McLendon v. Schlumberger Technology Corporation

Filing 18

OPINION AND ORDER denying McLendon's 10 motion for conditional class certification and court-authorized notice. Signed by Judge J. Leon Holmes on 7/15/2016. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
SIDNEY MCLENDON, individually
and on behalf of others similarly situated
v.

PLAINTIFFS

No. 4:15CV00752 JLH

SCHLUMBERGER TECHNOLOGY
CORPORATION

DEFENDANT

OPINION AND ORDER
Sidney McLendon brings this action against his former employer, Schlumberger Technology
Corporation, alleging that Schlumberger failed to pay McLendon and other similarly situated
employees for overtime in violation of the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 216(b).
McLendon has filed a motion for conditional class certification and court-authorized notice. For the
following reasons, the motion is denied.
I.
Schlumberger provides products and services to the oil and gas industry. Its corporate
headquarters are in Sugar Land, Texas, but it operates in locations through the United States.
McLendon worked for Schlumberger from October 2008 until November 17, 2015. He primarily
worked out of the Conway, Arkansas location. McLendon’s proposed FLSA class includes:
All Senior Field Technicians and Expert Field Technicians employed by Defendant
at any time since December 9, 2012.
Document #10 at 1, ¶2. The FLSA authorizes “similarly situated” employees to proceed collectively
to recover damages for violations of the FLSA’s overtime provisions. 29 U.S.C. § 216(b) (2006).
The FLSA does not expressly define “similarly situated.” Although the Eighth Circuit has not
addressed the issue, this Court and others within the Eighth Circuit have applied the two-step
approach set out in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). See Maclin v.

