Vaughn v. The Document Group Inc.

Filing 818

MEMORANDUM AND ORDER granting 9 Opposed MOTION to Certify Class. The Court conditionally certifies the following class: "All current and former Manual Laborers and Scanner Operators who were classified as independent contractors and who work ed for The Document Group on or after April 20, 2014, and worked more than forty hours in a week but were not paid overtime pay at the rate of one and one-half times their regular hourly rate." The Court further ORDERS Vaughn to submit an amended proposed Notice and Consent form on or before April 29, 2017. (Signed by Judge Nancy F Atlas) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EUGENE VAUGHN, Individually and
on behalf of all others similarly situated,
Plaintiff,
v.
THE DOCUMENT GROUP INC.,
Defendant.

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§
§
§
§

April 20, 2017
David J. Bradley, Clerk

CASE NO. 4:16-CV-3578

MEMORANDUM AND ORDER
This Fair Labor Standards Act (“FLSA”) case is before the Court on the
Motion for Conditional Certification and for Notice to Putative Class Members
(“Motion”) [Doc. # 9] filed by Plaintiff Eugene Vaughn.

Defendant The

Document Group, Inc. (“TDG”) filed a Response [Doc. # 11], Vaughn filed a
Reply [Doc. # 12], and TDG filed a Sur-Reply [Doc. # 814].1 Having carefully
reviewed the record and the applicable legal authorities, the Court concludes that
the pending Motion should be granted. The Court will conditionally certify a
class consisting of “all current and former Manual Laborers and Scanner Operators
who were classified as independent contractors and who worked for The Document
Group on or after April 20, 2014, and worked more than forty hours in a week but

1

Between the Response and Reply lies an administrative docketing error that forces
the jump in the docket file numbering. No materials were filed by the parties
between the Reply [Doc. # 12] and the Sur-Reply [Doc. # 814].

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were not paid overtime pay at the rate of one and one-half times their regular
hourly rate.”
I.

BACKGROUND
TDG provides litigation support services to law firms and their clients,

including copying, scanning, organizing, and storing records (“litigation support
work”).2 TDG asserts, and Vaughn does not dispute, that the volume of documents
and the timeframe in which TDG is tasked to complete its litigation support work
differ from project to project.3 It is also undisputed that certain of the individuals
hired by TDG to perform the litigation support work are classified as employees of
TDG, while others are classified as independent contractors. TDG asserts, without
challenge, that it supplements its workers’ ranks as needed to assist with highvolume projects that have tight deadlines.4
Vaughn alleges that from March, 2016, until October 4, 2016, he
performed litigation support work, including scanning, printing, and binding
documents for TDG.5

Vaughn, whom TDG classified as an independent

2

See Affidavit of George Flores, Exh. A to TDG Response (“Flores Affidavit”)
[Doc. # 11-1], at 1 ¶ 2.

3

See id.

4

See id. at 1-2 ¶ 2, 2 ¶ 3; see also Affidavit of Chris de Boisblanc, Exh. B to TDG
Response (“de Boisblanc Affidavit”) [Doc. # 11-2], at 1 ¶ 2.

5

See Motion [Doc. # 9], at 2.

2
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contractor, filed this lawsuit under the FLSA, alleging that he regularly worked in
excess of forty hours and was not paid overtime wages for the hours worked in a
week in excess of forty. Vaughn now seeks conditional certification of a class
comprised of all Manual Laborers and Scanner Operators (“litigation support
workers”) TDG employed as independent contractors within the past three years,
which class the Court interprets to be limited to those who worked in excess of
forty hours in a week and were not paid overtime at the rate of one and one-half
times their regular hourly rate.6
Vaughn, in support of his Motion, relies on evidence, such as his own
affidavit and the affidavit of another worker TDG classified as an independent
contractor. The Motion has been fully briefed and is now ripe for decision.
II.

APPLICABLE LEGAL PRINCIPLES
A.

