Mairena-Rivera v. Langston Construction, LLC et al

Filing 56

RULING granting 30 Motion to Certify Class. Signed by Judge James J. Brady on 6/27/2017. (ELW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BISMARK MAIRENA-RIVERA
CIVIL ACTION
VERSUS
NO. 16-850-JJB-EWD
LANGSTON CONSTRUCTION, LLC, ET AL
RULING
This matter is before the Court on a Motion to Proceed as a Collective Action, for Judicial
Notice, and for Disclosure of the Names and Addresses of Potential Opt-in Plaintiffs (Doc. 30)
brought by the Plaintiff, Bismark Mairena-Rivera. The Defendants1 filed an Opposition (Doc. 31),
and the Plaintiff filed a Reply (Doc. 34). The Court’s jurisdiction exists pursuant to 28 U.S.C. §
1331. Oral argument is unnecessary. For the reasons stated herein, the Plaintiff’s Motion (Doc. 30)
is GRANTED.
I.

BACKGROUND
The Plaintiff was employed as a general construction laborer by the Defendants. He alleges

that he was not paid one-and-a-half times his straight time rate for the overtime hours he worked
in excess of 40 hours. Additionally, he alleges that the unlawful pay practices were commonly
applied throughout the Defendants’ operations, and that he worked with other individuals similarly
situated to him who were not paid the proper overtime rate. Plaintiff now moves to conditionally
certify a class of Defendants’ employees, and he asks that the Court direct the Defendants to
provide the names, phone numbers, and last known addresses of potential opt-in plaintiffs. He also
asks the Court to approve the sending of a class notice. Additionally, at least one former employee

1

There are three Defendants in this case: Langston Construction, LLC, Composite Architectural Design Systems,
LLC, and Michael Langston (“Defendants”).

1

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of the Defendants has already opted-in to this action.2 Defendants oppose this Motion, making
various arguments about why it should be denied, and, even if it is granted, why the notice should
be narrowed.
II.

DISCUSSION
For the reasons that follow, the Court shall grant this Motion. However, because the

proposed class is too broad, the Court narrows the class definition. Additionally, the Court finds
that certifying a collective action covering a period of three years is appropriate. Further, the Court
finds that a 90 day opt-in period is appropriate.
A. Standard
Plaintiff claims that Defendants violated the minimum wage and overtime protections of
the Fair Labor Standards Act (“FLSA”).3 An aggrieved employee may sue his or her employer
individually or collectively, on behalf of similarly situated employees.4 Unlike a Federal Rule of
Civil procedure 23 class action, in which class members are automatically part of the class unless
they affirmatively opt-out, each individual member in an FLSA collective action must opt-in by
consenting in writing to become a member of the suit.5 District courts in the Fifth Circuit have
generally employed the Mooney two-tiered approach in determining whether to certify FLSA
representative actions.6 Under this approach, in order to determine whether potential plaintiffs are
“similarly situated,” a court must use a two-stage process.7

2

Darwin Ruano consented to be a party plaintiff in this action on January 25, 2017. Doc. 41.
29 U.S.C. § 216 (b).
4
Id.
5
Id.; Mooney v. Aramco Svcs., 54 F.3d 1207, 1212 (5th Cir. 1995).
6
Boudreaux v. Schlumberger Tech Corp., Civil Action No. 14-2267, 2015 WL 796602, *4 (W.D. La. Feb. 25, 2015);
Basco v. Wal-Mart Stores, Inc., Civil Action No. 00-3184, 2004 WL 1497709, *4 (E.D. La. Jul. 2, 2004).
7
Mooney, 54 F.3d at 1213.
3

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The first determination is made at the “notice” stage.8 At this stage, the court must
determine whether to issue notice to potential class members.9 The district court generally relies
on the pleadings and any submitted affidavits.10 The court uses a “lenient” standard to determine
whether similarly situated individuals exist.11
At this early stage, a plaintiff need not show that class members are identical.12 Rather, the
plaintiff must show that putative class members are “similarly situated…in relevant respects given
the claims and defenses asserted.”13 A plaintiff can make this showing by proving either (1) that
his job position and duties are similar to those positions held by putative class members or (2) that
plaintiff and the putative class members were all subject to the same unified policy, plan, or
scheme, that forms the basis of the alleged FLSA violation.14
Generally most plaintiffs satisfy this burden by showing that their job positions and duties
are similar to the duties of the putative class members.15 “The purpose of requiring class members
to have similar job positions is to ensure judicial efficiency by avoiding the need for individualized
inquiries into whether a defendant’s policy violates the FLSA as to some employees but not others.
Plaintiffs are generally required to have held similar jobs, because the nature of the work performed
by each plaintiff will determine (a) whether an FLSA violation occurred and (b) whether a relevant

