Shaw v. Jaguar Hydrostatic Testing, LLC
ORDER granting 11 Opposed MOTION to Certify Class. The Court further ORDERS: Plaintiffs to file by September 15, 2017:(1) a Notice Letter consistent with this Order(2) a Notice of Consent Form; and(3) a Proposed Order approving both for transmission Jaguar shall file objections, if any, to the Notice Letter and Notice of Consent Form by September 22, 2017. Joint Discovery/Case Management Plan due by 9/29/2017.(Signed by Judge Hilda G Tagle) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GEROME SHAW, et al,
JAGUAR HYDROSTATIC TESTING,
September 05, 2017
David J. Bradley, Clerk
CIVIL NO. 2:15-CV-363
The Court has before it Plaintiff Gerome Shaw’s (“Shaw”) Opposed Motion for
Conditional Class Certification and Notice in this putative collective action under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Dkt. No. 11. After
considering the motion, the complaint, the accompanying evidence, the parties’
arguments, and the applicable law, the Court GRANTS Shaw’s motion.
On August 27, 2015, Shaw filed this FLSA collective action lawsuit on behalf
of himself and all other similarly situated to recover unpaid overtime wages,
liquidated damages, attorney’s fees, and costs owed to current and former Junior
Operators, Operators, Field Operators and Pressure Testers who worked for
Defendant Jaguar Hydrostatic Testing, LLC, (“Jaguar”) over the past three years.
See generally Compl., Dkt. No. 1.
Shaw is a former employee of Jaguar who worked as a “Field
Operator/Pressure Tester” for Jaguar from April 2011 to March 2014. Compl. ¶ 5;
Shaw Dec., Dkt. No. 11-1, ¶ 1. Jaguar is a Texas limited liability company offering
hydrostatic testing services to oil and gas operators in the United States. Jaguar
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has locations in Pennsylvania and Texas. Dkt. No. 11 at ¶ 5.1 When Shaw first
started work with Jaguar, he worked exclusively in Pennsylvania. Shaw Dep., Dkt.
No. 35 Ex. E at 29:4–30:5. Over two years later, he began working in the
Midland/Odessa area of Texas. Id. at 30:11-17. Shaw testified that he would fly to
Texas and work for twenty-one days at a time before returning to Pennsylvania for
nine days. Id. at 50:16-22.
Shaw’s duties included maintaining and servicing oil and gas production
facilities and overseeing the testing and monitoring of wells, pumps, storage
facilities and other pressure control equipment. Compl. ¶ 5. He alleges that he was
a non-exempt employee, id. ¶ 10, and that Jaguar paid him on a salary basis plus a
day rate (or bonus), but did not pay Shaw overtime for hours worked over forty
hours in a workweek. Id. at ¶ 6. Shaw alleges that he often worked in excess of
eighty hours and sometimes in excess of one-hundred hours per week. Id. at ¶ 10.2
Shaw alleges that other employees have also been denied overtime hours in
violation of the FLSA. Id. at ¶ 12. Shaw provides that he “is aware that Defendant
made a regular practice of not paying the required overtime premium for hours
worked over 40 in a workweek, but paid several different categories of employees on
the same basis: salary plus a day-rate.” Id.
Shaw seeks conditional certification of and notice to:
Jaguar also appears to have location(s) in New Mexico. See Rodriguez Dec., Dkt. No. 30-1, at ¶ 7
(“While employed by Jaguar, I worked in Texas and New Mexico, performing the same type of work
in the oilfields.”).
2 Shaw also declares that as a Field Operator/Pressure Tester, he performed “largely technical and
manual labor[-]type job duties for Jaguar” and that his “duties were physical and hard.” Shaw Dec.,
Dkt. No. 11 Ex. 1 at ¶ 2. Additionally,
As a Field Operator/Pressure Tester, I worked out in the field, which lasted
days or weeks at a time. Frequently I slept in my truck for the few hours of rest I got
each day. Even during my “down time,” I was frequently “on call” and was required
to be ready to work with my hands on the job, testing valves, performing
maintenance and cleaning equipment.
As a Field Operator/Pressure Tester, I could not alter the manner, method, or
scope of the work I performed. Instead, I worked in accordance with strict policies,
practices and procedures that dictated my day-to-day activities.
Shaw Dec., Dkt. No. 11 Ex. 1 at ¶¶ 3–4.
