Banegas v. Calmar Corporation et al

Filing 29

ORDER AND REASONS granting 12 Motion to Certify Class. Signed by Judge Ivan L.R. Lemelle on 8/6/2015. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOEL BANEGAS

CIVIL ACTION

VERSUS

NO. 15-593

CALMAR CORPORATION

SECTION “B”(1)

ORDER AND REASONS

I.

NATURE OF MOTION AND RELIEF SOUGHT
Before

the

Court

is

Plaintiff’s

“Motion

for

Conditional

Class Certification and Judicial Notice” pursuant to 29 U.S.C. §
216(b)

(Rec.

Doc.

12),

in

which

he

seeks

conditional

certification of a class for the purpose of asserting claims for
alleged violations by Defendants of the overtime provisions of
the Fair Labor Standards Act (“FLSA”). Specifically, Plaintiff
alleges

Defendants

did

not

pay

their

employees

overtime

for

hours worked in excess of forty per work week. (Rec. Doc. 12-1).
Defendants

oppose

Plaintiff’s

Motion

(Rec.

Doc.

18),

and

Plaintiff filed a Reply (Rec. Doc. 23). For the reasons that
follow, IT IS ORDERED THAT Plaintiff’s Motion (Rec. Doc. 12) is
GRANTED, as set forth fully below.
II.

FACTS AND PROCEDURAL HISTORY
Plaintiff

“sprayer”

by

Joel

Banegas

Defendants

(“Plaintiff”)

Calmar

1

was

Corporation,

employed
Don

Allen,

as

a

and

Michel D. Richard (“Defendants”).1 (Rec. Doc. 1). Plaintiff’s job
duties

consisted

of

spraying

insulation,

fireproofing,

and

handling other foam and coating products. (Rec. Doc. 12-1 at 6).
As

an

employee

of

Calmar,

Plaintiff

earned

a

cash

wage

of

$12.00-$13.00 per hour. (Rec. Doc. 12-1 at 6). Plaintiff often
worked in excess of 40 hours per work week, but claims to have
only received overtime for the first five hours he worked in
overtime each week.2 (Rec. Doc. 12-1 at 6). Alleging that this
arrangement violated the overtime provisions of the FLSA, 29
U.S.C. § 201, et seq., Plaintiff filed his Complaint in the
instant

action

on

February

25,

2015.

(Rec.

Doc.

1).

In

the

Complaint, Plaintiff alleges that other employees were subjected
to similar arrangements in violation of the provisions of the
FLSA. (Rec. Doc. 1).
Defendant filed an answer presenting defenses under Rule
12(b) and denying the plaintiff’s allegations. (Rec. Doc. 9).
Thereafter, Plaintiff moved for conditional certification of a
class for purposes of bringing a collective action under 29
U.S.C.

§

216(b).

The

potential

opt-in

class

is

defined

to

consist:
of all current and former employees of
Defendants who are or have been employed by
Defendants
during
the
three
years
immediately preceding the filing of this
1

Defendants Allen and Richard are identified as principals or agents of
Defendant Calmar in the Complaint. (See Rec. Doc. 1).

2

For all other overtime hours Mr. Banegas worked he alleges he was only paid
his “straight time” rate of pay. (Rec. Doc. 12-1 at 6).

2

suit as hourly or non-exempt employees and
who, during that period, worked in excess of
forty hours in any work week and failed to
receive premium pay, at the rate of one-anda-half times their regular rate of pay, for
all hours worked in excess of forty in a
workweek.
(Rec. Doc. 1 at 4-5).
More specifically, Plaintiff claims he worked in a group of
2-3 other sprayers, and Defendant employed more than one group
of sprayers. (Rec. Doc. 12-1 at 7). Plaintiff alleges these
other sprayers had essentially the same duties as he did, and at
least some of the other sprayers who worked for Defendant were
not paid for all the overtime hours they worked. (Rec. Doc. 12-1
at 7). The alleged bases for Plaintiff’s personal knowledge

are

his conversations with fellow employees and his observation of
how other employees received payment. (Rec. Doc. 12-1 at

2).

