Murillo v. Gomez Drywall Contractors, Inc.

Filing 19

ORDER AND REASONS denying #14 Motion for Conditional Certification ; granting #18 Joint Motion to Enter Conditional Certification and Collective Action Notice Order as stated herein. Signed by Judge Carl Barbier on 8/16/2018. (cg)

Case 2:18-cv-03753-CJB-JVM Document 19 Filed 08/16/18 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDWIN MURILLO

CIVIL ACTION

VERSUS

No. 18-3753

GOMEZ DRYWALL
CONTRACTORS, INC.

SECTION: “J”(1)

ORDER AND REASONS
Before the Court are a Joint Motion to Enter Conditional Certification and
Collective Action Notice Order (Rec. Doc. 18) and Plaintiff’s Motion for Conditional
Certification (Rec. Doc. 14). Having considered the motion, the record, and the
applicable law, the Court finds, for the reasons expressed below, that the Joint Motion
should be GRANTED. Accordingly, Plaintiff’s Motion should be DENIED as moot.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff Edwin Murillo, a former general laborer for Gomez Drywall
Contractors, Inc. (“Gomez”), has brought this action under the Fair Labor Standards
Act (“FLSA”) against his employer on his behalf and on behalf of those similarly
situated. Plaintiff alleges that he has been employed by Gomez since December of
2017, and that during that time he has not been paid overtime despite regularly
working 55 hours a week. Moreover, Plaintiff alleges that since at least April 10,
2015, Gomez has classified and paid all of its general laborers in this manner. (Rec.
Doc. 1 at 5). Thus, Plaintiff alleges that there was a common pay practice concerning

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a class of individuals who performed the same essential job functions and duties.
Parties now jointly ask this Court to certify the class. (Rec. Doc. 18).
Parties also ask this Court to order Gomez to provide a list of all persons who
may potentially opt in, as well as their last-known addresses, e-mail addresses,
telephone numbers, and dates of employment. Additionally, Parties ask the Court to
approve their proposed “Notice of Collective Action Lawsuit,” a “Consent to Sue” form
for potential class plaintiffs, and telephone, voicemail, and text message scripts.
Parties’ proposed order further breaks down the time periods for giving notice and
delivering receipts for opt-ins.
LEGAL STANDARD
If an employer who is engaged in interstate commerce fails to pay its employees
the overtime pay they are owed, an employee may bring an action against the
employer on behalf of himself and the other employees similarly situated. 29 U.S.C.
§§ 207, 216. This Court depends on a set of well-developed standards to determine
whether to conditionally certify a class:
To certify a collective action under the . . . FLSA, . . . two requirements
must be met. First, the named representatives and the putative
members 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
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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, 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.
Perez v. City of New Orleans, No. CIV.A. 12-2280, 2014 WL 1365955, at *1–2 (E.D.
La. April 7, 2014) (quoting Donahue v. Francis Servs., Inc., No. 04–170, 2004 WL
1161366, at *1 (E.D. La. May 24, 2004). “Even where a motion for conditional
certification is unopposed, courts still evaluate whether plaintiffs have met the
required standard.” Crowley v. Paint & Body Experts of Slidell, Inc., No. CIV.A. 14172, 2014 WL 2506519, at *4 (E.D. La. June 3, 2014)
DISCUSSION
Here, Mr. Murillo submitted an affidavit (Rec. Doc. 14-3) in which he avers
that he was never paid 1 ½ times his normal rate for working longer than 40 hours
in a week. He states that he worked more than 40 hours each week for Gomez since
he began as a general laborer for the firm at or around December 25, 2017.
Furthermore, he swears he has spoken with other general laborers who worked for
Gomez, who allege they also have not been paid overtime. He names two such
individuals: Yony Ramirez and Marvin E. Ruiz.
The Court finds that the general laborers of Gomez who have been denied
earned overtime pay from April 10, 2015 through the present date are similarly
situated because they are together the victims of an alleged single policy of Gomez
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to decline to pay its general laborers earned overtime pay. This suit does not appear
to arise from circumstances purely personal to Edwin Murillo; rather, it appears
that the alleged policy of Gomez would affect all of the general laborers working for
Gomez during the relevant 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 into this collective action.
Furthermore, the Court has reviewed the proposed Notice (Rec. Doc. 18-2)
and the proposed “Consent to Sue” form (Rec. Doc. 18-3), and both appear to be
appropriate. Therefore, these documents are approved. Additionally, the Court finds
that Gomez shall provide the information that plaintiff’s counsel seeks, which will
enable counsel for the class to send the Notice and Consent to potential class
members.
The Court also notes that this is a circumstance in which it may be especially
difficult to give potential class members notice. Therefore, the Court approves
contacting potential class members electronically and by telephone. The Court
approves of the proposed e-mail notice (Rec. Doc. 18-4) and the proposed telephone
scripts (Rec. Doc. 18-5).
CONCLUSION
Accordingly,
1.