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All individuals who were employed by Jaguar Hydrostatic Testing,
LLC. during the past three (3) years as Junior Operators, Operators,
Field Operators and Pressure testers, who were paid a base salary and
a day-rate/job bonus with no overtime compensation.
Dkt. No. 11 at ¶ 23 (providing the language of the requested notice).
Shaw also seeks a judgment against Jaguar for an amount equal to Shaw’s
and the members of the purported class’s unpaid overtime wages, an amount equal
to the overtime wage damages as liquidated damages (and to the extent that
liquidated damages are not awarded, an award of prejudgment interest), and all
costs and attorney’s fees incurred. Compl. at 5 (Prayer for Relief).
Since the filing of the lawsuit, six individuals—Diego Alberto Meza (“D.A.
Meza”), Juan Diego Meza (“J.D. Meza”), Joe Derrick Silos (“Silos”), Frank Rodriguez
(“Rodriguez”), Joe Prado, and Joel Prado—have filed notices to opt into the lawsuit.
See Dkt. Nos. 3, 10, 21, 39.
D.A. Meza declares that he was a “Junior
Operator/Field Operator/Pressure Tester” from October 2011 to September 2013.
D.A. Meza Dec., Dkt. No. 11 Ex. 2 at ¶ 3. D.A. Meza worked in Texas and
Pennsylvania. D.A. Meza Dep., Dkt. No. 35 Ex. A at 36:13-18. J.D. Meza declares
that he was a “Field Operator/Pressure Tester” from October 2011 to September
2013. J.D. Meza Dec., Dkt. No. 11 Ex. 3 at ¶ 3. He worked in Texas and
Pennsylvania. J.D. Meza Dep., Dkt. No. 35 Ex. B at 22:7-17. Rodriguez declares that
he was a “Lubricator/Pressure Testing Operator” from June 2014 to February 19,
2016. Dkt. No. 30 Ex. 1 at ¶ 1.3 He worked in Texas and New Mexico. Rodrigeuz
Dep., Dkt. No. 35 Ex. C at 69:9-11. Shaw did not file declarations of Silos, Joe Prado,
or Joel Prado.
On July 18, 2017, this Court ordered supplemental briefing from Jaguar
The estimated number of employees that fall into the categories of
Junior Operator, Operator, Field Operator, and Pressure Tester for the
three-year period of time for which Shaw seeks conditional
The declarations of D.A. Meza, J.D. Meza, and Rodriguez repeat verbatim several paragraphs of
Shaw’s Declaration regarding the conditions of work while employed by Jaguar.
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The employment classification (“exempt” or “nonexempt”) of each of the
above-mentioned positions; and
The geographic locations in which Jaguar hired each of the abovementioned positions.
Order (July 18, 2017), Dkt. No. 49. The Court also gave Plaintiffs an opportunity to
“The FLSA establishes federal minimum-wage, maximum-hour, and overtime
guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v.
Symczyk, 133 S. Ct. 1523, 1527 (2013). Nonexempt employees are entitled to
overtime pay calculated at one and one half times their regular rate of pay for all
hours worked in excess of forty in a workweek. 29 U.S.C. § 207 (2016). Section
216(b) creates a cause of action for employees against employers violating FLSA
An action . . . may be maintained . . . by any one or more
employees for and in behalf of himself or themselves 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
29 U.S.C. § 216(b) (2016). Section 216(b) establishes an opt-in scheme under which
plaintiffs must affirmatively notify the court of their intention to become parties to
the suit. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995).
Courts routinely refer to FLSA actions brought by an employee for and on behalf of
other employees under this provision as “collective actions.” Genesis Healthcare, 133
S. Ct. at 1527 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169–70
(1989)). Unlike a class certified pursuant to Federal Rule of Civil Procedure 23,
under the FLSA, “ ‘conditional certification’ does not produce a class with an
independent legal status, or join additional parties to the action.” Id. at 1530.
Rather, the “sole consequence” of conditional certification is the sending of courtapproved written notice to employees, who in turn become parties to a collective
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action only by filing written consent with the court. Id.; see also Hoffmann-La
Roche, 493 U.S. at 171–72. District courts have discretion in deciding whether to
order notice to potential plaintiffs. Aguirre v. SBC Communications, Inc., No. H-053198, 2006 U.S. Dis. LEXIS 22211, at *15 (S.D. Tex. April 11, 2006) (Rosenthal, J.)
