Virgen v. Conrad Industries Inc

Filing 67

MEMORANDUM RULING: Based on the foregoing reasons, the 44 Motion to Certify Class is DENIED. Signed by Magistrate Judge Carol B Whitehurst on 11/2/2015. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
JULIO VIRGEN

*

CIVIL NO. 6:15-0465

VERSUS

*

JUDGE DOHERTY

CONRAD INDUSTRIES, INC.,
ET AL

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MAGISTRATE JUDGE WHITEHURST

MEMORANDUM RULING
Pending before me is plaintiff’s Motion to Proceed as a Collective Action, Judicial
Notice, and for Disclosure of the Names and Addresses of the Potential Opt-in Plaintiffs filed
by Julio Virgen (“Virgen”) on September 13, 2015. [rec. doc. 44]. Defendant, Impact Marine
& Industrial Services, LLC (“Impact”), filed opposition on October 15, 2015. [rec. doc. 61].
Defendant, Conrad Industries, Inc. (“Conrad”), filed opposition on October 15, 2015. [rec. doc.
62]. Virgen filed a reply on October 21, 2015. [rec. doc. 66].
Oral argument on the motion was held on October 21, 2015, after which the Motion was
taken under advisement.
For the following reasons, the plaintiff’s motion is DENIED.
I. BACKGROUND
Virgen filed this action alleging a claim under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §§ 206, 207, on behalf of himself and similarly situated employees against Conrad,

Impact, and M&M Group Inc. d/b/a National Contracting Service (“M&M”).1
Conrad constructs and repairs boats at two facilities in Morgan City, Louisiana, and one
in Amelia Louisiana, in St. Mary Parish. [rec. doc. 44, Declaration of Julio Virgen (“Virgen
Decl.”), ¶¶ 3-5; Declaration of Pedro Cruz (“Cruz Decl.”), ¶¶ 5, 7; rec. doc. 62, Declaration of
Shane A. Alfred (“Alfred Decl.”), ¶ 4]. Conrad employs painters, welders, metal cutters and
manual laborers from labor staffing agencies. In the past three years, Conrad has utilized
approximately 13 staffing companies, including Impact, at its three work sites. [ Alfred Decl.,
¶ 4].
According to Virgen, he was hired by Impact to work as a painter for Conrad. [Virgen
Decl., ¶¶ 2, 6]. He asserts that he started working for Conrad on or about December 27, 2012,
on the Conrad Deepwater yard located in Amelia, Louisiana. [Virgen Decl., ¶ 3]. Over the
duration of his employment through December, 2014, Virgen claims that he worked at two
other Conrad facilities: Conrad Aluminum in East Amelia, Louisiana, and Conrad Morgan City
in Morgan City, Louisiana. [Virgen Decl., ¶ 5]. He contends that Conrad’s foremen supervised
and controlled Virgen’s work, and determined Virgen’s work schedule. [Virgen Decl., ¶¶ 8,
9].
Virgen alleges that he was paid a cash wage of $21.00 per hour, and worked an average
of 70 hours per week. [Virgen Decl, ¶ 10]. He claims that for every hour that he worked in
excess of 40 in any particular week, he was paid $24.00 per hour. [Virgen Decl., ¶ 10]. He

1

Plaintiff has dismissed his claims against M&M.

