HENDRIX et al v. SHIPCOM WIRELESS, INC.

Filing 22

MEMORANDUM AND ORDER on 19 Plaintiff's MOTION to Certify Class and Motion for Notice to Potential Class Members. (Submission of names and addresses of current and former employees who worked as blueprinters and proposed notice to potential class members are due 5/5/2017). (Signed by Magistrate Judge Mary Milloy) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FELICIA HENDRIX, CYNTHIA
BROWN, OMAR MOHAMMAD,
CARUM ROGERS, JOHN EBERLE,
DOUG SHIPE, BRIAN QUINN, and
MICHELLE YARBOROUGH, on behalf
Of themselves and others similarly
Situated,
Plaintiffs,

v.
SHIPCOM WIRELESS, INC.,
Defendant.

§
§
§
§
§
§
§
§
§
§
§
§
§

April 21, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-CV-2714

MEMORANDUM AND ORDER ON PLAINTIFFS' REQUEST FOR CLASS
CERTIFICATION AND MOTION FOR NOTICE TO POTENTIAL CLASS MEMBERS
Pending before the court 1 is Plaintiffs' request for an order allowing their claims to
proceed as a representative collective action under the Fair Labor Standards Act 2 ("FLSA"), and
their Motion for Notice to Potential Class Members ("Plaintiffs' Motion," Docket Entry # 19).
The court has considered the motion, the response by Defendant Shipcom Wireless, Inc.
("Shipcom"), all other relevant filings, and the applicable law. For the reasons set forth below,
Plaintiffs' Motion is GRANTED.

I. CASE BACKGROUND
This is a claim for unpaid overtime wages by eight former employees of Shipcom.
Seven3 of these Plaintiffs were employed as "blueprinters." (Plaintiffs Motion at 3-7). The

1
On January 4, 2017, the parties consented to proceed before a United States magistrate judge for all purposes,
including the entry of a final judgment, pursuant to 28 U.S.C. § 636(c), the Cost and Delay Reduction Plan under the
Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. Docket Entry# 15.
2
29 U.S.C. §§ 20let seq. Plaintiffs included the request for class certification in their Collective Action
Complaint. (Docket #I).
3
It is these seven Plaintiffs who seek class certification for their claims. The final Plaintiff Michelle Yarborough,
was employed as a logistics lead for Shipcom. Yarborough does not request certification of a class to include other
logistics leads, and she did not join this motion.

blueprinters were also referred to as inventory location designers, inventory room designers, or
inventory design specialists.

(Jd. at 3, Defendant's Response at 3).

Blueprinters were

responsible for designing and re-organizing the supply areas and operating rooms at various
medical facilities run by the Veterans Health Administration. (Plaintiffs' Motion at 3). This
position is classified as "exempt" by Shipcom, and because of that the Plaintiffs did not receive
overtime pay for any work in excess of 40 hours a week.
Plaintiff Felicia Hendrix worked as a blueprinter for Shipcom from July 2014, until June
2016. (Plaintiffs Motion at 2). She claims to have routinely worked more than 70 hours a week
during her employment with Shipcom. (!d.). She was never paid overtime, because she was
classified by the company as an "exempt employee" under the Fair Labor Standards Act. (!d.)
Hendrix claims that there were approximately 100 other blueprinters who worked for Shipcom,
either directly or as contractors, during her time with the company. She alleges that the other
blueprinters were also classified as exempt employees, and did not receive overtime pay even
though each worked more than 40 hours a week. (Plaintiffs Motion at 3).
Plaintiff Cynthia Brown worked for a staffing company that placed her with Shipcom as a
blueprinter, from August 2014, until March 2016. (Plaintiffs Motion at 3). In March 2016,
Shipcom hired her directly to continue her work as a blueprinter until she was "furloughed," one
month later, in April 2016. (Id.). She claims to have worked 60 hours, or more, each week
during her employment at Shipcom. (Id.).
Plaintiff Omar Mohammed was a blueprinter for Shipcom from August 2014, until June
2016 and he states that he routinely worked 50-60 hours a week. (Plaintiffs' Motion at 4).
Carum Rogers also worked for the company as a blueprinter from December 2014, until June
2016. He also claims that he worked more than 70 hours a week at Shipcom. (Id.). Doug Shipe
2

