Baucum v. Marathon Oil Corporation
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CHANCE BAUCUM, Individually
and on Behalf of All Others
MARATHON OIL CORP.,
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
Certification and Court-Authorized Notice,
(Docket Entry No. 22),
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
compensation at any time from July 14, 2014 to the present.
and Procedural Background
Marathon is a global oil and gas exploration and production
including in Texas.
Plaintiff alleges that to provide services to
contractors certain workers who are employed on a day-rate basis.
to June 2016,
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
instead of paying them overtime as
required by the
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,
0riginal Collective Action Complaint,
Docket Entry No.
Plaintiff filed this
action on November
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:
contractors and paid a day-rate with no overtime compensation at
any time from _________ ,
2014 to the present." 3
"[b] ecause Marathon denied Baucum and the putative
class members overtime under its uniform compensation policy, these
workers are similarly situated." 4
Id. at pp. 7-10.
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.
Plaintiff' s Motion for Certification,
Docket Entry No.
plaintiff's motion for class certification. 5
Marathon agrees that
Advisors, but argues that plaintiff's motion for conditional class
because HES Advisors and Solids Control Operators have different
use different equipment,
have different supervisors,
and different reporting structures and therefore are not similarly
Marathon's proposed changes to the notice and consent documents.
On May 25,
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:
contractors by Marathon
Both positions were supplied to Marathon by SubContractors
Defendant's Response to Plaintiff's Motion for Conditional
Certification and Court-Authorized Notice ("Defendant's Response"),
Docket Entry No. 22.
Id. at pp. 1-2, 10-17.
Plaintiff's Reply in Support of Conditional Certification and
Court-Authorized Notice ("Plaintiff's Reply"), Docket Entry No. 23,
Applicable Law and Standard of Review
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.
See 29 U.S.C. §§ 215-
An employee may sue his employer under the FLSA on "behalf of
himself . . . and other employees similarly situated.
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
Hoffmann-La Roche Inc. v. Sperling, 110 S. Ct. 482, 486 (1989)
collective action allows .
. plaintiffs the advantage of lower
individual costs to vindicate rights by the pooling of resources.
proceeding of common issues of law and fact arising from the same
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.
Id. at 487 (ADEA action) ; 8 Villatoro v. Kim Son Restaurant, L.P., 286
F. Supp. 2d 807, 809 (S.D. Tex. 2003)
The court also
has discretion to modify the proposed class definition if it is
See Baldridge v. SBC Communications,
930, 931-32 (5th Cir. 2005)
(recognizing the court's power to "limit
See also Heeg v.
the scope" of a proposed FLSA action) .
907 F. Supp. 2d 856,
also 'has the power to modify an FLSA collective action definition
on its own'
'proposed class definition does not encompass
only similarly situated employees.'").
Because collective actions
may reduce litigation costs for the individual plaintiffs and create
courts favor collective actions when common
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
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,
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.").
class certification is appropriately limited to workers employed by
the defendant up to three years before notice is approved by the
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."
The term "similarly situated" is not defined in the FLSA.
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
See Mooney v.
1207, 1216 (5th Cir. 1995)
support maintenance of a
Aramco Services Co.,
(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
(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
in two stages:
Cingular Wireless LLC, 553 F.3d 913, 915-16 n.2
(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
stage the court makes
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
together the victims of a single decision, policy or plan."
Thus, notice stage analysis typically results in conditional
certification of a representative class.
certification the "putative class members are given notice and the
opportunity to 'opt-in,'" id., after which the action proceeds as
a collective action.
defendant filing a motion to decertify after the opt-in period has
concluded and discovery is largely complete.
"At this stage,
the court has much more information on which to base its decision,
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.
class is still similarly situated, the court allows the collective
action to proceed.
then the original plaintiff proceeds to trial on his
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
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,
216(b)'s "opt in" procedure,
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.
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
that courts apply a "fairly lenient standard" at the initial stage
of the analysis).
In the absence of Fifth Circuit guidance on the
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:
(1) there is
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
F. Supp. 2d at 653.
Heeg, 907 F. Supp. 2d at 861; Tolentino, 716
Other courts, however, have rejected the third
Civil Action No.
5204149, at *3 (S.D. Tex. Dec. 11, 2008)
(rejecting argument that
FLSA collective action can be certified only if
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
Secretary of Labor,
(1985), the court agrees that plaintiff need not present evidence
of the third element at this stage of the litigation.
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
Plaintiff contends that "[e]ven though notice has yet to go out,
additional H[ES] Advisors and/or Solids Control Operators who were
to this matter. " 10
Attached to plaintiff's motion are the declarations of one other
HES Advisor, Gerald Bounds,
and one Solids Control Operator, John
Smith, 12 both of whom state that despite regularly working more than
instead, paid a day rate.
Bounds and Smith also state that they
interested to learn about their rights and the opportunity to join
Plaintiff's Motion for Certification,
Docket Entry No.
Declaration of Gerald Bounds ("Bounds Declaration"), Exhibit
B to Plaintiff's Motion for Certification, Docket Entry No. 19-3.
Declaration of John Smith ("Smith Declaration"), Exhibit C
to Plaintiff's Motion for Certification, Docket Entry No. 19-4.
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
individuals exist who worked for Marathon as both HES Advisors and
Solids Control Operators.
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
similarly situated persons exists.