2

states the he picked up his paychecks, which bore the name “Impact Marine,” from Conrad’s
offices. [Virgen Decl., ¶ 14].
Pedro Cruz (“Cruz”) alleges that he was hired by an employee of Permanent Workers,
LLC (“Permanent Workers”) to work as a painter for Conrad in June, 2011. [Cruz Decl., ¶¶ 2,
3]. He claims that he worked at all three of Conrad’s Louisiana facilities. [Cruz Decl., ¶¶ 3,
5]. He contends that his work was supervised and controlled by Conrad foremen, who also
made and set Cruz’s work schedule. [Cruz Decl., ¶¶ 8, 9].
According to Cruz, he earned a cash wage of $17.00 to $18.00 per hour. [Cruz Decl.,
¶ 11]. He claims that he averaged approximately 65 to 70 hours per workweek. [Cruz Decl.,
¶ 10]. He alleges that for every hour which he worked in excess of 40 in any particular week,
he was paid $21.00 per hour. [Cruz Decl., ¶ 10].
Virgen and Cruz allege that, depending on the yard and time of day, they worked
alongside anywhere between 80 and 120 painters, welders and metal cutters. [Virgen Decl., ¶
13; Cruz Decl., ¶12]. Both claim that they knew “for a fact” that many of these workers did not
receive full overtime compensation. [Virgen Decl., ¶ 13; Cruz Decl., ¶ 12].
Additionally, Cruz alleges that in or about March of 2015, he spoke with Jorge Antonio
Kualin (“Kualin”), who was also a worker at Conrad and performed the same duties. [Cruz
Decl., ¶ 13]. He claims that Kualin told him that he was not receiving any overtime
compensation from Conrad for any hours that he worked over 40 in any work week. [Cruz
Decl., ¶ 13]. Cruz also asserts that Kualin informed him that he would be interested in
receiving notice of this action. [Cruz Decl., ¶ 14].
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Further, Cruz contends that in February, 2015, he went to apply for a job with Permanent
Workers, and noticed a long line of people. [Cruz Decl., ¶ 15]. He claims that some of the
people told him that they were in line to get past-due overtime money from Permanent Workers.
[Cruz Decl., ¶ 15]. He alleges that after waiting in line, he received $2,200.00 from Permanent
Workers, which amount does not reflect the full amount of overtime work that he performed
for Permanent Workers and/or Conrad. [Cruz Decl., ¶¶ 15, 16].
Impact concedes that some of its employees worked for Conrad during the relevant time
period. Impact asserts, however, that it has no record of employing anyone named Julio Virgen
or Pedro Cruz. [rec. doc. 61, Exhibit A, Affidavit of Jesus Sauceda (“Sauceda Affidavit”), ¶¶
4-8].
Likewise, Conrad asserts that it has no records indicating that Virgen was ever employed
directly by Conrad or by any staffing company working with Conrad. [Alfred Decl., ¶ 10].
Conrad also contends that Cruz was never a direct employee of Conrad, but was allegedly
employed by another staffing company, Permanent Workers. [Alfred Decl., ¶ 11].
According to Sauceda, in September, 2015, Impact was served with a Worker’s
Compensation Claim of Julio Virgen. [Sauceda Decl., ¶ 13; rec. doc. 61, Exhibit B]. Pointedly,
the “Disputed Claim of Compensation” attached to the worker’s compensation paperwork states
as follows: “Please note that Julio Virgen was employed by the Defendant [Impact] under the
name ‘Robert Martinez.’ ” [rec. doc. 61, Exhibit B, Disputed Claim for Compensation, p. 2].
Included in the documentation received by Impact as part of the worker’s compensation

4

claim were an Employment Application, Form W-4 and Form I-9 completed by “Robert
Martines.” [rec. doc. 61, Exhibit C]. Sauceda represents that Impact verified that “Robert
Martines” was legally authorized to work in the United States and that, based on this
verification, Impact continued to employ him. [Sauceda Decl., ¶ 15; Exhibit D].
According to Sauceda, at no time during Robert Martines’ employment was he or Impact
aware that the information provided by Robert Martines was fraudulent or fictitious. [Sauceda
Decl., ¶ 16]. Sauceda further asserts that at no time during Robert Martines’employment was
he or Impact aware that Robert Martines’ real name was Julio Virgen. [Sauceda Decl., ¶ 17].
In the instant motion, plaintiff moves to conditionally certify a collective action under
29 U.S.C. § 216(b) of the FLSA, and for judicially-approved notice to be sent all Putative Class
Members by first class mail and e-mail. If granted conditional certification under 29 U.S.C. §
216(b), plaintiff asks the Court to direct defendants to: (1) provide plaintiff with the names and
last known addresses of the potential opt-in plaintiffs, and (2) approve the sending of the class
notice to the potential opt-in plaintiffs. Plaintiff also requests that this Court approve an opt-in
period of six months.
Defendants deny plaintiff's allegations and oppose collective action certification under
29 U.S.C. § 216(b).
II. APPLICABLE LAW
Virgen moves for conditional collective action certification under the FLSA. Impact and
Conrad argue that conditional certification is inappropriate because neither have any records

