Baucum v. Marathon Oil Corporation
Filing
24
MEMORANDUM OPINION AND ORDER granting 19 MOTION to Certify Class (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHANCE BAUCUM, Individually
and on Behalf of All Others
Similarly Situated,
§
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
MARATHON OIL CORP.,
Defendant.
July 14, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3278
MEMORANDUM OPINION AND ORDER
Plaintiff, Chance Baucum,
Others Similarly Situated,
Individually and On Behalf of All
filed this action against defendant,
Marathon Oil Corporation ("Marathon"), to recover unpaid overtime
wages
and
("FLSA"),
other
29
Plaintiff's
Authorized
damages
U.S.C.
Motion
Notice
Defendants's
under
216(b).
§
for
Fair
Pending
Conditional
(Docket
Response
the
to
Entry
Reply
in
No.
of
before
19).
Plaintiff's
Support
Standards
the
Certification
court
and
Act
is
Court-
After
Motion
Certification and Court-Authorized Notice,
Plaintiff's
Labor
considering
for
Conditional
(Docket Entry No. 22),
Conditional
Certification
and
Court-Authorized Notice (Docket Entry No. 61), and the applicable
law, the court concludes that the pending motion should be granted
and notice provided to all persons who worked for Marathon as HES
Advisors and/or Solids Control Operators who were classified as
independent
contractors
and
paid
a
day-rate
with
no
overtime
compensation at any time from July 14, 2014 to the present.
I.
A.
Factual
Factual
and Procedural Background
~legations
~legations 1
Marathon is a global oil and gas exploration and production
company
operating
including in Texas.
many
of
its
worldwide
and
throughout
the
United
States,
Plaintiff alleges that to provide services to
customers,
Marathon
classifies
as
independent
contractors certain workers who are employed on a day-rate basis.
Plaintiff
alleges
Environment,
2013
that
and Safety
to June 2016,
he
worked
("HES")
for
Marathon
as
a
Health,
Advisor from approximately June
and that throughout his employment Marathon
classified him as an independent contractor and paid him a day-rate
with no overtime compensation for hours worked in excess of 40
hours in a workweek.
Plaintiff alleges that other workers like him
regularly worked at well sites in excess of 40 hours each week, but
that
instead of paying them overtime as
required by the
FLSA,
Marathon improperly classified them as independent contractors and
paid them a daily rate with no overtime.
Plaintiff alleges that he
and all the putative class members shared the same or similar job
requirements and pay provisions,
were subjected to the same or
similar policies and procedures, worked the same or similar hours,
and were
denied overtime
as
a
result
of
the
same
illegal
pay
practice.
1
0riginal Collective Action Complaint,
pp. 3-7.
-2-
Docket Entry No.
1,
B.
Procedural Background
Plaintiff filed this
willful
violation
of
the
action on November
FLSA,
and
seeking
6,
2016,
an
alleging
order
holding
Marathon liable for unpaid back wages due to Plaintiff and the
potential putative FLSA class, and for liquidated damages equal in
amount to their unpaid compensation. 2
On April 21, 2017, plaintiff
filed the pending motion for conditional certification and courtauthorized notice seeking to certify a class and provide notice to:
"All
persons
Solids
who
Control
worked
Operators
for
Marathon
who
were
as
H [ES]
classified
Advisors
as
and/or
independent
contractors and paid a day-rate with no overtime compensation at
any time from _________ ,
argues
that
2014 to the present." 3
Plaintiff
"[b] ecause Marathon denied Baucum and the putative
class members overtime under its uniform compensation policy, these
workers are similarly situated." 4
2
Id. at pp. 7-10.
3
Notice of Collective Action Lawsuit, Exhibit F to Plaintiff's
Motion for Conditional Certification and Court-Authorized Notice,
("Notice of Collective Action"), Docket Entry No. 19-7, p. 1 & n. 2
("This date represents three years back from the date that Notice
and Consent Forms are first sent to the Putative Class Members.").
See also Plaintiff's Motion for Conditional Certification and
Court-Authorized Notice, ("Plaintiff's Motion for Certification"),
Docket Entry No. 19, pp. 1 and 3-4.
4
Plaintiff' s Motion for Certification,
p. 1.
-3-
Docket Entry No.