(citing Hoffmann-La Roche, 493 U.S. at 170–71).
District courts generally take one of two different approaches to conditional
certification. Mooney, 54 F.3d at 1213. The first is commonly referred to as the
“Shushan approach,” which treats certification of a collective action under the FLSA
and certification of a class under Rule 23 identically, requiring the plaintiff to
establish numerosity, commonality, typicality, and adequate representativeness.
See Shushan v. Univ, of Colo. at Boulder, 132 F.R.D. 263 (D. Colo. 1990). The second
is a “two-step ad hoc approach” that was utilized in Lusardi v. Xerox Corp., 118
F.R.D 351 (D. N.J. 1987).
The Fifth Circuit has not determined which method is most appropriate;
however, since Mooney, the Fifth Circuit has acknowledged the inapplicability of
Rule 23 to § 216(b) actions. Baldridge v. SBC Commc’ns, Inc., 404 F.3d 930, 932
(5th Cir. 2005). This Court routinely utilizes the Lusardi approach. Jaso v. Bulldog
Connection Specialists, LLC, 2015 WL 11144603 at *2 (S.D. Tex. Oct. 15, 2015)
(Tagle, J.); see also Perez v. Valdez, No. 1:13-CV-149, Slip Op. at 5 (S.D. Tex. Sept.
26, 2014) (Tagle, J.).
“Lusardi and its progeny are remarkable in that they do not set out a
definition of ‘similarly situated,’ but rather they define the requirement by virtue of
the factors considered in the [two-stage] analysis.” Mooney, 54 F.3d at 1213. The
Lusardi “two-step” method involves a dual step analysis of Section 216(b)’s
“similarly situated” requirement. Mooney, 54 F.3d at 1214; Kaluom v. Stolt
Offshore, Inc., 474 F. Supp. 2d 866, 871 (S.D. Tex. Feb. 7, 2007). The two steps
consist of a lenient “conditional certification” decision made at the so-called “notice
stage,” followed by a more rigorous analysis of the similarly situated issue typically
precipitated by a motion for “decertification” after discovery is largely complete and
the matter is ready for trial. Mooney, 54 F.3d at 1214.
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At the first Lusardi stage, the district court makes a decision—usually based
only on the pleadings and any affidavits that have been submitted—whether notice
of the action should be given to potential class members. Jaso, No. 2:15-CV-269,
2015 WL 11144603, at *3 (citing Mooney, 54 F.3d at 1213–14). The district court
makes its stage one decision by “determin[ing] whether the putative class members’
claims are sufficiently similar to merit sending notice of the action to possible
members of the class.” Id.; see also Acevedo v. Allsup’s Convenience Stores, Inc., 600
F.3d 516, 519 (5th Cir. 2010) (citing Mooney, 54 F.3d at 1213–14). Because the court
has minimal evidence before it at this stage, the district court’s determination is
made using a fairly lenient standard, and typically results in conditional
certification of a representative class that provides potential class members with
notice and the opportunity to opt-in. Mooney, 54 F.3d at 1214 n.8; McKnight v. D.
Houston, Inc., 756 F. Supp. 2d 794, 801 (S.D. Tex. 2010). If a court conditionally
certifies a class, the action proceeds as a collective action during discovery. Aguirre,
No. H-05-3198, 2006 U.S. Dis. LEXIS 22211, at *16 (citing Mooney, 54 F.3d at
The second stage of the Lusardi approach—the “decertification stage”—is
typically precipitated by the defendant filing a motion to decertify after the opt-in
period has concluded and discovery is largely complete. Id. (citing Mooney, 54 F.3d
at 1214). “At this stage, the court has much more information on which to base its
decision, and makes a factual determination on the similarly situated question.” Id.
If the court finds the claimants are no longer made up of similarly situated persons,
it decertifies the class and dismisses the opt-in plaintiffs without prejudice; if the
class is still similarly situated, the court allows the collective action to proceed. Id.
At no point in the certification process may the court “address the merits of the
claims . . . by ruling on factual disputes or making credibility determinations.”
