Ntuk v. Taylor Smith Consulting

Filing 24

MEMORANDUM OPINION AND ORDER granting 21 MOTION to Certify Class (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CEDRIC NTUK, JOHN CLARK,
DRACHAN JOHNSON, and KEVIN
MALLARD on behalf of
themselves and all others
similarly situated,
Plaintiffs,
v.
TAYLOR SMITH CONSULTING, LLC,
and TRACY T. SMITH,
Defendants.

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April 20, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-1165

MEMORANDUM OPINION AND ORDER
Pending before the court1 is Plaintiffs’ Motion to Certify
Class (Doc. 21).

The court has considered the motion, all other

relevant filings, and the applicable law. For the reasons set forth
below, the court GRANTS Plaintiffs’ motion.
I.

Case Background

Cedric Ntuk, John Clark, Drachan Johnson, and Kevin Mallard
(“Plaintiffs”) filed this action against Taylor Smith Consulting,
LLC

and

Standards

Tracy
Act

T.

Smith

(“FLSA”).2

(“Defendants”)
Plaintiffs

under

alleged

the
that

Fair

Labor

Defendants

misclassified them as exempt employees under the FLSA and failed to

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. See Doc. 9, Ord. Dated
July 15, 2016.
2

See Doc. 19, Pls.’ 2d Am. Compl. p. 1.

pay overtime.3
A.

Factual Background
Taylor Smith Consulting, LLC, is a domestic limited liability

company that provides full service staffing, contracting, and
management consulting to customers throughout the United States and
Texas.4

Plaintiffs worked for Defendants at the Pasadena Waste

Management site as onsite supervisors between October 2014 and
April 2016.5
Along

with

declarations

this

alleging

motion,
that

Plaintiffs

they

and

submitted

other

their

similarly

own

situated

employees were entitled to overtime compensation under the FLSA.6
The

following

facts

are

derived

from

these

declarations

and

Plantiffs’ second amended complaint.
During

the

relevant

time

period,

Defendants

compensated

Plaintiffs with a flat salary on a weekly basis.7

Defendants

regularly required them to work on weekends at the discretion of a

3

See id. p. 2.

4

See id. p. 4.

5
See Doc. 21-1, Ex. A to Pls.’ Mot. to Certify Class, Decl. of Cedric
Ntuk ¶ 3; Doc. 21-2, Ex. B to Pls.’ Mot. to Certify Class, Decl. of John Clark
¶ 3.
6
See Doc. 21-1, Ex. A to Pls.’ Mot. To Certify Class, Decl. of Cedric
Ntuk; Doc. 21-2, Ex. B to Pls.’ Mot. to Certify Class, Decl. of John Clark; Doc.
21-3, Ex. C to Pls.’ Mot. to Certify Class, Decl. of Kevin Mallard.
7
See Doc. 21-1, Ex. A to Pls.’ Mot. To Certify Class, Decl. of Cedric
Ntuk ¶ 5; Doc. 21-2, Ex. B to Pls.’ Mot. to Certify Class, Decl. of John Clark
¶ 5; Doc. 21-3, Ex. C to Pls.’ Mot. to Certify Class, Decl. of Kevin Mallard ¶
5.

2

supervisor and failed to pay Plaintiffs for any work time exceeding
forty hours per week.8

Plaintiffs, as onsite supervisors, were

required to work sixty hours per week.9

When Plaintiffs asked

about overtime compensation, representatives of Defendants claimed
that onsite supervisors were exempt employees and thus not entitled
to overtime.10

Defendants offered no further justification for

categorizing onsite supervisors as exempt.11
All

onsite

supervisors

shared

similar

responsibilities,

including assigning helpers to assist residential waste collection
trucks and observing and reporting the activities of helpers.12 The
duties of onsite supervisors also included, but were not limited
to, keeping a log of the garbage trucks, ensuring that the helpers
were properly attired, and verifying payroll.13

There was no

distinction in duties, responsibilities, or obligations between the
work

Plaintiffs

performed

on

the

weekend

and

the

work

they

8
See Doc. 21-1, Ex. A to Pls.’ Mot. To Certify Class, Decl. of Cedric
Ntuk ¶¶ 5-6; Doc. 21-2, Ex. B to Pls.’ Mot. to Certify Class, Decl. of John Clark
¶¶ 5-6; Doc. 21-3, Ex. C to Pls.’ Mot. to Certify Class, Decl. of Kevin Mallard
¶¶ 5-6.
9

See Doc. 19, Pls.’ 2d Am. Compl. p. 5.