Relying on the foregoing, Plaintiff seeks certification of the
proposed

class

as

defined

and

court

approval

of

a

proposed

notice form.
III. CONTENTIONS OF MOVANT
Plaintiff
establishing

argues
that

he

he
and

has
the

satisfied
potential

his
class

burden

of

members

are

“similarly situated” for purposes of the first step of the twostep Lusardi class certification process generally applied by
District Courts in the Fifth Circuit in the context of FLSA
collective actions. (Rec. Doc. 12-1 at 8). This lenient standard
only

requires

the

Plaintiff
3

to

show

that

the

named

representative and the members of the prospective FLSA class are
connected

by

“some

factual

nexus

which

binds

that

named

plaintiff and the potential class members together as victims of
a particular alleged policy or practice.” (Rec. Doc. 12-1 at 1011).

Plaintiff

similarly

claims

situated

to

he

has

the

presented

other

evidence

putative

class

that

he

members

is
for

purposes of collective discovery and judicial notice. (Rec. Doc.
12-1 at 11).
Plaintiff argues he is similarly situated to the putative
class members for the following reasons: (1) Mr. Banegas and the
potential class members had the same job duties, (2) Mr. Banegas
and

the

potential

class

members

were

all

paid

by

the

same

methods, (3) Mr. Banegas and the potential class members were
paid roughly the same amounts, (4) Mr. Banegas and the potential
class members often worked more that forty hours per week, and
(5) Mr. Banegas and the potential class members did not receive
overtime for hours worked in excess of 40 during any particular
work week. (Rec. Doc. 12-1 at 11-12). Plaintiff believes this
establishes that the action does not arise from circumstances
purely
rule,

personal
policy,

to

or

himself,

practice,

but

from

a

such

that

it

generally
is

applicable

appropriate

resolution by collective process. (Rec. Doc. 12-1 at 12).
IV.

CONTENTIONS OF OPPONENTS

4

for

Defendants contend Plaintiff has failed to carry his burden
of demonstrating that he and members of the proposed class are
“similarly

situated”

for

conditional

certification

purposes.

(Rec. Doc. 18 at 2). Specifically, they argue Plaintiff must
show both that other similarly situated employees exist and also
that

they

intend

to

join

the

suit.

(Rec.

Doc.

18

at

3).

Defendant emphasizes that Plaintiff’s Motion is supported only
by his own affidavit and allegations in pleadings. (Rec. Doc. 18
at 4). They argue additional evidence concerning members of the
potential class is required in order for the Court to grant
conditional certification.
Alternatively,

if

the

Court

grants

conditional

certification, Defendants argue the proposed notice must include
statements

that

any

opt-in

plaintiffs

may

hire

their

own

counsel, and that the opt-in plaintiffs will not be entitled to
any relief if the Court rules in favor of Defendants. (Rec. Doc.
18 at 4).
As
attached

to

the

a

issue

Second

of

the

Proposed

proposed
Notice

notice,
to

his

Plaintiff
Reply,

has

which

incorporates Defendants’ suggestions above. (Rec. Doc. 23 at 6).
On

the

merits,

however,

Plaintiff

argues

conditional

certification does not require a showing of intent to join the
proposed class at the lenient stage-one inquiry. (Rec. Doc. 23
at 2). Plaintiff contends that he only has to show a reasonable
basis for believing that aggrieved individuals exist, and that
5

those aggrieved individuals are similarly situated to him. (Rec.
Doc. 23 at 6).
V.

CONDITIONAL CERTIFICATION STANDARD
A. 29 U.S.C. § 216(b)- Right to Proceed by Collective
Action
Section 16(b) of the FLSA prescribes damages and defines

the right of action for employees against their employers for
violations of the overtime and minimum wage provisions of the
Act. 29 U.S.C. § 216(b). Relevant for present purposes, that
section includes a collective action provision under which a
person may maintain an action: “on behalf of himself . . . and
other employees similarly situated. No employee shall be a party
plaintiff to any such action 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 U.S.C. § 216(b).
B. Certification Procedure
Certification

of

a

FLSA

collective

action

typically

proceeds under a two-step process, sometimes referred to as the
“Lusardi approach.” See, e.g., Mooney v. Aramco Servs. Co., 54
F.3d 1207, 1214 (5th Cir. 1995), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156
L.Ed.2d 84 (2003). Although the Fifth Circuit has refused to
endorse either of the two existing methods of FLSA collective
action certification, Lusardi is the prevailing approach. See
Xavier

v. Belfor USA Group, Inc., 585 F. Supp. 2d 873 (E.D. La.
6

Sep. 23, 2008)(“[I]t is clear that the two-step ad hoc [Lusardi]
approach is the preferred . . . .”); Green v. Plantation of
Louisiana, LLC, No. 10-0364, 2010 WL 5256354, at *4-5 (W.D. La.
Nov.

