Villegas et al v. Royal Disposal & Recycle LLC et al

Filing 19

ORDER GRANTING 18 Opposed MOTION to Certify Class.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CATALINO VILLEGAS, et al.,
Plaintiffs,
v.
GRACE DISPOSAL SYSTEMS, LLC D /B/A
ROYAL DISPOSAL & RECYCLING , et al.,
Defendants.

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CIVIL ACTION H-13-320

O RDER
Pending before the court is an opposed motion for conditional certification filed by plaintiffs
Catalino Villegas, Jose B. Joya, Erick Castro, Jorge Reyes, Walter Alonso Ortega, Arcessio Becerra,
J. Jesus Contreras, and Antonio Fernandez (“Plaintiffs”). Dkt. 18. Defendants Grace Disposal
Systems, LLC d/b/a Royal Disposal & Recycling, Royal Disposal and Recycle, LLC, David Hanna,
and Charles C. Gregory (“Defendants”) did not respond to the motion. Under Local Rule 7.4, the
court deems the motion as unopposed. See S.D. Tex. L.R. 7.4. After considering the unopposed
motion and applicable law, the court is of the opinion that the motion for conditional certification
(Dkt. 18) should be GRANTED.
I. BACKGROUND
This is an overtime case. Plaintiffs were drivers or helpers who drove to residential or
commercial locations, collected waste and recycling, disposed of the waste in landfills, and delivered
recyclable material to recycling facilities. Dkt. 10. Plaintiffs claim that they regularly worked more
than forty hours per week for Defendants, but they were paid a fixed daily rate ranging from $95 per
day for helpers to $125 per day for drivers. Id. Additionally, Plaintiffs contend that Defendants paid
them $10 an hour to perform additional “off-the-clock” work. Id. Plaintiffs’ employment was

allegedly terminated after they complained about not being paid overtime. Id. Plaintiffs assert that
Defendants manipulated time and payroll records to make it appear that Plaintiffs were being paid
overtime. Id.
Plaintiffs filed suit under the Fair Labor Standards Act (“FLSA”) for overtime violations and
retaliation. Dkts. 1, 10. They assert their overtime claim on behalf of themselves and similarly
situated employees. Dkts. 1, 10. The named plaintiffs now move for conditional certification so that
they may issue notice to current and former employees of defendants about their right to opt-in to
the class. Dkt. 18. Defendants did not respond to the motion.
II. LEGAL STANDARD
Section 207(a) of the FLSA 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). Section 216(b) creates a cause of action against employers who violate the overtime
compensation requirements. 29 U.S.C. § 216(b). Section 216(b) also permits an employee to bring
a collective action lawsuit against an employer on “behalf of himself . . . and other employees
similarly situated.” 29 U.S.C. § 216(b). Employees who wish to participate in a § 216(b) collective
action must affirmatively “opt in” by filing a written consent to become a party with the court . Id.
The “opt-in” procedure of § 216(b) illustrates its “fundamental, irreconcilable difference” from a
class action under Federal Rule of Civil Procedure 23(c); in a Rule 23 proceeding, persons within
the class description are automatically considered class members and must “opt out” of the suit if
they do not wish to participate. LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir.
1975).
The Fifth Circuit has declined to adopt a specific test to determine when a court should
certify a class or grant notice in a § 216(b) action, but most federal courts (including this court) have
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adopted the Lusardi test. See Mooney, 54 F.3d at 1214 (discussing but declining to adopt the test
applied in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)); Badgett v. Tex. Taco Cabana,
L.P., No. H-05-3624, 2006 WL 2934265, at *1-2 (S.D. Tex. Oct. 12, 2006). Under the Lusardi test,
a district court approaches the question of whether the potential plaintiffs are “similarly situated”
through a two-stage analysis. Mooney, 54 F.3d at 1213.
The two stages of the Lusardi test are the “notice stage” and the “decertification stage.”
Badgett, 2006 WL 2934265, at *1. At the notice stage, the court makes a decision, usually solely
based on the pleadings and any submitted affidavits, whether to certify the class conditionally and
give notice to potential class members. See Mooney, 54 F.3d at 1213. The decision is made using
a “fairly lenient standard,” because the court often has minimal evidence at this stage of the
litigation. Id. at 1214. Courts, in fact, “appear to require nothing more than substantial allegations
that putative class members were together the victims of a single decision, policy or plan. . .” Id.
(quoting Sperling, 118 F.R.D. at 407). Thus, notice stage analysis typically results in conditional
certification of a representative class. Badgett, 2006 WL 2934265, at *1. After conditional
certification, the “putative class members are given notice and the opportunity to ‘opt-in.’” Mooney,
54 F.3d at 1214.
After notice issues, the action proceeds as a representative action. See id. 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. “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 class is no
longer made up of similarly situated persons, it decertifies the class and dismisses the opt-in

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plaintiffs without prejudice. Id. If the class is still similarly situated, the court allows the collective
action to proceed. Id.
III. ANALYSIS
Plaintiffs have presented the court with argument and an affidavit that indicate that the
putative class members had similar jobs, were paid in a similar way, and were not paid overtime for
hours worked in excess of forty hours each week. Dkt. 18. Defendants have not offered any evidence
to the contrary. The court therefore finds that Plaintiffs have met their burden with regard to
conditional certification. Plaintiffs’ motion for conditional certification (Dkt. 18) is GRANTED.
A class of all individuals who are or were employed by Defendants during the three years prior to
the date this lawsuit was filed and worked more than forty hours a week without being paid overtime
compensation is hereby CONDITIONALLY CERTIFIED.
IV. CONCLUSION
Plaintiffs’ motion for conditional certification (Dkt. 18) is GRANTED. The notice and
notice of consent forms attached to Plaintiffs’ motion for conditional certification are hereby
APPROVED. Plaintiffs are permitted to mail the notice attached as exhibit A along with a stamped
return envelope addressed to Kennard, Blankenship & Robinson, P.C., to potential opt-in class
members. Defendants shall within seven (7) days of the date of this order provide Plaintiffs’ counsel
with the names and addresses of all individuals employed by Defendants as drivers or helpers during
the three-year period before this lawsuit was filed. The potential plaintiffs will have fifty (50) days
from the date of this order to opt-in to this lawsuit.

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The parties agreed to a conditional collective action certification hearing on December 18,
2013. See Dkt. 17. The court does not believe a hearing is necessary. Thus, the hearing is hereby
CANCELED.
It is so ORDERED.
Signed at Houston, Texas on October 25, 2013.

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Gray H. Miller
United States District Judge

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