Lindsey et al v. Harris County Constable's Office Precinct 3 et al
Filing
31
MEMORANDUM AND OPINION denying 21 Opposed MOTION to Conditionally Certify Collective Action and Authorize Notice to Putative Class. Individuals interested in asserting FLSA claims may move to intervene as individual plaintiffs if they choose. (Signed by Magistrate Judge Nancy K. Johnson) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CORDELL LINDSEY, JR.,
and ROBERT L. WILSON,
§
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
HARRIS COUNTY, et al.,
Defendants.
November 06, 2015
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-630
MEMORANDUM OPINION
Pending before the court1 is Plaintiffs’ Motion for Class
Certification (Doc. 21).
The court has considered the motion, the
response, and the applicable law. For the reasons set forth below,
the court DENIES Plaintiffs’ motion.
I.
Case Background
Plaintiffs Cordell Lindsey, Jr., (“Lindsey”) and Robert L.
Wilson,
(“Wilson”)
former
officers
employed
by
Harris
County
Constable’s Office Precinct 3 (“Precinct 3”), jointly filed this
action against Defendants Harris County, Ken Jones (“Jones”) and
John Ray Harrison (“Harrison”) in their official and individual
capacities, under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201 et seq.,
VII”)2
Title VII of the Civil Rights Act of 1964, (“Title
and for retaliation under 42 U.S.C. § 1981 and 1983.
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Docs. No. 19, 20.
2
42 U.S.C. §§ 2000e-2000e-17.
Lindsey additionally filed a claim of age discrimination under the
Age Discrimination in Employment Act3 (“ADEA”).
A.
Procedural History
Plaintiffs filed this lawsuit against Defendants on March 3,
2015, alleging willful violations of Title VII and the ADEA, along
with allegations of retaliation.4
On June 24, 2015, Plaintiffs
amended their complaint, alleging that Harris County and Jones
denied
Plaintiffs
and
prospective
class
members
overtime
in
violation of the FLSA.5
Plaintiffs filed the pending motion for conditional class
certification on October 2, 2015,6 seeking to certify the following
class: “All current and former non-exempt law enforcement officers
who worked at Harris County Constable’s Office for Precinct 3
anytime during the last three years.”7
In the motion, Plaintiffs
ask
certify
the
court
to:
(1)
conditionally
this
suit
as
a
collective action; (2) order Defendants to produce within ten days,
all names, addresses, phone numbers, and email addresses of all
potential class-members; and (3) authorize and approve notice to be
3
29 U.S.C. §§ 621-634.
4
See Doc. 1, Pls.’ Compl.
5
See Doc. 3, Pls.’ 1st Am. Compl.
6
See Doc. 21, Pls.’ Mot. to Certify Class.
7
Doc. 21-7, Ex. G to Pls.’ Mot. to Certify Class, Proposed Notice.
2
sent to class-members.8
On
October
23,
Plaintiffs’
motion
Defendants
filed
2015,
for
Defendants
class
filed
a
certification.9
objections
to
response
The
Plaintiffs’
same
to
day,
conditional
certification exhibits.10
B.
Factual History
The following account is derived from Plaintiffs’ complaint
and the exhibits attached to the pending motion and is limited to
the facts supporting Plaintiffs’ FLSA claims.
Lindsey was hired by Precinct 3 in 2002.11
Lindsey was promoted to Lieutenant.12
On March 15, 2010,
On May 16, 2013, Lindsey and
his attorney met with Harrison following a citizen complaint.13
On
May 24, 2013, Jones terminated Lindsey pursuant to the precinct’s
investigation.14
Wilson was employed by Precinct 3 as a deputy beginning in
2011.15
Captain Jonathan Moore (“Moore”) stated that Wilson worked
as
Community
a
Services
Deputy
from
May
2012
until
8
See Doc. 21, Pls.’ Mot. to Certify Class p. 23.
9
See Doc. 27, Defs.’ Resp. to Pl.’s Mot. to Certify Class.
