Argo v. Precision Drilling Company, LP
Filing
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MEMORANDUM AND ORDER granting 19 MOTION to Certify Class (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BENJAMIN A. ARGO , On Behalf of Himself
and All Others Similarly Situated,
Plaintiff,
v.
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§
§
PRECISION DRILLING COMPANY , LP,
Defendant.
December 23, 2015
David J. Bradley, Clerk
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CIVIL ACTION NO . 4:15-CV-00604
MEMORANDUM AND ORDER
Before the Court is Plaintiff Benjamin Argo’s motion to conditionally certify a collective
action and to issue notice under the Fair Labor Standards Act (FLSA). Dkt. 19. After reviewing
the briefing and the law, the Court grants the motion.
BACKGROUND
Defendant Precision employed Argo as a floorhand on one of its oil rigs. Argo complains
that Precision, in making overtime payments to Argo and other oilfield workers, purposefully
omitted two forms of payment from its overtime calculations: (1) oil-based mud (OBM) pay, and
(2) safety bonuses. Argo seeks to conditionally certify a nationwide collective action on behalf
of all hourly paid Precision rig crew workers who received OBM or safety pay within the time
limits of the FLSA.1
ANALYSIS
The FLSA permits an employee to bring suit “for and in behalf of himself . . . and other
employees similarly situated.” 29 U.S.C. § 216(b). Unlike a class action under Federal Rule of
Civil Procedure 23, potential plaintiffs in a FLSA collective action must opt in to the lawsuit.
Dreyer v. Baker Hughes Oilfield Operations, No. H-08-1212, 2008 WL 5204149, at *1 (S.D.
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In its response, Precision contends that the proposed class is overly broad as described in Argo’s first proposed
order. Dkt. 22 at 8 n.1. Argo submits a revised proposed order certifying a class of “all hourly paid rig crew
workers,” which he defines in his reply as all floorhands, motormen, derrickhands, and drillers. Dkt. 23 at 2 n.1.
Tex. Dec. 11, 2008). The court may allow the named plaintiff to send an opt-in notice to other
potential plaintiffs once the court has conditionally certified the collective action. See HoffmannLa Roche, Inc. v. Sperling, 493 U.S. 165, 169–70 (1989).
The FLSA does not define “similarly situated,” and the Fifth Circuit has yet to rule on the
exact method that district courts should use to determine whether plaintiffs are “similarly
situated” under the FLSA. See Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516,
518–19 (5th Cir. 2010). The courts of the Southern District of Texas generally follow a twostage certification approach first set forth in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.
1987). See Kemp v. Databank IMX, LLC, No. H-14-1090, 2015 WL 1897929, at *4 (S.D. Tex.
Mar. 27, 2015).
This case is currently at the first stage of the Lusardi certification process. At this notice
stage, “the court determines whether the putative class members’ claims are sufficiently similar
to merit sending notice of the action to possible members of the class.” Acevedo, 600 F.3d at
519. The court is fairly lenient when deciding whether to conditionally certify a class at this
stage, requiring the plaintiffs to show: (1) a reasonable basis for crediting the assertion that
aggrieved individuals exist, and (2) that the aggrieved individuals are similarly situated to the
plaintiff in relevant respects given the claims and defenses asserted. See Jones v. Cretic Energy
Servs., LLC, No. H-15-0051, 2015 WL 8489978, at *4 (S.D. Tex. Dec. 9, 2015). Some courts
also require the plaintiffs to demonstrate that other individuals are interested in opting in to the
lawsuit. See Simmons v. T-Mobile USA, Inc., No. H-06-1820, 2007 WL 210008, at *9 (S.D. Tex.
Jan. 24, 2007) (collecting cases). This Court has rejected that requirement because it is “at odds
with the Supreme Court’s command that the FLSA be liberally construed to effect its purposes.”
Dreyer, 2008 WL 5204149, at *3.
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At the decertification stage, which occurs after notice has been sent to the conditionally
certified class, the court makes a final determination as to whether the representative and opt-in
plaintiffs are “similarly situated” enough to proceed with a collective action. Id. At this postdiscovery stage, the court has far more information before it and is better able to determine
whether the plaintiffs are similarly situated enough to proceed as a collective action. Id.
In support of conditional certification, Argo submits his own declaration (Dkt. 19-4) as
well as a declaration by one opt-in plaintiff, Curtis Mosby (Dkt. 20-1). Argo states that he
worked as a floorhand on Rig 96 in Williston, North Dakota, from August 2014 to January 2015.