6

FLSA Obligations

Vaughn Reply [Doc. # 12], at 1. Vaughn defines “Manual Laborers” as “any and
all individuals who scanned documents to flash drives/hard drives, scanned
documents to larger drives, printed documents, bound documents and copied
documents and data for defendant.” He does not define “Scanner Operators.” See
Motion [Doc. # 9], at 11. The Court uses the term “ligation support workers” as
synonymous with Vaughn’s phrase “Manual Laborers and Scanner Operators.”
The Court notes that Vaughn originally proposed a class comprised of “all Manual
Laborers and Scanner Operators employed by defendant within the past three
years.” See Motion [Doc. # 9], at 1. The original proposal has been limited by the
more narrow class definition Vaughn proposes in his Reply, which limited
formulation the Court adopts.

3
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The FLSA provides that “no employer shall employ any of his employees . .
. for a workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above specified at a rate
not less than one and one-half times the regular rate at which he is employed.” 29
U.S.C. § 207(a)(1). An employee may sue his employer under the FLSA on
“behalf of himself ... and other employees similarly situated.” 29 U.S.C.
§ 216(b). Similarly situated employees can “opt-in” to a lawsuit under § 207(a) to
benefit from a judgment.
B.

Standard for Conditional Certification

When considering whether to certify a lawsuit under the FLSA as a
collective action, courts in this federal district generally use a “two-stage
approach.” See Austin v. Onward, LLC, 161 F. Supp. 3d 457, 461 (S.D. Tex.
2015); see also Caballero v. Kelly Servs., Inc., Civil Action No. H–14–1828, 2015
WL 12732863, *3 (S.D. Tex. Oct. 5, 2015); Diaz v. Applied Machinery Corp.,
Civil Action No. H-15-1282, H-15-2674, 2016 WL 3568087, *4 (S.D. Tex. June
24, 2016); Walker v. Honghua Am., LLC, 870 F. Supp. 2d 462, 465 (S.D. Tex.
2012). At the first stage, the Court decides whether to conditionally certify a class
into which individuals may opt if they seek to benefit and be bound by the outcome
of the case. At this stage, in essence, the Court is deciding whether to issue notice
to potential class members. See Walker, 870 F. Supp. 2d at 465. The second stage
4
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occurs when discovery is largely complete. If it chooses, the defendant may move
to “decertify” the conditionally certified class. See id. at 466. “Neither stage of
certification is an opportunity for the court to assess the merits of the claim by
deciding factual disputes or making credibility determinations.” McKnight v. D.
Houston, Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010).
At the notice stage, the Court’s decision is generally based on the pleadings,
affidavits, and other limited evidence. Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1214 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003); Walker, 870 F. Supp. 2d at 465. At this stage, the
plaintiff is required to show 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.” Walker, 870
F. Supp. 2d at 465-66; see also Andel v. Patterson-UTI Drilling Co., LLC, 280
F.R.D. 287, 289 (S.D. Tex. 2012). “Although collective actions under the FLSA
are generally favored, the named plaintiff(s) must present some factual support for
the existence of a class-wide policy or practice.” Carey v. 24 Hour Fitness USA,
Inc., 2012 WL 4857562, at *1 (S.D. Tex. Oct. 11, 2012) (citing Walker, 870 F.
Supp. 2d at 466).

Conclusory allegations that other employees are similarly

situated are insufficient to justify conditional certification. Rodriguez v. Flower
5
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Foods, Inc., Civil Action No. 4:16–CV–245, 2016 WL 7210943, at *2 (S.D. Tex.
Dec. 13, 2016).7
To be “similarly situated,” there must be “substantial allegations that
potential members ‘were together the victims of a single decision, policy, or
plan.’” McKnight, 756 F. Supp. 2d at 801 (quoting Mooney, 54 F.3d at 1213).
Certification should be denied “‘if the action arises from circumstances purely
personal to the plaintiff, and not from any generally applicable rule, policy, or
practice.’” Id. (quoting England v. New Century Fin. Corp., 370 F. Supp. 2d 504,
507 (M.D. La. 2005)). Where minimal evidence is advanced at the notice stage,
the conditional class determination “is made using a fairly lenient standard, and
typically results in ‘conditional certification’ of a representative class” that
provides potential class members with notice and the opportunity to opt in. See id.
(quoting Mooney, 54 F.3d at 1214 n.8); see also Walker, 870 F. Supp. 2d at 465.
III.