and Brian Quinn were blueprinters for Shipcom from November 2014, until July 2016. (ld. at 56). Both men claim to have worked in excess of 50 hours a week at Shipcom. (!d.). John Eberle
worked for Shipcom from January 2014, until July 2016. (!d. at 5). He was hired to be a "team
lead," but was eventually made a blueprinter. (Defendant's Response at 4-5). He says that he
worked more than 60 hours a week. (!d.). None of these men received overtime compensation,
because they were considered to be, and were classified as, exempt employees by Shipcom.
(Plaintiffs' Motion at 3-7).
Plaintiffs filed this lawsuit on September 7, 2016, alleging that they, and other
blueprinters, had been misclassified as exempt employees and denied overtime pay in violation
of the Fair Labor Standards Act. (Plaintiffs' Complaint, Docket Entry #1). Each Plaintiff has
filed a "Consent to Become a Party Plaintiff." (Docket Entry #1, Exhibits A-F). On March 1,
2017, Plaintiffs filed their Motion for Notice to Potential Class Members. (Docket Entry #19).
Plaintiffs are asking the court: ( 1) to authorize an approved notice of this action and a consent
form, to be sent to all current and former blueprinters, who were employed by Shipcom between
September 7, 2013 and the present, and who worked more than 40 hours a week without
receiving overtime pay; and (2) to order Shipcom to provide the names and addresses of all
current and former blueprinters employed by Shipcom from September 7, 2013, to the present.
(Plaintiffs' Motion at 16). Implicit in this request is a threshold finding by the court that this
matter is appropriate for certification, at least conditionally, as a collective action, which would
justify a notice to potential class members.
In support of the motion, each Plaintiff filed a declaration. (Plaintiffs' Motion, Exhibits
A-F).

Each of these claimants describe similar job responsibilities in their positions as

blueprinters, and all claim to have worked more than 40 hours a week without receiving overtime
3

pay. Each person also states that he or she knows that there are other blueprinters at Shipcom
who also worked more than 40 hours a week, and were also denied overtime compensation. (!d.
at Exhibits A-F).
After considering Plaintiffs' motion, Defendant's response, the pleadings, the evidence
submitted, and the applicable law, the court GRANTS conditional class certification, and
GRANTS the request for notice to potential class members as described below.
II. MOTION FOR CONDITIONAL CERTIFICATION
A. Conditional Certification under FLSA

The Fair Labor Standards Act requires employers to pay nonexempt employees for any
work hours that exceed defined maximum hours. 29 U.S.C. § 207(a). Section 216(b) allows
employees to pursue a cause of action against those employers who have violated that
requirement. !d. § 216(b).

In fact, an employee may bring a collective action against his

employer on "behalf of himself ... and other employees similarly situated." 29 U.S.C. § 216(b).
But before a case may proceed as a collective action, the plaintiff must make an initial showing
that the matter is appropriate for collective action treatment for "similarly situated" claimants.
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).

There are two tests that a court may use to determine whether to certify a collective
action under the FLSA: the so called Shushan approach, or the Lusardi approach. Walker v.
Honghua Am., LLC, 870 F. Supp. 2d 462, 465 (S.D. Tex. 2012). See generally Shushan v. Univ.
ofColo. at Boulder, 132 F.R.D. 263 (D. Colo. 1990); Lusardi v. Xerox Corp., 118 F.R.D. 351

(D. N.J. 1987). Under the Shushan approach, "similarly situated" plaintiffs are those who satisfy
the class certification requirements ofFederal Rule of Civil Procedure 23 ("Rule 23"):

