Castellanos v. Saints & Santos Construction, LLC et al

Filing 129

ORDER AND REASONS granting 60 Motion to Certify Class as set forth in document. Signed by Judge Ivan L.R. Lemelle on 5/4/2017. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSE CASTELLANOS

CIVIL ACTION

VERSUS

NO. 16-2501

SAINTS & SANTOS CONSTRUCTION,
L.L.C., ET AL.

SECTION “B”(2)

ORDER AND REASONS
Before the court is Plaintiff Jose Castellanos’ “Motion for
Conditional

Class

Certification,

Judicial

Notice,

and

for

Disclosure of the Names and Addresses of the Potential Opt-In
Plaintiffs” (Rec. Doc. 60) and Defendants’ opposition thereto.
(Rec. Docs. 74, 79). Further considering oral argument received on
May 1, 2017 at 10:00 a.m., IT IS ORDERED that the motion is
GRANTED1. IT IS FURTHER ORDERED THAT:
1) The following class is conditionally certified for the
purposes of Plaintiffs’ collective action claims: “ All
employees of Saints & Santos Construction who performed
or are performing manual labor for Saints & Santos
Construction during the previous two years, January 2015
to May 2017, and who are eligible for overtime pay

Since other orders dismissed Defendants Palmisano Contractors,
LLC and Rufino’s Painting and Construction Inc., this
conditional class certification only applies to remaining
Defendants Saints and Santos Construction, LLC and Wiliomar
Oliveira.
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pursuant to the FLSA, 29 U.S.C. § 207 and who did not
receive full overtime compensation.”
2) Parties are ordered to meet, confer, and thereafter
submit to the Court a joint proposal of notice not later
than seven (7) days after the entry of the Court’s Order.
3) Defendants shall, within fourteen (14) days of the date
of this Order, provide Plaintiff’s counsel with all
potential

opt-in

plaintiffs’

names

and

last

known

mailing address.
4) Following submission of the notice to opt-in, Plaintiff
Consent forms must be postmarked and deposited in the
U.S. Mail on or before forty-five (45) following the
first mailing of the Notice.
5) Each form shall be marked with the date received by
counsel, and Consents to join will be treated as filed
on the date marked, so long as they are filed with the
Court within one week of the date marked.
Palmisano

Contractors,

LLC2

(“Palmisano”)

is

a

general

contractor that performed a construction project at the Ace Hotel.
(Rec.

Doc.

14).

Palmisano

had

subcontracted

certain

work

to

Rufino’s Painting and Construction, Inc. (“Rufino’s.”) (Rec. Doc.
32-2). In turn, Rufino’s contracted out a portion of the project

Defendant Palmisano was dismissed in this Court’s February 24th,
2017 order (Rec. Doc. 93).
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2

to Saints & Santos Construction, LLC (“S&S.”) (Rec. Doc. 32-3).
Plaintiff Jose Castellanos alleges he was not properly compensated
for overtime while working for S&S at “various job sites in
Louisiana.” (Rec. Doc. 14).
Castellanos worked alongside numerous other workers at S&S
jobsites. (Rec. Doc. 60-2). Castellanos’ primary duties involved
manual labor, sanding, painting, and installing drywall. (Rec. Doc.
60-2). Castellanos and his fellow workers, about 30 in total, had
similar job duties, took similar breaks, and averaged between 5560

hours

of

work

per

week. (Rec.

Doc.

60-2;

60-3).

Through

conversations, Castellanos discovered other workers were not paid
at overtime rates for hours worked in excess of 40. (Rec. Doc. 602). Among these workers include Jose Cruz who has opted-in as a
Plaintiff. (Rec. Doc. 59)
After receiving a copy of the complaint, S&S assessed the
overtime payments due to workers under hire at the Ace Hotel
project and sent, through certified mail, checks for the unpaid
overtime wages. (Rec. Docs. 79-1; 79-2; 79-3; 79-4; 79-5). Some of
these checks were returned as undeliverable, others were delivered
and not cashed, and some were delivered and cashed. (Rec. Docs.
79-1; 79-2; 79-3; 79-4; 79-5). S&S sent Castellanos a check through
his counsel, but to date he has not cashed it. (Rec. Doc. 79).
Cruz was also sent a check, but it was returned to S&S as
undeliverable. (Rec. Doc. 79-4). Plaintiff now moves to certify a
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conditional class of similarly situated individuals and provide
them judicial notice of their eligibility to opt-in. (Rec. Doc.
60).
The Fair Labor Standards Act sets a general minimum wage for
employees

engaged

employers

are

in

commerce.

required

to

29

U.S.C.

compensate

§206(a)(1).

nonexempt

Covered

employees

at

overtime rates for time worked in excess of statutorily defined
maximum hours.

