Perez v. New Orleans City et al

Filing 34

ORDER & REASONS: granting #33 Motion to Certify Class; FURTHER ORDERED that the conditionally-certified class shall be defined as: "New Orleans Police Department officers denied earned overtime compensation and/or J&T time, beginning September 16, 2009." FURTHER ORDERED that Defendants shall produce the full names, last known addresses, telephone numbers, and email addresses of all potential class members, in both paper and electronic form accessible by Microsoft Office Suite, within fourteen (14) days of this Order, or by Thursday, April 17, 2014. FURTHER ORDERED that the proposed Notice (Rec. Doc. 33-3) & the proposed Consent (Rec. Doc. 33-4) are hereby APPROVED. FURTHER ORDERED that counsel for the class shall transmit the Notice and Consent form to all potential class members via U.S. mail and email, both work and personal (if available), within thirty (30) days, or by Monday, May 19, 2014. FURTHER ORDERED that potential class members may opt in to this collective action if: (1) they have mailed, faxed, or emailed their Consent form to counsel for the class within sixty (60) days after the Notice and Consent forms have been mailed out to the class; or (2) they show good cause for any delay. Signed by Judge Carl Barbier on 4/4/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHAD PEREZ AND A CLASS OF
SIMILARLY SITUATED NEW ORLEANS
POLICE OFFICERS WHO HAVE BEEN
DENIED OVERTIME COMPENSATION

CIVIL ACTION

VERSUS

NO: 12-2280

CITY OF NEW ORLEANS, ET AL

SECTION: J

ORDER AND REASONS
Before the Court is a Motion to Certify Class filed by
Plaintiff, Chad Perez. (Rec. Doc. 33). The motion is unopposed.
Having considered the motion, the record, and the applicable law,
the Court finds, for the reasons expressed below, that the motion
should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
Officer Chad Perez, a former New Orleans Police Officer, has
brought this action under the Fair Labor Standards Act ("FLSA"), on
his own behalf and on behalf of all similarly situated members of
the NOPD, against the City of New Orleans ("the City") and against
Ronal Serpas in his capacity as Superintendent of the New Orleans
Police Department ("NOPD"). Perez alleges that from September 16,
2009 through the present date, the NOPD has failed to pay him and
other NOPD officers the overtime compensation that was due to them.
Perez requests that the Court conditionally certify a Plaintiff

1

Class defined as "New Orleans Police Department officers who have
been denied overtime compensation and/or J&T Time to compensate
them for time expended in excess of the regularly-scheduled length
of time they are required to work as police officers." Officer
Perez contends that the putative class does not include any
individuals whose claims are time barred.
Officer

Perez

also

requests

that

the

Court

approve

his

proposed "Court-Ordered Notice of Fair Labor Standards Act Overtime
and

Contract-Based

Collective/Class

Actions,"

as

well

as

his

"Consent to Become Party Plaintiff" form, so that these forms may
be sent to all individuals in the class. Additionally, Officer
Perez requests that the Court issue an order compelling the City to
turn over the full names, last known addresses, telephone numbers,
and email addresses of all potential class members.
LEGAL STANDARD
Under the FLSA, if an employer engaged in interstate commerce
fails to pay its employees overtime pay that they are due, an
employer may bring an action against the employer on behalf of
himself and other similarly situated employees. 29 U.S.C.A. § 207
(West 2010); 29 U.S.C.A. § 216 (West 2008).
This Court uses the following standards to determine whether
to conditionally certify a class:

To certify a collective action under the ... FLSA, ...

2

two

requirements

representatives

must
and

be

the

met.
putative

First,

the

members

named

of

the

prospective FLSA class must be similarly situated. ...
Second, the action at issue must have a general effect.
... A court may deny a plaintiff's right to proceed
collectively only if the action arises from circumstances
purely personal to the plaintiff, and not from any
generally applicable rule, policy, or practice. ... To
resolve the question whether putative collective action
members are similarly situated, courts may employ a
two-step

analysis

for

conditional

certification

as

established by the Fifth Circuit in Mooney v. Aramco
Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995). First,
at the so-called “notice stage,” the district court
decides whether notice of the action should be given to
potential class members. ... This decision is usually
based only on the pleadings and any affidavits which have
been submitted. ... It is made applying a fairly lenient
standard,

and

usually

results

in

“conditional

certification” of a representative class. ... At the
notice stage, courts appear to require nothing more than
substantial allegations that the putative class members
were together the victims of a single decision, policy,
or plan ... . ... Following conditional certification,

3

putative

class

members

are

given

notice

and

the

opportunity to opt in to the collective action. ... The
case then proceeds throughout discovery as a collective
action. ... A second step takes place later on, when and
if the defendant files a motion for decertification,
after more extensive discovery has taken place.