10

See id.

11

See id.

12

See Doc. 21-1, Ex. A to Pls.’ Mot. To Certify Class, Decl. of Cedric
Ntuk ¶ 4; Doc. 21-2, Ex. B to Pls.’ Mot. to Certify Class, Decl. of John Clark
¶ 4; Doc. 21-3, Ex. C to Pls.’ Mot. to Certify Class, Decl. of Kevin Mallard ¶
4.
13

See Doc. 19, Pls.’ 2d Am. Compl. p. 4.

3

performed during the week.14
B.

Procedural Background

Plaintiffs filed their original complaint on April 28, 2016,
alleging violations of the FLSA.15

Plaintiffs filed an amended

complaint on July 20, 2016, and a second amended complaint on
October 11, 2016.16
Plaintiffs filed the pending motion to certify class on
November 3, 2016, seeking to certify the following class: “all of
Defendants’

current

and

former

employees

employed

as

Onsite

Supervisors and who were paid pursuant to a flat salary with no
payment for hours worked beyond 40 hours before the filing of this
Complaint up to the present.”17

Plaintiffs ask the court to (1)

conditionally certify the proposed class; (2) authorize notice to
potential class members; and (3) order Defendants to provide
contact information for all onsite supervisors who were employed by
Defendants within the last three years.18
Defendants did not respond to Plaintiffs’ motion to certify
class.

14

See Doc. 21-1, Ex. A to Pls.’ Mot. To Certify Class, Decl. of Cedric
Ntuk ¶¶ 6-7; Doc. 21-2, Ex. B to Pls.’ Mot. to Certify Class, Decl. of John Clark
¶¶ 6-7; Doc. 21-3, Ex. C to Pls.’ Mot. to Certify Class, Decl. of Kevin Mallard
¶¶ 6-7.
15

See Doc. 1, Pls.’ Orig. Compl.

16

See Doc. 10, Pls.’ 1st Am. Compl.; Doc. 19, Pls.’ 2d Am. Compl.

17

See Doc. 21, Pls.’ Mot. to Certify Class p. 1.

18

See id. p. 14.

4

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
such 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, in other words, to persons alleged
to be “similarly situated” to the named plaintiff(s).

Hoffman-La

Roche, Inc. v. Sperling, 493 U.S. 165, 171-74 (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

F.3d 1207, 1216 (5th Cir. 1995) (expressly declining to decide which

5

of the two analyses is appropriate).19
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
certification procedure used under Federal Rule of Civil Procedure
23 (“Rule 23”):
Shushan espouses the view that [29 U.S.C. § 216(b)
19
Mooney 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

(“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
a third approach should be used in determining whether employees’
claims are sufficiently similar to support the maintenance of a
representative action.

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).
7

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)],” in other words, 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, 54 F.3d at 1214.

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.

8

Some courts use three

elements, requiring the 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., Jones v. Cretic Energy

Servs., LLC, 149 F. Supp.3d 761, 768 (S.D. Tex. 2015); 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).
This court is persuaded by the latter group of cases that have
rejected the third element, as it is not statutorily required. See
Jones, 149 F. Supp.3d at 762.

This reasoning is consistent with

the instruction from the Supreme Court that the FLSA be liberally
construed to carry out its purposes.

Id. (citing Tony & Susan

Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 296 (1985)).
Therefore, the court finds that it is enough for Plaintiff to
present evidence that there may be other aggrieved individuals who
should be noticed without requiring evidence that those individuals
actually want to join the lawsuit.
III. Analysis

9

A.

Class Certification
Here, Plaintiffs argue that Defendants willfuly violated the

FLSA by failing to pay Plaintiffs and all other onsite supervisors
overtime compensation as the result of Defendants’ “generally
applicable policies or practices.”20

Defendants did not respond to

Plaintiffs’ request for conditional class certification.
In order to obtain a class certification, Plaintiffs must show
“substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan infected
Mooney, 54 F.3d at 1214 & n. 8.

by discrimination.”
must

provide

evidence

to

establish

a

reasonable

Plaintiffs
belief

that

aggrieved individuals exist and that the aggrieved individuals are
similarly situated.

