Rodriguez v. Alsalam, Inc. et al

Filing 31

ORDER & REASONS. It is ORDERED that Plaintiff's Motion to Proceed as a Collective Action and for Judicial Notice to Potential Opt-In Plaintiffs (R. Doc. 14 ) is DENIED. Signed by Judge Carl Barbier on 2/17/2017. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CRISTIAN RODRIGUEZ

CIVIL ACTION

VERSUS

NO: 16-6453

ALSALAM, INC., ET AL.

SECTION: “J”(2)

ORDER & REASONS
Before

the

Court

is

Plaintiff,

Cristian

Rodriguez’s

(“Plaintiff”) Motion to Proceed as a Collective Action and for
Judicial Notice to Potential Opt-In Plaintiffs (R. Doc. 14), an
opposition thereto (R. Doc. 28) filed Defendants, Ahmad Dorry,
Alsalam, Inc., Ariyan, Inc., and Discount Max 2, Inc., and a reply
(R. Doc. 26) by Plaintiff. Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds
that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff brings this action against Defendants alleging that
he, and others similarly situated, were not paid a minimum wage of
$7.25 per hour and did not receive proper overtime compensation in
violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§
206, 207. Plaintiff filed his Complaint on May 17, 2016. (R. Doc.
1.) Plaintiff alleges that he was hired by Defendants to work at
a Discount Corner convenience store in New Orleans, Louisiana. Id.
at

2.

Plaintiff’s

responsibilities

included

stocking

shelves,

sweeping, mopping, disposing of garbage, and other manual labor.
Id. Plaintiff asserts that he was paid $600.00 per week, worked up
to twelve hours per day and seven days a week, and was paid only
$7.14 per hour. Id. at 3. Further, for any hours worked in excess
of forty hours per week, Plaintiff alleges that he was only paid
$7.14.

Id.

Plaintiff

also

alleges

that

he

worked

alongside

“numerous” other manual laborers. Id.
Plaintiff alleges that Defendant Alsalam, Inc. (“Alsalam”)
operates the Discount Corner convenience store in New Orleans,
Louisiana. Id. Further, Plaintiff asserts that Alsalam is an
“enterprise” and an “employer”, as defined by the FLSA, that is
engaged in commerce or the production of goods for commerce within
the

meaning

of

the

FLSA.

Id.

Defendant

Ahmad

Dorry

is

the

President, Secretary, and Director of Alsalam, and Plaintiff avers
that Ahmad Dorry had the authority to hire and fire him and other
Alsalam employees. Id. at 5.
On November 1, 2016, Plaintiff filed the present Motion to
Proceed as a Collective Action and for Judicial Notice to Potential
Opt-In

Plaintiffs.

Plaintiff

asks

the

Court

to

conditionally

certify two classes. The first proposed class consists of “[a]ll
individuals who worked or are working for [Alsalam, Inc. or Ahmad
Dorry] during the previous three years and who are eligible for
minimum wage pursuant to 29 U.S.C. § 206 and who did not receive
at least $7.25 per hour.” The second proposed class consists of
2

“[a]ll individuals who worked or are working for [Alsalam, Inc. or
Ahmad Dorry] during the previous three years and who are eligible
for overtime pay pursuant to the FLSA, 29 U.S.C. § 207 and who did
not receive full overtime compensation.” 1 Defendants assert that
Plaintiff has failed to provide a “substantial allegation” that
the putative class members are “substantially similar” or have
been victims of a single decision, policy, or plan that violates
the FLSA. 2 (R. Doc. 28 at 4.) Accordingly, Defendants argue that
the Court should not conditionally certify Plaintiff’s proposed
classes. Plaintiff’s motion is now before the Court on the briefs
and without oral argument.
LEGAL STANDARD
Section 207 of the FLSA provides the mandatory parameters for
overtime pay. 29 U.S.C. § 207. Section 216(b) of the FLSA affords
workers a right of action for violations of these parameters. Id.
§ 216(b). Workers may sue individually or collectively on behalf
of “themselves and other employees similarly situated.” Id. To
participate in a collective action, each employee must give his

1

Plaintiff originally sought to conditionally certify classes that included
all individuals who previously worked or were currently working for Alsalam,
Inc., Ariyan, Inc., Discount Max 2, Inc. or Ahmad Dorry. See (R. Doc. 14-1.)
However, Plaintiff has limited the classes to only those individuals who are or
were employees of Alsalam, Inc. and Ahmad Dorry that were not paid minimum or
overtime wages. See (R. Doc. 28.)
2 Defendants also argue that Plaintiff cannot be a class representative, because
Plaintiff was allegedly paid $7.25 per hour for the initial forty hours he
worked per week and $10.87 for all hours worked in excess of forty hours. (R.
Doc. 28 at 4.) The purpose of Plaintiff’s present motion is to conditionally
certify a putative FLSA class. Accordingly, the Court makes no determination as
to whether Defendants violated the FLSA.