5

of employing Julio Virgen or Pedro Cruz. The defendants further submit the conclusory
statements contained in the declarations submitted by Virgen and Cruz in support of conditional
certification fail to establish that Virgen and the putative collective action plaintiffs are similarly
situated for purposes of the FLSA.2
The Fair Labor Standards Act sets a general minimum wage for employees engaged in
commerce. 29 U.S.C. § 206(a)(1). Section 207(a) requires covered employers to compensate
nonexempt 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).
Section 216(b) of the FLSA permits a plaintiff to maintain such an action on “behalf of
himself . . . and other employees similarly situated. No employee shall be a party plaintiff
to any such action unless he gives his consent in writing to become such a party and such
consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b). A collective
action affords plaintiffs “the advantage of lower individual costs to vindicate rights by the
pooling of resources. The judicial system benefits by efficient resolution in one proceeding of
common issues of law and fact.” Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110

2

At the motion hearing, Conrad agreed that conditional certification of a collective action of individuals
who worked or are working performing manual labor for Conrad indirectly through Impact would be appropriate, but
maintained that such an action would not be appropriate as to the larger group of individuals who worked or are
working performing manual labor for Conrad through other staffing agencies during the previous three years. Impact
maintains that certification of any collective action in this case is inappropriate.

6

S.Ct. 482, 486 (1989).
Unlike class actions brought under Fed. R. Civ. Proc. 23, a collective action under the
FLSA provides an “opt-in” rather than an “opt-out” procedure for potential plaintiffs. Mooney
v. Aramco Services, 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90, 90-91, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). District
courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) in FLSA actions
by facilitating notice to potential plaintiffs. Hoffman-La Roche, Inc., 493 U.S. at 169-170.
Two requirements must be met to maintain a collective action under the FLSA.
Boudreaux v. Schlumberger Technology Corp., 2015 WL 796602, *2 (W.D. La. Feb. 25, 2015);
Green v. Plantation of Louisiana, LLC, 2010 WL 5256354, *3 (quoting Whitworth v. Chiles
Offshore Corp., 1992 WL 235907, *1 (E.D. La. 1992) (McNamara, J.)). First, the named
representatives and the members of the prospective FLSA class must be similarly situated. Id.
There must be “some factual nexus which binds the named plaintiffs and the potential class
members together as victims of a particular alleged [policy or practice].” Id.; England v. New
Century Financial Corp., 370 F.Supp.2d 504, 508 (M.D. La. 2005). Second, the action at issue
must be one of general effect. Whitworth, 1992 WL 235907, at *1. Accordingly, 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 general applicable rule, policy or practice. Id.
(citing Burt v. Manville Sales, Corp, 116 F.R.D. 276, 277 (D. Colo. 1987)); Basco v. Wal-Mart
Stores Inc., 2004 WL 1497709, at *5 (E.D. La. 2004) (Duval, J.).
Plaintiffs bear the burden of establishing that they are “similarly situated” to the
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proposed class. Basco, 2004 WL 1497709, at *5 (citing Pfohl v. Farmers Ins. Group, 2004 WL
554834, *2 (C.D. Cal. March 1, 2004, citing White v. Osmose, Inc., 204 F.Supp.2d 1309, 1313
(M.D. Ala. 2002)). The FLSA does not define the term “similarly situated” such that collective
adjudication of their claims is appropriate. Boudreaux, 2015 WL 796602, at *2. Under the
jurisprudence, however, “[w]hether employees are ‘similarly situated’ is determined in
reference to their ‘job requirements and with regard to their pay provisions.’ ” Xavier v. Belfor
USA Group, Inc., 585 F.Supp.2d 873, 877 (E.D. La. 2008) (Zainey, J.) (quoting Lima v.
International Catastrophe Solutions, Inc., 493 F.Supp.2d 793, 798 (E.D. La. 2007)); Lentz v.
Spanky’s Restaurant II, Inc., 491 F.Supp.2d 663, 669 (N.D. Tex. 2007); Eggelston v. Sawyer
Sportsbar, Inc., 2010 WL 2639897, *3 (S.D. Tex. June 28, 2010) (noting that “a minimal
showing that all members of the class are similarly situated in terms of job requirements and
pay practice” is required).
Similarly situated does not mean identically situated. Basco, 2004 WL 1497709, at *5
(citing Crain v. Helmerich and Payne Intern'l Drilling Co., 1992 WL 91946, *2 (E.D. La. April
16, 1992)). Thus, “[s]light differences in job duties or functions do not run afoul of the
similarly situated requirement.” Tolentino v. C & J Spec-Rent Services, Inc., 716 F.Supp.2d
642, 652 (S.D. Tex. 2010). If the job duties among potential members of the class vary
significantly, however, then class certification should not be granted. Id. (citing Dreyer v.
Baker Hughes Oilfield Operations, Inc., 2008 WL 5204149, at *2 (S.D. Tex. Dec. 11, 2008));
Harris v. Fee Transportation Services, Inc., 2006 WL 1994586, *5 (N.D. Tex. May 15, 2006).