8

Id. at 1213-14.
Id.
10
Id. at 1214.
11
Id.
12
Schlumberger, 2015 WL 796602 at *3.
13
Walker v. Honghua LLC, 870 F.Supp.2d 462, 465-66 (S.D. Tex. 2012).
14
Jackson v. Federal National Mortg. Ass’n., 181 F.Supp.3d 1044, 1052 (N.D. Ga. 2016); Tamez v. BHP Billiton
Petroleum, Civil Action No. 15-330, 2015 WL 7075971, *3-4 (W.D. Tex. Oct. 5, 2015) (“In [some] cases, it may be
appropriate to require the class to be limited to a particular job position in order to provide the court some assurance
that the relevant facts are common across the class. Whereas here, Plaintiffs allege that the compensation scheme is
in of itself a violation of the FLSA. No further factual inquiry is necessary. Accordingly, liability can be determined
collectively without limiting the class to a specific job position.”).
15
Id. at *3.
9

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FLSA exemption applies.”16 However, in certain instances, a class that is made up of many
different job positions may be conditionally certified as long as the differences among the class
members are not material to the case.17 This will occur when the case is premised on a single policy
that affected all plaintiffs in exactly the same way.18
The second stage is usually precipitated by a motion for decertification occurring after
discovery is completed when a court has much more evidence.19 At this stage, a court determines
whether the plaintiffs are similarly situated again.20 If the claimants are similarly situated, the
district court allows the case to proceed to trial as a representative action; if they are not similarly
situated, the court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.21
In terms of conditional certification, the parties have six main disagreements. First, the
Defendants argue that the Plaintiff’s proposed class is too broad and includes individuals who are
not similarly situated to him. Second, the Defendants argue that the Plaintiff has failed to meet his
burden of bringing forth “substantial allegations” that potential members were “together victims
of a single decision, policy, or plan.”22 While the Defendants admit that the burden at this stage is
not “particularly stringent,” they argue that the applicable jurisprudence clearly dictates that
certifying an FLSA case as a collective action is not tantamount to a rubber stamp.23 Third, the
parties disagree about whether the proposed class should cover two years or three years. Fourth,

16

Id. (internal quotation marks and citation omitted); Pacheco v. Aldeep, Civil Action No. 14-121, 2015 WL 1509570,
*7 (W.D. Tex. Mar. 31, 2015).
17
Tamez, 2015 WL 7075971 at *4.
18
Crain v. Helmerich & Payne Int’l Drilling, Civil Action No. 92-43, 1992 WL 91946, *3 (E.D. La. Apr. 16, 1992)
(“That the plaintiffs and the potential claimants may have worked in different areas of the country, on different types
of rigs, and performed different jobs is not dispositive…But what matters is that the fundamental allegation—that
according to company policy the time spent in job related meetings and training was uncompensated—is common to
all the FLSA plaintiffs and dominates each of their claims.”).
19
Mooney, 54 F.3d at 1214.
20
Id.
21
Id.
22
Id. at 1214, n. 8.
23
Lima v. Int’l Catastrophe Solns., 493 F.Supp.2d 793, 798 (E.D. La. 2007) (“While the standard at this stage is ‘not
particularly stringent,’ it is by no means automatic.”).

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the parties disagree about the proper information Defendants need to disclose to Plaintiffs to
facilitate the class notice. Fifth, the parties disagree over the language that should be included in
the notice. Finally, they disagree about the opt-in period.
B. Class Definition
In his Motion, Plaintiff asks this Court to conditionally certify a class of Defendants’
employees limited to: “All individuals who worked or are working for Langston Construction,
LLC or Composite Architectural Design Systems, 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.”24 Defendants argue that this class is too broad because it would appear
to include, for example, “office personnel tasked with such responsibilities as bookkeeping,
payroll, secretarial duties and other non-manual work—clearly not one deemed ‘similarly situated’
to the Plaintiff, a general construction laborer who installed and fabricated materials and who was
paid on an hourly basis.”25 The Plaintiff effectively asserts that these job distinctions among the
potential members are immaterial to his case because he is alleging that Defendants employed a
two-company, two-check scheme to disenfranchise all of its employees of the FLSA—not just
manual laborers.
After reviewing Plaintiff’s Amended Collective Action Complaint26 and his Declaration27,
the Court agrees that the proposed class is too broad for two main reasons. First, the proposed class
will likely require the Court to engage in individualized inquiries into whether the Defendants’
policy violates the FLSA as to some employees but not others.28 While this is a speculative