29 U.S.C. §207(a). The FLSA creates a cause of

action for violations of provisions of the Act, which include the
minimum wage and overtime provisions. 29 U.S.C. §216(b).
The Fair Labor Standards Act allows laborers the right to sue
collectively on behalf of themselves and others similarly situated
for overtime wage violations. 29 U.S.C. §216(b); Hoffman La-Roche,
Inc. v. Sperling, 493 U.S. 165 (1989). Unlike a class action
brought under Fed. R. Civ. Proc. 23, a collective action under the
FLSA requires potential plaintiffs to “opt in.” Mooney v. Aramco
Servs., 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 90-91 (2003).
District courts have discretion, when appropriate, to facilitate
notice to potential plaintiffs. Hoffman-La Roche Inc., 493 U.S. at
169-170. District courts in the Fifth Circuit employ a two-step
approach to determine whether a collective action should proceed.
Boudreaux v. Schlumberger Tech. Corp., Case No. 6:14-2267, 2015 WL
796602 at*4 (W.D. La. Feb. 25, 2015).
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The first step is the notice stage, whereby the district court
assesses whether or not putative class members are given notice
and the opportunity to opt-in. Donahue v. Francis Servs., Inc.,
Case No. Civ. A. 04-170, 2004 WL 1161366 at*1 (E.D. La. May 24,
2004).

At

this

stage,

it

must

be

shown

that

the

named

representative and members of the potential class are similarly
situated. Green v. Plantation of Louisiana, LLC, Case No. 2:100364, 2010 WL 5256354 at*3 (W.D. La. Nov. 24, 2010). In addition
to

being

similarly

situated,

it

must

be

shown

there

exist

“substantial allegations that putative class members were together
the victims of a single decision, policy, or plan infected by
discrimination.” Mooney, 54 F.3d at 1213-1214. The plaintiff’s
burden at this stage is “not particularly stringent.” Hipp v.
Liberty National Life Ins. Co., 252 F.3d 1208, 1213 (11th Cir.
2001). The Fifth Circuit observed that because the court has
minimal evidence at this stage, a conditional certification is
viewed under a “fairly lenient standard.” Mooney, 54 F.3d at 1214.
At the second stage, a defendant may file for a motion for
decertification after more discovery has taken place. Id. at 12131214.
At this stage, the court has much more information on
which to base its decision, and makes a factual
determination on the similarly situated question. If
the claimants are similarly situated, the district
court allows the representative action to proceed to
trial. If the claimants are not similarly situated,
the district court decertifies the class, and the opt5

in plaintiffs are dismissed without prejudice. The
class representatives-i.e. the original plaintiffsproceed to trial on their individual claims. Id. at
1214.
Here,

the

Plaintiffs

have

met

the

requirements

for

conditional class certification. Allegations contained in the
complaint and declarations sufficiently allege S&S employees were
not paid at the overtime rate for work in excess of 40 hours per
week. (Rec. Docs. 14, 60-2, 60-3). Both Castellanos and Cruz state
in their sworn declarations that other co-workers too were not
paid at the overtime rate. (Rec. Docs. 60-2, 60-3). Further, the
workers were similarly situated as they each performed similar
duties, received about the same pay, and had similar schedules and
breaks while working for S&S jobsites. (Rec. Docs. 60-2, 60-3).
The alleged violations are not personal to the plaintiff, but stem
from a common practice or policy regarding overtime pay. Given
these

facts

and

the

lenient

standard

in

deciding

class

certifications per Mooney, the FLSA class should be certified.
Defendant’s

arguments

conditional

class

are

concerning
rejected

the

(Rec.

impropriety
Doc.

74).

of

the

Plaintiffs’

proposed class is expressly limited to those workers for S&S (Rec.
Doc. 60-1). As discovery proceeds, defendants may move to decertify
or

modify

the

conditionally

certified

appropriate.

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class

as

defined

if

District

courts

have

discretion

to

facilitate

notice

to

potential opt-in plaintiffs in collective actions. Hoffman LaRoche, 493 U.S. at 174-175 (1989). Plaintiff’s proposed notice
(Rec. Docs. 60-5, 60-6) and Defendants’ objection to certain
language contained in the notice (Rec. Doc. 74) are best resolved
by mutual agreement of the parties. The notice will also be
facilitated by Defendants disclosing the names and last known
address

of

the

potential

opt-in

plaintiffs,

which

should

be

provided no less than two weeks after signing of the order.
Recognizing that a 90-day opt-in period would interrupt the court’s
scheduling order, a 45-day opt-in period better serves the remedial
provisions of the FLSA.
Defendant S&S contends the alleged FLSA violations are moot
as a result of the settlement offers via checks. (Rec. Doc. 791). The Supreme Court has made clear that “an unaccepted settlement
offer has no force.” Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663,
665 (2016). Absent Castellanos’ acceptance, the settlement offer
remained “only a proposal” binding neither party. Id. The action
remains justiciable.

New Orleans, Louisiana, this 4th day of May 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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