Maldonado v. New Orleans Millworks, LLC et al
Filing
55
ORDER AND REASONS granting 39 Motion to Certify Class as stated herein. Signed by Judge Carl Barbier on 3/13/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OSMAN MALDONADO
CIVIL ACTION
VERSUS
No.: 17-1015
NEW ORLEANS MILLWORKS,
LLC, ET AL.
SECTION: “J”(5)
ORDER & REASONS
Before
the
Court
is
a
Motion
for
Conditional
Class
Certification, Judicial Notice, and for Disclosure of the Names
and Addresses of Potential Opt-In Plaintiffs (Rec. Doc. 39) filed
by Plaintiffs, Osman Maldonado, Josue Nunez, Mauricio Hernandez,
and Marvel Guerrero; an opposition thereto (Rec. Doc. 41) filed by
Defendants, O&G Construction, LLC and Olan David Del Arca Sabat;
another opposition (Rec. Doc. 42) filed by Defendants, New Orleans
Metalworks, Inc. and David Waldheim; and Plaintiffs’ reply (Rec.
Doc. 53).
Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion
should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This
is
a
collective
action
filed
by
Plaintiffs,
Osman
Maldonado, Josue Nunez, Mauricio Hernandez, and Marvel Guerrero,
under the Fair Labor Standards Act of 1938 (“FLSA”). 1 Plaintiffs
brought this suit on behalf of themselves and all others similarly
1
29 U.S.C. § 201 et seq.
situated to recover allegedly unpaid overtime wages for manual
work they performed for Defendants, O&G Construction, LLC, Olan
David Del Arca Sabat, New Orleans Metalworks, Inc, and David
Waldheim.
O&G
Construction,
LLC
(“O&G”)
is
a
commercial
construction company that is owned and managed by Olan David Del
Arca Sabat and specializes in providing manual labor for general
contractors,
including
NOMW,
by
owned
David
New
Orleans
Waldheim,
is
Metalworks,
a
general
Inc.
(“NOMW”).
contractor
that
provides construction services in the greater New Orleans area. 2
NOMW allegedly engaged O&G to provide labor for its jobsites.
Plaintiffs allege that they were hired by O&G as laborers prior to
March 2015 to perform work such as painting, sheet-rocking, and
finishing.
Initially,
this
lawsuit
was
brought
by
Plaintiff
Osman
Maldonado against New Orleans Millworks (“Millworks”) and its
owner Scott Taranto. (Rec. Doc. 1.)
By two subsequent amendments
to his complaint, Plaintiff Maldonado added O&G and Olan David Del
Arca Sabat and replaced Millworks and Scott Taranto with NOMW and
David Waldheim as Defendants. (Rec. Docs. 4, 9.)
On June 8, 2017,
the Court granted in part and denied in part NOMW’s Motion to
Dismiss, holding that Plaintiff Maldonado had adequately alleged
2
In the interest of simplicity, the Court will refer to O&G when addressing
claims against both O&G and its owner, Olan David Del Arca Sabat. Likewise,
the Court will refer to NOMW when addressing claims against both NOMW and its
owner, David Waldheim.
2
an individual FLSA overtime claim but had not sufficiently pleaded
a FLSA collective action. (Rec. Doc. 32 at 7, 9.)
The Court
granted Plaintiff an additional twenty-one (21) days to file an
amended complaint alleging a FLSA collective action. Id. at 10.
On June 16, 2017, a third amended collective action complaint was
filed by Osman Maldonado, Josue Nunez, Mauricio Hernandez, and
Marvel
Guerrero
(collectively,
“Plaintiffs”)
on
behalf
of
themselves and others similarly situated. (Rec. Doc 35.) On August
22, 2017, Plaintiffs filed the instant Motion for Conditional Class
Certification, Judicial Notice, and for Disclosure of the Names
and Addresses of Potential Opt-In Plaintiffs (Rec. Doc. 39.)