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Likewise, if the named plaintiffs and potential class members are compensated
differently, class certification is not appropriate. See Lentz, 491 F.Supp.2d at 669; Sheffield v.
Orius Corp., 211 F.R.D. 411, 413 (D. Or. 2002) (collective action certification denied based
on the fact that the potential plaintiffs held different job titles, with different payment structures
– piece-rate, hourly and salaried).
Courts have utilized two methods for determining whether plaintiffs are similarly
situated such that a collective action should be certified, the “two-step” method developed in
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D. N.J. 1987), and the “spurious class action”
procedure employed by the district court in Shushan v. University of Colorado, 132 F.R.D. 263
(D. Colo. 1990).3 Mooney, 54 F.3d at 1213-1215. The Fifth Circuit has expressly refused to
endorse either method over the other. Mooney, 54 F.3d at 1216; Vanzzini v. Action Meat
Distributors, Inc., 995 F.Supp.2d 703, 719 (S.D. Texas 2014).
The prevailing method, however, seems to be the “two-step” approach. Lang v.
DirecTV, Inc., 735 F.Supp.2d 421, 435 (E.D. La. 2010) (Vance, J.) (citing Johnson v. Big Lots
Stores, Inc., 561 F.Supp.2d 567, 569 (E.D. La. 2008) (conditional certification is the majority
approach); Basco, 2004 WL 1497709, at *4 (“the two-step ad hoc approach is the preferred
method for making the similarly situated analysis”); England, 370 F.Supp.2d at 509
(noting that the two step approach has been “embraced” more often in the Fifth Circuit than the

3

The “spurious class action” procedure, derives from the “spurious” class action procedure previously
eliminated from Fed. R. Civ. P. 23. Mooney, 54 F.3d at 1214. Under this approach, the court considers factors
similar to those considered in Rule 23(c) cases, that is, “numerosity,” “commonality,” “typicality,” and “adequacy of
representation,” to determine whether a class should be certified. Id. Neither party argues that this procedure should
be applied.