Nieddu v. Lifetime Fitness, Inc., 977 F. Supp. 2d 686, 691 (S.D. Tex. 2013) (citing
Mooney, 54 F.3d at 1214); accord. McKnight, 756 F. Supp. 2d at 802.
While the notice stage standard is lenient, it is not automatic. In re Wells
Fargo Wage & Hour Employment Practices Litig. (No. III), No. H-11-2266, 2012 WL
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3308880, at *24 (Miller, J.) (citing Badgett v. Tex. Taco Cabana, L.P., No. H–05–
3624, 2006 WL 2934265, at *2 (S.D. Tex. Oct. 12, 2006)). The plaintiff bears the
burden of making a preliminary factual showing that a similarly situated group of
potential plaintiffs exists. Id. To establish this, the plaintiff must make a minimal
showing 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. Jaso, No. 2:15-CV-269, 2015 WL
11144603, at *2; Rueda v. Tecon Services, Inc., No. H-10-4937, 2011 WL 2566072, at
*2 (S.D. Tex. June 28, 2011) (Rosenthal, J.); Maynor v. Dow Chem. Co., No. G–07–
0504, 2008 WL 2220394, at *6 (S.D. Tex. May 28, 2008); Aguirre, No. H-05-3198,
2006 U.S. Dis. LEXIS 22211, at *19.
“A factual basis for the allegations is needed to satisfy this first step.” Rueda,
No. H-10-4937, 2011 WL 2566072, at *2; Hall v. Burk, 2002 U.S. Dist. LEXIS 4163,
at *3 (N.D. Tex. Mar. 11, 2002) (stating that “unsupported assertions of widespread
violations are not sufficient to meet Plaintiff’s burden.”). Without more, general
allegations that an employer violated the FLSA do not ordinarily suffice to establish
that other similarly situated employees exist. Jaso, No. 2:15-CV-269, 2015 WL
11144603, at *3 (citing Haynes v. Singer Co., Inc., 696 F.2d 884, 887 (11th Cir.
1983)); see also Xavier v. Belfour USA Grp., Inc., 585 F. Supp. 2d 873, 877 (E.D. La.
2008) (“Although the ‘similarly situated’ standard is lenient at the notice stage,
general allegations that the employer violated the FLSA are insufficient.”). “Even
this lenient standard appears to require substantial allegations that potential
members ‘were together the victims of a single decision, policy, or plan.’ ” Aguirre,
No. H-05-3198, 2006 U.S. Dis. LEXIS 22211, at *15 (quoting Mooney, 54 F.3d at
1213). “Some courts place an emphasis on finding ‘some identifiable facts or legal
nexus [that] bind the claims so that hearing the cases together promotes judicial
efficiency.’ ” Id. (quoting Barron v. Henry County Sch. Sys., 242 F. Supp. 2d 1096,
1103 (M.D. Ala. 2003)). “A court may deny plaintiffs’ right to proceed collectively if
the action arises from circumstances purely personal to the plaintiff, and not from
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any generally applicable rule, policy, or practice.” Id. (quoting England v. New
Century Fin. Corp., 370 F. Supp. 2d 504, 507 (M.D. La. 2005)); see also Barron, 242
F. Supp. 2d at 1104 (“The mere fact that violations occurred cannot be enough to
establish similarity, as that would not ultimately be sufficient to establish a pattern
and practice without a showing that the violations were more than sporadic
For purposes of conditional certification under the FLSA, “[s]imilarly situated
does not necessarily mean identically situated.” Jaso, No. 2:15-CV-269, 2015 WL
11144603, at *4 (quoting England, 370 F. Supp. 2d at 507). Rather, the plaintiff
must show only that he and the employees in the proposed class are “similarly
situated in terms of job requirements and similarly situated in terms of payment
provisions.” Id. (citing Ryan v. Staff Care, Inc., 497 F. Supp. 2d 820, 825 (N.D. Tex.
2007); see also Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856, 862 (S.D. Tex. 2012)
(quoting and applying this standard from Ryan); Walker v. Honghua Am., LLC, 870
F. Supp. 2d 462, 468 (S.D. Tex. 2012) (same). Conversely, “if the job duties among
potential members of the class vary significantly, then class certification should not
be granted.” Jaso, No. 2:15-CV-269, 2015 WL 11144603, at *4; Walker, 860 F. Supp.