24,

2010)(“This

method

is

consistent

with

the

Fifth

Circuit’s conclusion in LaChapelle v. Owens-Illinois, Inc. that
‘[t]here is a fundamental, irreconcilable difference between the
class action described by [FRCP] Rule 23 and that provided for
by FLSA § 16(b) . . . .”); THE FAIR LABOR STANDARDS ACT § 19-15 (Ellen
C. Kearns, et al. eds., 2d ed. 2010)[hereinafter, Kearns].
At the first stage, referred to as the
“notice
stage”
or
“conditional
certification” stage, the trial court makes
the determination whether notice of the
action should be given to potential opt-in
plaintiffs and whether the case should
initially proceed as a collective action.
If conditional certification is granted, the
action then proceeds as a representative
action throughout discovery.
At the second stage, the court makes
the determination of whether the case should
continue to be certified as a collective
action
for
trial.
The
second-stage
determination
is
usually
based
on
the
employer’s motion filed at or near the end
of discovery requesting that the court
decertify the case as a collective action.
Kearns, supra, at §19-17, 19-18; see also, Green, supra, at *5.
The fundamental inquiry at both stages is whether the named
plaintiffs and members of the potential FLSA collective class
are “similarly situated” for purposes of Section 16(b). Id.
C. Notice Stage
7

At

the

“fairly

notice

lenient

stage,

district

standard.”

Mooney,

courts
54

typically

F.3d

at

apply

1214.

a

This

requires plaintiffs to make “a modest factual showing that the
putative class members were together the victims of a single
decision,

policy,

practice,

or

plan

that

violated

the

law.”

Kearns, supra, at §§ 19-20, 19-21 (citing, inter alia, Ryan v.
Staff Care, Inc., 497 F. Supp. 2d 820, 825 (N.D. Tex. 2007);
Villatoro v. Kim Son Rest., L.P., 286 F. Supp. 2d 807, 810 (S.D.
Tex.

2003)).

The

Court

decides,

“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.
Green, supra, at *5 (citing Mooney, 54 F.3d at 1213).
Section

16(b)

does

not

define

the

term

“similarly

situated.” Thus, “[w]hether employees are ‘similarly situated’
for purposes of the FLSA is determined in reference to various
factors,

including

their

‘job

requirements

and

.

.

.

pay

provisions.’” Xavier, 585 F. Supp. 2d at 877 (citing Lima v.
Int’l Catastrophe Solutions, Inc., 493 F. Supp. 2d 793, 798
(E.D. La. 2007)). Such a determination is appropriate when there
is “a demonstrated similarity among the individual situations .
. . some factual nexus that binds the named plaintiffs and the
potential

class

members

together

as

victims

of

a

particular

alleged policy or practice.” Id. at 877-78 (internal citations
and quotation marks omitted). A plaintiff’s right to proceed
collectively

under

the

FLSA

may
8

be

foreclosed

only

if

“the

action

relates

plaintiff

to

rather

practice.”

Id.

specific
than

any

(citing

circumstances
generally

Crain

v.

personal

applicable

Helmerich

and

to

the

policy
Payne

or

Int’l

Drilling Co., No. 92-0043, 1992 WL 91946 (E.D. La. Apr. 16,
1992)).

Overall

the

evidence

needed

is

minimal,

and

the

existence of some variations between potential claimants is not
determinative

of

lack

of

similarity.

Prejean

v.

O’Brien’s

Response Management, Inc., No. 12-1045, 2013 WL 5960674 at *8
(E.D. La. Nov. 6, 2013).
Finally,

in

determining

whether

to

grant

conditional

certification at the notice stage, courts must be conscious of
their duty to “refrain from stirring up unwarranted litigation.”
Xavier,

585

F.

Supp.

2d

at

878

(citing

Lentz

v.