ANALYSIS
A.

Evidence that Other Aggrieved Individuals Exist

To satisfy the first element under the analysis Vaughn need only show that
there is a reasonable basis for believing that other aggrieved individuals exist. See
7

A court “‘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.’” Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856, 861 (S.D. Tex.
2012) (quoting Dreyer v. Baker Hughes Oilfield Operations, Inc., Civil Action No.
H-08-1212, 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008)).

6
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Heeg, 907 F. Supp. 2d at 862. In addition to his own affidavit, Vaughn has
submitted an affidavit from Naseem Roberson, in which Roberson affirms his
intention to join the lawsuit as a plaintiff.8 Roberson, like Vaughn, states that he
performed litigation support work for TDG and that TDG classified Roberson as
an independent contractor and did not pay him overtime wages.9 Roberson also
states that he estimates at least fifteen TDG workers whose duties were similar to
those Roberson performed and who were not paid overtime for hours worked in
excess of forty, and identifies three by name.10 TDG does not challenge Vaughn or
Roberson’s averments that other aggrieved individuals exist. The Court finds that
Vaughn has provided sufficient evidence to credit his assertion that aggrieved
individuals exist. See Heeg, 907 F. Supp. 2d at 862; cf. Rodriguez, 2016 WL
7210943, at *2 (“[t]o show that there are similarly situated employees, a plaintiff
would ideally produce affidavits from potential class members affirming their
intention to join the lawsuit.” (citing McKnight, 756 F. Supp. 2d at 805 (S.D. Tex.

8

See Affidavit of Naseem Roberson (“Roberson Affidavit”), Exh. B to the Motion
[Doc. # 9-2], at 1 ¶ 2.

9

See id. at 1 ¶ 3.

10

See id. at 2 ¶ 8. Roberson’s assertions are supported by spreadsheets Vaughn
attached to his Reply that list the job description and hours worked by litigation
support workers TDG classified as independent contractors. See infra III.B.

7
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2010)).11 The first element for conditional certification is satisfied.
B.

Existence of Similarly Situated Individuals

As noted, Vaughn seeks conditional certification of a class comprised of all
litigation support workers TDG employed as independent contractors within the
past three years.12 Vaughn alleges he and the other putative class members are
similarly situated because, first, “Defendant has a common policy of
mischaracterizing workers as independent contractors and thereby paying them
straight time instead of the statutorily required overtime pay for hours worked
above forty (40) each week[],” and, second, “Plaintiff and putative class members
performed the same job duties and were paid straight time instead of time and a
half for overtime hours worked.”13 These arguments are intertwined and will be
addressed in tandem.

11

Various courts, including this Court, have also required a plaintiff seeking
conditional certification to present evidence of other similarly situated individuals
who want to opt into the lawsuit. See Jones v. Xerox Commercial Sols., LLC,
Civil Action No. 4:13–cv–650, 2013 WL 5945652, at *4 n.43 (S.D. Tex. Nov. 6,
2013) (citing cases). Other courts do not. See Diaz v. Applied Machinery Corp.,
Civil Action No. H-15-1282, H-15-2674, 2016 WL 3568087, at *4 (S.D. Tex.
June 24, 2016). The Fifth Circuit has not addressed this factor. Based on its
examination of Roberson’s affidavit, as well as the parties’ pleadings, the Court
concludes that Vaughn has made a sufficient showing to indicate that other
individuals are likely to opt in to this lawsuit.

12

Vaughn Reply [Doc. # 12], at 1; see supra note 8.

13

See Vaughn Reply [Doc. # 12], at 2-3.