4

"Shushan espouses the view that [29 U.S.C. § 216(b)] merely breathes new life
into the so-called "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 v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995). On the other hand, the
Lusardi approach mandates two steps to determine if potential parties are "similarly situated:"

( 1) the "notice" stage and (2) the "decertification" stage. Moore v. Special Distribution Servs.
Inc., No. 06-CV-3946, 2007 WL 2318478, at *2 (S.D. Tex. Aug. 8, 2007). "Because the court

has minimal evidence, this determination is usually made using a fairly lenient standard [ ] and
typically results in 'conditional certification' of a representative class." Mooney, 54 F.3d at
1214.
The Fifth Circuit has never identified which method should be used to determine whether
plaintiffs are sufficiently "similarly situated." Roussell v. Brinker Int 'l, Inc., 441 Fed.Appx. 222,
226 (5th Cir. 2011); Mooney, 54 F.3d at 1216. The majority of courts within the Fifth Circuit,
however, have consistently applied the Lusardi test. See Johnson v. Big Lots Stores, Inc., No.
04-CV-3201, 2007 WL 5200224, at *3 (E.D. La. Aug. 21, 2007) ("Since Mooney, [54 F.3d
1207], district courts in the Fifth Circuit have uniformly used [the Lusardi approach] to
determine whether a collective [action] should be certified under the FLSA."); also Abdur-Rahim
v. Amerom, Inc., No. 13-CV-2105, 2013 WL 6078955, at *2 (S.D. Tex. Nov. 19, 2013) (using
5

the Lusardi test); Rahman v. Fiesta Mart, LLC, No. CV H-15-2295, 2016 WL 2346944, at *3
(S.D. Tex. May 4, 2016) (using the Lusardi test). Here, the court is persuaded that there is no
reason to deviate from this practice, and the Lusardi test will govern Plaintiffs' claims.
During the notice stage of a Lusardi inquiry, the court must decide whether to
conditionally certify a collective action, and then allow notice to issue to potential class members
of their opportunity to opt in to the lawsuit. Walker, 870 F. Supp. 2d at 465. To obtain such a
conditional certification, the plaintiff is required to make a minimal showing that "( 1) there is a
reasonable basis for crediting the assertions that aggrieved individuals exist, (2) that those
aggrieved individuals are similarly situated to the plaintiff, in relevant respects, given the claims
and defenses asserted, and (3) that those individuals want to opt in to the lawsuit. 4" Aguirre v.

SBC Commc'ns, Inc., No. 05-CV-3198, 2006 WL 964554, at *6 (S.D. Tex. Apr. 11, 2006);
Rahman, 2016 WL 2346944, at * 1.

In deciding whether to issue notice to potential class

members, a lenient standard is used which generally results in conditional certification. See

Walker, 870 F. Supp. 2d at 465 (noting that collective actions are generally favored under
FLSA). However, a conditional certification is never automatic. Ali v. Sugar/and Petroleum,
No. 09-CV-0170, 2009 WL 5173508, at *5 (S.D. Tex. Dec. 22, 2009). "A factual basis for the
allegations is needed to satisfy the first step." Perez v. Guardian Equity Mgmt., LLC, No. 10CV-0196, 2011 WL 2672431, at *4 (S.D. Tex. July 7, 2011); see also Hall v. Burk, No. 01-CV2487, 2002 WL 413901, at *3 (N.D. Tex. Mar. 11, 2002) ("Unsupported assertions of
widespread violations are not sufficient to meet plaintiffs burden.").

4

If the court does

More than one court has rejected the requirement to show that individuals do want to opt in to the lawsuit. See,
Villareal v. St. Luke's Episcopal Hospital, 751 F.Supp.2d 902, 915-916 (S.D. Tex. 20 I 0) (noting that "other courts,
however, have rejected the third, non-statutory element) (citing Dreyer v. Baker Hughes Oilfield Operations, Inc.,
No. H-08-1212, 2008 WL 5204149, at *3 (S.D. Tex. Dec. II, 2008) (unpublished); Hecklerv. DK Funding, LLC,
502 F.Supp.2d 777, 780 (N.D. Ill.2007)).
6

conditionally certify the class and the requested notice Issues, the case then proceeds as a
collective action during discovery. Walker, 870 F. Supp. 2d at 466.
The decertification stage is then initiated if the defendant moves to decertify the
conditionally-certified class.