Spanky’s

Restaurant II, Inc., 491 F. Supp. 2d 663, 668-69 (N.D. Tex.
2007)). Employers should not be unduly burdened by a frivolous
fishing

expedition

defendants’

conducted

expense.

by
585

Xavier,

the
F.

plaintiffs
Supp.

2d

at
at

the
878.

Nevertheless, “a collective action can be an effective mechanism
for resolving common issues in one consolidated action.” Green,
supra,

at

(1989)).
efficiency

*6

(citing

Accordingly,
of

Hoffman-La
courts

aggregating

Roche,

must

claims

493

“strive

in

one

U.S.
to

action

165,

170

balance

the

against

the

expense and inconvenience of frivolous litigation.” Id. (citing
Sims v. Housing Auth. City of El Paso, No. 10-109, 2010 WL
2900429,

*2

(W.D

Tex.

Jul.

19,
9

2010)).

This

Court

also

recognizes that “requiring individualized adjudication of each
claim would undermine the broad remedial purposes of the FLSA,
which

affords

plaintiffs

‘the

advantage

of

lower

individual

costs to vindicate rights by pooling their resources’ thereby
benefitting the ‘judicial system . . . by efficient resolution
in one proceeding of common issues of law and fact.” West v.
Lowes Home Centers, Inc., No. 09-1310, 2010 WL 5582941 at *3
(W.D. La. Dec. 16, 2010) report and recommendation adopted, 2011
WL 126908 (W.D. La. Jan. 14, 2011)(quoting Hoffman-La Roche Inc.
v. Sperling, 493 U.S. 165, 170 (1989)).
At

the

substantial

notice

stage,

allegations

courts

that

the

require
putative

nothing

than

members

class

more

were

together the victims of a single decision, policy, or plan.
Prejean, 2013 WL 5960674 at *4. (citing Mooney, 54 F.3d 1207 at
1213-14,

n.

8).

decertification
been

conducted,

The

employer

after
if

a

it

more
is

may

later

extensive

determined

file

a

discovery

at

that

motion

for

process

has

stage

that

the

plaintiff has failed to carry his burden of establishing that he
and members of the proposed class are similarly situated. Id.
VI.

DISCUSSION
A. Conditional Certification
As noted above, Defendant contests the appropriateness of

conditional certification here, where the motion is supported
only

by

allegations

in

pleadings

and

Plaintiff’s

affidavit.

Defendant thereby focuses on an alleged failure by Plaintiff to
10

show that members of the proposed class have an interest or
desire to join in this proposed FLSA collective action. This,
however,

misconstrues

the

plaintiff’s

burden

at

the

lenient

stage-one notice phase.
Taken to its logical conclusion, Defendant’s argument would
result in a categorical rule that conditional certification of a
proposed FLSA collective action is never appropriate where the
complaint is not joined by multiple named plaintiffs, or where
the

named

plaintiff

does

not

attach

affidavits

of

other

potential class members who express an interest in joining the
action.

This

focus

on

the

intent

of

potential

opt-in

class

burden

under

members has no statutory basis in the FLSA.
As

explained

above,

the

plaintiff’s

only

Section 16(b) is to establish that he is “similarly situated” to
members of the proposed opt-in class. Indeed, courts considering
proposed FLSA collective action certification motions at this
phase are typically confronted with disputes concerning whether
a group of identified employees were indeed subjected to similar
conditions of employment, such that collective treatment would
be efficient. Less common is the sort of dispute presently at
issue,

where

one

party

challenges

whether

there

has

been

a

sufficient showing as to other individuals’ intent to join the
proposed
provisions
analysis

action.
have

Further,
recognized

requires

the

courts
that,

plaintiff
11

applying

at
to

its

applicable

core,

show,

at

the

FLSA

stage-one

least,

that

similarly

situated

individuals

exist.

As

noted

above,

the

evidentiary burden at the stage-one inquiry is lenient. See,
e.g., Mooney, 54 F.3d at 1214 (“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.”);

see

also

Donohue

v.