3

consent in writing by notifying the court of his intent to opt in.
Id. “District courts are provided with discretionary power to
implement the collective action procedure through the sending of
notice to potential plaintiffs.” Lima v. Int'l Catastrophe Sols.,
Inc., 493 F. Supp. 2d 793, 797 (E.D. La. 2007). The notice must be
“timely, accurate and informative.” Id. (citing Hoffman-La Roche,
Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
Before disseminating notice to potential plaintiffs, a court
must determine that the named plaintiffs and the members of the
potential collective class are “similarly situated.” Basco v. WalMart Stores, Inc., No. 00-3184, 2004 WL 1497709, at *3 (E.D. La.
July 2, 2004). Courts recognize two methods of determining whether
plaintiffs are sufficiently “similarly situated” to advance their
claims in a single collective action pursuant to § 216(b): the
two-stage class certification approach typified by Lusardi v.
Xerox Corp., 122 F.R.D. 463 (D.N.J. 1988), and the “spurious” class
action approach espoused by Shushan v. Univ. of Colo., 132 F.R.D.
263 (D. Colo. 1990). 3 Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1213-14 (5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). The Fifth Circuit has
never set a legal standard for collective-action certification.

3

Under the Shushan approach, the “similarly situated” inquiry in FLSA collective
action certification is considered to be coextensive with Rule 23 class
certification. In other words, the court looks at “numerosity,” “commonality,”
“typicality” and “adequacy of representation” to determine whether a class
should be certified. Mooney, 54 F.3d at 1214.

4

Portillo v. Permanent Workers, LLC, No. 15-30789, ---F. App’x --, 2016 WL 6436839, at *2 (5th Cir. Oct. 31, 2016) (citing Roussell
v. Brinker Int’l, Inc., 441 F. App’x 222, 226 (5th Cir. 2011)
(internal quotations omitted)). However, Lusardi is the prevailing
approach among the district courts in this circuit and around the
country. See id. at *3 n.14 (noting that most courts have adopted
or approved the Lusardi approach); see also Banegas v. Calmar
Corp., No. 15-593, 2015 WL 4730734, at *3 (E.D. La. Aug. 10, 2015).
The Lusardi approach comprises two stages. Acevedo, 600 F.3d
at 519; Mooney, 54 F.3d at 1213. First, during the “notice stage,”
the court conducts an initial inquiry of “whether the putative
class members’ claims are sufficiently similar to merit sending
notice of the action to possible members of the class.” Acevedo,
600 F.3d at 519; accord Mooney, 54 F.3d at 1213-14. Courts usually
base this decision upon “the pleadings and any affidavits which
have been submitted.” Mooney, 54 F.3d at 1214. Because of the
limited evidence available at this stage, “this determination is
made using a fairly lenient standard, and typically results in
‘conditional

certification’

of

a

representative

class.”

Id.

(footnote omitted). Although the standard is lenient, “it is by no
means automatic.” Lima, 493 F. Supp. 2d at 798. If the court
conditionally certifies the class, putative class members are
given notice and the opportunity to opt in. Mooney, 54 F.3d at

5

1214. The case then proceeds through discovery as a representative
action. Id.
The

second

stage

is

usually

triggered

by

a

motion

for

decertification filed by the defendant, typically “after discovery
is largely complete and more information on the case is available.”
Acevedo, 600 F.3d at 519. At this stage, the court “makes a final
determination of whether all plaintiffs are sufficiently similarly
situated to proceed together in a single action.” Id. If the
plaintiffs are not similarly situated, the court decertifies the
class, and the opt-in plaintiffs are dismissed without prejudice.
Mooney, 54 F.3d at 1214.
DISCUSSION
The

fundamental

inquiry

presented

at

the

conditional

certification stage is whether the named plaintiff and members of
the

potential

collective

class

are

“similarly

situated”