8
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TDG disputes that conditional certification is warranted. TDG asserts that
Vaughn fails to identify “a single decision, policy or plan that TDG purportedly
subjected Plaintiff and putative class members to in their relationship with TDG.”14
Moreover, TDG argues, the similarity determination requires an individualized
analysis that renders this suit inappropriate for class action.15
To be “similarly situated,” there must be “‘substantial allegations that
potential members were together the victims of a single decision, policy, or plan.’”
Caballero v. Kelly Servs., Inc., Civil Action No. H–14–1828, 2015 WL 12732863,
at *3 (S.D. Tex. 2015) (quoting McKnight, 756 F. Supp. 2d at 801). Additionally,
“[f]or the class representative to be considered similarly situated to the potential
opt in class members, the class representative must be similarly situated in terms of
job requirements and similarly situated in terms of payment provisions.” Vanzzini
v. Action Meat Distribs., Civil Action No. H–11–4173, 2012 WL 1941763, at *3
(S.D. Tex. May 29, 2012) (quoting Ryan v. Staff Care, Inc., 497 F. Supp. 2d 820,
825 (N.D. Tex. 2007)). “Plaintiffs ‘need only show that their positions are similar,
not identical, to putative plaintiffs.’” Walker, 870 F. Supp. 2d at 468 (quoting
Jesiek v. Fire Pros, Inc., 275 F.R.D. 242, 246 (W.D. Mich. 2011)). However, “if

14

See TDG Sur-Reply [Doc. # 814], at 1.

15

See id. at 2-3; TDG Response [Doc. # 11], at 11-13.

9
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the job duties among potential members of the class vary significantly, then class
certification should not be granted.”

See Dreyer, 2008 WL 5204149, at *2

(emphasis in original).
The Court determines that Vaughn and members of the putative class are
sufficiently similarly situated to one another with respect to their work for TDG
and TDG’s pay practices to satisfy this factor. Vaughn has adequately alleged a
TDG policy with respect to the putative class, namely, that TDG misclassified
certain litigation support workers as independent contractors in order to avoid
paying those individuals overtime.16

Vaughn also has adduced evidence of

similarity in job requirements and pay provisions among the class, pointing to
spreadsheets supplied to Vaughn by TDG in the course of litigation that detail the
job descriptions of and pay accorded to prospective members.17 See Diaz, 2016
WL 3568087, at *8-9; Heeg, 907 F. Supp. 2d at 865. In 2017, for example, the job
requirements of litigation support workers TDG classified as independent
contractors are described as “[s]can despeckle, rotate image & quality co[ntrol],”
“[s]canning,” or similar duties.18

None of those classified as independent

16

See Vaughn Reply [Doc. # 12], at 2.

17

See Corrected Exhs. A-D to Vaughn Reply [Docs. # 817-1, # 817-2, # 817-3,
# 817-4].

18

See Corrected Exh. A to Vaughn Reply [Doc. # 817-1].

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contractors were paid overtime for hours worked in excess of forty, a fact TDG
does not dispute.19
TDG argues that because it retains employees who perform “the same
manual labor” as its independent contractors, Vaughn cannot identify a decision,
policy, or plan of TDG to which the putative class is subject.20 According to TDG,
this evidence shows there is no such policy, and “TDG’s decision to treat certain
personnel as W-2 employees, as opposed to 1099 workers, has depended on the
circumstances of each person.”21 This argument is unavailing. To the extent TDG
argues that Vaughn and the other putative class members are not subject to the
FLSA’s overtime requirements because they are independent contractors and not
TDG employees, this is a merits-based defense to FLSA claims that must be
addressed at a later stage of the case. See, e.g., Diaz, 2016 WL 3568087, at *9.
TDG also contends that Vaughn and members of the putative class are not
similarly situated because there are “substantial differences” among members of
the putative class with respect to, inter alia, their hours, skills, pay, and duration of

19

See Corrected Exhs. B-D to Vaughn Reply [Docs. # 817-2, # 817-3, # 817-4]
(listing weeks in 2014, 2015, and 2016 that the litigation support workers
classified as independent contractors worked over forty hours, and showing that
none was paid overtime for the hours in excess of forty.)