19,
On
May
19,
2017,
Marathon
filed
its
plaintiff's motion for class certification. 5
conditional
certification
is
appropriate
response
opposing
Marathon agrees that
with
respect
to
HES
Advisors, but argues that plaintiff's motion for conditional class
certification
should be
denied
as
to
Solids
Control
Operators
because HES Advisors and Solids Control Operators have different
job duties,
use different equipment,
have different supervisors,
and different reporting structures and therefore are not similarly
situated. 6
Attached
as
Exhibit
I
to
Marathon's
response
are
Marathon's proposed changes to the notice and consent documents.
On May 25,
2017,
plaintiff filed a reply in support of his
motion for conditional certification and court-authorized notice
arguing that evidence submitted by both parties shows that HES
Advisors and Solids Control Operators are sufficiently similar to
justify notice because:
•
Both
positions
were
contractors by Marathon
•
Both positions were supplied to Marathon by SubContractors
•
Both positions
overtime. 7
were
treated
paid
a
day
as
independent
rate
with
no
5
Defendant's Response to Plaintiff's Motion for Conditional
Certification and Court-Authorized Notice ("Defendant's Response"),
Docket Entry No. 22.
6
Id. at pp. 1-2, 10-17.
7
Plaintiff's Reply in Support of Conditional Certification and
Court-Authorized Notice ("Plaintiff's Reply"), Docket Entry No. 23,
p.
5.
-4-
II.
The
FLSA
Applicable Law and Standard of Review
requires
covered
employers
to
pay
non-exempt
employees for hours worked in excess of defined maximum hours, 29
U.S.C. § 207(a), and allows employees to sue their employers for
violation of its hour and wage provisions.
16.
See 29 U.S.C. §§ 215-
An employee may sue his employer under the FLSA on "behalf of
himself . . . and other employees similarly situated.
No employee
shall be a party plaintiff to any such 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).
Although§ 216(b) neither provides for court-authorized notice nor
requires certification for a representative action under the FLSA,
certification has been recognized as a useful case management tool
for
district
courts
to
employ
in
appropriate
cases.
Hoffmann-La Roche Inc. v. Sperling, 110 S. Ct. 482, 486 (1989)
collective action allows .
("A
. plaintiffs the advantage of lower
individual costs to vindicate rights by the pooling of resources.
The
judicial
system
benefits
by
efficient
resolution
in
one
proceeding of common issues of law and fact arising from the same
alleged .
activity.").
When a plaintiff seeks certification to bring a collective
action on behalf of others and asks the court to approve a notice
to potential plaintiffs, the court has discretion to approve the
collective action and facilitate notice to potential plaintiffs.
-5-
Id. at 487 (ADEA action) ; 8 Villatoro v. Kim Son Restaurant, L.P., 286
F. Supp. 2d 807, 809 (S.D. Tex. 2003)
(FLSA action).
The court also
has discretion to modify the proposed class definition if it is
overly broad.
See Baldridge v. SBC Communications,
930, 931-32 (5th Cir. 2005)
Inc.,
404 F.3d
(recognizing the court's power to "limit
See also Heeg v.
the scope" of a proposed FLSA action) .
Harris,
Inc.,
907 F. Supp. 2d 856,
861
(S.D. Tex.
2012)
Adams
("A court
also 'has the power to modify an FLSA collective action definition
on its own'
if the
'proposed class definition does not encompass
only similarly situated employees.'").
Because collective actions
may reduce litigation costs for the individual plaintiffs and create
judicial efficiency,
issues
of
law
and
courts favor collective actions when common
fact
arise
from
the
same
alleged
activity.
Sperling, 110 S. Ct. at 486.
An FLSA cause of action "may be commenced within two years
after the cause of action accrued
except that a
cause of
action arising out of a willful violation may be commenced within
three years after the cause of action accrued."
"Based on the statute of limitations,
8
29 U.S.C. § 255(a).
courts have recognized that
Sperling was an action brought 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 provide
for an "opt-in" class action procedure for similarly-situated
employees. 110 S. Ct. at 486 ("We hold that district courts have
discretion, in appropriate cases, to implement 29 U.S.C. § 216(b)
(1982 ed.), as incorporated by 29 U.S.C. § 626(b) (1982 ed.), in
ADEA actions by facilitating notice to potential plaintiffs.").