Montgomery and Sons Const., Inc., No: 4:12CV5, 2012 WL 5818163 at *1 (E.D. Ark. Nov. 15,
2012) (applying the two-step approach); In re Pilgrim’s Pride, No. 1:07CV1832, 2008 WL 4877239,
at *2 (W.D. Ark. Mar. 13, 2008) (citing to federal courts that follow the two-step approach and
adopting it); Davis v. NovaStar Mortgage, Inc., 408 F. Supp. 2d 811, 815 (W.D. Mo. 2005)
(applying the two-step approach); Kalish v. High Tech Inst., Inc., No. Civ. 041440, 2005 WL
1073645, at *1 (D. Minn. Apr. 22, 2005) (applying the two-step approach); McQuay v. Am. Int’l
Group, No. 4:01CV00661, 2002 WL 31475212, at *2 (E.D. Ark. Oct. 25, 2002) (noting that “a
majority of courts have adopted a two-step process”). “This approach provides for a two-step
determination as to whether class certification is proper.” Davis, 408 F. Supp. 2d at 815. Generally,
the plaintiffs move for conditional certification at an early stage in the litigation, and a class is
conditionally certified for notice purposes. Id. Then, the defendant is allowed the opportunity to
move for de-certification at the close of discovery. Id.
In the first stage, or “notice stage,” courts apply a lenient standard to determine whether
persons similarly situated to the named plaintiffs exist and should receive notice. Chin v. Tile Shop,
LLC, 57 F. Supp. 3d 1075, 1082 (D. Minn. 2014). The plaintiffs bear the burden of proof at this
stage, and they “can meet this burden by making a modest factual showing sufficient to demonstrate
that they and potential plaintiffs together were victims of a common policy or plan that violated the
law.” Kautsch v. Premier Commc’ns, 504 F. Supp. 2d 685, 689 (W.D. Mo. 2007) (quoting Realite
v. Ark Rests. Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998)). The plaintiffs can satisfy their burden
through the use of affidavits, supported by admissible evidence. Jost v. Commonwealth Land Title
Ins. Co., No. 4:08CV734, 2009 WL 211943, at *2-3 (E.D. Mo. Jan. 27, 2009). “The plaintiffs may
not meet this burden through unsupported assertions of additional plaintiffs and widespread FLSA
violations.” Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp. 2d 1014, 1017 (E.D. Mo.
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2010). However, the Court “does not make any credibility determinations or findings of fact with
respect to contrary evidence presented by the parties.” Chin, 57 F. Supp. 3d at 1083.
II.
The key issue is whether McLendon has shown that his position is similarly situated to the
other employees he contends were harmed by Schlumberger’s practice of refusing to pay overtime.
“To determine whether employees are similarly situated, a district court considers several factors,
including the following: (1) whether the plaintiffs hold the same job title; (2) whether they worked
in the same geographic location; (3) whether the alleged violations occurred during the same time
period; (4) whether the plaintiffs were subjected to the same policies and practices; and (5) the
extent to which the acts constituting the alleged violations are similar.” Smith v. Frac Tech Serv.,
Ltd., No. 4:09CV00679 JLH, 2010 WL 743296 at *3 (E.D. Ark. Feb. 26, 2010) “However, the
plaintiff need not show that members of the conditionally certified class are identically situated.”
Pressler v. FTS USA, LLC, No. 4:09CV00676 JLH, 2010 WL 1904974 at *4 (E.D. Ark. May 12,
2010).
McLendon alleges in his complaint that he was employed as a senior field technician
throughout 2013 and 2014, and that he was employed as an expert field technician from January
2015 through November 2015. Document #1 at 5, ¶¶ 22, 23. The complaint describes his job as
“manual labor. He ran tubing conveyed perforating at various oil sites, which involved loading
perforating guns, transporting them to the job site, and performing the perforating operations at the
site. When the job was completed, [he] transported the equipment back to the shop and ensured that
it was ready for the next job.” Id. at 5-6, ¶ 28. McLendon is less descriptive about the duties he
performed in the two affidavits he submitted to the Court in support of the motion for conditional
certification. See Document #10-7; Document #14-1. He states in his first affidavit: “I spent part
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of my day in the shop assembling and de-assembling equipment and part of my day outdoors at well
sites operating equipment.” Document #10-7 at 1, ¶ 4. He also states: “As both a Senior Field
Technician and an Expert Field Technician, my primary job duties were to transport, maintain, and
run equipment at various job sites. I observed other Senior Field Technicians and Expert Field
Technicians working on various locations, and we all performed similar work.” Id. at 2, ¶ 12.
McLendon maintains that he was always classified as a salaried employee and was not paid any
overtime pay, but that he “did not regularly supervise any group of employees, nor did [he] have the
authority to hire or fire other employees. This was true for all of the other Senior Field Technicians
and Expert Field Technicians that [he] worked with, as well.” Id. at 3, ¶ 13.
In his second affidavit, McLendon stresses that his job primarily involved the performance
of manual labor and that he was able to observe the work of other senior field technicians and expert
field technicians. Document #14-1 at 2, ¶ 9. He states: “The work that I and other Senior Field
Technicians and Expert Field Technicians performed was similar regardless of the location where
we worked or the specific jobs assigned us to, and primarily involved transporting, maintaining and
running equipment at Schlumberger’s various job sites.” Id. McLendon also stated that although
he worked primarily out of Conway, Arkansas, he also worked in Oklahoma, Texas, and Louisiana.
Id. at 2, ¶ 7. According to McLendon, the work he did in other states was substantially the same
work that he did in Arkansas, and Schlumberger’s policies applied at all of the company’s locations.
Id. at 2, ¶ 8.
Schlumberger argues that McLendon is not similarly situated to members of the proposed
class because Schlumberger did not employ McLendon as an or senior field technician or expert
field technician during the relevant statutory time period.

Document #13 at 1.

Rather,

Schlumberger employed McLendon as a Tubing-Conveyed and Perforating Specialist (“TCP
4

Specialist”). Id. McLendon clarifies this job title issue in his second affidavit, stating: “‘TCP
Specialist’ describes the work I performed during the time that I was a Senior Field Technician and
an Expert Field Technician; That is [Schlumberger] assigned me to Tubing-Conveyed Perforating
jobs.” Document #14-1 at 1, ¶ 4.
Schlumberger first asks the Court to rely on the affidavit of its business manager over the
affidavit of McLendon to find that he did not share the same job title as the employees to whom he
claims to be similarly situated, Document #13-3, but the Court declines to do so at this stage of the
analysis and assumes that McLendon’s job title during the relevant statutory period was either senior
field technician or expert field technician. See Pressler, 2010 WL 1904974 at *4.
Second, Schlumberger argues that McLendon has failed to show that the members of the
proposed class are similarly situated to him, because he only provides a self-serving affidavit with
vague and incomplete descriptions of their job duties. Document #13 at 2. McLendon, however,
contends that his affidavit is based on personal knowledge and it is reasonable for the Court to infer
that he understands and is familiar with his employer’s practices as they relate to himself and other
similarly situated employees. See Document #14 at 6. But McLendon seeks certification of a
nationwide class. There is no colorable basis for McLendon’s allegation that senior field technicians
and expert field technicians at locations nationwide were together misclassified as exempt
employees, nor is there a colorable basis for the allegation that McLendon, senior field technicians,
and expert field technicians had similar work duties and responsibilities and operated under similar
work conditions. McLendon states in his first affidavit that “Defendant has operations throughout
the United States, wherever oil field services are required.” Document #10-7 at 2, ¶ 7. Yet, he
submits only his own affidavits based on the personal knowledge he acquired working primarily in