10
See Doc. 20, Defs.’ Mot. for Leave to File Original Countercl.
11
See Doc. 3, Pls.’ 1st Am. Compl. p. 5.
12
See id. pp. 5-6.
13
See id. pp. 6-7.
14
See id. p. 6.
15
See id. p. 7.
3
his
termination.16 In 2013, Wilson was directed to give up employment
outside the precinct.17
Shortly after Wilson gave up his secondary
employment, Constable Jones terminated Wilson’s employment on June
25, 2013, stating he did so because Wilson “engaged in criminal
activity.”18
Plaintiffs allege that all officers were instructed not to
record all the hours they actually worked, but to instead report
forty hours worked each week.19 Plaintiffs allege that as a result,
Harris County failed to pay officers their required overtime.20
Plaintiffs state that they feared being retaliated against if they
reported all of the time they worked.21 Plaintiffs allege that they
were required to work hours “off the clock,” if an incident began
during their shift and lasted beyond the end of their shift.22
Plaintiffs also allege that they were requested to work outside of
their shifts for special events and holidays, and that while they
were promised “comp time” for these hours, they were not paid time
and
a
half,
instead
receiving
hour-for-hour
compensation
in
16
See Doc. 27-2, Ex. B to Defs.’ Mot. in Opp’n to Class Certification,
Aff. of Jonathan Moore p. 5.
17
See Doc. 3, Pls.’ 1st Am. Compl. p. 8.
18
See id.
19
See id. p. 9.
20
See id.
21
See Doc. 21-1, Ex. A to Pl.’s Mot. to Certify Class, Aff. of Lindsey
p. 3, Doc. 21-2, Ex. B to Pl.’s Mot. to Certify Class, Aff. of Wilson p. 3.
22
See id.
4
exchange for working additional hours.23
II.
The
FLSA
requires
Legal Standard
covered
employers
to
pay
non-exempt
employees for hours worked in excess of defined maximum hours.
U.S.C. § 207(a).
29
It allows employees to bring an action against
their employers for violation of its hour and wage provisions. See
29 U.S.C. §§ 215-216.
An employee may bring this action against
his employer on “behalf of himself . . . and other employees
similarly situated.
No employee shall be a party plaintiff to any
such an action unless he gives his consent in writing to become a
party and such consent is filed in the court in which such action
is brought.”
29 U.S.C. § 216(b).
Courts have the authority to
implement the representative action process by facilitating notice
to potential plaintiffs, i.e., to persons alleged to be “similarly
situated” to the named plaintiff(s).
Hoffman-La Roche, Inc. v.
Sperling, 493 U.S. 165 (1989).
In the Fifth Circuit, the determination of whether plaintiffs
are “similarly situated” is generally made by using one of two
analyses: (1) the two-step analysis described in Lusardi v. Xerox
Corp., 118 F.R.D. 351, 359 (D.N.J. 1987), or (2) the “spurious
class action” analysis described in Shushan v. Univ. of Colo., 132
F.R.D. 263 (D. Colo. 1990).
See Mooney v. Aramco Servs. Co., 54
23
See Doc. 21-1, Ex. A to Pl.’s Mot. to Certify Class, Aff. of Lindsey
pp. 3-4, Doc. 21-2, Ex. B to Pl.’s Mot. to Certify Class, Aff. of Wilson pp. 3-4.
5
F.3d 1207, 1216 (5th Cir. 1995)(expressly declining to decide which
of the two analyses is appropriate)(overruled on other grounds by
Desert Palace Inc. v. Costa, 539 U.S. 90 (2003)).24
Under
the
Lusardi
approach,
the
court
first
“determines
whether the putative class members’ claims are sufficiently similar
to merit sending notice of the action to possible members of the
class.”
Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d
516, 519 (5th Cir. 2010) (citing Mooney, 54 F.3d at 1213-14).
The
court makes this determination by using a fairly lenient standard,
requiring only “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.