Defendants opposed the motion (Rec. Docs. 41, 42), and Plaintiffs
filed a reply (Rec. Doc. 53).
The motion is now before the Court
on the briefs and without oral argument.
PARTIES’ ARGUMENTS
Plaintiffs seek to maintain their FLSA claim as a collective
action pursuant to 29 U.S.C. § 216(b).
As such, Plaintiffs move
the Court to conditionally certify a collective action of employees
limited to the following:
All individuals who worked or are working performing
manual
labor
for
O&G
Construction,
LLC,
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.
3
(Rec. Doc. 39-1 at 5.)
Plaintiffs argue that the allegations in their complaint as
well
as
their
attached
sworn
declarations
and
timesheets
demonstrate clear violations of the FLSA that are not personal to
Plaintiffs, but rather are part of Defendants’ general policy not
to pay their employees overtime.
O&G foremen allegedly supervised
Plaintiffs and would send the employees’ timesheets to a NOMW
supervisor.
Plaintiffs allege that they and their co-workers were
paid by check bearing the name O&G Construction, LLC, and would be
paid an hourly rate regardless of the number of hours that they
worked per week and that they often worked in excess of 40 hours
per week.
Plaintiffs argue that this information establishes that
there is likely a group of similarly situated individuals entitled
to receive notice of this lawsuit.
Defendants
argue
that
Id. at 13-14.
Plaintiffs
cannot
demonstrate
existence of a class of similarly situated individuals.
O&G
opposes
conditional
class
certification,
arguing
the
First,
that
Plaintiffs have failed to establish that they were the victims of
a single decision, policy, or plan.
Defendants also assert that
the Plaintiffs’ proposed class definition violates Federal Rule
Civil Procedure 20(a)(2) regarding the joinder of defendants.
Because NOMW and O&G are both named Defendants in the litigation,
Defendants argue that the potential class must be comprised of
employees who have worked for both NOMW and O&G, rather than
4
limiting
the
exclusively.
class
to
current
and
(Rec. Doc. 41 at 2.)
former
employees
of
O&G
NOMW also filed an opposition
to the motion, adopting and incorporating by reference O&G’s
arguments
and
further
contending
that
conditional
class
certification is improper because Plaintiffs have not established
their status as employees. (Rec. Doc. 42 at 1.)
LEGAL STANDARD
The FLSA “establishes the general rule that employees must
receive overtime compensation at one and one-half times the regular
rate for hours worked in excess of 40 hours during a seven-day
workweek.”
McGavock v. City of Water Valley, Miss., 452 F.3d 423,
424–25 (5th Cir. 2006) (citing 29 U.S.C. § 207).
The FLSA affords
workers a right of action for violations of this rule.
§ 216(b).
29 U.S.C.
Such workers may sue individually or collectively on
behalf of “themselves and other employees similarly situated.”
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).
be “timely, accurate, and informative.”
Roche,
Inc.,
v.
Sperling,
493
U.S.
The notice must
Id. (citing Hoffman-La
165,
172
(1989)).
To
participate in a collective action, each employee must give his
consent in writing by notifying the court of his intent to opt in.
29 U.S.C. § 216(b).
5
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.
Wal-Mart Stores, Inc., 00-3184, 2004 WL 1497709, at *3 (E.D. La.
July 2, 2004).
The FLSA does not define the term “similarly
situated.” See 29 U.S.C. § 207; see also Prejean v. O’Brien’s
Response Mgmt., Inc., 12-1045, 2013 WL 5960674, at *4 (E.D. La.
Nov. 6, 2013).
courts
have
However, the Fifth Circuit has recognized that
followed
two
methods
of
determining
whether
the
putative class members are “similarly situated” and whether notice
should
be
given:
the
two-stage
class
certification
approach
typified by Lusardi v. Xerox Corp. 3 and the “spurious” class action
approach espoused by Shushan v. University of Colorado. 4 The Fifth
Circuit has expressly refused to endorse either method over the
other.