2d at 468 (quoting Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212,
2008 WL 5204149, at *2 (S.D. Tex. Dec. 11, 2008)). Nonetheless, the “similarly
situated” requirement of § 216(b) is more elastic and less stringent than the
requirements found in Rule 20 (joinder) and Rule 42 (severance). Jaso, No. 2:15-CV269, 2015 WL 11144603, at *4; see also Heeg, 907 F. Supp. 2d at 862 (quoting
Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir. 1996)).
In cases where plaintiffs have alleged FLSA violations across a company’s
multiple locations, courts have held that “[i]f there is a reasonable basis to conclude
that the same policy applies to multiple locations of a single company, certification
is appropriate.” Rueda, No. H-10-4937, 2011 WL 2566072, at *4; see also Vargas v.
Richardson Trident Co., No. H-09-1674, 2010 WL 730155, at *6 (S.D. Tex. Feb. 15,
2012) (certifying a class of store managers working in various locations under
supervision of different individuals because there was evidence of a common policy);
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Blake v. Colonial Savings, F.A., Civ. A. No. H-04-0944, 2004 WL 1925535 (S.D. Tex.
Aug. 16, 2004) (approving notice to loan officers in the defendant’s Dallas office and
those in remote locations based on evidence that unlawful overtime policies applied
to all locations).
On the other hand, “FLSA violations at one of a company’s multiple locations
generally are not, without more, sufficient to support company-wide notice.” Rueda,
No. H-10-4937, 2011 WL 2566072, at *4; see also Harper v. Lovett’s Buffet Inc., 185
F.R.D. 358, 362–63 (M.D. Ala. 1999) (refusing to include in a class employees of a
chain’s other restaurants when the evidence of FLSA violations was limited to a
single restaurant); but see Donohue v. Francis Servs., Inc., No. Civ. A. 04-170, 2004
WL 1406080 (E.D. La. June 22, 2004) (holding that employers should not be able to
“escape FLSA liability by making sure to underpay vast numbers” of their
employees and then claim that the class definition is too broad.). In Rueda, the
court denied the plaintiffs’ motion to extend their collective action certification,
which had been granted to one subclass of employees working at one particular site,
Garrett Yard, to include all nonexempt company hourly employees who performed
manual labor. The court reasoned that the four affidavits submitted in support of
extending conditional certification did not “present[ ] sufficient evidence of a policy
of denying overtime pay outside the Garrett Yard to meet even the low burden
required for conditional certification” because the affiants merely “asserted
awareness of other workers” complaining they were not paid overtime wages or for
all the hours that they worked.’ ” Rueda, No. H-10-4937, 2011 WL 2566072, at *5
(internal quotations omitted). The court held that these affidavits did not support
certification of a subclass of thousands of employees who performed manual labor
outside the Garrett Yard site. Id.
Courts have at times refused to certify a class, even conditionally, when the
relevant legal question would “require a highly individualized, fact-intensive
inquiry.” See, e.g., Aguirre, No. H-05-3198, 2006 U.S. Dis. LEXIS 22211, at *16.
Other courts have noted that a “decision to certify, even if subject to correction at
the decertification stage, is not without consequences” because “[t]oo much leniency
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at the notice stage can lead to a frivolous fishing expedition conducted by the
plaintiff at the employer’s expense” and “extreme leniency at the notice stage can
result in conditional certification that must later be revoked at the eve of trial . . .
when it becomes obvious that manageability concerns make collective action
impossible.” In re Wells Fargo Wage & Hour Employment Practices Litig. (No. III),
No. H-11-2266, 2012 WL 3308880, at *20 (quoting Lang v. DirecTV, Inc., No. 10–
1085, 2011 WL 6934607, at *6 (E.D. La. Dec.30, 2011)) (internal quotations and
However, “the possibility that the Court will be drawn into a series of
minitrials on the facts” is not dispositive of a motion for classification. See Jaso, No.
2:15-CV-269, 2015 WL 11144603, at *4. In Jaso, this Court granted plaintiff’s
motion for conditional certification of approximately thirty to fifty representatives of
an oilfield services company who regularly worked more than twelve hours in a day
and more than eighty hours in a week, and alleged that they were underpaid. Id. at
*1, *3. In Malaska v. Saldivar Coastal Services, Inc., No. 2:16-CV-117, 2017 WL
1452584, at *10 (S.D. Tex. Apr. 20, 2017) (Tagle, J.), this Court denied conditional
certification for overtime claims in part because the purported class included up to
1,400 employees. Id. (“[G]ranting certification on this overtime issue to 1,400
potential plaintiffs would create serious manageability concerns because the parties
and Court would need to consider the overtime records of a potentially enormous
number of opt-in plaintiffs.”).