Pl.’s Mem. 6, Doc. 30-1.
Defs.’ Opp. 7, Doc. 31.
26
Doc. 23.
27
Doc. 30-3.
28
Tamez, 2015 WL 7075971 at *3 (“In [some] cases, it may be appropriate to require the class be limited to a particular
job position in order to provide the court some assurance that the relevant facts are common across the class.”).
24
25

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concern, the Plaintiff has not introduced any evidence that other employees, besides the manual
laborers, were subjected to this two-check policy in which they were not paid time-and-a-half for
every hour worked over forty hours.29 “[I]f there is sufficient evidence of an employer’s pattern of
subjecting employees to the same improper practice, that would be sufficient to warrant a finding
of similarity justifying collective adjudication.”30 However, here, the Court finds that the Plaintiff
has not presented sufficient evidence that this scheme affected any other employees besides the
laborers. In the absence of evidence about these other employees, even at this early stage, the Court
will not certify such a broad class.
Second, the Court finds that the proposed class is too broad because the Plaintiff implicitly
concedes that the class should be limited to laborers. His submitted evidence defeats his own
argument for a broad class. In support of his broad class, the Plaintiff argues that he has alleged
“an explicit scheme whereby two commonly-owned, but allegedly separate business entities issued
multiple checks to disguise FLSA violations. Nowhere in Defendants’ opposition is there any
refutation or explanation of this practice. Nor is this any reason to believe that the two-check
scheme was unique to Plaintiff…This is reinforced by Plaintiff’s declaration, wherein he alleges
other victims of the same scheme.”31 While this argument appears to support the proposition that
the Court should recognize a broad class, the evidence Plaintiff cites to in support of a broad class
undercuts his argument. Plaintiff cites to his declaration. In his declaration, he attests to the
following:

Plaintiff argues that “[a]t this point it is an open question whether the systemic practice was applied company-wide.
Again, the Defendants’ opposition brief is totally silent on this question.” Pl.’s Reply 4, Doc. 34. It may be an open
question, but the burden for conditional certification is on the Plaintiff. Plaintiff has failed to bring forth any evidence
that other employees, besides the manual laborers, were subject to this policy.
30
Prejean v. O’Brien’s Response Mgmt., Civil Action No. 12-1045, 2013 WL 5960674, *8 (E.D. La. Nov. 6, 2013)
(citation omitted and emphasis in original).
31
Pl.’s Reply 1-2, Doc. 34.
29

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I worked as a general construction laborer. My duties were fabricating and installing
materials for Langston’s various construction projects. All of the other Langston laborers
did the same thing I did. Langston employed groups of laborers to work at different
construction projects. The groups had between 4 and 12 laborers in them and were
supervised by a Langston employee…Langston alternately paid me checks from
Langston Construction LLC and Composite Architectural Design Systems LLC. I never
knew which entity’s name would be on the check. I know from my conversations with
other workers, and also from my personal observations, that other Langston laborers did
not get paid overtime. They were all paid their regularly hourly rate for all hours worked.
One of the laborers I worked with at Langston was named Juan. Juan performed the same
basic duties that I did at Langston and he also was not receiving overtime wages.32
Plaintiff’s own declaration makes clear that the proper class for conditional certification
consists of laborers who were not paid overtime, not all hourly employees. He presents no evidence
that non-laborer employees were subject to this scheme. He makes the conclusory allegation that
there is no reason to believe this scheme was unique to laborers, but this is not evidence.
Additionally, his own brief works against him: “These allegations establish that there is sufficient
evidence to show that a substantial class of other manual laborers employed by the Defendants
were likely treated similarly, if not identically…The Notice specifically explains that the only
employees of Defendants who are able to join are those who: (1) were employed by the Defendants
as manual laborers within the past three years, and (2) were not paid overtime for the hours that
they worked in excess of 40 hours during any work week.”33 Accordingly, the Court modifies the
proposed class definition as follows34:
All individuals who worked or are working for Langston Construction, LLC or
Composite Architectural Design Systems, LLC performing manual labor during the
previous three years35 and who are eligible for overtime pay pursuant to the FLSA, 29
U.S.C. § 207, and who did not receive full overtime compensation.”36
Pl.’s Decl., Doc. 30-3 (emphasis added).
Pl.’s Mem. 13, 20, Doc. 30-1 (emphasis added).
34
A court has the power to modify an FLSA collective action definition on its own. Walker, 870 F.Supp.2d at 472.
35
Below the Court explains why three years rather than two years is appropriate.
36
The Defendant requests that the class be limited to only “those persons who held the same job as the Plaintiff and
who worked under the same supervision in the same location as Plaintiff.” Defs.’ Opp. 10, Doc. 31. The Court finds
that defining the class in such a narrow way would be inappropriate given the fact that Plaintiff has alleged that he
worked in many different locations, under many different supervisors, and he is aware that all of the laborers were not
paid time-and-a-half for every hour worked in excess of 40 hours.
32
33