See Roussell v. Brinker Int'l, Inc., 441 F. App’x 222,
226 (5th Cir. 2011) (citing Mooney v. Aramco Servs. Co., 54 F.3d
1207,
1213-14
&
n.7
(5th
Cir.
1995)).
However,
this
Court
traditionally follows the Lusardi two-step analysis to determine
whether plaintiffs are similarly situated and will do so here.
See, e.g., Banegas v. Calmar Corp., 15-593, 2015 WL 4730734, at *3
3
122 F.R.D. 463 (D.N.J. 1988).
132 F.R.D. 263 (D. Colo. 1990). Under the Shushan approach, the “similarly
situated” inquiry in FLSA collective action certification is considered to be
coextensive with Fed. R. Civ. P. 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.
4
6
(E.D.
La.
Aug.
10,
2015)
(applying
the
Lusardi
standard
to
determine that employees were sufficiently similarly situated to
justify proceeding as a collective action); Lang v. DirecTV, Inc.,
10-1085, 2011 WL 6934607, at *7 (E.D. La. Dec. 30, 2011) (noting
that
the
Lusardi
approach
is
“the
more
common
approach
and
routinely used by courts in this District”).
The Lusardi approach is comprised of two stages. First, during
the
“notice
stage,”
the
Court
determines
whether
to
grant
“conditional certification” and issue notice to potential members
of the putative collective class.
See Chapman v. LHC Grp., Inc.,
13-6384, 2015 WL 5089531, at *5 (E.D. La. Aug. 27, 2015).
In other
words, the Court conducts an initial inquiry into “whether the
putative class members’ claims are sufficiently similar to merit
sending notice of the action to possible members of the class.”
Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519
(5th Cir. 2010).
Courts usually base this decision upon “the
pleadings and any affidavits that have been submitted.”
54 F.3d. at 1214.
Mooney,
At the notice stage, the burden is on the
plaintiff to demonstrate that “(1) there is a reasonable basis for
crediting the assertion that aggrieved individuals exist; (2)
those
aggrieved
individuals
are
similarly
situated
to
the
plaintiff in relevant respects given the claims and defenses
asserted; and (3) those individuals want to opt in to the lawsuit.”
Chapman, 2015 WL 5089531, at *5.
Because of the limited evidence
7
available at this stage, “this determination is made using a fairly
lenient
standard,
and
typically
results
certification’ of a representative class.”
1214 (footnote omitted).
by no means automatic.”
in
‘conditional
Mooney, 54 F.3d at
Although the standard is lenient, “it is
Lima, 493 F. Supp. 2d at 798.
Generally,
courts “require nothing more than substantial allegations that the
putative class members were together the victims of a single
decision, policy, or plan . . . .”
(citation omitted).
Mooney, 54 F.3d at 1214 n.8
If the court conditionally certifies the
class, putative class members are given notice and the opportunity
to opt in.
Id. at 1214.
The case then proceeds through discovery
as a representative action.
Id.
The second stage of the Lusardi approach 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 applies a three-factor test, “considering (1) the extent to
which employment settings are similar or disparate; (2) the extent
to which any of the employer’s defenses are common or individuated;
and (3) fairness and procedural concerns.”
Chapman, 2015 WL
5089531, at *6 (citing Kuperman v. ICF Int'l, No. CIV.A. 08-565,
2008 WL 4809167, at *5 (E.D. La. Nov. 3, 2008)).
Then, the court
“makes
plaintiffs
a
final
determination
of
whether
all
are
sufficiently similarly situated to proceed together in a single
8
action.”
Acevedo, 600 F.3d at 518-19. “If the claimants are
similarly situated, the district court allows the representative
action to proceed to trial.”
Mooney, 54 F.3d at 1214.