-6-
class certification is appropriately limited to workers employed by
the defendant up to three years before notice is approved by the
court."
Tolentino v. C & J Spec Rent Services Inc., 716 F. Supp. 2d
642, 654 (S.D. Tex. 2010).
"Thus, the notice period must commence
three years prior to the court's approval of notice."
Id.
The term "similarly situated" is not defined in the FLSA.
See,
~'
29 U.S.C. § 216.
The Fifth Circuit has declined to set
a specific standard for courts to apply when considering whether
employees are sufficiently similar to
collective action.
See Mooney v.
1207, 1216 (5th Cir. 1995)
support maintenance of a
Aramco Services Co.,
54
F.3d
(expressly declining to decide which of
two analyses is appropriate), overruled on other grounds by Desert
Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003) . 9
Courts faced with
this issue typically apply one of two standards, i.e., the two-step
analysis
described
in
Lusardi
v.
Xerox
Corp.,
118
F.R.D.
351
(D.N.J. 1987), or the "spurious class action" analysis described in
Shushan v. University of Colorado, 132 F.R.D. 263 (D. Colo. 1990).
See Mooney, 54 F.3d at 1214.
The Lusardi analysis proceeds
stage
followed by
( 2)
a
in two stages:
decertification stage.
Cingular Wireless LLC, 553 F.3d 913, 915-16 n.2
9
( 1)
See
a
notice
Sandoz v.
(5th Cir. 2008).
Mooney was an action brought under the 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.
-7-
At
the notice
solely
on
stage the court makes
the
submitted,
pleadings
and
any
a
decision,
affidavits
usually based
that
have
been
whether to certify the class conditionally and give
notice to potential class members.
See Mooney, 54 F.3d at 1213-14.
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
the
putative
class
members
together the victims of a single decision, policy or plan."
n.S.
were
Id. &
Thus, notice stage analysis typically results in conditional
certification of a representative class.
Id.
After conditional
certification the "putative class members are given notice and the
opportunity to 'opt-in,'" id., after which the action proceeds as
a collective action.
The
second
"decertification
Id.
stage
stage"
of
is
the
Lusardi
typically
approach
precipitated
the
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
question."
a
factual
determination
on
the
similarly
situated
If the court finds the claimants are no longer
made up of similarly situated persons, it decertifies the class and
dismisses the opt-in plaintiffs without prejudice.
If the
class is still similarly situated, the court allows the collective
-8-
If the
action to proceed.
situated,
class
is
not
still
similarly
then the original plaintiff proceeds to trial on his
individual claims.
Id.
The Shushan analysis follows a procedure that is similar to
the class certification procedure used under Federal Rule of Civil
Procedure 23 ("Rule 23").
While the Fifth Circuit has explicitly
left open the question of whether the Lusardi approach, the Shushan
approach,
or
some
third
approach
should
be
used
to
determine
whether employees are sufficiently similar to support maintenance
of a collective action, see Russell v. Brinker International, Inc.,
441 Fed. Appx. 222,
226 (5th Cir. 2011), because Shushan applies
the analysis used for class actions brought under Rule 23,
because
the
procedure
§
Fifth
as
Circuit
fundamentally
has
described
and
216(b)'s "opt in" procedure,
irreconcilably
23's
"opt
out"
different
from
see LaChapelle v. Owens-Illinois,
Inc., 513 F.2d 286, 288 (5th Cir. 1975)
(per curiam), most courts
in this district follow the Lusardi approach.
at 915 n.2.
Rule
and
See Sandoz, 553 F.3d
This court, therefore, will analyze plaintiff's motion
using the Lusardi approach.
At this initial state of the Lusardi approach a plaintiff need
only make a minimal showing to persuade the court to issue notice
to potential class members.
Mooney, 54 F.3d at 1214
(recognizing
that courts apply a "fairly lenient standard" at the initial stage
of the analysis).
In the absence of Fifth Circuit guidance on the
-9-
appropriate test to use at this stage of the analysis, courts are
split on the appropriate elements to consider.