If the court determines
that the employees are similarly situated, then notice is sent and
new plaintiffs may “opt in” to the lawsuit.
519 (citing Mooney, 54 F.3d at 1214).
Acevedo, 600 F.3d at
Next, once discovery has
largely been completed, and, thus, more information on the case
made available, the court makes a final determination on whether
the plaintiffs are similarly situated and whether they can proceed
together in a single action.
Id.
According to the Fifth Circuit, the Shushan approach, known as
the “spurious class action” analysis, is similar to the class
24
Mooney v. Aramco Services Co. was an action under the Age
Discrimination in Employment Act (“ADEA”), but it is informative here because the
ADEA explicitly incorporates Section 216(b) of the FLSA to also provide for an
“opt-in” class action procedure for similarly-situated employees. See Mooney,
54 F.3d at 1212.
6
certification procedure used under Federal Rule of Civil Procedure
23 (“Rule 23”):
Shushan espouses the view that [29 U.S.C. § 216(b)
(“Section 216(b)”)] merely breathes new life into the socalled “spurious” class action procedure previously
eliminated from [Rule 23]. Building on this foundation,
the court determined that Congress did not intend to
create a completely separate class action structure for
the FLSA . . . context, but merely desired to limit the
availability of Rule 23 class action relief under . . .
[the FLSA]. In application, the court determined that
Congress intended the “similarly situated” inquiry to be
coextensive with Rule 23 class certification. In other
words, the court looks at “numerosity,” “commonality,”
“typicality” and “adequacy of representation” to
determine whether a class should be certified. Under
this methodology, the primary distinction between a . .
. [FLSA] representative action and a [Rule 23] class
action is that persons who do not elect to opt-in to the
. . . [FLSA] representative action are not bound by its
results. In contrast, Rule 23 class members become party
to the litigation through no action of their own, and are
bound by its results.
Mooney, 54 F.3d at 1214.
The Fifth Circuit has not ruled which method the courts should
use to determine whether plaintiffs are sufficiently “similarly
situated” to advance their claims together in a single action under
Section 216(b).
Acevedo, 600 F.3d at 518-19.
Although it has
stated that not all class action standards are applicable to
Section 216(b) actions, the court has explicitly left open the
question of whether the Lusardi approach, the Shushan approach, or
some
third
employees’
approach
claims
should
are
be
used
sufficiently
in
similar
maintenance of a representative action.
7
determining
to
whether
support
the
Id. (citing Mooney, 54
F.3d at 1216; LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5th
Cir. 1975)).
However, most courts in this district follow the Lusardi
approach in suits brought under Section 216(b).
See, e.g.,
Tolentino v. C & J Spec-Rent Servs., Inc., 716 F. Supp. 2d 642, 646
(S.D. Tex. 2010) (collecting cases).
The Lusardi approach is
consistent with Fifth Circuit dicta stating that the two-step
approach is the typical manner in which these collective actions
proceed.
Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2
(5th Cir. 2008).
The Fifth Circuit has also stated that “[t]here
is a fundamental, irreconcilable difference between the class
action described by [Rule 23] and that provided for by [Section
216(b)],” i.e., the “opt out” procedure for class members under
Rule 23 as opposed to the “opt in” procedure under Section 216(b).
LaChapelle, 513 F.2d at 288; see also Donovan v. Univ. of Tex. at
El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981) (“The FLSA procedure,
in effect, constitutes a congressionally developed alternative to
the [Rule 23] procedures.”).
This court, therefore, will analyze
Plaintiff’s claims using the Lusardi method.
The present case is at the “notice stage” of the Lusardi
analysis.
At this stage, the court’s decision is “made using a
fairly lenient standard;” a plaintiff need only make a minimum
showing to guide the court’s determination whether to issue notice
to potential class members.
Mooney, F.3d at 1214.
8
In the absence of Fifth Circuit guidance on the appropriate
test to use at the notice stage of the Lusardi analysis, courts are
split on the appropriate elements to consider in determining
whether to grant conditional certification.