Shaw argues that conditional certification is appropriate because all Junior
Operators, Operators, Field Operators, and Pressure Testers “performed the same
essential job duties and were subjected to the same conditions of employment.” Dkt.
No. 11 at ¶ 20. Shaw argues that the employees that fall into these job categories
are “similarly situated” employees because the defendant misclassified them all as
exempt from the overtime requirements of the FLSA despite the fact that their job
duties consisted primarily of manual and technical labor. According to Shaw’s
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motion, Shaw, Silos, D.A. Meza, and J.D. Meza, for example, “worked in the oil
fields, at rig sites, performing hard manual labor performed in all kinds of weather
conditions.” Id. at ¶ 6. Shaw alleges that he “and those he worked with [ ] worked in
the field for weeks at a time, working seven days a week, 12 to 16 hours per day,
and then taking several days off before going into the field again.” Id. They “were
paid on a salary basis and were also paid daily bonuses for each day they worked in
the field. . . . [but] were never paid an overtime premium for hours worked over 40
in a workweek.” Id. Shaw argues that “other individuals were employed in similar
positions to Plaintiff [because they are or were employees] compensated in the same
manner as the Plaintiff and the opt-ins: they were paid a salary and daily or job
bonuses.” Id. at ¶ 7. “The other employees of Defendant who were employed in
similar positions as the Plaintiff also regularly work over 40 hours per week
without being paid the overtime premium.” Id. Shaw argues that the work
performed and method of compensation were consistent across all of Jaguar’s
locations, and that the employees were similarly situated. Id. at ¶ 8.
Jaguar opposes the motion for conditional certification and argues that Shaw
seeks to certify “a large and very diverse group of Jaguar employees—‘Junior
Operators,’ ‘Operators, ‘Field Operators,’ and ‘Pressure Testers’—who are
unsuitable for collective treatment” under the FLSA. Dkt. No. 35 at 1. Jaguar
argues that the evidence shows that “numerous variables affect daily conditions and
duties of the putative class members, thus requiring a highly individualized inquiry
as to damages and defenses available to Jaguar.” Dkt. No. 35 at 2. Jaguar argues
that the majority of the putative class’s job duties changed daily because of
variables including “the demands of the company man, the client and the specific
worksite.” Dkt. No. 35 at 3. Jaguar also points out that each job title represents a
separate set of functions and/or levels of experience required for that position.
Jaguar also argues that the various locations of Jaguar’s employees in
Pennsylvania, Texas, and New Mexico weigh against conditional certification
because each site has its own management structure. Id. at 12.
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Jaguar further argues that the putative class members received varying pay
and had differing levels of eligibility for bonuses. Id. at 15 (citing to various
declarations of Jaguar employees providing their pay structure); see also Dkt. No. 35
Ex. D. at JAG000367, at ¶ 2 (Juan Alberto Nava stating that he “ha[s] worked for
Jaguar as an operator for approximately 3 years and 6 months as a helper” and that
“[d]during the entire time, [he] ha[s] been paid hourly including overtime”); id. at
JAG000368, at ¶ 2 (Juan C. Gonzalez stating that he has “worked for Jaguar as a
helper/operator for approximately 1 year and 6 months” and “[d]uring this entire
time, [he] ha[s] been paid hourly including overtime”); id. at JAG000379, at ¶ 4
(Santos Gonzalez stating that “[a]s a junior operator, [he is] paid an hourly wage
and then overtime pay for over 40 hours a week”); id. at JAG000384, at ¶ 4 (Ramiro
Reyna stating that when he worked “as a junior operator, [he] was paid hourly”).
Jaguar also argues that the purported plaintiffs are not similarly situated
because Jaguar paid an hourly wage for varying periods of time. See Dkt. No. 35 at
16; Dkt. No. 35 Ex. C at 34:5–14 (Rodriguez testifying that he was paid both salary
plus bonus and hourly at different times during his employment with Jaguar); Dkt.