Some courts use
three elements, requiring the plaintiff to show that:
a
reasonable
basis
individuals exist;
for
(2)
crediting
the
assertion
(1) there is
that
aggrieved
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,
~'
F. Supp. 2d at 653.
element
as
Heeg, 907 F. Supp. 2d at 861; Tolentino, 716
Other courts, however, have rejected the third
non-statutory.
Oilfield Operations,
Inc.,
See,
~'
Dreyer
Civil Action No.
5204149, at *3 (S.D. Tex. Dec. 11, 2008)
v.
Baker
H-08-1212,
Hughes
2008 WL
(rejecting argument that
FLSA collective action can be certified only if
the plaintiff
proves that others are interested in opting in to the lawsuit).
Because the third element is not statutorily required and because
requiring evidence of putative class members who are willing to
join a collective action before an appropriate class has even been
defined conflicts with the Supreme Court's directive that the FLSA
be liberally construed to effect its purposes, see Tony and Susan
Alamo
Foundation v.
Secretary of Labor,
105 S.
Ct.
1953,
1959
(1985), the court agrees that plaintiff need not present evidence
of the third element at this stage of the litigation.
-10-
III.
A.
Analysis
Class Certification
1.
There is a Reasonable Basis for Crediting Plaintiff's
Assertion that Other Aggrieved Individuals Exist
To satisfy the first element of the test that courts apply at
the initial notice stage of the Lusardi analysis plaintiff need
only show that there is a reasonable basis for believing that other
aggrieved
individuals
exist.
Heeg,
907
F.
Supp.
2d
at
862.
Plaintiff contends that "[e]ven though notice has yet to go out,
additional H[ES] Advisors and/or Solids Control Operators who were
paid a
day-rate have
opted-in as
plaintiffs
to this matter. " 10
Attached to plaintiff's motion are the declarations of one other
HES Advisor, Gerald Bounds,
11
and one Solids Control Operator, John
Smith, 12 both of whom state that despite regularly working more than
forty
hours
per
week they
instead, paid a day rate.
know
other
similarly
did
not
receive
overtime
and
were,
Bounds and Smith also state that they
situated
former
coworkers
who
would
be
interested to learn about their rights and the opportunity to join
10
Plaintiff's Motion for Certification,
Docket Entry No.
19,
p. 2.
11
Declaration of Gerald Bounds ("Bounds Declaration"), Exhibit
B to Plaintiff's Motion for Certification, Docket Entry No. 19-3.
12
Declaration of John Smith ("Smith Declaration"), Exhibit C
to Plaintiff's Motion for Certification, Docket Entry No. 19-4.
-11-
this action. 13
By presenting the declarations of Bounds and Smith,
representing, respectively, one HES Advisor and one Solids Control
Operator, both of whom state that despite regularly working more
than forty hours per week they did not receive overtime and were,
instead, both paid a day rate, plaintiff has satisfied the first
element of the Lusardi test by showing that there is a reasonable
basis
for
believing plaintiff's
assertion that
other aggrieved
individuals exist who worked for Marathon as both HES Advisors and
Solids Control Operators.
2.
There is a Reasonable Basis for Believing that a Class of
Similarly Situated Persons Exists
To satisfy the second element of the test that courts apply at
the initial notice stage of the Lusardi analysis plaintiff must
demonstrate
a
reasonable
basis
for
similarly situated persons exists.
believing
See Heeg,
that
a
class
of
907 F. Supp. 2d at
862 (citing Lima v. International Catastrophe Solutions, Inc., 493
F.
Supp. 2d 793, 798
(E.D. La. 2007)).
"Potential class members
are considered similarly situated to the named plaintiff if they
are 'similarly situated in terms of job requirements and similarly
situated in terms of payment provisions.'"
Id.
(quoting Ryan v.
Staff Care, Inc., 497 F. Supp. 2d 820, 825 (N.D. Tex. 2007).
13
"'A
See Bounds Declaration, Exhibit B, to Plaintiff's Motion for
Certification, Docket Entry No. 19-3, p. 3 ~ 18; and Smith
Declaration, Exhibit C to Plaintiff's Motion for Certification,
Docket Entry No. 19-4, p. 2 ~ 17.
-12-
court may deny plaintiffs'
right to proceed collectively if the
action arises from circumstances purely personal to the plaintiff,
and not from any generally applicable rule, policy, or practice.'"