Some courts use three
elements, requiring a plaintiff to show 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.
See, e.g., Cantu v. Vitol, Inc., No. H-09-0576, 2009 WL
5195918, at *4 (S.D. Tex. Dec. 21, 2009) (unpublished); Tolentino,
716 F. Supp. 2d at 653.
Other courts, however, have rejected the
third, non-statutory element.
See, e.g., Dreyer v. Baker Hughes
Oilfield Operations, Inc., No. H-08-1212, 2008 WL 5204149, *3 (S.D.
Tex. Dec. 11, 2008) (unpublished); Heckler v. DK Funding, LLC, 502
F. Supp. 2d 777, 780 (N.D. Ill. 2007).
The court agrees with the latter camp that Plaintiffs need not
present
evidence
of
the
third
element
at
this
stage
of
the
certification process. There are several reasons for this. First,
as already stated, this element is not a statutory requirement at
this stage.
See 29 U.S.C. § 216(b).
Second, this element has not
been required, or even discussed, by any higher court opinion that
this court has been able to find or to which the parties have
cited.
Rather, the Fifth Circuit’s discussion of the Lusardi
9
approach only requires, at the first stage, that “putative class
members’ claims [be] sufficiently similar to merit sending notice
of the action to possible members of the class.”
See Acevedo, 600
F.3d at 519 (citing Mooney, 54 F.3d at 1213-14).
Third,
unlike
under
Rule
23,
there
is
no
numerosity
requirement in an FLSA class action lawsuit under the Lusardi
approach.
See, e.g., Badgett v. Tex. Taco Cabana, L.P., No. A-05-
3624, 2006 WL 367872, at *2 (S.D. Tex. Feb. 14, 2006) (Lake, J.)
(unpublished) (citing Mooney, 54 F.3d at 1214, n.8) (“[A]t the
notice stage [in an FLSA action using the Lusardi approach], courts
appear to require nothing more than substantial allegations that
the putative class members were together the victims of a single
decision, policy, or plan.” (internal quotations omitted)).
Finally, this element, requiring evidence of purported class
members
who
are
willing
to
join
a
class
action
before
an
appropriate class is even determined, is dissonant with the Supreme
Court’s directive that the FLSA be liberally construed to effect
its purposes.
See Tony & Susan Alamo Found. v. Sec’y of Labor, 471
U.S. 290, 296 (1985).
Liberally construing the FLSA to effect its
purposes, the court finds that it is enough for Plaintiff to
present evidence that there may be other aggrieved individuals to
whom a class action notice should be sent, without requiring
evidence that those individuals actually wish to join the lawsuit.
Based on these considerations, the court will address only the
10
first two elements of the Lusardi test.
III.
Analysis
Defendants urge the court to reject Plaintiffs’ request for
conditional class certification.
They argue that: (1) Plaintiffs
have not offered substantial evidence of a common policy or plan;
and (2) Plaintiffs cannot show personal knowledge of potential
class
members
similarly
situated
to
Plaintiffs.
The
court
considers Defendants’ arguments in turn.
Plaintiffs claim they are similarly situated to “all nonexempt law enforcement officers” within Precinct 3.25
Plaintiffs
allege that all officers were subject to the same common policy:
that all officers were required to close out investigation scenes,
draft incident reports, work community events and attend community
meetings, and be on call outside of their regularly scheduled
shifts without appropriate compensation.26
Defendants argue that Plaintiffs have failed to offer evidence
of a single decision, policy, or plan necessary to meet even
Lusardi’s lenient standard.
See McKnight v. D. Houston, Inc., 756
F. Supp. 2d 794, 801 (S.D. Tex. 2010).
To meet the “similarly
situated” element of the Lusardi test, Plaintiffs must show some
identifiable factual nexus that connects Plaintiffs to prospective
class members via a common policy or plan.