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Arkansas, but some in Oklahoma, Texas, and Louisiana. See Document #10-7; Document #14-1.
While McLendon is not required to provide evidence showing Schlumberger’s unlawful practices
at each and every one of its locations, Burch v. Qwest Commc’n Intern., Inc., 500 F. Supp. 2d 1181,
1187 (D. Minn. 2007), he must provide some evidence that Schlumberger employees outside of
Arkansas, Oklahoma, Texas, and Louisiana are similarly situated to him. See Jenkins v. TJX Co.,
853 F. Supp. 2d 317, 321 (E.D.N.Y. 2012).
McLendon has not provided a formal, nationwide Schlumberger policy that mandates nonexempt job duties, therefore violating the FLSA. See Document #1. Rather, McLendon’s theory of
the case is that senior field technicians and expert field technicians were not paid overtime even
though they were non-exempt from the FLSA’s overtime requirements because of the duties they
performed. However, he has provided no evidence, other than general, conclusory statements in his
own affidavits, that FLSA violations affected employees at locations other than Arkansas,
Oklahoma, Texas, and Louisiana. McLendon’s allegations focus on the duties that senior field
technicians and expert field technicians perform in practice–transporting, maintaining, and running
equipment at various job sites–and the fact that these employees regularly worked more than forty
hours a week, but were only paid a salary and non-discretionary bonuses. Document #1 at 7, ¶¶ 3839; Document #10-7 at 2, ¶ 12. He contends that he performed the same job duties at all of the
locations where he worked. Document #10-7 at 2, ¶ 9. But he presents no evidence that senior field
technicians and expert field technicians at Schlumberger locations outside of Arkansas, Oklahoma,
Louisiana, and Texas performed these types of duties, nor does he present evidence that they were
only paid a salary and non-discretionary bonuses, so there is no colorable basis for McLendon’s
claim that senior field technicians and expert field technicians nationwide were the victims of a

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single decision, policy, or plan. See Smith v. Frac Tech Serv., Ltd., No. 4:09CV000679 JLH, 2009
WL 4251017 at *8 (E.D. Ark. Nov. 24, 2009) (“The affidavits from two Field Coordinators are not
sufficient to show that all other Field Coordinators in all other geographic locations performed
similar duties.”). Compare Frac Tech Serv., 2010 WL 743296 at *4 (finding that Field Engineers
who worked in different geographic locations met the lenient notice stage burden for similarly
situated because “[t]he plaintiffs submitted affidavits from Field Engineers and Service Supervisors
who worked in all or nearly all of the geographic locations in which Frac Tech has offices.”).
Therefore, the Court will not certify a broad conditional class.
III.
Now, the Court must decide whether McLendon has demonstrated that notice should be
issued to a narrower class of Schlumberger employees–the senior field technicians and expert field
technicians who worked in Arkansas, Texas, Oklahoma, and Louisiana. The burden at this stage is
not onerous, and conditional certification is generally granted. However, the evidence McLendon
provides is sparse and tends to show that his duties were different from those of other senior field
technicians and expert field technicians. The complaint alleges:
28.

As a Senior and/or Expert Field Technician, Sidney McLendon’s primary job
duty was manual labor. He ran tubing conveyed perforating at various oil
sites, which involved loading perforating guns, transporting them to the job
site, and performing the perforating operations at the site. When the job was
completed, Plaintiff transported the equipment back to the shop and ensured
it was ready for the next job.

Document #1 at 5-6, ¶ 28. But McLendon states in first affidavit:
4.