Id.
(quoting Aguirre
v.
SBC Communications,
Inc.,
Civil Action
No. H-05-3198, 2006 WL 964554, at *5 (S.D. Tex. April 11, 2006)).
(a)
Potential Class Members are Similarly Situated in
Terms of Job Requirements
Marathon does not dispute that plaintiff is similarly situated
to other HES Advisors in terms of both job requirements and pay
provisions.
Marathon argues instead that Solids Control Operators
are not similarly situated to HES Advisors,
not
a
proper
representative
for
a
class
14
and that plaintiff is
that
includes
Solids
Control Operators because "the nature of the relationships, between
Marathon and the consulting companies that provide HES Advisors are
very different from the contracts and the relationships between
Marathon and the oilfield services companies that provide Solids
Control Operators, " 15 and "the services provided by the HES Advisors
under these contracts are wholly different from those provided by
the Solids Control Operators." 16
14
Defendant's Response,
15
Id. at pp. 3-4.
16
Id. at p. 4.
Docket Entry No. 22, pp. 3-4, 10-14.
-13-
As evidence that Solids Control Operators are not similarly
situated to plaintiff and other HES Advisors, Marathon submits the
declarations
of its EF Asset HES Manager,
Jon R.
Kizzee,
17
who
described the work of HES Advisors, and Drilling Manager, Donald W.
Day, who described the work of Solids Control Operators. 18
Kizzee
states that plaintiff worked as an HES Advisor at Marathon well
sites and was either an independent contractor or an employee of
consulting firm RWDY,
Inc.
( "RWDY") . 19
Kizzee states:
4.
The contracts that Marathon enters into with
consulting companies for HES Advisors are effectively
contracts for "labor." This means that Marathon desires
the expertise of the HES Advisors. Marathon desires this
expertise because the HES Advisors perform critical
safety-related functions such as: conducting safety
meetings for the workers at the wellsite; monitoring all
activity at the wellsite to ensure that all work is being
performed in a safe manner; promptly correcting any
workers who are not performing work in a safe manner; and
documenting and reporting all safety-related incidents
that occur at the wellsite.
5.
Given the importance of the HES Advisor position,
Marathon takes a more active role in vetting the
indi victuals who the consulting companies provide to
perform such services at a Marathon wellsite.
Marathon
must ensure that these individuals are qualified to
perform the work for the sake of the safety of all
workers on site. For this same reason, Marathon requires
the HES Advisors to promptly report all safety-related
incidents directly to Marathon and to also provide
17
Declaration of Jon R. Kizzee ("Kizzee Declaration"), Exhibit
A to Defendant's Response, Docket Entry No. 22-1.
18
Declaration of Donald W. Day ("Day Declaration"), Exhibit B
to Defendant's Response, Docket Entry No. 22-3.
19
Kizzee Declaration, Exhibit A to Defendant's Response, Docket
Entry No. 22-1, p. 1 ~ 3.
-14-
regular safety-related reports to Marathon.
To ensure
that there are no issues with the reporting process,
Marathon provides the HES Advisors with a Marathon
computer and audit checklists.
6.
Marathon assigns the HES Advisors to its wellsites
and tells them on what date and at what time to arrive at
the wellsi te.
Once the HES Advisors arrive at the
wellsite, they perform their job duties free from any
direct supervision from Marathon. 20
Kizzee states that Marathon did not pay or determine how RWDY paid
the plaintiff but, instead, paid RWDY a contractually-agreed-upon
rate for each day that the plaintiff worked at a Marathon site. 21
Day states:
5.
Solids Control Operators are primarily responsible
for working with Mud Engineers to ensure that the
drilling fluids that are being used during the drilling
process remain within pre-determined specifications. At
the beginning of the job, the Solids Control Operators
generally rig up a stand on which a centrifuge sits.
They then program the centrifuge to rotate at a certain
speed designed to keep the drilling fluids within
specifications. The Solids Control Operators then attach
a hose to the centrifuge that is connected to a pump that
is placed in a tank where the drilling fluids are stored.
6.
When activated, the pump conveys the drilling fluids
from the storage tank up to the centrifuge.
The
centrifuge then separates out certain solids from the
fluids to maintain the fluids within specifications,
prior to the fluids being pumped back down the well bore
to facilitate the drilling process.