See id. at 803; Prater
25
See Doc. 21, Pls.’ Mot. to Certify Class p. 8.
26
See id.
11
v. Commerce Equities Mgmt. Co., Inc., No. H-07-2349, 2007 WL
4146714, at *5 (S.D. Tex. Nov. 19, 2007) (unpublished).
In support of a common plan or policy, Plaintiffs state in
their affidavits that “the management team did not look favorably
upon deputies reporting time worked outside of their scheduled
shift.”27
Both affidavits state that Plaintiffs knew that “most of
[the other precinct officers] worked more than forty hours in a
workweek.”28
Plaintiffs
additionally
include
testimony
from
Wilson’s criminal trial, where an officer testified that if he
worked more than eight hours in a day, he would take an equivalent
amount of time off during that time period and report eight hours
worked each day.29
Defendants have responded by providing evidence that the
Harris County Personnel Regulations require officers to submit
their own timesheets and self-report all hours worked.30
Section
19.03 of the regulations establishes a grievance policy that
specifically includes “[v]iolation of the County compensatory time
policy.”31 Plaintiffs each signed acknowledgments indicating that
27
See Doc. 21-1, Ex. A to Pl.’s Mot. to Certify Class, Aff. of Lindsey
p. 3, Doc. 21-2, Ex. B to Pl.’s Mot. to Certify Class, Aff. of Wilson p. 3.
28
See Doc. 21-1, Ex. A to Pl.’s Mot. to Certify Class, Aff. of Lindsey
p. 3, Doc. 21-2, Ex. B to Pl.’s Mot. to Certify Class, Aff. of Wilson p. 3.
29
See Doc. 21-3, Ex. C to Pl.’s Mot. to Certify Class, Test. of Tim
Edmonds dated May 19, 2015.
30
Doc. 27-1, Ex. A-1 to Defs.’ Mot. in Opp’n to Class Certification,
Harris County Personnel Regulations § 7.031.
31
See id. § 19.031.
12
they received copies of the personnel regulations and understood
that the regulations governed their employment.32
Plaintiffs claims do not offer sufficient evidence of a common
plan or policy to deny all officers overtime compensation. Officers
self-reported their time sheets, and Plaintiffs have not explained
that Defendants knew or should have known that any officers were
actually working overtime hours without compensation.
See Nieddu
v. Lifetime Fitness, Inc., 977 F. Supp. 2d 686, 699-700 (S.D. Tex.
2013).
An employee has a duty to notify his employer when he works
more than forty hours per week.
See Von Friewalde v. Boeing
Aerospace Operations, Inc., 339 F. App’x 448, 459 (5th Cir. 2009)
(unpublished).
Defendants have provided evidence that they paid
time and a half for reported hours worked beyond forty hours per
week, and had a grievance policy in place when officers disagreed
with pay decisions.33 When an employer has and enforces appropriate
pay
policies,
certification.
courts
are
reluctant
to
grant
conditional
See Nieddu, 977 F. Supp. at 703.
Although Plaintiffs each state that they believe that most
officers worked more than forty hours, neither Lindsey nor Wilson
buttress these assertions with any factual support.
While Lindsey
states that he personally observed “many time records” that showed
32
See Doc. 27-1, Ex. A-4, A-5 to Defs.’ Mot. in Opp’n to Class
Certification, Acknowledgment Forms signed by Lindsey and Wilson.
33
See Doc. 27-1, Ex. A to Defs.’ Mot. in Opp’n to Class Certification,
Aff. of Jill Harrison pp. 2-3.
13
officers reporting working forty hours per week, he does not
explain how he knew that these officers actually worked more time
than the officers reported.
By contrast, Plaintiffs’ witness
testimony indicated that when an officer in Precinct 3 worked more
than eight hours in a day, he would take comparable time off later
in the pay period.34
Assuming the officer’s statement is true,
officers did not regularly work over forty hours per pay period as
Plaintiffs allege.