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‘”Spurious Class Action” approach).
This method is consistent with the Fifth Circuit's conclusion in LaChapelle v.
Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975), that “[t]here is a fundamental,
irreconcilable difference between the class action described by Rule 23 and that provided for
by FLSA § 16(b),” namely the “opt-out” procedure for class members under Rule 23 as
contrasted with the “opt-in” procedure under § 216(b). See also Donovan v. Univ. of Texas at
El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981) (“[t]he statutory framework of enforcement
procedures of the FLSA and those of Title VII are crucially different, but this difference
highlights even more why Rule 23 is not needed in FLSA suits. The FLSA procedure, in effect,
constitutes a congressionally developed alternative to the F. R. Civ. P. 23 procedures.”).
Finally, the Fifth Circuit has referred to the two-step approach as the typical manner in which
collective actions proceed. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n. 2 (5th Cir.
2008). Based on the above, the undersigned finds that the “two-step”method is the preferred
method in the Fifth Circuit for the analysis and will be used by this Court.
The “two-step” method lends itself to ad hoc analysis on a case-by-case basis. Mooney,
54 F.3d at 1213. Under the two-step method, the Court analyzes the “similarly situated” inquiry
using a two-step analysis. In the first step, the “notice stage,” the Court determines whether
notice should be given to potential members of the collective action, “usually based only on the
pleadings and any affidavits.” Mooney, 54 F.3d at 1213-1214. Because the court has little
evidence at this stage, “this determination is made using a fairly lenient standard, and typically
results in ‘conditional certification’ of a representative class.” Id. at 1214.
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If the Court grants conditional certification, notice to prospective claimants is issued, and
the case proceeds as a collective action through discovery. Id. In the second step, generally
done on the defendant's motion to decertify the conditional class filed after discovery is largely
complete, the court considers, with the benefit of considerably more information, whether the
employees are similarly situated. Id. If the court decides that a collective class action is
inappropriate, then it dismisses the opt-in plaintiffs and the case proceeds on the named
plaintiffs' individual claims only. Id.
When considering whether to conditionally certify a collective action, the court has a
responsibility to refrain from stirring up unwarranted litigation. H&R Block, Ltd. v. Housden,
186 F.R.D. 399, 401 (E.D. Texas 1999) (citing D’Anna v. M/A-COM, Inc., 903 F.Supp. 889,
894 (D. Md. 1995)); Xavier, 585 F.Supp.2d at 878. This is so because “employers should not
be unduly burdened by a frivolous fishing expedition conducted by the plaintiff at the
employer's expenses.” Id. (quoting D’Anna, 903 F.Supp. at 894); Xavier, 585 F.Supp.2d at 878.
On the other hand, a collective action can be an effective mechanism for resolving
common issues in one consolidated action. See Hoffmann-La Roche, 493 U.S. at 170. Thus,
courts have endorsed the sending of notice early in the proceeding as a means of facilitating
the FSLA’s broad remedial purpose and promoting efficient case management. See Realite v.
Ark Restaurants Corp., 7 F.Supp.2d 303, 306 (S.D. N.Y. 1998) (and cases cited therein).
However, “an action dominated by issues particular to individual plaintiffs cannot be
administered efficiently because individual issues predominate over collective concerns.”
Sheffield, 211 F.R.D. at 413. Therefore, “courts must strive to balance the efficiency of
11

aggregating claims in one action against the expense and inconvenience of frivolous litigation.”
Sims v. Housing Authority City of El Paso, 2010 WL 2900429, *2 (W.D. Texas July 19, 2010).
At the “notice stage,” the grant of conditional certification requires “nothing more than
substantial allegations that the putative class members were together the victims of a single
decision, policy, or plan.” Mooney, 54 F.3d at 1214 n. 8 (citing Sperling v. Hoffman-La Roche,
Inc., 118 F.R.D. at 407). The plaintiff bears the burden, however, of making a preliminary
factual showing that similarly situated individuals exist. Lima, 493 F.Supp.2d at 798. “There
must be a showing of some identifiable facts or legal nexus that binds the claims so that hearing
the cases together promotes judicial efficiency.” Tolentino, 716 F.Supp.2d at 647; Basco, 2004
WL 1497709, at *5 (citing Barron v. Henry County School System, 242 F.Supp.2d 1096, 1103
(M.D. Ala. 2003)). Thus, while the standard at the “notice stage” is lenient, it is by no means
automatic. Id.; Xavier, 585 F.Supp.2d at 878. Indeed, it “would be a waste of the Court’s and
litigants’ time and resources to notify a large and diverse class only to later determine that the
matter should not proceed as a collective action because the class members are not similarly
situated.” Freeman v. Wal-Mart, Inc., 256 F.Supp.2d 941, 945 (W.D. Ark. 2003).
III. ANALYSIS
In this case, plaintiff seeks to certify the following class:
All individuals who worked or are working performing manual labor directly for
Conrad Industries, Inc. or indirectly through Impact Marine LLC, or any other
labor staffing company, 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.

12

Thus, the three classifications of workers sought to be conditionally certified by plaintiff are:
(1) those directly employed by Conrad; (2) those employed by Impact and assigned as
temporary labor to Conrad, and (3) those employed by any other staffing company doing
business with and assigned to work with Conrad. At the hearing on the motion, the parties
conceded that no conditional collective certification exists as to the direct employees of Conrad.
While Conrad agrees that conditional certification of a collective action may be appropriate for
individuals working for Conrad through Impact, Impact does not. Accordingly, the only issues
regarding conditional certification are as to Impact’s employees assigned to work for Conrad
and those employed by the 12 other staffing companies assigned to work for Conrad.
As to those employed by Impact and assigned as temporary labor to Conrad, neither
Conrad nor Impact have any record of Virgen working for them. [rec. doc. 62, Exhibit 1, rec.
doc. 61, Exhibit A]. There is indication in the record that Virgen worked for Impact under an
assumed name, using a false social security number on his employment application, W-4 and
Form I-9. [rec. doc. 61, Exhibit B]. This calls into question the reliability of the statements
contained in Virgen’s declaration.
The affidavit of Jesus Sauceda, Impact’s owner and manager, indicates that Impact has
neither employed nor has any knowledge of anyone by the name of Julio Virgen or Pedro Cruz.
[Sauceda Decl., ¶ 13, ¶¶ 4-8]. Additionally, Sauceda contends that in September, 2015, Impact
was served with a Worker’s Compensation Claim of “Julio Virgen.” [Sauceda Decl., ¶ 13; rec.
doc. 61, Exhibit B]. Included in the documentation received by Impact as part of the worker’s