The jobs of Senior Field Technicians and Expert Field Technicians are very
physical and demanding jobs. I spent part of my day in the shop assembling
and de-assembling equipment and part of my day outdoors at well sites
operating equipment.

***
7

12.

As both a Senior Field Technician and an Expert Field Technician, my
primary job duties were to transport, maintain, and run equipment at various
job sites. I observed other Senior Field Technicians and Expert Field
Technicians working on various locations, and we all performed similar
work.

13.

As a Senior Field Technician and as an Expert Field Technician, I did not
regularly supervise any group of employees, nor did I have the authority to
hire or fire other employees. This was true for all of the other Senior Field
Technicians and Expert Field Technicians that I worked with as well.

14.

I had no authority to bind the company. This was true for all of the other
Senior Field Technicians and Expert Field Technicians that I worked with,
as well.

Document #10-7 at 1-3, ¶¶ 4, 12-14. In his second affidavit, after Schlumberger presented evidence
that he was a TCP Specialist, not a senior field technician or an expert field technician, McLendon
said:
4.

“TCP Specialist” describes the work I performed during the time that I was
a Senior Field Technician and an Expert Field Technician; that is,
Schlumberger assigned me to Tubing-Conveyed Perforating jobs.1

***
9.

In the performance of my duties for Schlumberger, I have been able to
observe the work of other Senior Field Technicians and Expert Field
Technicians. The work that I and other Senior Field Technicians and Expert
Field Technicians performed was similar regardless of the location where we
worked or the specific jobs Schlumberger assigned us to, and primarily
involved transporting, maintaining and running equipment as Schlumberger’s
various job sites.

10.

The extreme hours Schlumberger required us to work without overtime pay
was a common complaint among the Senior Field Technicians and Expert
Field Technicians I interacted with.

1

This raises two questions that McLendon fails to answer: (1) To what kind of “specialist”
jobs were other senior field technicians and expert field technicians assigned, if any?; and (2) What
responsibilities did those jobs entail?
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Document #14-1 at 1-2, ¶¶ 4, 9-10. McLendon first alleged in his complaint that his duties
specifically revolved around tubing-conveyed perforating. Then, in support of his contention that
he is similarly situated to the other employees included in his proposed class, McLendon broadly
stated that his duties involved transporting, maintaining, and running equipment. Finally, after
Schlumberger presented evidence that he was a TCP Specialist, not a senior field technician or an
expert field technician, he stated that TCP Specialist merely described the duties Schlumberger
required him to perform.
In Smith v. Frac Tech Services, Ltd., this Court declined conditional certification of a broad
collective action, where, as here, the business involved drilling for oil and gas. 2009 WL 4251017
at *1. There, the plaintiffs alleged that Frac Tech, an oil field service company that services oil and
gas wells throughout the United States, routinely required its Service Supervisors, Field
Coordinators, and Field Engineers to work more than forty hours per week but did not compensate
them for overtime as required by the FLSA. Id. In support of their motion for a collective action,
the plaintiffs submitted several affidavits–nine from Service Supervisors, two from Field
Coordinators, and one from a Field Engineer–describing the nature of their job duties. Id. at *2.
The Court scrutinized the affidavits and determined that they were similar in large part, except for
the description of job duties. Id. For example, when not on the job site one Field Coordinator was
responsible for ensuring the necessary fluid, chemical testing, and paperwork was prepared for the
next job. Id. A different Field Coordinator, however, ensured that equipment was prepared for the
next job by loading trucks with chemicals and driving them back to the yard. Id. Further, the
Service Supervisors and the Field Engineer stated that they completed various numbers of employee

