles, 950 F.Supp. at 1066 (court makes “a second determination after discovery is completed and the case is ready for trial”). During this “second stage” analysis, a court reviews several factors, including the disparate factual and employment settings of the individual plaintiffs. Id.; Hose v. Henry Indus., Inc., 49 F.Supp.3d 906, 919 (D. Kan. 2014) (“In the Tenth Circuit, courts consider FLSA class actions under a two-step approach. First, the court conditionally certifies the class, based on a modest factual showing that the class is similarly situated.”).

         In the second step, which occurs after the parties have engaged in discovery and the opt-in process is completed, “the court's inquiry is more stringent.” Mielke et al. v. Laidlaw Transit, Inc., 313 F.Supp.2d 759, 762 (N.D. Ill. 2004). Once it is known which employees will be part of the class, the court must reevaluate the conditional certification “to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis.” Heckler v. DK Funding, LLC et al., 502 F.Supp.2d 777, 779 (N.D.Ill. 2007). At step two, the court must consider: (1) whether the plaintiffs share similar or disparate employment settings; (2) whether affirmative defenses raised by the defendant would have to be individually applied to each plaintiff; and (3) any fairness and procedural concerns. Mielke, 313 F.Supp.2d at 762; see also Bass v. PJ Comn. Acquisition Corp., 2010 WL 3720217, at *2 (D.Colo. 2010) (“notice stage” determination made by examining whether plaintiffs have made “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan” while second step is completed after discovery, often prompted by a motion to decertify, and applies a more strict standard of similarly situated).

         II. Conditional Certification

         This Court has previously addressed whether a class should be conditionally certified under the FLSA. See Maestas v. Day & Zimmerman, LLC, 2013 WL 11311781, at *3 (D.N.M. 2013); Civ. No. 09-019 WJ/LFG (Dec. 20, 2013). The plaintiffs in that case were current or previous officers in a private security force employed to provide security at Los Alamos National Laboratory. The Court granted plaintiffs' motion for conditional class certification and ordered Defendants to respond to the pending discovery requests by plaintiffs:

Following the completion of this discovery, the Court anticipates that Defendants may file a motion to decertify the class, in which case the Court will determine whether this case will proceed to trial on a collective basis, or whether FLSA claims will have to be individually pursued by the opt-in plaintiffs.

Doc. 161 at 8, Maestas v. Day et al.), Civ. No. 09-019.[3] The Court finds that this procedure is appropriate in this case as well.

         The “similarity situated” requirement of §216(b) is also more elastic and less stringent than the requirements found in Rule 23 class action standards. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d at 1105 (“Congress clearly chose not to have the Rule 23 standards apply to class actions under the ADEA, and instead adopted the ‘similarly situated' standard (see also Landry v. Swire Oilfield Services, L.L.C., 2017 WL 1709695, at *27 (D.N.M., 2017) (citing Thiessen, 267 F.3d at 1105); Grayson v. K Mart, 79 F.3d 1086, 1096 (11th Cir.1996), cited in Bishop v. Heartland Services, Inc., 242 F.R.D. 612, 614 (D.Kan., 2007).

         The “similarly situated” inquiry involves a case by case approach, which requires “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102. Thus, the burden at this stage is light or lenient, but provisional certification is not automatic (Thiessen, 267 F.3d at 1103 (referring to ad hoc standard a “fairly lenient”); Landry v. Swire Oilfield Services, L.L.C., No. 16-621, 2017 WL 1709695, at *29 (D.N.M. May 2, 2017) (noting standard is “a lenient one” and granting conditional certification) (quoting Greenstein v. Meredith Corp.,948 F.Supp.2d 1266, 1267 (D.Kan. 2013). A court must determine whether named and potential plaintiffs are “similarly situated” based on allegations in the complaint supported by sworn statements. See Bass v. PJ Comn Acquisition Corp., 2010 ...


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