13

compensation claim are the Employment Application, W-4 and Form I-9 completed by “Robert
Martines,” who was legally authorized to work in the United States. [Sauceda Decl., ¶¶14, 15;
rec. doc. 61, Exhibit C]. Sauceda represents that at no time was Impact aware that the
information presented by “Robert Martines” was fraudulent or fictitious or that “Robert
Martines’” real name was Julio Virgen. [Sauceda Decl., ¶¶ 16, 17].
Additionally, Impact attached to its brief a transcript from a hearing held before Judge
Haik on August 13, 2015, in the matter of Javier Portillo, et al v. Permanent Workers, LLC, et
al, Docket No. 15-1048. There, Javier Portillo (“Portillo”) filed a Collective Action Complaint
against Permanent Workers, Conrad, and Danny Cepero (“Cepero”), Permanent Workers’
owner, alleging that Portillo and similarly situated workers were not paid overtime in violation
of the FLSA. Defendants, Permanent Workers and Conrad, filed a motion for summary
judgment on the grounds that Portillo was never employed by either Permanent Workers or
Cepero. [Docket No. 15-1048, rec. doc. 10].
At the hearing, Judge Haik addressed the fact that Portillo used an assumed name on his
employment application, medical questionnaire, I-9, Social Security card, ID and W-4 forms.
Judge Haik granted summary judgment, stating as follows:
There’s no way I would allow this individual to be the main plaintiff in a civil
action, even if you have one, and I don’t know if you do, because what you have
right now is a plaintiff who has filed suit who has admitted to breaking federal
statutes, federal law.
***
I cannot allow someone who has broken federal law to be the number one person
in a class action, and since that’s all you have right now – I mean, this individual,
according to the defendants, is not – did not work for them. They didn’t run the
checks on him. They didn’t do their physicals on the gentleman’s name that he’s
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using now. The background check was not on that individual.
The Social Security – using a false Social Security card – you know, what
happened – there must be such a person with that name that has that Social
Security number. It must be that person. And that person had to pay extra taxes
on his Social Security and his W-2s, because whatever your client made, if that
was your client who worked for them – and I’m still not sure it was. They’re not
even sure if it was. But if that person worked for them and used a false Social
Security number, that poor sap is charged in his W-2s with receiving those funds
and he had to pay extra taxes because of the lies of your client. I can’t do that
and I won’t do it.
[Docket No. 15-1048, Official Transcript, pp. 18-19]. That case is currently on appeal to the
Fifth Circuit.
Portillo was filed by the same attorneys who are representing Virgen in this case.
Notably, “Julio Virgen” and “Pedro Cruz” also provided supporting affidavits in support of
Portillo’s Motion for Conditional Class Certification. [Docket No. 15-1048, rec. doc. 19,
Exhibits 8, 9].
Considering the circumstances surrounding Virgen’s alleged employment with Conrad
and Impact, this Court finds the statements contained in Virgen’s declaration questionable of
belief and cannot rely on them with certainty regarding conditional certification of a collective
action in this case.4
Nevertheless, even if the information contained in Virgen’s declaration is taken as true,
plaintiff makes conclusory and vague statements as to similarities amongst himself and other
workers performing manual labor for Conrad indirectly through Impact. There are not enough
4

The same fate applies to Cruz’s declaration. There is no record of Cruz working for Permanent Workers,
Impact or Conrad. [rec. doc. 61, Exhibit F, Affidavit of Danny Cepero, ¶¶ 4-6; Sauceda Decl., ¶¶ 4-6; Alfred Decl.,
¶ 11].