Cantu, 2009 WL 5195918, at *4.

To meet their burden, Plaintiffs are required to first show
that

there

In

this

case,

the

allegations

that

there

are

aggrieved individuals as required under the Lusardi analysis.

See

declarations

are

aggrieved

provide

individuals.

substantial

Mooney, 54 F.3d at 1214 & n.8; Tolentino, 716 F. Supp.2d at 653
(finding that two declarations, a declaration from the plaintiff,
and

the

complaint

“sufficiently

state[d]

a

claim

against

Defendants” so that “Plaintiffs [] satisfied their burden”).

In

their declarations, Plaintiffs put forth detailed information about
the nature of their positions as onsite supervisors. Additionally,

20

See Pls.’ 2d Am. Compl. p. 6.

10

Plaintiffs averred that they often worked “well over forty hours
per week” and “frequently worked on Saturdays” but were never paid
overtime for these additional hours.21

The court finds that these

facts demonstrate the existence of aggrieved individuals who were
subject to Defendants’ policy to exempt them from overtime pay.
The second element Plaintiffs must establish in meeting their
burden is that these aggrieved individuals are similarly situated.
Plaintiffs averred that they all held the same position, worked
similar hours, had the same job responsibilities, and were paid a
flat

salary

for

each

week

with

no

overtime

compensation.

Defendants do not dispute that the putative class members all
worked as onsite supervisors.

Through this evidence, Plaintiffs

have shown that putative class members are similarly situated, as
they all had the same position and were subject to the same policy
of being paid a salary with no overtime compensation.
Based on the foregoing, the court finds Plaintiffs have
provided substantial allegations demonstrating that the putative
class members were victims of a uniform policy or plan. Therefore,
Plaintiffs have met their burden under the Lusardi analysis.
B.

Notice Process
Plaintiffs ask for the court to judicially approve and order

notice sent to putative class members through first-class mail and
21
See Doc. 21-1, Ex. A to Pls.’ Mot. To Certify Class, Decl. of Cedric
Ntuk ¶¶ 5-6; Doc. 21-2, Ex. B to Pls.’ Mot. to Certify Class, Decl. of John Clark
¶¶ 5-6; Doc. 21-3, Ex. C to Pls.’ Mot. to Certify Class, Decl. of Kevin Mallard
¶¶ 5-6.

11

email.

In order to provide notice, Plaintiffs request that

Defendants provide to Plaintiffs’ counsel, in usable electronic
format, all names, addresses, phone numbers, dates of birth, email
addresses, and dates and locations of work for the putative class
members.

Plaintiffs are seeking a ninety-day notice period to

allow other putative class members to join the case.

Defendants

have made no objections to Plaintiffs’ proposed notice plan.
The court finds that the proposed notice accurately describes
Plaintiffs’ legal claim and clearly advises opt-in candidates how
they may consent to join the action.

It also apprises potential

opt-ins of the prohibition against retaliation or discrimination
for participation in this action.

For these reasons, the court

finds the notice to be fair and adequate. However, the court finds
that there is no explanation of the need for a ninety-day opt-in
period or production of potential opt-ins’ dates of birth.
Therefore, the opt-in period will be reduced to sixty days from the
date notice is mailed.

Dates of birth need not be disclosed.
IV.

Conclusion

Based on the foregoing, the court GRANTS Plaintiffs’ motion to
certify class.

The court CERTIFIES this matter as a collective

action under 29 U.S.C. § 216(b) with respect to the following
class:
All of Taylor Smith Consulting, LLC’s current and
former employees employed as onsite supervisors and
who were paid pursuant to a flat salary with no
12

overtime payment for hours worked beyond 40 hours
during the last three years.
Defendants shall provide Plaintiffs, within fourteen days of
this

opinion,

including

with

names,

a

last

list
known

of

verified

addresses,

contact
phone

information,

numbers,

email

addresses, and dates and locations of employment for all onsite
supervisors who were employed by Defendants within the last three
years.
Plaintiffs shall have fourteen days from the receipt of this
information to mail the proposed notice to the potential class
members.

The opt-in period shall be sixty days from the date the

notice is mailed.
SIGNED in Houston, Texas, this 20th day of April, 2017.

______________________________
U.S. MAGISTRATE JUDGE

13