At the end of the
job, the Solids Control Operators rig down the equipment
and prepare it to be moved to the next job.
7.
Marathon does not oversee, supervise, or direct the
work performed by the Solids Control Operators, it does
not provide any tools or equipment to the Solids Control
20
Id. at p. 2 g(g( 4-6.
21
Id. at p.
3
g(
8.
-15-
Operators,
the Solids
assignment
particular
companies
services. 22
it does not set or control the hours worked by
Control Operators, and it does not control the
of the Solids Control Operators to a
job.
All of this is done by the services
with whom Marathon contracts
for
fluid
Asserting that "the primary issue on the merits in this case
is whether Marathon employed Baucum and the alleged putative class
members, " 23 Marathon argues that
in order to prevail on his Motion, Baucum must be
required to show that the HES Advisors and the Solids
Control Operators are similarly situated with respect to
their alleged employment relationship with Marathon. He
must also be required to show that the Solids Control
Operators are similarly situated in this same respect.
Because Baucum cannot satisfy either burden, the Court
should exclude the Solids Control Operators from the
proposed class. 24
Citing Andel v.
Patterson-UTI Drilling Co., LLC,
280 F.R.D.
287, 295 (S.D. Tex. 2012), for its recognition that courts in the
Fifth
Circuit
often
focus
on
the
economic
realities
of
the
relationship between a worker and a company to determine whether a
company is a worker's employer,
Marathon argues that the court
should exclude Solids Control Operators from the proposed class
because
application
of
the
economic
realities
test
will
vary
depending upon whether the workers to whom it is applied are HES
Advisors
or
Solids
Control
Operators,
meaning
that
the
22
Day Declaration, Exhibit C to Defendant's Response,
Entry No. 22-3, p. 2 ~~ 5-7.
23
Defendant's Response, Docket Entry No. 22, pp. 9-10.
24
Id. at p. 10.
-16-
two
Docket
positions
are
not
similarly
situated.
Citing
Christianson
v.
Newpark Drilling Fluids, LLC, No. H-14-3235, 2015 WL 1268259 (S.D.
Tex. March 19, 2015), Marathon argues that at least one court has
denied an application for conditional certification on this basis. 25
In Christianson, 2015 WL 1268259, at *1, the plaintiff alleged
that Newpark, an oilfield services company, misclassified him and
a putative class of "Fluid Service Technicians/(
as
independent
contractors and paid them a day rate with no overtime compensation
in violation of the FLSA.
the
court
found
as
a
At the conditional certification stage,
preliminary
matter
that
"a
fundamental
requirement of an FLSA claim is that the plaintiff be an employee
of
the
defendant
during
the
relevant
period."
Id.
After
identifying the economic realities test as a test that courts in
this circuit often apply to determine if a worker is an employee,
the
court
considered
following
five
the
factors
economic realities test:
alleged employer;
worker
and
worker's
alleged
the
parties'
typically
at
25
light
to
of
the
comprise
the
(2) the extent of the relative investments of the
alleged
opportunity
employer;
*3.
considered
in
(1) the degree of control exercised by the
employer;
for
(4)
profit
the
performing the job; and (5)
Id.
evidence
The
court
( 3)
or
skill
the
loss
and
degree
is
to
which
determined
initiative
by
required
the
the
in
the permanency of the relationship.
denied
Id. at pp. 12-15.
-17-
the
motion
for
conditional
certification after concluding that the need for
individualized
analysis of putative class members' employment relationships with
Newpark would "eviscerate all
notions
of
judicial economy that
would otherwise be served by conditional class certification."
at *4.
Id.
The court explained that
[t]he parties' briefing and evidence demonstrate that the
putative class members' circumstances are significantly
dissimilar with respect to the economic realities factors
that will later need to be analyzed for FLSA coverage
purposes to determine whether a worker was improperly
classified by Newpark as an independent contractor.
Id.
The court made clear that it was not applying the economic
realities
test
prematurely
but
was
merely
ensuring
that
the
putative class members were "similarly situated for purposes of
applying [that test] at the appropriate phase of th[e] case in the
future."
Id.