If the
plaintiffs are not similarly situated, the court decertifies the
class, the opt-in plaintiffs are dismissed without prejudice, and
the class representatives proceed to trial on their individual
claims.
Id.
DISCUSSION
Plaintiffs seek to conditionally certify a class of manual
laborers who work or worked for O&G during the last three years
and were not paid overtime wages.
Although a lenient standard is
applied at the notice stage, Plaintiffs are required to show “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).
“Courts have repeatedly stressed
that Plaintiffs must only be similarly – not identically – situated
to proceed collectively.” Prejean, 2013 WL 5960674, at *5 (quoting
Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 534 (S.D. Tex.
2008)).
A court can foreclose a plaintiff’s right to proceed
collectively only if “the action relates to specific circumstances
personal to the plaintiff rather than any generally applicable
policy or practice.” Xavier v. Belfor USA Group, Inc., 585 F.Supp.
9
2d 873, 878 (quoting Crain v. Helmerich & Payne Int'l Drilling
Co., 92-0043, 1992 WL 91946, at *2 (E.D. La. Apr. 16, 1992)).
This
determination is usually made based on the pleadings and any
affidavits that have been submitted.
Mooney, 54 F.3d at 1214.
In their sworn declarations, Plaintiffs declared that they
worked as manual laborers for O&G sometime in the past three years.
(Rec. Docs. 39-2, 39-3, 39-4, 39-5.)
Plaintiffs also uniformly
state that they “often” worked more than forty hours per week and
were paid their hourly rate regardless of the number of hours
worked per week in excess of forty hours.
In Plaintiff Osman
Maldonado’s declaration, he stated that he was hired as a painter
and sheet rocker from February of 2015 to September of 2016. (Rec.
Doc. 39-2.)
Maldonado further declared that at first, he was paid
$15 per hour, but later was paid $16 per hour and averaged 64 hours
per week. Id.
Plaintiff Josue Nunez declared that he worked as a
painter and a foremen beginning in March of 2015 until October of
2016. (Rec. Doc. 39-3.)
Nunez stated that he was initially paid
$13 per hour and eventually was paid $15 per hour and averaged 64
hours per week. Id.
Plaintiff Mauricio Hernandez declared that he
worked as a painter, finisher, and foreman, beginning in 2014 until
January of 2016.
(Rec. Doc. 39-4.)
Hernandez stated that he was
paid $15 per hour and averaged 68 hours per week.
Id.
Plaintiff
Marvel Francisco Guerrero declared that he was hired as a painter
and worked from March of 2013 through November of 2016.
10
(Rec.
Doc. 39-5.)
Guerrero stated that he was paid $11 per hour at first
but towards the end made $14.50 per hour.
Id.
declared that he averaged 64 hours per week.
Guerrero also
Id.
Plaintiffs
collectively state that they were paid by check bearing the name
“O&G Construction, LLC.” Plaintiffs also submitted copies of their
timesheets which substantiate the stated hours worked and rates of
compensation.
Id.
Moreover, Plaintiffs declared that their co-
workers, who performed the same basic tasks as them, also normally
worked in excess of forty hours in a week.
based
on
conversations
with
these
Plaintiffs stated that
co-workers,
they,
like
Plaintiffs, were also paid by check and never received overtime
compensation.
Defendants
argue
that
any
proposed
class
should
be
exclusively comprised of employees who worked for both O&G and
NOMW as alleged in the complaint.
Plaintiffs’
proposed
notice
Defendants assert that the
violates
Federal
Rule
of
Civil
Procedure 20(a)(2) regarding the proper joinder of defendants. 5
Defendants argue that creating a class exclusively comprised of
O&G employees would improperly include certain employees who had
not also worked for NOMW.
Accordingly, Defendants request that
5
Federal Rule of Civil Procedure 20(a)(2) permits joinder if: “(A) any right
to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and (B) any question of law and fact common to
all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).