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C. Sufficiency of Proof
In addition to arguing for a narrower class, Defendants assert that Plaintiff has failed to satisfy
his burden which would allow the Court to certify any class. Specifically, they argue that the
Plaintiff has failed to bring forth “substantial allegations” that potential members were “together
victims of a single decision, policy, or plan.” After reviewing the evidence discussed above, the
Court disagrees and finds that Plaintiff submitted sufficient evidence to support conditional class
certification for the class described above. Courts routinely certify FLSA classes based on a
complaint and the declaration of the plaintiff.37
D. Temporal Scope of the Opt-in Class
Plaintiff asserts that the opt-in class should include employees who were denied overtime
for the past three years, while Defendants argue that any notice that issues should be limited to two
years. A court in the Eastern District of Louisiana recently summarized the appropriate inquiry
that a court should undertake in determining whether to notice a two-year or a three-year class:
The applicable statute of limitations period under the FLSA is set forth in 29 U.S.C. §
255. The action must commence within two years after the cause of action accrued;
however, if the violation is ‘willful,’ the cause of action must be commenced within three
years after it accrued. ‘Willful’ means that the employer either knew or showed reckless
disregard as to whether its conduct was prohibited by the statute…Courts within the Fifth
Circuit have often held that, given the low standard employed at the first step of the
[Mooney] approach, and the fact-intensive nature of the question of willful conduct,
plaintiffs need not prove willfulness at the conditional certification stage.38
The Court finds that additional discovery will likely show whether a two-year or a
three-year statute of limitations is appropriate. Accordingly, the Court finds that conditional
certification of a three-year class is appropriate at this early stage. The Defendants can bring

37

See Hernandez v. Exterior Walls, Inc., Civil Action No. 15-4392, 2016 WL 3414903, *2 (E.D. La. Jun. 22, 2016);
Leon v. Diversified Concrete LLC, Civil Action No. 15-6301, 2016 WL 2825073, *5 (E.D. La. May 13, 2016).
38
Marshall v. Louisiana, Civil Action No. 15-1128, 2016 WL 279003, *11 (E.D. La. Jan. 22, 2016).

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a Motion for Decertification if they believe the three-year term is unwarranted after discovery
is complete.
E. Request for Defendants to Provide Names, Phone Numbers, and Last-Known
Addresses of Potential Plaintiffs
The Plaintiff requests that the Court order the Defendants to provide the names, phone
numbers, and last-known addresses of the potential class members. The Defendants argue that,
assuming certification is appropriate, they should only be directed to submit the names and
addresses of the potential opt-in plaintiffs. The Court agrees with the Defendants and orders
Defendants to provide to the Plaintiff the names, last-known addresses, and e-mail addresses39 (to
the extent the Defendants have those addresses) of the potential claimants within twenty days of
this Ruling. Various courts in this Circuit have found that providing the names, e-mail addresses,
and last known addresses is adequate.40 While the Court is allowing the Plaintiff to obtain this
information, it warns that the use of coercive tactics in communicating with potential class
members will not be tolerated.