Marathon argues that this case warrants the same
result as to Solids Control Operators because the plaintiff has not
established that HES Advisors are
similarly situated to Solids
Control Operators in any material respect. 26
Citing
Tamez
v.
BHP Billiton Petroleum (Americas),
No. 5:15-cv-330-RP, 2015 WL 7075971, at *4
Inc.,
(W.O. Tex. October 5,
2015), plaintiff argues that Solids Control Operators are similarly
situated
to
the
HES
Advisors
because
the
fact
that
they
held
different job positions and had different employment relationships
with Marathon are distinctions that do not matter in a case like
26
Id. at p. 12.
-18-
this one that turns on a challenged pay practice. 27
In Tamez the
court certified a class consisting of all oil field independent
contractors working for BHP who were paid a day-rate;
conditionally
certified
position or employment
" [ c] ourts
should
are
be
split
utilized
as
was
not
limited
when
a
particular
job
Although recognizing that
status.
to
to
the class
whether
the
determining
economic
whether
realities
to
test
conditionally
certify a class in an FLSA action concerning an allegedly wrongful
independent
nonetheless
contractor
designation,"
concluded that
id.
at
*5,
"[e] ven stipulating that
must prove they are similarly situated through the
economic
realities
justified."
Id.
test,'
conditional
the
court
'Plaintiffs
lens of the
certification
is
The court explained that
Plaintiffs have presented some evidence that members of
the putative class are similarly situated with regard to
the economic realities test.
Specifically, they have
provided declarations from four Named Plaintiffs and nine
Opt-In Plaintiffs.
The declarations consistently state
that Defendant (1) interviewed Plaintiffs for their
position, (2) scheduled the days and hours Plaintiffs
were required to work,
(3)
provided the equipment
necessary to perform their duties, (4) instructed them on
how to perform their duties, and ( 5) supervised their
performance.
Id.
at
*6.
The
court
observed
that
the
plaintiffs'
evidence
suggested that
Defendant exercised similar degrees of control over class
members, that Defendant was principally responsible for
capital investments, and that, generally, class members
27
Plaintiff's Reply,
Docket Entry No. 23, p. 1.
-19-
were
subject
to
similar
employment
policies
and
practices. Albeit minimal, this evidence suggests that
the question of whether class members were independent
contractors or employees will be amenable to a collective
determination at a later stage in the litigation.
Id.
Acknowledging that defendants questioned the credibility of
the plaintiffs' evidence, the court stated "this is not the proper
stage of the litigation to assess the credibility of evidence.n
Here,
plaintiff has submitted his own declaration together
with the declarations of fellow HES Advisor,
Control Operator, Smith.
court,
the declarations
Bounds,
and Solids
Like the declarations before the Tamez
submitted by Baucum,
Bounds,
and Smith
uniformly state that Marathon scheduled them to work 12-14 hour
shifts and to be on call 24 hours a day,
provided the equipment
necessary for them to perform their jobs, instructed them on how to
perform their jobs, supervised their performance, required them to
live in Marathon-owned trailers on or near their jobsites, and did
not require them to make significant financial investments in their
jobs.
Baucum and Bounds both stated that Marathon interviewed them
for their positions.
Although Smith did not state that Marathon
interviewed
his
him
for
position,
plaintiff
argues
that
this
difference is irrelevant because Marathon was involved in hiring
Solids Control Operators through its contracts with subcontractors
who plaintiff contends were joint employers together with Marathon.
See
29
C. F.R.
§
791.2 (a)
("[I] f
-20-
the
facts
establish
that
the
employee is employed jointly by two or more employers, i.e. that
employment by one employer is not completely disassociated from
employment by the other employer(s), all of the employee's work for
all of the joint employers during the workweek is considered as one
employment from purposes of the Act.").
94 S. Ct. 427,
workers
were
(1973)
See also Falk v. Brennan,
(holding that apartment building maintenance
employed by both building management
company and
building owners for FLSA purposes).
As in Tamez,
2015 WL 7075971,
at *6,
the plaintiff in this
action has presented evidence showing that the defendant exercised
similar
degrees
of
control
over potential
class
members,
that
defendant was principally responsible for capital investments, and
that potential class members were subject to similar employment
policies and practices.
This evidence suggests that the question
of whether potential class members were independent contractors or
employees will be amenable to collective determination at a later
stage in the litigation.