This usually takes place after discovery has been largely

completed. Mooney, 54 F.3d at 1214. At this stage, the court must review the information
garnered during discovery and make a factual determination on whether the members of the
conditionally-certified class are truly similarly situated. !d. In that regard, the plaintiffs burden
is more stringent at the decertification stage than at the lenient notice stage. McKnight v. D.
Houston, Inc., 756 F. Supp. 2d 794 (S.D. Tex. 2010). If the proposed claimants are found to be

similarly situated, the case will then proceed to trial as a collective action. Mooney, 54 F.3d at
1214. If the claimants are not deemed to be similarly situated, the court decertifies the class, and
dismisses the opt-in plaintiffs, without prejudice. !d. The original plaintiffs may then pursue the
litigation on their individual claims. !d.
B. Application of the Lusardi Notice Stage Inquiry

A claimant must make a minimal showing, at the notice stage, that "( 1) there is a
reasonable basis for crediting the assertions that aggrieved individuals exist, (2) that those
aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims
and defenses asserted, and (3) that those individuals want to opt in to the lawsuit." Aguirre, 2006
WL 964554, at *6. Generally, courts do not require more than "substantial allegations that the
putative class members were together the victims of a single decision, policy, or plan" and only a
modest factual basis is required. See Mooney, 54 F.3d at 1214. Although this is a lenient
standard, showing that employees are similarly situated "entails more than just a matching of job
responsibilities," as the requirement "ensures that the collective action promotes the 'efficient
7

resolution of common issues of law and fact ansmg from the same alleged discriminatory
activity."' Hunter v. Sprint Corp., 346 F.Supp.2d 113, 119 (D. D.C. 2004) (quoting HoffmanLaRoche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).

1. Other Aggrieved Individuals
The requirements of Lusardi are not stringent, and Plaintiffs need only show that it is
reasonable to believe that there are other aggrieved employees, who were subject to the same
allegedly unlawful policy or plan as they. See Morales v. Thang Hung Corp., No. 4:08-2795,
2009 WL 2524601, at *3 (S.D. Tex. Aug. 14, 2009) (unpublished); Yoakum v. PBK Architects,
Inc., No. CIV.A. H-10-00278, 2011 WL 4688714, at *1 (S.D. Tex. Oct. 4, 2011). Plaintiffs here

have presented seven declarations stating that:

1) each was a blueprinter at Shipcom and

he/sheworked more than 40 hours a week but was not paid overtime; 2) like themselves, the
other blueprinters at Shipcom were classified as "exempt employees"; and 3) other blueprinters
worked more than 40 hours a week and were not paid overtime. (Plaintiffs Motion, Exhibits AF). With this evidence, Plaintiffs have identified a group of aggrieved individuals.
Although Plaintiffs have shown only minimal support for their contention that there are
other aggrieved individuals, Defendant concedes the declaration made by each is accurate.
Defendant does not deny that there are other blueprinters who were classified as exempt and not
paid overtime, or that other blueprinters had different responsibilities. Instead, Defendant admits
that all blueprinters are classified as exempt employees, but insists that the classification is
proper. (Defendant's Response at 11). ("[Defendant] contends ... that the [blueprinters] were
properly classified as exempt. ... "). Whether the classification was proper is a defense to the
FLSA claims, but it is not a reason to deny a conditional certification. Plaintiffs' declarations
make it reasonable to believe other aggrieved blueprinters exist.
8