11
the class be limited to those employees who had worked for both
O&G and NOMW during the specified time period.
Courts in this circuit have rejected similar arguments to
limit a collective action notice.
In Lima v. Int'l Catastrophe
Sols., Inc., the court conditionally certified a class of manual
laborers where the defendant contractor, ICS, objected to the
inclusion of potential opt-ins who were also employees of “other
subcontractors” – a term that made the class overly broad according
to the defendant contractor. 493 F. Supp. 2d 793, 799–800 (E.D.
La. 2007).
worked
The plaintiffs had submitted affidavits of persons who
pursuant
to
a
subcontract
between
ICS
and
another
subcontractor, C.L.S. Id. at 799. ICS acknowledged that employees
of subcontractor C.L.S. may be similarly situated based on the
evidence submitted.
Id.
However, ICS argued that the inclusion
of employees of any other subcontractor should not be allowed due
to the plaintiffs’ failure to present any evidence that such
workers were similarly situated or subjected to a similar illegal
pay scheme.
Id.
In rejecting ICS’s argument, the court stated:
It is true that the Plaintiffs present no affidavits of
workers employed by other subcontractors besides C.L.S.,
but
a
review
of
the
Defendants'
pay
records
and
agreements to subcontract will easily reveal whether a
common plan existed to improperly pay overtime salaries.
It seems appropriate to certify the collective action at
12
this time and revisit the question later after some
discovery.
If the allegations regarding the C.L.S. and
ICS contract prove to be true, it would be reasonable to
conclude that ICS may also have engaged in these same
practices with other subcontractors. It is unlikely that
the other subcontractors' workers received a different
rate of pay or did substantially different work.
Id. at 799-800; see also Kaluom v. Stolt Offshore Incorporated,
474 F. Supp. 2d 866, 875 (S.D. Tex. 2007) (rejecting argument that
notice should be limited to workers of one company and stating
that defendant could move for decertification after discovery had
been conducted showing different results for employees of other
companies); Esparza v. Kostmayer Constr., LLC, 15-4644, 2016 WL
3567060, at *4 (E.D. La. July 1, 2016) (rejecting contention that
class notice should be limited to only those individuals who worked
for both defendant companies).
The Court is persuaded by the reasoning of the above-mentioned
cases and finds that the proposed notice is not overly broad and
does not need to be limited to only employees of both NOMW and O&G
at this time. Plaintiffs have satisfied their lenient burden of
establishing “substantial allegations” that the putative class
members exist and that together they were “the victims of a single
decision, police or plan.”
Fernandes da Silva v. M2/Royal Const.
of Louisiana, LLC, 08-4021, 2009 WL 3565949, at *4 (E.D. La. Oct.
13
29, 2009) (citing Mooney, 54 F.3d at 1214).
First, “there is no
categorical rule that Plaintiffs must submit evidence at this time
that other [individuals] seek to opt-in to this case.”
Lopez v.
Hal Collums Constr., LLC, 15-4113, 2015 WL 7302243, at *6 (E.D.
La. Nov. 18, 2015) (quoting Perkins v. Manson Gulf, L.L.C., 142199, 2015 WL 771531, at *4 (E.D. La. Feb 23, 2015)).
However,
Plaintiffs have filed into the record thirteen notices from other
individuals consenting to file suit under FLSA.
40, 50, 51, 54.
See Rec. Docs.
Next, Plaintiffs provided declarations stating
that they performed manual labor while employed with O&G and that
they often worked more than 40 hours per week on various jobsites
without receiving overtime compensation as required under the
FLSA.
Plaintiffs also declared that they and their co-workers
were supervised by a foreman who kept track of their work hours;
they worked the same shifts and took breaks at the same time; they
performed the same basic tasks; and they often worked more than
forty hours a week.
Based on conversations with their co-workers,
Plaintiffs stated that they know that their co-workers also did
not receive overtime for hours worked in excess of forty hours per
week and that they were also paid by check.