Donahue v. Francis Servs., Inc., No. 04-170, 2004 WL 1161366, at *1
(E.D. La. May 24, 2004) (Barbier, J.).
DISCUSSION
Here, Officer Perez has submitted an affidavit (Rec. Doc. 335) wherein he asserts that he and his colleagues worked forty-twoand-a-half (42.5) hours per week, which is in excess of forty (40)
hours. Officer Perez also stated that administrative tasks, such as
filling out reports and providing figures to their rank, had to be
performed outside of the normal forty-two-and-a-half working hours.
According to Officer Perez, the NOPD implemented the "J&T Time"
system

as

a

means

of

giving

affected

employees

time

off

in

compensation for working overtime, as opposed to paying them timeand-a-half. However, Officer Perez claims that the system is
inadequate because it only pays one hour of pay for each hour of
overtime, while the law requires that the compensation be time-anda-half. Officer Perez also maintains that there is an NOPD policy
of compelling officers to work unscheduled hours and then failing

4

to pay overtime compensation. Specifically, Officer Perez alleges
that when he asked a Lieutenant for overtime pay that was due to
him, the Lieutenant replied that Officer Perez would not be
compensated,

and

that

if

he

did

not

like

it,

he

would

be

transferred. According to Officer Perez, he and other officers
routinely worked overtime hours without compensation and were
subject to retaliation when they attempted to collect the overtime
pay due to them.
Officer Perez has also submitted the affidavit of Captain
Michael Glasser (Rec. Doc. 33-6), the President of the Police
Association of New Orleans (PANO), a non-profit corporation that
addresses deficiencies in NOPD policies and practices. Captain
Glasser states that PANO has become aware of the NOPD's system-wide
practice of compelling its officers to work overtime and failing to
pay them time-and-a-half. Captain Glasser also asserts that NOPD
officers

who

bring

these

issues

to

light

are

subject

to

retaliation.
The Court finds that members of the NOPD who have been denied
earned overtime pay from September 16, 2009 through the present
date are similarly situated because they are together the victims
of an alleged single policy of the NOPD to decline to pay its
officers earned overtime pay. This suit does not appear to arise
from circumstances purely personal to Officer Perez; it rather
appears that the alleged policy of the NOPD would have a general

5

effect on all officers who were not compensated for earned overtime
within the relevant time period. Therefore, the Court finds that
this class should be conditionally certified, and potential class
members should be given notice and an opportunity to opt in to this
collective action.
The Court has reviewed the proposed Notice (Rec. Doc. 33-3)
and the proposed Consent (Rec. Doc. 33-4), and both appear to be
appropriate. Therefore, these documents are approved. Additionally,
the Court finds that the City shall provide the information that
counsel for the class seeks, which will enable counsel for the
class to send the Notice and Consent to potential class members.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motion to Certify Class (Rec.
Doc. 33) is GRANTED.
IT IS FURTHER ORDERED that the conditionally-certified class
shall be defined as: "New Orleans Police Department officers denied
earned overtime compensation and/or J&T time, beginning September
16, 2009."
IT IS FURTHER ORDERED that Defendants shall produce the full
names, last known addresses, telephone numbers, and email addresses
of all potential class members, in both paper and electronic form
accessible by Microsoft Office Suite, within fourteen (14) days of
this Order, or by Thursday, April 17, 2014.
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IT IS FURTHER ORDERED that the proposed Notice (Rec. Doc. 333) and the proposed Consent (Rec. Doc. 33-4) are hereby APPROVED.
IT IS FURTHER ORDERED

that counsel for the class shall

transmit the Notice and Consent form to all potential class members
via U.S. mail and email, both work and personal (if available),
within thirty (30) days, or by Monday, May 19, 2014.1
IT IS FURTHER ORDERED that potential class members may opt in
to this collective action if: (1) they have mailed, faxed, or
emailed their Consent form to counsel for the class within sixty
(60) days2 after the Notice and Consent forms have been mailed out
to the class; or (2) they show good cause for any delay.
New Orleans, Louisiana this 4th day of April, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

1

The thirty-day deadline will technically expire on Saturday, May 17,
2014, so he Court will impose the deadline on the closest non-holiday.
2
In the motion, counsel for the class requests that the Court impose a
deadline of forty-five (45) days. (Rec. Doc. 33-1, p. 12). However, this is
inconsistent with the language of the Notice, which provides a deadline of sixty
(60) days. (Rec. Doc. 33-3, p. 2). The Court will therefore impose a sixty-day
deadline.

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