for

purposes of § 216(b). Lopez v. Hal Collums Constr., LLC, No. 154113, 2015 WL 7302243, at *5 (E.D. La. Nov. 18, 2015). The FLSA
does not define the term “similarly situated,” and the Fifth
Circuit has “not ruled on how district courts should determine
whether

plaintiffs

are

sufficiently

‘similarly

situated’

to

advance their claims together in a single § 216(b) action.” Prejean
v. O’Brien’s Response Mgmt., Inc., No. 12-1045, 2013 WL 5960674,
at *4 (E.D. La. Nov. 6, 2013) (quoting Acevedo, 600 F.3d at 51819). Rather, this determination requires a fact-intensive, ad hoc
6

analysis. Id. at *5; Kuperman v. ICF Int’l, No. 08-565, 2008 WL
4809167, at *5 (E.D. La. Nov. 3, 2008). Although a lenient standard
is applied at the notice stage, “the court still requires at least
‘substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan [that
violated the FLSA].’” H & R Block, Ltd. v. Housden, 186 F.R.D.
399, 400 (E.D. Tex. 1999) (citation omitted) (quoting Mooney, 54
F.3d at 1214 n.8). Conditional certification is appropriate when
there

is

“a

demonstrated

similarity

among

the

individual

situations . . . [and] some factual nexus which binds the named
plaintiffs and the potential class members together as victims of
a particular alleged [policy or practice].” Xavier v. Belfor USA
Grp., Inc., 585 F. Supp. 2d 873, 877-78 (E.D. La. 2008). As
mentioned

above,

this

determination

is

usually

based

on

the

pleadings and any affidavits that have been submitted. Mooney, 54
F.3d at 1214.
Plaintiff submitted an unsworn declaration under penalty of
perjury to support his position that there are other workers who
are similarly situated to him. (R. Doc. 14-2.) Plaintiff states
that he worked at the Discount Corner store located in Orleans
Parish, Louisiana. Id. Plaintiff also says that he was hired as a
laborer to stock shelves, sweep, mop, and dispose of the store’s
garbage. Id. Plaintiff asserts that he worked alongside other

7

laborers employed by Ahmad and that these laborers worked the same
shifts and were paid the same amount as him.
Although

the

standard

for

4

conditional

certification

is

lenient, it is not automatic. Wellman v. Grand Isle Shipyard, Inc.,
No. 14-831, 2014 WL 5810529, at *3 (E.D. La. Nov. 7, 2014) (citing
Lima, 493 F. Supp. 2d at 798). The Court finds that Plaintiff’s
declaration is insufficient to prove that a potential class of
“similarly situated” individuals exists. See Crowley v. Paint &
Body Experts of Slidell, Inc., No. 14-172, 2014 WL 2506519, at *7
(E.D. La. June 3, 2014) (citing Stiles v. F.F.E. Transp. Serv.,
Inc., No. 09-1535, 2010 WL 935469 (N.D. Tex. Mar 15, 2010) (noting
that vague and conclusory statements are insufficient evidence of
a single policy, decision, or plan). Plaintiff’s declaration fails
to allege that he and the putative class members were victims of
a singular decision, policy, or practice. See Mooney, 54 F.3d at
1214 n.8. Furthermore, Plaintiff has not provided affidavits from
any other employee employed by Ahmad Dorry who worked at Alsalam;
indeed,

Plaintiff

fails

to

even

name

or

identify

any

other

individuals who were not paid overtime or minimum wage by Ahmad
Dorry at Alsalam. Moreover, there is no suggestion that other

4 Plaintiff also states in his declaration that he spoke to a person named
Reynerio, who works at another store, and that Reynerio did not receive overtime
pay. (R. Doc. 14-2.) However, this assertion does not demonstrate that there
are other similarly situated employees who were not paid overtime or minimum
wage and worked for Ahmad Dorry at Alsalam, because Reynario did not work for
Ahmad Dorry at Alsalam.

8

individuals who worked for Ahmad Dorry at Alsalam desire to join
this class. This Court has declined to conditionally certify an
FLSA class under nearly identical conditions and declines to do so
in this case. See Crowley, 2014 WL 2506519, at *7-8 (denying
unopposed motions for conditional certification of FLSA class when
plaintiffs did not provide affidavits from any other employees,
failed to name or identify any other individuals who were not paid
overtime, and did not even suggest other individuals desired to
opt in).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Proceed as a
Collective Action and for Judicial Notice to Potential Opt-In
Plaintiffs (R. Doc. 14) is DENIED.
New Orleans, Louisiana this 17th day of February, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

9