There is no indication
that the practice of nonpayment of overtime “relates to specific
circumstances personal to the plaintiff[s].”
Xavier, 585 F. Supp.
2d at 878. Rather, Plaintiffs’ allegations and evidence reasonably
support that the alleged harm stems from a general policy or rule
14
and that Plaintiffs’ and the putative class members were together
victims of such a policy.
NOMW also argues that Plaintiffs have not demonstrated that
they were employees of either O&G or NOMW and therefore cannot
demonstrate the existence of a sufficiently similarly-situated
individuals.
Courts in this district have conditionally certified
collective actions despite questions about the employment status
of the named plaintiff and potential opt-in plaintiffs. See, e.g.,
Prejean, 2013 WL 5960674, at *7-8 (“The fact that questions remain
about the employment status . . . regarding the named plaintiffs
and proposed class of plaintiffs will not stop this Court from
considering
the
propriety
of
conditionally
certifying
their
collective action.”)(citation omitted); Lang, 2011 WL 6934607 at
*3
(refusing
to
dismiss
plaintiffs'
claims
because
questions
existed regarding whether the defendant was an employer or joint
employer of plaintiffs); Fernandes da Silva v. Royal Constr. of
La., LLC, 08-4021, 2009 WL 3565949, at *4 (E.D. La. Oct. 29, 2009)
(conditionally
whether
the
certifying
defendant
was
class
an
despite
employer
questions
or
joint
regarding
employer
of
plaintiffs). The Court “need not decide at this juncture the exact
nature of
the
employment
relationship
here.”
Lang,
2011
WL
6934607, at *3. “[S]uch an inquiry is better addressed at the
decertification stage after discovery has occurred, when the Court
15
will be in a position to scrutinize the evidence in greater
detail.”
Prejean, 2013 WL 5960674, at *8.
In sum, the Court finds that the complaint and Plaintiffs’
declarations set forth “substantial allegations that the putative
class members were together victims of a single decision, policy,
or plan.”
Mooney, 54 F.3d at 1214 n.8.
The alleged policy of
failing to pay employees performing manual labor an overtime rate
for work performed in excess of forty hours a week constitutes a
“factual nexus which binds the named plaintiffs and the potential
class members together.”
Xavier v. Belfor USA Grp., Inc., 585 F.
Supp. 2d 873, 877-78 (E.D. La. 2008).
Accordingly, Plaintiffs
have satisfied their lenient burden of showing that there is likely
a class of “similarly situated” employees entitled to receive
notice.
As discovery proceeds to completion, Defendants may move
for decertification if it is determined that Plaintiffs have failed
to meet their burden of establishing that they and the proposed
class members are similarly situated.
Defendants
submitted
no
further
objections
to
the
form,
content, or timing of Plaintiffs’ proposed notice.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Conditional
Class Certification, Judicial Notice, and for Disclosure of Names
and Addresses of Potential Opt-In Plaintiffs (Rec. Doc. 39) is
16
GRANTED as set forth above, and that the above-captioned matter is
conditionally certified as a collective action pursuant to 29
U.S.C. § 216(b).
IT IS FURTHER ORDERED that Notice shall be sent to the
following: “All individuals who worked or are working performing
manual labor for O&G Construction, LLC 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.”
IT IS FURTHER ORDERED that Defendants shall have fourteen
(14) days from the entry of this Order to produce the full names,
dates of employment, and last known addresses of all potential
opt-in plaintiffs.
IT IS FURTHER ORDERED that the time period within which the
potential opt-in plaintiffs may opt-in is ninety (90) days. The
ninety (90) day opt-in period will begin to run on the date that
Defendants
provide
a
complete
list
of
the
names,
dates
of
employment, and last known addresses of all potential opt-in
plaintiffs.
New Orleans, Louisiana this 13th day of March, 2018.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
17
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