Plaintiffs thus have not produced any personal
knowledge indicating that officers actually worked or failed to
report overtime hours.
See Clark v. City of Ft. Worth, 800 F.
Supp. 2d 776, 780 (N.D. Tex. 2011) (holding that an assertion that
other officers worked more than forty hours and failed to receive
overtime pay was conclusory and insufficient to support class
certification).
Even in the event that Plaintiffs could prove the existence of
a common policy or plan, Defendants argue that Plaintiffs cannot
show that any potential class members are similarly situated with
respect
to
their
job
requirements
and
pay
provisions.
Job
positions “need not be identical,” but must be similar enough to
arise under circumstances that apply equally to all potential class
members.
Nieddu, 977 F. Supp. 2d at 691; Tolentino, 716 F. Supp.
2d at 647.
34
See Doc. 21-3, Ex. C to Pl.’s Mot. to Certify Class, Test. of Tim
Edmonds dated May 19, 2015.
14
Lindsey worked as a Lieutenant in the Patrol Division and
Wilson worked as a Deputy in the Community Service Division of
Precinct 3 at the time of their terminations.35
Plaintiffs seek to
form a class composed of all officers who worked for Precinct 3.
Defendants point out that the precinct employs officers across
several departments, including the warrant, civil, and community
service divisions.36
functions,
These divisions performed a variety of broad
including
the
transportation
of
criminals,
the
conducting of foreclosure sales, and regular police patrols.37
Neither
Lindsey
nor
Wilson
provide
detailed
information
regarding their everyday duties, but Lindsey states that “while
serving as a supervisor,” he was unable to end his shift until the
officers reporting to him completed their work.38
Lindsey, in his
position as Lieutenant, therefore supervised patrol officers.39
Wilson, in his position as a community services deputy, attended
civic
clubs,
events.40
35
homeowner’s
associations,
and
similar
community
While individuals may have slight differences in job
See Doc. 3, Pls.’ 1st Am. Compl. pp. 5-7.
36
See Doc. 27-2, Ex. B to Defs.’ Mot. in Opp’n to Class Certification,
Aff. of Jonathan Moore p. 2.
37
See 27-5, Ex. E to Defs.’ Mot. in Opp’n to Class Certification, Aff.
of Deborah Jones p. 2.
38
See Doc. 21-1, Ex. A to Pl.’s Mot. to Certify Class, Aff. of Lindsey
p. 3.
39
See 27-2, Ex. B to Defs.’ Mot. in Opp’n to Class Certification, Aff.
of Jonathan Moore.
40
See Doc. 27-2, Ex. B to Defs.’ Mot. in Opp’n to Class Certification,
Aff. of Jonathan Moore p. 5.
15
duties, significant variation in duties will prevent a court from
certifying a class as similarly situated.
See Villarreal v. St.
Luke’s Episcopal Hosp., 751 F. Supp. 2d 902, 919 (S.D. Tex. 2010)
(finding
that
four
hospital
IT
employees’
duties
were
too
specialized to find them similarly situated to more general IT
workers).
Here, Plaintiffs’ duties are not similarly situated to
other officers or to one another as required for conditional class
certification.
See Nieddu, 977 F. Supp. 2d at 705.
Because Plaintiffs cannot meet their minimal burden by showing
a
common
policy
or
plan
or
that
a
potential
class
contains
similarly situated individuals, Plaintiffs have failed to meet even
the lenient standard of conditional class certification.41
IV.
Conclusion
Based on the foregoing, the court DENIES Plaintiff’s Motion
for Conditional Class Certification.
asserting
FLSA
claims
may
move
to
Individuals interested in
intervene
as
individual
plaintiffs if they choose.
SIGNED in Houston, Texas, this 6th day of November, 2015.
______________________________
U.S. MAGISTRATE JUDGE
41
Because the court denies Plaintiffs’ Motion to Certify Class, the
court need not rule on Defendants’ specific objections to Plaintiffs’ evidence
and proposed class.
16
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