39

While the Court is aware that Plaintiff did not request e-mail addresses, the Court finds that these addresses will
facilitate the notice process if they are available.
40
Behnken v. Luminant Mining Co., 997 F.Supp.2d 511, 526 (N.D. Tex. 2014) (“Because doing so will improve the
accuracy of the notice, and, as a result, minimize undue delay, the court grants plaintiffs’ request as to the names and
last known addresses but denies it as to the telephone numbers. Consistent with its prior practice, the court concludes
that the need for compelled disclosure of prospective class members’ telephone numbers is outweighed by their
privacy interests, and that there is no apparent reason to conclude that sending a letter to a person’s last known address
will be inadequate.”); Biggio v. H20 Hair Inc., Civil Action No. 15-6034, 2016 WL 1031344, *4 (E.D. La. Mar. 14,
2016) (“Defendants also claim that the Notice should be sent via regular mail, and that the Court should not require
them to provide e-mail addresses and telephone numbers. Defendants maintain that doing so would lead to a barrage
of calls and emails soliciting them to join the lawsuit…[The Court] warned against the use of coercive tactics in
communicating with potential class members. The Court continues to expect all parties to act in concert with those
orders. Further, the Court finds production of telephone numbers unnecessary as notice by both e-mail and first-class
mail is both routine and reasonably calculated to accomplish the broad remedial goals of the notice provision of the
FLSA.”); Mejia v. Bros. Petroleum, Civil Action No. 12-2842, 2014 WL 3530362, *4 (E.D. La. Jul. 16, 2014) (giving
Defendants 30 days to provide plaintiffs “with a computer-readable data file containing all potential opt-in plaintiffs’
names, last known mailing addresses, and e-mail addresses”).

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F.

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Notice Language

Defendants argue that Plaintiff’s proposed notice is substantively incomplete and should
be supplemented and/or edited. Because the Court has narrowed the class definition, it finds that
the parties should be provided with time to revise the notice. Accordingly, the Court orders that
the notice be revised consistent with this Ruling. The parties shall meet and confer regarding the
content of this notice. Within twenty days of this Ruling, the parties are ordered to submit a joint
notice to this Court by filing it into the record. If the parties cannot agree on a joint notice, within
twenty days of this Ruling, they are ordered to separately submit proposed notices to this Court
by filing them into the record. The opt-in period shall begin to run from the date that a final notice
is approved by this Court.
G. Opt-in Period
The Defendants argue that Plaintiff’s proposed 90 day notice period is excessive. Citing to
various cases, they argue that a 21 day opt-in period is appropriate. The Plaintiff argues that at
least some of the putative class members, including Plaintiff, are non-English speakers. Counsel
for the Plaintiff argues that she has experience noticing non-English speaking laborers in FLSA
cases, and oftentimes the addresses provided are outdated. “Longer opt-in periods have been
granted in cases where potential plaintiffs are hard to contact due to their migration or dispersal.”41
In Lima v. International Catastrophe Solutions, the court allowed an opt-in period of 90 days
because there was evidence that class members previously employed by the defendants had
migrated to other states, and because tracking down the potential plaintiffs would be timeconsuming and difficult due to a language barrier.42 Given the fact that addresses for laborers are
often outdated and the fact that the language barrier makes communication with the putative class

41
42

Lima, 493 F.Supp.2d at 804.
Id.

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difficult, the Court finds that a 90 day opt-in period is appropriate here. This 90 day opt-in period
will begin to run once the Court approves the final notice.
III.

CONCLUSION
Accordingly, Plaintiff’s Motion to Proceed as a Collective Action, for Judicial Notice, and

for Disclosure of the Names and Addresses of Potential Opt-in Plaintiffs (Doc. 30) is GRANTED.
IT IS ORDERED that the proposed class is defined as: “All individuals who worked or
are working for Langston Construction, LLC or Composite Architectural Design Systems, LLC
performing manual labor 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 provide the Plaintiff with the names, lastknown addresses, and e-mail addresses (if available) of the potential claimants within TWENTY
days of this Ruling.
IT IS FURTHER ORDERED that the parties shall meet and confer regarding the content
of the notice. Within TWENTY days of this Ruling, the parties are ordered to submit a joint notice
by filing it into the record. If the parties cannot agree on a joint notice, within TWENTY days of
this Ruling, they may separately submit proposed notices by filing them into the record.
IT IS FURTHER ORDERED that the opt-in period for putative class members shall be
90 days from the date that a final notice is approved by this Court.
Signed in Baton Rouge, Louisiana, on June 27, 2017.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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