15

facts to show that plaintiff and such other employees were similarly situated, i.e., had similar
jobs and pay provisions, or that there was a common, unlawful policy or plan.
Specifically, Virgen’s affidavit fails to identify one person by name or description who
was employed by Impact under the same allegedly objectionable terms and conditions as he.
See Khan, 2007 WL 2777774. While Cruz’s declaration asserts more detailed allegations than
Virgen’s, Cruz alleges he was employed by Permanent Workers, LLC, not Impact, and offers
no specific information regarding workers who were performing work for Conrad indirectly
through Impact. Additionally, neither Virgen’s, nor Cruz’s affidavit alleges in any way the
existence of some uniform pay policy applicable to Virgen and the proposed collective action
members. For example, neither affidavit alleges that Conrad applied a uniform policy to all
employees working indirectly for Conrad through Impact or that Impact applied a uniform
overtime policy to all employees that worked at Conrad. At best, the affidavits offer only
speculation about the hours and pay of various other manual laborers working for Conrad
through unidentified staffing companies. Vague assertions, unsupported by any evidence, are
insufficient to permit the court to conclude that other similarly situated plaintiffs exist who
would desire to opt-in to the suit. H&R Block, Ltd., 186 F.R.D. at 400; see also, Khan v.
Cougar Stop, Inc., 2007 WL 2777774, *2 (S.D. Texas Sept. 21, 2007) (certification denied
where only evidence submitted was plaintiff’s statement that co-workers told him other
employees were not being paid overtime wages despite the fact that they routinely worked more
than 40 hours per week).
Regarding the next putative class, those employed by any of the other staffing companies
16

doing business with Conrad, defendants argue that Xavier v. Belfor USA Group, Inc., 585
F.Supp.2d 873, 877 (E.D. La. 2008) is analogous to this case. There, plaintiffs sought
preliminary certification of the following FLSA overtime class: “[a]ll individuals who worked
or are working for Belfor USA performing manual labor either directly or indirectly through
various subcontractors in various projects throughout the United States over the last three years
who were eligible for overtime pay pursuant to the FLSA, 29 USC § 207, and who did not
receive overtime pay.” (emphasis added). 585 F.Supp.2d at 875. Judge Zainey denied the
motion on several grounds, some of which are applicable here.
First, Judge Zainey noted that plaintiffs’ evidence, including statements that Belfor
controlled the plaintiff workers and their performance, showed only that Belfor, the onsite
supervisor, used subcontractors to supply labor because Belfor did not have a directly employed
labor force. He found that this evidence did not show that Belfor had some “plan or policy” to
avoid paying overtime payments by subcontracting out labor. Id. at 879
Further, Judge Zainey determined that plaintiffs had failed to show how they were
similarly situated to potential opt-in plaintiffs nationwide. He noted that while the named
plaintiffs and potential opt-in plaintiffs might have been denied overtime payments, “the
similarity ends there.” Id. at 880. He observed that the action taken by each of the 2,100 Belfor
subcontractors in at least 44 states would have to be reviewed and individually analyzed to
determine, inter alia, whether a violation occurred and whether Belfor would be liable for such
a violation. He noted that each subcontractor signed separate agreements with Belfor and had