2. Similarly Situated

Potential class members are considered similarly situated to the named plaintiff if they
are:
"similarly situated" with respect to their job requirements and with regard to their
pay provisions. The positions need not be identical, but similar. A court may
deny a plaintiff's right to proceed collectively only if the action arises from
circumstances purely personal to the plaintiff, and not from any generally
applicable rule, policy, or practice.
Villarreal, 751 F. Supp. 2d at 918 citing Yaklin v. W-H Energy Servs., Inc., No. C-07-422, 2008
WL 1989795, at *2 (S.D. Tex. May 2, 2008) (unpublished). If the job duties among putative
class members vary significantly, then class certification should be denied. See, e.g., Dreyer,
2008 WL 5204149, at *3 (unpublished); Aguirre v. SBC Commc 'ns, Inc., No. H-05-3198, 2007
WL 772756, at *9 (S.D. Tex. Mar. 12, 2007) (unpublished).
Plaintiffs were all employed by Shipcom as blueprinters. Each has described the same
basic job responsibilities, which included designing and reorganizing supply areas and operating
rooms at VA hospitals. (Id.). As these blueprinters all had similar job responsibilities, it is
reasonable to believe other blueprinters performed the same tasks. For that reason, Plaintiffs
have established that their job requirements are similarly situated to those of a potential class of
blueprinters.
Plaintiffs must also show that the potential class was affected by a common policy, plan,
pattern, or practice to proceed collectively under section 216(b) of the FLSA. Maynor v. Dow
Chem. Co., No. CIV. A. G-07-0504, 2008 WL 2220394, at *7 (S.D. Tex. May 28, 2008) citing
O'Brien v. Ed Donnelly Enters., Inc., No. 2:04-CV-00085, 2006 WL 3483956, at *3 (S.D. Ohio
Nov.30, 2006) (citations omitted) ("Plaintiffs must demonstrate that the Defendants had a
common policy or plan in violation of the FLSA that negatively impacted the original and opt-in
9

Plaintiffs."). Defendant's concession that it classifies all blueprinters as exempt employees is
sufficient to satisfy this element. Diaz v. Applied Mach. Corp., No. CV H-15-1282, 2016 WL
3568087, at *9 (S.D. Tex. June 24, 2016) ("Because Nabors admits to treating all rig welders ...

as exempt independent contractions, ... the court concludes that the potential class members are
similarly situated in terms of ... payment provisions."). All blueprinters employed by Shipcom
were subject to the same pay provisions. Defendant insists that conditional certification is not
appropriate here, because Plaintiffs "have not provided the substantial allegations necessary to
show that any of them ... were victims of an illegal pay policy under federal law .... [but] have
merely alleged that their position was misclassified" without supporting evidence. (Defendant's
Response at 11 ).

However, whether Plaintiffs can actually prove their allegations that the

complained of classification violated the FLSA affects their right to recover damages, only. An
absence of proof, at this stage, does not defeat a showing that potential class members were
subject to different pay provisions or that class certification is inappropriate.
Defendants also insist that certification is not proper here, because many of the
blueprinters were not employed by Shipcom, but instead were staffing company contractors.
(Defendant's Response at 11). Defendant points out that its defenses to the claims by nonemployee contractors are different from those defenses to the claims made by its own employees.
Defendant argues therefore, that this proves the potential class members are not similarly
situated. (!d. at 13). However, the court has discretion to modify the proposed class definition if
it is overly broad. See Baldridge v. SEC Communications, Inc., 404 F.3d 930, 931-32 (5th Cir.
2005) (recognizing the court's power to "limit the scope" of a proposed class in a FLSA action).
See also Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856, 861 (S.D. Tex. 2012) ("A court also
'has the power to modify an FLSA collective action definition on its own' if the 'proposed class
10

definition does not encompass only similarly situated employees.' "). It is not necessary to do so
here, however, because Plaintiffs have narrowed the potential class to "current and former
blueprinters employed by Shipcom." Plaintiffs' Motion at 16. For that reason, any class will
include only blueprinters that were employed by Shipcom, and not contractors.