No. 35 Ex. E at 39:7–19 (Shaw testifying that he was paid hourly and switched to
In response to this Court’s Order requiring Jaguar to clarify certain tiems,
Jaguar has indicated that there are:
Approximately five employees of Jaguar that fall into the category of Junior
Operator, and that all Junior Operators hired during the relevant time period
were hired in Texas. Junior Operators are classified as exempt employees.
Approximately twenty-nine employees currently hold or previously held the
title of “Test Pump Operator”4 at Jaguar during the relevant time period. Of
Jaguar argues that Plaintiffs used the incorrect title of “Operator” in its briefing. Jaguar alleges
that it does not employ any workers with the job title of “Operator,” and, rather, employs “Test Pump
Operators” and “Lubricator Operators.” Dkt. No. 50 at 2. Jaguar has, accordingly, provided the
information ordered by the Court as to the titles of Test Pump Operators. Jaguar does not provide
any information as to the number of Lubricator Operators, the status of Lubricator Operators as
exempt or non-exempt, or the geographic locations in which Lubricator Operators work. Jaguar
provides, “The testimony thus far of all witnesses, including the lead Plaintiffs in this matter, has
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these individuals, eight were hired in Pennsylvania, while twenty-one were
hired in Texas during the relevant time period. Test Pump Operators are
classified as exempt employees.
Jaguar does not employ any workers with the title “Field Operator” or
“Pressure Tester.” However, Jaguar acknowledges that the term “Pressure
Tester” is a “commonly used term throughout the industry and possibly
resembles the Jaguar title of ‘Test Pump Operator’ which can also have an
additional descriptor or level-based classification of ‘Junior’ depending on the
employee’s skill level and overall experience.” See Dkt. No. 50 at 2–4.
Shaw responds to Jaguar’s Supplemental Briefing by arguing that Lubricator
Operators should be included in any potential putative class. Dkt. No. 51 at 1
(stating that “Jaguar’s argument is apparently that the terms ‘Operator’ and ‘Junior
Operator’ should both be applied to Test Pump Operators only and that the
Lubricator Operators should not be part of any potential putative class.”). Shaw also
argues, “It is interesting to note that, in Exhibit E to its Response to Plaintiff’s
Motion for Conditional Certification, Jaguar attached a number of declarations from
employees in which their job titled was stated as being something other than ‘Test
Pump Operator’ or ‘Lubricator Operator. . . . These declarations demonstrate that
the term ‘operator’ is regularly used by employees at Jaguar to designate their job
title.” Id. at 2 (erroneously indicating that the declarations were filed as Exhibit E,
when Jaguar filed the declarations as Exhibit D). See Dkt. No. 35 Ex. D. Shaw
argues that “the term ‘operator’ is regularly used by employees at Jaguar to
designate their job title,” Dkt. No. 51 at 2, and asks the Court to include Test Pump
Operators and Lubricator Operators in the conditional class. Id.
The Court finds that on the pleadings, affidavits, and supplemental briefing
as ordered by the Court, conditional certification as to Junior Operators, Test Pump
been consistent in its distinction that the Test Pump Operator job and its duties are wholly different
than that of a Lubricator Operator. In addition to the differences in job duties, locations worked, and
other variable factors, the different types of Operators are paid differently. For example, some Test
Pump Operators may be eligible to receive multiple job bonuses in one day whereas, for a Lubricator
Operator, this would be a rare occurrence.” Id. at 2–3.
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Operators,5 and Lubricator Operators for employees that have worked for Jaguar is
appropriate at this first Lusardi stage. Because at this early stage, the Court has
minimal evidence before it, the Court must apply a “fairly lenient standard.” See
Mooney, 54 F.3d at 1214 n.8. Here, Shaw has met his burden to make a preliminary
factual showing that a similarly situated group of potential plaintiffs exists and
wants to opt into the lawsuit by attaching the affidavits of D.A. Meza, J.D. Meza,
and Rodriguez. Additionally, considering that this is a case asserting a violation of
overtime provisions of the FLSA, Shaw has shown that the aggrieved individuals
are similarly situated to him in relevant respects because the briefings demonstrate
a bona fide dispute between Jaguar and prospective plaintiffs as to whether Junior
Operators, Test Pump Operators, and Lubricator Operators are exempt or nonexempt employees. Because Jaguar asserts that these individual were exempt
employees, whereas Shaw argues that such employees were in fact non-exempt,
Shaw’s case is not one “purely personal” to him, and instead, is one that challenges
a “generally applicable rule, policy, or practice.” Aguirre, No. H-05-3198, 2006 U.S.