17

a different relationship with Belfor. Additionally, during the relevant time period, Belfor
undertook projects involving from less than five workers to more than 2,000 workers.
Judge Zainey found that Belfor had shown that the specific circumstances of each worker
was personal to his or her job experience with each of the subcontractors. However, named
plaintiffs had not shown that their circumstances and experiences with the payroll practices of
the specific contractor were similar to the payroll practices of the remaining workers who
worked for those 2,100 or so subcontractors who contracted with Belfour. He concluded that
“[t]here is simply no evidence of a generally applicable policy or practice and the individual
circumstance of each worker is too particularized to warrant collective certification
nationwide.” Id. at 880.
Like the plaintiff in Xavier, Virgen has failed to show that potential opt-ins were part of
a common policy, plan or decision implemented by defendants that violated the law.
Specifically, plaintiff has not established substantial allegations that his experiences with the
payroll practices of Impact are similar to other laborers and their experiences with the payroll
practices of the unnamed, nonparty staffing companies with whom Conrad does business. In
fact, the affidavit submitted by Conrad indicates that each staffing agency signed separate
contractual agreements with Conrad and had different business relationships with Conrad.
[Alfred Decl., ¶ 5]. Additionally, each of the staffing companies with whom Conrad does
business maintains its own payroll records and pays its employees directly; Conrad does not
provide compensation to any staffing company employee and has no information on the pay
practices of its staffing companies. [Alfred Decl., ¶ 8]. Thus, Conrad has no direct knowledge
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of situations where staffing companies have not paid overtime to nonexempt employees. [Alfred
Decl., Exhibit 1, ¶ 8].
As in Xavier, the Court cannot conditionally certify a class consisting of those employed
by any other staffing company doing business with and assigned to work with Conrad based on
the showing made. The facts of this case would require too particularized and individualized
an analysis of each worker’s situation. Id. at 880. The potential plaintiffs’ claims are better
tried as individual cases based upon the conditions at each different job site and the payroll
practices of each contractor. Id. (citing England v. New Century Financial Corp, 370
F.Supp.2d 504, 511 (M.D. La. 2005)).
Plaintiff argues that his situation is similar to that of the plaintiffs in Lima, which was
certified as a collective action on a limited basis. There, plaintiffs, predominately immigrants,
sued two contractors and a subcontractor alleging they were not paid proper overtime wage for
their work as manual laborers during the clean-up following Hurricane Katrina. Named
plaintiffs and three other individuals who had opted-in submitted affidavits stating that they had
worked for defendants in September of 2005, during which they were housed in a hotel with
350 to 400 other workers who were subject to identical pay practices. Judge Fallon found that,
given the lenient standard at the notice stage, plaintiffs and other putative class members,
including those who worked for other subcontractors, were similarly situated with respect to
defendants’ pay provisions so as to justify conditional certification.

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In Xavier, Judge Zainey distinguished Lima as follows:
The [Lima] plaintiffs requested and the Court granted certification for workers
who worked for only two contractors performing manual labor services directly
or indirectly through a subcontractor in the Gulf Coast area post-Hurricane
Katrina for a limited period of time. The Lima court was presented with a limited
well-defined class who were similarly situated with the named plaintiffs. Unlike
the Lima case, the plaintiffs here have failed to show that they and the opt-in
plaintiffs were the victims of a common unlawful policy or practice and have not
shown that they are similarly situated. Further, plaintiffs do not designate the
subcontractors at issue nor the applicable job sites and they do not describe the
specific job at each job site which is at issue. Rather they broadly request that “all
individuals who worked or are working for Belfor USA performing manual labor
either directly or indirectly through various subcontractors in various projects
throughout the United States over the last three years who were eligible for
overtime pay pursuant to the FLSA, 29 USC § 207 and who did not receive
overtime” be certified into one action. The Court cannot make such a certification
based upon the showing made and given that the facts of this case would require
too particularized and individualized an analysis of each worker's situation.
(emphasis added). Xavier, 585 F.Supp.2d at 880.
The Court finds that this case is more analogous to Xavier. Lima involved only two
contractors performing manual services directly or indirectly through a contractor. In the present
case, as in Xavier, the plaintiff fails to identify any of the staffing agencies which he alleges
improperly compensated their employees. Rather, he seeks to certify a collective action of any
of the thousands of workers providing manual labor for any of the 13 unnamed staffing
companies working for Conrad over a period of three years at three different job sites. The
collective actions sought to be certified in this case is distinct from the limited, well-defined
class as in Lima. Under the circumstances of this case, it would be unduly burdensome to
require Conrad to identify which employees of these unnamed staffing agencies were eligible

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to receive overtime and did not receive overtime over a three-year period. See H&R Block, Ltd.,
186 F.R.D. at 401 (“employers should not be unduly burdened by a frivolous fishing expedition
conducted by the plaintiff at the employer's expenses.”). Accordingly, based on the pleadings
and affidavits submitted, this Court finds that Virgen has failed to meet his burden of making
a preliminary factual showing that similarly situated individuals exist. Conditional certification
should, therefore, be denied.
IV. CONCLUSION
Based on the foregoing reasons, the Motion for Conditional Certification is DENIED.
Signed this 2nd day of November, 2015, at Lafayette, Louisiana.

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