Francis

Services, Inc., 2004 WL 1161366 (E.D. La. May 24, 2004)(“At the
notice

stage,

substantial

courts

allegations

appear
that

to

require

the

putative

nothing

than

members

class

more

were

together the victims of a single policy, and it is made applying
a fairly lenient standard.”). Here, Plaintiff alleges that he
worked in a group of 2-3 other sprayers, and that Defendant
employed more than one group of sprayers. Plaintiff claims that
these

other

Plaintiff
policy.

sprayers

did,

and

Finally

individuals

were

he

had
were

“essentially
compensated

alleges

personal

compensated,

based

the

same

duties”

pursuant

to

a

knowledge

of

how

on

as

similar

conversations

other
and

observation. Thus, Plaintiff has established a likelihood that a
group of individuals situated similarly to him exists, and that
the Court should therefore exercise its discretion to facilitate
notice of this action to those individuals. See also, Perkins v.
Manson Gulf, L.L.C., No. 14-2199, 2015 WL 771531, at *3-4 (E.D.
La. Feb. 23, 2015)(“[Defendant] emphasizes that plaintiff has
not identified any other particular individual who is interested
in joining the class, and it asserts that this is a sufficient
12

reason

to

Circuit,

deny

there

plaintiff's
is

no

motion.

categorical

However,

rule

that

‘in

the

Fifth

Plaintiffs

must

submit evidence at this time that other [individuals] seek to
opt-in to this case.’”)(citing White v. Integrated Elec. Section
Techs., Inc., No. 11-2186, 12-359, 2013 WL

2903070, at *7 (E.D.

La. Jun. 13, 2013); Villareal v. St. Luke’s Episcopal

Hosp.,

751 F. Supp. 2d 902, 915-16 (S.D. Tex. 2010)).
This court recognizes its duty to avoid burdening employers
with frivolous fishing expeditions. However, this consideration
must be weighed against the overall purpose of the FLSA, which
seeks

to

promote

judicial

efficiency,

and

remediation

of

statutory violations by permitting a plaintiff to proceed on
behalf of himself and similarly situated individuals. The Court
is reluctant to adopt a stricter rule, which is not clearly
statutorily-mandated,

requiring

a

plaintiff

to

collect

additional affidavits from potential opt-in class members who
have the intent to join the action. When more discovery has been
completed, if potential class members have opted in, Defendants
may move for decertification in the event Plaintiff does not
meet the higher standard required under stage-two. Finally, the
Court notes that because the FLSA collective action procedures
require potential class members to opt in, as opposed to the
traditional class action procedures applied under Fed. R. Civ.
P. 23 (which requires potential class members to opt out), there
is additional reason to apply a more lenient standard here,
13

where

there

is

no

risk

of

the

named

plaintiff

adjudicating

rights of other individuals without their consent. If indeed
members of the proposed class do not desire to join the suit,
they are well within their rights not to do so. Accordingly,
Defendant’s concern appears to be primarily with the likelihood
that similarly situated individuals will, in fact, desire to
opt-in to the proposed collective action, rather than with any
failure of the plaintiff to establish the likely existence of
any such individuals. This is not a valid or recognized basis
for denying conditional certification under the FLSA.
In light of the foregoing, IT IS ORDERED THAT Plaintiff’s
Motion is GRANTED, IN PART, so as to conditionally certify the
proposed class as defined in Plaintiff’s Motion.
B. Judicial Notice
Plaintiff submitted a proposed notice form along with his
original motion. (Rec. Doc. 12-4,5). Defendants proposed that
the notice should contain two additional statements if the court
agrees to grant Plaintiff’s motion. (Rec. Doc. 18). Plaintiff
agreed to modify the notice to reflect Defendant’s suggestions.
(Rec.

Doc.

agreement

of

Plaintiff’s

23).
the
Motion

These

issues

parties.
for

are

best

Accordingly,

Judicial

Notice

resolved
IT
is

IS

by

mutual

ORDERED

GRANTED,

on

THAT
the

condition that the parties be directed to meet, confer, and

14

thereafter submit to the Court a joint proposal of notice no
later than twenty-one days of entry of the Court’s order.
VII. CONCLUSION
In light of the foregoing, IT IS ORDERED THAT Plaintiff’s
Motion (Rec. Doc. 12) be GRANTED, certifying the proposed class
as defined, and approving the proposed notice form, subject to
the conditions above pertaining to joint submission.
New Orleans, Louisiana, this 6th day of August, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

15