20

See TDG Sur-Reply [Doc. # 814], at 1-2.

21

See id. at 1.

11
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relationship with TDG.22 Determining whether TDG erred in its classification of
litigation support workers, TDG argues, would require the Court assess those
differences by performing an individualized analysis of each putative class
member under the “economic realities test,” a task that renders the action ill-suited
to certification.23 The Court is not persuaded.
Courts in the Fifth Circuit use the economic realities test to determine
whether a worker is an employee or an independent contractor for purposes of the
FLSA. Rodriguez, 2016 WL 7210943 at *3. The test includes five, non-exclusive
factors: “(1) the degree of control exercised by the alleged employer; (2) the extent
of the relative investments of the worker and the alleged employer; (3) the degree
to which the worker's opportunity for profit or loss is determined by the alleged
employer; (4) the skill and initiative required in performing the job; and (5) the
permanency of the relationship. No single factor is determinative.” See Hopkins v.
Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008) (internal citation omitted).
There is a split of authority regarding whether the test should be used when
determining whether to conditionally certify an FLSA action concerning an
allegedly wrongful independent contractor designation. Compare Rodriguez, 2016
22

See TDG Response [Doc. # 11], at 13-14, 16-17; TDG Sur-Reply [Doc. # 814], at
2.

23

See TDG Sur-Reply [Doc. # 814] at 2-3.

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WL 7210943, at *3 with Andel, 280 F.R.D. at 290. Courts that decline to apply the
economic realities test at the conditional certification stage generally conclude that
the test pertains to the merits of the case, not to collective action certification. See
Rodriguez, 2016 WL 7210943, at *3 (citing cases).
TDG invokes Andel and this Court’s ruling in Christianson v. NewPark
Drilling Fluids, LLC,24 which TDG contends applied the economic realities test at
the conditional certification stage. Those cases, however, are distinguishable from
the suit at bar. As an initial matter, this Court did not apply the economic realities
test per se in Christianson. Rather, the Court assessed whether the proposed class
members were sufficiently similarly situated because they were subject to a single
policy or practice of the employer. The assessment was whether the Court would
be able to apply the economic realities test, at a later stage in the litigation, to the
proposed class as a group, or whether the circumstances of the members of the
proposed class were so diverse as to “‘eviscerate[] all notions of judicial economy
that would otherwise be served by conditional class certification.’”

See

Christianson, 2015 WL 1268259, at *4 (quoting Demauro v. Limo, Inc., No. 8:10cv-413-T-33AEP, 2011 WL 9191, *3-*4 (N.D. Fla. Jan. 3, 2011)).
Moreover, the facts before the courts in each of Andel and Christianson

24

No. CIV.A. H–14–3235, 2015 WL 1268259 (S.D. Tex. Mar. 19, 2015).

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established plainly that the evidence pertinent to the economic realities factors
varied substantially among the putative class members. See Andel, 280 F.R.D at
290; Christianson, 2015 WL 1268259, at *3-*4. In Christianson, for example,
there was no evidence that the putative class members had sufficiently similar
skills, experience, or salaries. The Christianson plaintiffs did not establish a single
policy applicable to the putative class members. See Christianson, 2015 WL
1268259, at *3-*4.
In the case at bar, in contrast, Vaughn has met his burden to demonstrate that
TDG has a policy of not paying overtime compensation to individuals who
perform sporadic work for the single reason that TDG deems these workers
independent contractors.

TDG has not rebutted Vaughn’s evidence with

sufficiently substantial proof of variations among the putative class members to
prevent conditional certification. The evidence is uncontroverted that, between
2014 and 2017, TDG classified approximately forty litigation support workers as
independent contractors.25 Vaughn has presented evidence that these workers’ jobs
are not particularly dissimilar.26

25

See Corrected Exhs. A-D to Vaughn Reply [Docs. # 817-1, # 817-2, # 817-3,
# 817-4].