This is an

appropriately limited class.
3. Evidence of others willing to opt-in
Because the Fifth Circuit has not endorsed the Lusardi approach, it also has not
prescribed the appropriate elements to consider when applying that standard.

Rahman, WL

2346944, at *5, citinR Mooney, 54 F.3d at 1213-14 (saying that the Fifth Circuit "has explicitly
declined to endorse any approach to conditional certification"). 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 plaintiffs
in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt
in to the lawsuit.

See, e.g., McKnight, 756 F. Supp. 2d 794; Rahman, 2016 WL 2346944

(unpublished); Simmons v. T-Mobile USA, Inc., No. 06-CV-1820, 2007 WL 210008 (S.D. Tex.
Jan. 24, 2007) (unpublished). Other courts, however, have rejected the third element. See, e.g.,
Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL 5204149, at *3

(S.D. Tex. Dec.11, 2008); Villarea/751 F.Supp.2d at 916.
Courts that require evidence of others willing to join in the litigation do so to ensure that
the collective action is being used appropriately to promote judicial efficiency, rather than as a
tool to burden a defendant and create settlement pressure. Rahman, 2016 WL 2346944 at *4,
citing Lang v. DirecTV, Inc., No. 10-CV-1085, 2011 WL 6934607, at *6 (E.D. La. Dec. 30,

2011) (unpublished) (explaining that "[t]oo much leniency at the notice stage can lead to a
II

frivolous fishing expedition conducted by the plaintiff at the employer's expense and can create
great settlement pressure early in the case" (footnotes and internal quotation marks omitted)); see
also Simmons, 2007 WL 210008, at *9 (stating that "[o]thers' interest in joining the litigation is

relevant to deciding whether or not to put a defendant employer to the expense and effort of
notice to a conditionally certified class of claimants in a collective action," and declining to
conditionally certify a collective action, because the plaintiff presented no admissible evidence
that other similarly situated individuals wanted to join the lawsuit).

But, if it would be

inconsistent with the Supreme Court's directive that the FLSA be liberally construed to effect its
purposes, evidence that others wish to join the lawsuit is not necessary. Villarreal 751 F. Supp.
2d at 916; (declining to require evidence of others willing to join); Dreyer, 2008 WL 5204149, at
*2. (same).
This is not a case in which one Plaintiff is trying to expand the scope of his claim.
Instead, this case presents seven different blueprinters each making an identical claim, and it is
reasonable to believe there may be other blueprinters who, if they knew of this litigation, would
be willing to join. It is apparent that conditional certification will further the goals of the FLSA,
and that it is not merely a "frivolous fishing expedition." In this instance, the absence of proof
that others actually want to join is not fatal to Plaintiffs' request for class certification.

III. CONCLUSION
For the reasons discussed above, Plaintiffs' request to proceed as a collective action and
Motion for Notice to Potential Class Members is GRANTED, and the court provisionally deems
this action a collective action, and defines the conditionally approved collective class as follows:
Current and former employees of Shipcom Wireless, Inc. who worked as
blueprinters, also known as inventory location designers, inventory room
designers, or inventory design specialists, between September 7, 2013, and the
12

present, and who were not paid for hours worked in excess of forty (40) in any
given work week.
(1) Defendant is ORDERED to produce to Plaintiffs, no later than 14 days from entry of

this Order, the names and addresses of current and former employees of Shipcom Wireless, Inc.
who worked as blueprinters, also known as inventory location designers, inventory room
designers, or inventory design specialists, between September 7, 2013, and the present. The
contact information must be in a usable electronic form.
(2) The parties are ORDERED to jointly submit to the Court, no later than 14 days from
entry of this Order, a proposed notice to potential class members, revised in accordance with this
order.
SIGNED at Houston, Texas, this 21st day of April, 2017.

~::

\~\
MARY MILLOY
UNITED STATES MAGISTRATE JUDGE

13