IT IS ORDERED that the Joint Motion to Enter Conditional
Certification and Collective Action Notice Order (Rec. Doc. 18) is
GRANTED.
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2.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Conditional
Certification as a Collective Action and Notice to Potential Class
Members (Rec. Doc. 14) is DENIED as moot.

3.

IT IS FURTHER ORDERED that a collective action pursuant to the
Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) is
conditionally certified to include the following persons: All individuals
who worked for Gomez Drywall Contractors, Inc. as a general laborer
at any time since April 10, 2015 and were not paid overtime.

4.

IT IS FURTHER ORDERED that pursuant to 29 U.S.C. § 216(b),
Collective Action Notice and Consent forms shall be mailed and emailed (if applicable) to potential opt-ins in accordance and consistent
with this Order.

5.

IT IS FURTHER ORDERED that no later than thirty (30) days after
entry of this Order, Defendant’s counsel shall provide Plaintiff’s counsel
with a list of all potential opt-ins in a computer-readable data file
containing names, last-known addresses, e-mail addresses, telephone
numbers, and dates of employment, to the extent such information is
currently in Defendant’s possession.

6.

IT IS FURTHER ORDERED that no later than forty-five (45) days after
entry of this Order, Plaintiff’s counsel shall send copies of the collective
action notice and consent forms to each potential opt-in by first class
U.S. mail and e-mail (if applicable). In making such e-mails, Plaintiff’s
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counsel will use the approved form e-mail (Rec. Doc. 18-4). A selfaddressed and stamped envelope will be enclosed with the collective
action notice and consent forms for return by U.S. postal mailing. With
the exception of circumstances outlined in paragraph 8 below, Plaintiff’s
counsel shall be limited to one mailing and one e-mailing per potential
class member.
7.

IT IS FURTHER ORDERED that potential opt-ins shall have sixty (60)
days following mailing of the notice and consent forms to return the
forms by mail, fax, or e-mail to Plaintiff’s counsel. A consent
postmarked on the deadline is considered timely. Consents received by
mail without postmarks shall be considered timely if received within
five (5) business days of the deadline. Plaintiff’s counsel shall date
stamp the returned consents on the day they are received in counsel’s
office and retain any envelope or other evidence showing the date the
consent form was postmarked or fax-stamped or otherwise received.

8.

IT IS FURTHER ORDERED that Plaintiff’s counsel shall submit signed
consents to the Court within five (5) business days of their receipt.

9.

IT IS FURTHER ORDERED that for any Notice and Consent Form
returned by the U.S. Post Office as undeliverable, Plaintiff’s counsel
may then attempt to call and/or text message the potential opt-in to
obtain a current address. In making such telephone calls, Plaintiff’s
counsel’s staff will use the approved telephone scripts (Rec. Doc. 18-4).
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In sending such text messages, Plaintiff’s counsel’s staff will use the
following message: “If you worked for Gomez Drywall Contractors, Inc.
at any time since April 10, 2015, you may be entitled to join a lawsuit
claiming back pay and overtime wages. For additional information
about the case, including how to join, please call the workers’ attorneys
at 504-833-5600.”
10. IT IS FURTHER ORDERED that nothing herein will be construed as

an admission of liability on Defendant’s part, nor will anything be
construed to limit either party’s ability to raise any claim or defense not
within the scope of this Order, including, without limitation,
Defendant’s ability to file a motion for decertification if it so chooses at
the close of discovery.

New Orleans, Louisiana this 16th day of August, 2018.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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