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evaluations but never recommended an employee for promotion. Id. at 3. The Field Coordinators,
however, neither prepared any employee evaluations nor recommended promotion. Id.
This Court pointed out that “[t]hat numerous courts have denied certification of a collective
action where determining whether putative plaintiffs are similarly situated will depend on a factintensive inquiry into the duties performed by each individual employee.” Id. at 4. Surveying
several cases, the Court summarized the holding in Holt v. Rite Aid Corp.:
The district court denied certification of a collective action because the nature of the
plaintiffs’ claim turned on fact-intensive evidence of the individual plaintiffs’ day-today tasks . . . The district court then considered the degree to which evidence
regarding the plaintiffs’ job duties could be applied to other employees. For the
same reason–that the court would have to inquire into the daily tasks of each putative
collective action member to determine whether they are similarly situated–the district
court ruled against certification of a collective action.
Id. at 5 (citing 333 F. Supp. 2d 1265, 1271 (M.D. Ala. 2004)). See also Sheffield v. Orius Corp.,
211 F.R.D. 411, 413 (D. Or. 2002) (finding that where the dissimilarities among the putative
collective action members extended to geography, work sites, and payment systems, “the allegations
contained in the affidavits submitted to the court suggest that each claim would require extensive
consideration of the individualized issues of liability and damages.”). This Court ultimately held:
The very essence of the plaintiffs’ FLSA claim against Frac Tech hinges on the
nature of the duties performed. The duties performed by the different employment
categories will have to be analyzed to determine whether those particular duties
make that particular category exempt under the FLSA . . . According to the
affidavits, the duties for Service Supervisors, Field Engineers, and Field
Coordinators differ. Therefore, those three employment categories cannot be
similarly situated for purposes of determining whether their respective duties give
them exempt status.
Id. at *6. Further, this Court held that while the plaintiffs made a modest factual showing that all
Service Supervisors were similarly situated, “[t]he affidavit from one Field Engineer is . . .
insufficient to satisfy the plaintiffs’ burden of showing that all other Field Engineers are similarly
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situated.” Id. at *8. See also Harris v. Southwest Power Pool, Inc., No. 4:11CV00679, 2011 WL
5402763 at *2 (stating that “[c]ertification is not appropriate where determining whether putative
class members are nonexempt will depend on a fact-intensive inquiry into the duties performed by
the different types of employees.”).
In Pressler v. FTS USA, LLC, this Court also denied a motion for conditional certification
because the plaintiff failed to demonstrate that the proposed class members were similarly situated
to him. 2010 WL 1904974 at *5. The defendant, FTS, argued that the plaintiff, Pressler, did not
have the same job title as the members of the proposed class. Id. Pressler insisted that his job title
was not indicative of the duties that he performed and that he in fact performed similar duties to
class members with different job titles. Id. Yet, he failed to offer evidence that the job titles were
used interchangeably or that other class members also performed a similar role. Id. The evidence
that Pressler provided actually tended to show that the different job titles had different duties and
responsibilities. Id. (“A warehouse supervisor has duties, responsibilities, and competency
requirements distinct from those of a warehouse manager.”). This Court held that, as a result,
Pressler was not entitled to conditional certification on his FLSA claim. Id.
McLendon’s evidence likewise falls short of meeting even the lenient standard required at
the initial stage. He has failed to make a modest factual showing that he and others with similar job
duties were subjected to the same policies and practices. McLendon says that he worked primarily
in Arkansas but also in Oklahoma, Texas, and Louisiana, yet he does not explain how many times
he worked in those states, at how many locations, over what period of time, or specifically what he
saw others doing. At how many locations did Schlumberger provide services in Oklahoma, Texas,
and Louisiana during the relevant time? McLendon does not say. Did he work at all or most of

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those locations, or only at a small fraction of them? McLendon does not say. Were all of the senior
field technicians and expert field technicians at these sites performing the “Tubing-Conveyed
Perforating jobs”? McLendon does not say. If not, what did the others do? McLendon does not
say, except in the most general terms. While the notice stage requires only a modest factual
showing, it does require a factual showing–mere conclusions will not do.2 McLendon’s affidavits
are vague, general and conclusory. Conclusory affidavits from the sole named plaintiff who had
limited experience outside of his locale will not suffice to make a modest factual showing that other
employees in a multi-state region are similarly situated for FLSA purposes, especially when that
plaintiff apparently performed different duties than others in the putative class.
CONCLUSION
For the foregoing reasons, the motion for conditional certification and court-authorized
notice is DENIED. Document #10.
IT IS SO ORDERED this 15th day of July, 2016.

________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

2

Cf. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L. Ed.
2d 929 (2007) (“labels and conclusions” do not suffice to state a claim upon which relief may be
granted); Allen v. Entergy Corp., 181 F.3d 902, 905 (8th Cir. 1999) (a conclusory affidavit, devoid
of specific facts, does not show the existence of a genuine issue of material fact).
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