Dis. LEXIS 22211, at *15. The discrepancy in classification demonstrates that the
alleged overtime violations “were more than sporadic occurrences.” Barron, 242 F.
Supp. 2d at 1104.
Though the job descriptions of Junior Operators, Test Pump Operators, and
Lubricator Operators vary, under the FLSA, “[s]imilarly situated does not
necessarily mean identically situated.” Jaso, No. 2:15-CV-269, 2015 WL 11144603,
at *4; England, 370 F. Supp. 2d at 507. Here, Shaw alleges a general scheme of
misclassification of employees. Therefore, even if there are different job functions
among employees, the limited evidence before the court shows that, in general, the
prospective class members performed manual labor and generally did not have
supervisory functions. Cf. Aguirre, No. CIV.A. H-05-3198, 2006 WL 964554, at *6
(denying conditional certification in part because the court’s inquiry “would extend
This includes Shaw and other “Pressure Testers,” which as Jaguar clarifies is a commonly used
term throughout the industry and resembles the Jaguar title of “Test Pump Operator.” Dkt. No. 50
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into the number of employees supervised; the ability to recommend hiring, firing,
and reprimanding workers; the employee’s opportunity to exercise discretion, and
the amount of time the employee spends on nonmanagerial tasks.”). Therefore,
though Jaguar argues that each employee may be subject to a fact-specific
exemption analysis, that potential “exemption analysis does not militate against
conditional certification at this stage.” Jaso, No. 2:15-CV-269, 2015 WL 11144603,
at *4 (also stating that the employer, not the employee, has the burden to prove that
an FLSA exemption applies, and that judges of this Court have refused to shift the
burden to the employee on a motion for conditional certification, “determin[ing
instead] that exemptions are merit-based and not relevant at the notice stage”)
(quoting In re Wells Fargo Wage & Hour Emp. Prac. Litig. (No. III), No. H-11-2266,
2012 WL 3308880, at *28 (distinguishing cases on this ground)).
Additionally, though Jaguar argues that Shaw seeks to certify “a large and
very diverse group of Jaguar employees,” see Dkt. No. 35 at 1, its supplemental brief
in response to this Court’s Order suggests that the purported class would not, in
fact, be large in comparison to other classes that courts have certified at the first
Lusardi stage. Although the Court does not have before it the number of Lubricator
Operators Jaguar employed during the relevant time period, the fact that there are
only five employees of Jaguar that fall into the category of Junior Operator and only
twenty-nine employees that currently hold or previously held the title of Test Pump
Operator suggests that the number of Lubricator Operators employed by Jaguar
during the relevant time period is also modest. Therefore, even taking into account
manageability concerns regarding collective action, this case presents a similar
range of possible plaintiffs as Jaso. Compare Jaso, No. 2:15-CV-269, 2015 WL
11144603, at *1, *3 (granting plaintiff’s motion for conditional certification of
approximately thirty to fifty representatives of an oilfield services company) with
Malaska, No. 2:16-CV-117, 2017 WL 1452584, at *10 (denying conditional
certification a purported class of up to 1,400 employees). Therefore, like in Jaso, the
Court finds that given the light burden applicable to plaintiffs at this preliminary
stage, conditional certification is appropriate.
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Having considered Shaw’s motion, briefings, and the relevant law, this Court
GRANTS Shaw’s Motion for Conditional Certification, Dkt. No. 11.
The Court grants conditional certification on Shaw’s overtime claim for all
individuals who had the job title of Junior Operator, Test Pump Operator,6 and
Lubricator Operator when employed by Jaguar.
The Court further ORDERS:
Plaintiffs to file by September 15, 2017:
(1) a Notice Letter consistent with this Order
(2) a Notice of Consent Form; and
(3) a Proposed Order approving both for transmission
Jaguar shall file objections, if any, to the Notice Letter and Notice of Consent
Form by September 22, 2017.
Parties shall file an amended Joint Discovery/Case Management Plan by
September 29, 2017.
SIGNED this 5th day of September, 2017.
Senior United States District Judge
This includes “Pressure Testers.”
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