Dkt. 19-4, ¶¶ 3–4. Mosby states that he worked as a derrickhand and motorman on Rigs 702 and
441 in Odessa, Texas, from June to December 2014. Dkt. 20-1, ¶¶ 1, 3, 8. Both plaintiffs claim
that they were underpaid due to Precision’s failure to include OBM and safety pay in its
overtime calculations (Dkt. 19-4, ¶ 8; Dkt. 20-1, ¶ 11), and both submit earnings statements
demonstrating that OBM and safety payments were not factored into their overtime rate of pay
(Dkt. 19-4 at 7–14; Dkt. 20-1 at 55–64). Finally, both plaintiffs declare that they spoke with
other drillers, derrickhands, motormen, and floorhands assigned to their rigs and confirmed that
Precision applied a similar overtime policy when calculating their pay. Dkt. 19-4, ¶ 12; Dkt. 201, ¶ 12. The plaintiffs have satisfied the lenient standard applied at this initial stage in the
certification process.
Precision dedicates much of its response to attacking the merits of the plaintiffs’ claims,
arguing that OBM pay is intended to be an expense reimbursement for the cost of replacing
workers’ clothing, not hazard pay for working in a dirtier, more dangerous environment. See
Dkt. 22 at 11. Precision also attacks the credibility of the declarations submitted by Argo and
Mosby, arguing that the plaintiffs fail to explain how they came to the conclusion that safety
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bonuses were paid to incentivize safe work habits. See id. at 12. These arguments are premature,
however, because “[n]either stage of certification is an opportunity for the court to assess the
merits of the claim by deciding factual disputes or making credibility determinations.” McKnight
v. D. Houston, Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010).
Precision next argues that conditional certification should be denied because the plaintiffs
fail to show a common policy, plan, or practice and fail to show that the same policy applied
across company locations. Dkt. 22 at 17–19. In 1995, the Fifth Circuit observed that, at the
notice stage, courts have required “nothing more than substantial allegations that the putative
class members were together the victims of a single decision, policy, or plan.” Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1214 n.8 (5th Cir. 1995). In Dreyer, this Court recognized that
a showing of a single policy or plan strongly supports a finding that the plaintiffs are similarly
situated, but refused to require plaintiffs to prove a single policy or plan before granting
conditional certification. 2008 WL 5204149, at *3. That said, the plaintiffs have substantially
alleged a single policy of omitting OBM and safety pay from the regular rate of pay when
calculating overtime that applies to all Precision rig workers. As Argo correctly argues in his
reply, Precision’s position is that it properly excluded OBM and safety bonus payments from the
regular rate calculation under the FLSA, not that it applied different payment policies varying by
location or job title. Precision asserts that not all employees were eligible to receive OBM and
safety pay, see Dkt. 22-4, ¶ 5, but does not produce any evidence to refute Argo’s allegation that
he and other rig workers across the country who did receive such payments are victims of a
single, uniform policy of improper exclusions. The Court finds that Argo has shown that
aggrieved individuals are similarly situated in relevant respects and that conditional certification
of the collective action is warranted.
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CONCLUSION
The Court grants the motion to conditionally certify a collective action (Dkt. 19). The
Court approves the notice marked as Exhibit G (Dkt. 23-3), and the plaintiffs may send it to all
hourly paid floorhands, motormen, derrickhands, and drillers who received OBM pay, safety
bonuses, or both, up to three years before the date of this order. The Court also approves the
consent form marked as Exhibit A (Dkt. 19-1), but orders plaintiffs to include the following
language in the consent form: “By opting in to this suit, I consent to magistrate judge jurisdiction
under 28 U.S.C. § 636(c).”
The Court overrules Precision’s objection to Argo’s use of electronic notices and
approves the following notice schedule:
DEADLINE
14 days from this order
ORDER
Precision must take reasonable steps to obtain
and produce the full names, last known street
addresses, last known phone numbers, last
known e-mail addresses, and dates of
employment of the putative class members.
This information shall be produced in usable
electronic format.
Plaintiff’s counsel must send copies of the
notice and consent form to the putative class
members by mail and/or e-mail. Precision is
ordered to post a copy of the notice and
consent form in an open and obvious location
at all jobsites for 90 days.
The putative class members have 90 days to
return their signed consent form for filing with
the Court. The 90-day period begins three days
after mailing or e-mailing of the notice,
whichever occurs first. Notice is timely
received if postmarked no later than the end of
that 90-day notice period. Counsel must
promptly file the consent. Precision may
remove the posted notice and consent form
after the 90-day period expires.
Plaintiff’s counsel may send a postcard
reminder to the putative class members and e-
20 days from receipt of putative class member
information from Precision
90 days from date notice is mailed to potential
class members
60 days from date notice is mailed
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mail an identical copy of the notice and
consent form to the putative class members.
Within 24 hours of mailing the notices, counsel shall file a notice with the Court advising
of the date of mailing. Each envelope containing the notice and consent form must state, on the
outside, in regular or bold typeface: “Notice of Unpaid Overtime Lawsuit – Deadline to Join.”
Each e-mail containing the notice and consent form must also make this statement in the subject
line.
Precision is ordered to provide the last four digits of the Social Security number of each
putative class member whose notice is returned undeliverable. Precision must provide this
information within 24 hours of being notified by counsel that the mail was returned
undeliverable.
Signed at Houston, Texas, on December 23, 2015.
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