907 F. Supp. 2d at
862 (citing Lima v. International Catastrophe Solutions, Inc., 493
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.'"
(quoting Ryan v.
Staff Care, Inc., 497 F. Supp. 2d 820, 825 (N.D. Tex. 2007).
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.
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.'"
No. H-05-3198, 2006 WL 964554, at *5 (S.D. Tex. April 11, 2006)).
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
Marathon argues instead that Solids Control Operators
are not similarly situated to HES Advisors,
and that plaintiff is
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
Id. at pp. 3-4.
Id. at p. 4.
Docket Entry No. 22, pp. 3-4, 10-14.
As evidence that Solids Control Operators are not similarly
situated to plaintiff and other HES Advisors, Marathon submits the
of its EF Asset HES Manager,
described the work of HES Advisors, and Drilling Manager, Donald W.
Day, who described the work of Solids Control Operators. 18
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,
( "RWDY") . 19
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.
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.
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
Declaration of Jon R. Kizzee ("Kizzee Declaration"), Exhibit
A to Defendant's Response, Docket Entry No. 22-1.
Declaration of Donald W. Day ("Day Declaration"), Exhibit B
to Defendant's Response, Docket Entry No. 22-3.
Kizzee Declaration, Exhibit A to Defendant's Response, Docket
Entry No. 22-1, p. 1 ~ 3.
regular safety-related reports to Marathon.
that there are no issues with the reporting process,
Marathon provides the HES Advisors with a Marathon
computer and audit checklists.
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
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.
When activated, the pump conveys the drilling fluids
from the storage tank up to the centrifuge.
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.
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
Id. at p. 2 g(g( 4-6.
Id. at p.
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
All of this is done by the services
with whom Marathon contracts
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,
287, 295 (S.D. Tex. 2012), for its recognition that courts in 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
depending upon whether the workers to whom it is applied are HES
Day Declaration, Exhibit C to Defendant's Response,
Entry No. 22-3, p. 2 ~~ 5-7.
Defendant's Response, Docket Entry No. 22, pp. 9-10.
Id. at p. 10.
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/(
contractors and paid them a day rate with no overtime compensation
in violation of the FLSA.
At the conditional certification stage,
requirement of an FLSA claim is that the plaintiff be an employee
identifying the economic realities test as a test that courts in
this circuit often apply to determine if a worker is an employee,
economic realities test:
(2) the extent of the relative investments of the
(1) the degree of control exercised by the
performing the job; and (5)
the permanency of the relationship.
Id. at pp. 12-15.
certification after concluding that the need for
analysis of putative class members' employment relationships with
Newpark would "eviscerate all
judicial economy that
would otherwise be served by conditional class certification."
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.
The court made clear that it was not applying the economic
putative class members were "similarly situated for purposes of
applying [that test] at the appropriate phase of th[e] case in the
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
BHP Billiton Petroleum (Americas),
No. 5:15-cv-330-RP, 2015 WL 7075971, at *4
(W.O. Tex. October 5,
2015), plaintiff argues that Solids Control Operators are similarly
different job positions and had different employment relationships
with Marathon are distinctions that do not matter in a case like
Id. at p. 12.
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;
position or employment
" [ c] ourts
Although recognizing that
certify a class in an FLSA action concerning an allegedly wrongful
"[e] ven stipulating that
must prove they are similarly situated through the
lens of the
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
The declarations consistently state
that Defendant (1) interviewed Plaintiffs for their
position, (2) scheduled the days and hours Plaintiffs
were required to work,
provided the equipment
necessary to perform their duties, (4) instructed them on
how to perform their duties, and ( 5) supervised their
Defendant exercised similar degrees of control over class
members, that Defendant was principally responsible for
capital investments, and that, generally, class members
Docket Entry No. 23, p. 1.
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.
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
plaintiff has submitted his own declaration together
with the declarations of fellow HES Advisor,
Control Operator, Smith.
Like the declarations before the Tamez
submitted by Baucum,
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
Baucum and Bounds both stated that Marathon interviewed them
for their positions.
Although Smith did not state that Marathon
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.
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,
See also Falk v. Brennan,
(holding that apartment building maintenance
employed by both building management
building owners for FLSA purposes).
As in Tamez,
2015 WL 7075971,
the plaintiff in this
action has presented evidence showing that the defendant exercised
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.
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
Potential Class Members are Similarly Situated in
Terms of Payment Provisions
Advisors were all paid a day rate, that they regularly worked more
than forty hours a week, and that they were not paid overtime.
and Smith declarations
attached to plaintiff's
motion for conditional certification show that at least one other
and at least one Solids Control Operator,
Smith, were subject to the same pay policy as the plaintiff.
sufficient to meet
low threshold required
showing that potential class members are similarly situated in
terms of payment provisions at this initial stage of the case·.
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
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
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
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.
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.
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,
and that class should include Solids
the proposed notice should not be edited to
exclude reference to Solids Control Operators.
does not object to the other edits suggested by Marathon, the court
concludes that those changes should be made.
Defendant's Response, Docket Entry No. 22, pp. 17-18.
Plaintiff's Reply, Docket Entry No. 23, pp. 9-10.
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
Within ten business days
of the entry of this
Opinion and Order defendant shall provide plaintiff with a list of
certified class in a usable electronic format.
include each individual's full name,
This list shall
last known mailing address,
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.
UNITED STATES DISTRICT JUDGE
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