Accordingly,
the court concludes that
plaintiff has carried his burden of showing that HES Advisors and
Solids Control Operators are similarly situated in terms of job
requirements.
(b)
Marathon
Potential Class Members are Similarly Situated in
Terms of Payment Provisions
does
not
dispute
that
plaintiff
and
other
HES
Advisors were all paid a day rate, that they regularly worked more
-21-
than forty hours a week, and that they were not paid overtime.
Baucum,
Bounds,
and Smith declarations
The
attached to plaintiff's
motion for conditional certification show that at least one other
HES Advisor,
Bounds,
and at least one Solids Control Operator,
Smith, were subject to the same pay policy as the plaintiff.
evidence
is
sufficient to meet
the
This
low threshold required
for
showing that potential class members are similarly situated in
terms of payment provisions at this initial stage of the case·.
3.
Conclusion as to Class Certification
Because the evidence before the court shows that there is a
reasonable basis for crediting plaintiff's assertion that other
aggrieved
individuals
exist,
and
that
the
other
aggrieved
individuals are similarly situated to plaintiff in terms of both
job requirements and payment provisions, the court concludes that
plaintiff has provided sufficient evidence to satisfy the first
stage of the Lusardi analysis,
conditionally certified as a
§
216(b)
and that
this matter
should be
collective action under 2 9 U.S. C.
with respect to the following class:
All persons who
worked for Marathon as HES Advisors and/or Solids Control Operators
who were classified as independent contractors and paid a day-rate
with no overtime compensation at any time from July 14, 2014, to
the present.
-22-
B.
Notice to Potential Class Members
Marathon asserts that
[a]ttached at Exhibit I are Marathon's proposed changes
to the notice and consent documents that Baucum attached
at Exhibit F to his Motion. All of Marathon's proposed
changes are in red-line form.
Marathon respectfully
requests that the Court permit the parties 10 business
days after it rules on the Motion to negotiate and
finalize the terms of the notice and consent documents
and to agree upon the manner and the methods by which the
notice and consent documents shall be distributed.
Marathon further requests that if the parties cannot
agree to the forms of the notice and consent documents
and/or the methods and procedures for distributing such
documents, that the parties be required to promptly
submit their dispute to the Court. 28
Plaintiff replies that
[m]ost of the changes Marathon desires to the Proposed
Notice attached to Plaintiff's Motion simply delete any
reference to Solids Control Operators from the Notice.
For all the reasons discussed above, Plaintiff opposes
such alterations because Solids Control Operators are
properly included in the putative class.
Plaintiff has
no issues with the remainder of Marathon's edits, which
are merely stylistic. 29
Because for the reasons stated in the preceding section the
court has already concluded that a conditional class should be
certified in this action,
Control Operators,
and that class should include Solids
the proposed notice should not be edited to
exclude reference to Solids Control Operators.
Since plaintiff
does not object to the other edits suggested by Marathon, the court
concludes that those changes should be made.
28
Defendant's Response, Docket Entry No. 22, pp. 17-18.
29
Plaintiff's Reply, Docket Entry No. 23, pp. 9-10.
-23-
IV.
Conclusions and Order
For the reasons explained in§ III, above, Plaintiff's Motion
for Conditional Certification and Court-Authorized Notice, Docket
Entry No. 19, is GRANTED, and the court provisionally deems this
action a collective action and defines the conditionally approved
collective class as follows:
All persons who worked for Marathon as HES Advisors
and/or Solids Control Operators who were classified as
independent contractors and paid a day-rate with no
overtime compensation at any time from July 14, 2014, to
the present.
Within ten business days
of the entry of this
Memorandum
Opinion and Order defendant shall provide plaintiff with a list of
all
employees
fitting
the
description
of
the
certified class in a usable electronic format.
include each individual's full name,
e-mail
address
employment.
this
(if
known),
conditionally
This list shall
last known mailing address,
telephone
number,
and
date(s)
of
Plaintiff shall have twenty days from the receipt of
information to mail and email the proposed notice to the
potential class members.
The opt-in period shall be sixty days
from the date the notice is mailed.
SIGNED at Houston, Texas, on this 14th day of July, 2017.
LAKE
UNITED STATES DISTRICT JUDGE
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