26

See generally id. The proof that the workers’ hourly wages ranged between $9
and $17.50 from 2014 through 2016 does not defeat this conclusion. According to
(continued…)

14
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TDG asserts that certain independent contractor litigation support workers
also have full-time employment elsewhere.27 TDG also observes that Vaughn
alleges he worked far more hours than Roberson claims to have worked, and that
evidence on the record indicates a difference in the number of weeks that Vaughn
and Roberson each worked in excess of forty hours.28 These are not material
differences in this case for purposes of conditional class certification because TDG
plainly has a single policy of classifying all sporadic workers as independent
contractors and not paying overtime for hours worked in excess of forty.
“[S]imilarly situated class members need not be identical to be similarly situated.”
See Kemp v. Databank IMX, LLC, Civil Action No. H–14–1090, 2015 WL
1897929, at *8 (S.D. Tex. March 27, 2015); Walker, 870 F. Supp. 2d at 468 (citing
cases). Any individualized analysis the Court need perform would not be so
onerous as to “‘eviscerate[] all notion[s] of judicial economy that would otherwise
be served by conditional class certification.’”

Cf. Christianson, 2015 WL

1268259, at *4 (quoting Demauro, 2011 WL 9191, at *3-*4). If discovery reveals
that Vaughn and the putative class members are not, in fact, similarly situated in
(continued…)
TDG, workers with greater experience were assigned more complex tasks and
earned a higher hourly wage. See TDG Response [Doc. # 11], at 5.
27

See TDG Response [Doc. # 11], at 15.

28

Id. at 14.

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relevant respects given the claims and defenses asserted, TDG may seek
decertification of the conditional class. Cf. Heeg, 907 F. Supp. 2d at 865.
C.

Evidence of Other Likely Opt-Ins

Various courts, including this Court, also require a plaintiff seeking
conditional certification to present evidence of other similarly situated individuals
who want to opt into the lawsuit. See Jones v. Xerox Commercial Sols., LLC, Civil
Action No. 4:13–cv–650, 2013 WL 5945652, at *4 n.43 (S.D. Tex. Nov. 6, 2013)
(citing cases). Other courts do not impose this requirement. See Diaz v. Applied
Machinery Corp., Civil Action No. H-15-1282, H-15-2674, 2016 WL 3568087, at
*4 (S.D. Tex. June 24, 2016). Generally, this factor is easily satisfied if there is
some evidence that others are likely to want to join the litigation. The Fifth Circuit
has not addressed this requirement.
Based on its examination of Roberson’s affidavit, as well as the parties’
pleadings, the Court concludes that Vaughn has made a sufficient showing to
indicate that other individuals are likely to opt in to this lawsuit.
D.

Notice

Vaughn attached a proposed Notice and proposed Consent form to his
Motion.29 The group of potential plaintiffs identified in the proposed Notice does
29

See Exh. D to Motion [Doc. # 9-4], at 1-3 (Proposed Notice), 4 (Proposed
Consent).

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not correspond to the proposed class Vaugh ultimately requests in this case,
namely, “all Manual Laborers and Scanner Operators employed by The Document
Group as independent contractors … .”30 Vaughn must submit to the Court a copy
of the revised proposed class notice on or before April 29, 2017. The class
definition should specify the class commences April 20, 2014.
IV.

CONCLUSION AND ORDER
For the reasons explained above, Plaintiff Eugene Vaughn’s Motion [Doc.

# 9] is GRANTED in accordance with this Memorandum and Order. The Court
conditionally certifies the following class:
All current and former Manual Laborers and Scanner Operators who
were classified as independent contractors and who worked for The
Document Group on or after April 20, 2014, and worked more than
forty hours in a week but were not paid overtime pay at the rate of one
and one-half times their regular hourly rate.
The Court further ORDERS Vaughn to submit an amended proposed Notice
and Consent form on or before April 29, 2017.
Signed at Houston, Texas, this 20th day of April, 2017.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE
30

See Vaughn Reply [Doc. # 12], at 1.

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