Sterling v. Greater Houston Transportation Company et al
CORRECTED MEMORANDUM OPINION and ORDER entered regarding class certification.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
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United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GREATER HOUSTON TRANSPORTATION §
CO., et al.,
July 14, 2021
Nathan Ochsner, Clerk
CIVIL ACTION NO. H-20-910
MEMORANDUM OPINION AND ORDER
In March 2020, Paul Sterling, a driver in Houston’s METROLift Transportation program,
sued the Greater Transportation Company, Texas Paratransit, Inc., Yellow Cab Paratransit
Services, Inc. (collectively “Yellow Cab”), and the Metropolitan Transit Authority of Harris
County (“Metro”), on behalf of himself and similarly situated METROLift drivers. Sterling
alleges that Yellow Cab and Metro misclassified him and others similarly situated as independent
contractors instead of employees, denying them the overtime compensation due under the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. Sterling now seeks class certification of
“all current and former drivers of the METROLift program who were classified as independent
contractors for at least one week during the three-year period prior to the date the Court authorizes
notice to the present.” 1 (Docket Entry No. 77 at 2).
The proposed class excludes “any drivers in the METROLift program who either (1) owned a
taxi cab for use in the METROLift program during the entire three year period prior to the date the
[c]ourt authorizes notice, or (2) who were under a lease to own program during the entire three
year period prior to the date the [c]ourt authorizes notice.” (Id.).
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In May 2021, Sterling filed a motion to approve a stipulation he reached with Yellow Cab
for certification, (Docket Entry No. 77), and a supplemental motion for certification under the
FLSA, (Docket Entry No. 78).
Sterling first moved for class certification in September 2020. (Docket Entry No. 35).
Yellow Cab and Metro opposed Sterling’s motion. In January 2021, the Fifth Circuit announced
a new framework for evaluating class certification under the FLSA in Swales v. KLLM Transport
Services, LLC, 985 F.3d 430 (5th Cir. 2021). Yellow Cab sought, and this court ordered,
supplemental briefing applying Swales. (Docket Entry Nos. 47, 50, 53, 59, 61). The court heard
oral argument in February 2021 and ordered the parties to conduct limited deposition discovery to
supplement the record on certification, and to file supplemental briefs. (Docket Entry No. 70).
After precertification discovery, Sterling and Yellow Cab stipulated that class certification is
appropriate under the FLSA. (Docket Entry No. 77). Sterling then supplemented his motion for
class certification, Metro responded, and Sterling replied. (Docket Entry Nos. 78, 79, 83).
Sterling argues that the five witness depositions taken during the precertification discovery
show that the potential class members are similarly situated, and class certification is appropriate
under the FLSA and Swales. (Docket Entry No. 78 at 5). Metro responds that the court should
deny class certification because the court has not granted summary judgment finding Metro to be
the employer of the drivers, and because many of Sterling’s claims about similar working
conditions are disputed. (Docket Entry No. 79 at 6). Metro argues that the deposition testimony
shows that the drivers are not similarly situated. (Docket Entry No. 87 at 7 (citing Docket Entry
No. 79 at 7–20)). Metro cites deposition excerpts that it argues prove it did not have an employeremployee relationship with the drivers in the METROLift Program. Sterling responds that the
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issue is not whether it will ultimately succeed on the merits of the employment status issue, but
whether the court can decide the employee versus independent contractor issue on a class-wide
basis. (Docket Entry No. 83 at 2).
The Legal Standard
For the hours worked over 40 hours in a week, the FLSA requires covered employers to
pay nonexempt employees for overtime hours, at the overtime rate of one and one-half times their
hourly rate. 29 U.S.C. § 207(a). Section 216(b) provides employees a cause of action against
employers who violate § 207. Under § 216(b), employees may proceed in a collective action when
they are “similarly situated.” The Fifth Circuit recently rejected the approach used in Lusardi v.
Xerox Corporation, 118 F.R.D. 351 (D.N.J. 1987), and provided new guidance for assessing
whether potential collective action members in FLSA suits are “similarly situated.” Swales, 985
In Swales, the Fifth Circuit explained that district courts should “identify, at the outset of
the case, what facts and legal considerations will be material to determining whether a group of
‘employees’ is ‘similarly situated.’” Id. at 439. Only then can the district court determine whether
to conditionally certify and issue opt-in notice. Id. at 434. The court has discretion to order
targeted discovery to determine whether to conditionally certify and issue notice to potential
plaintiffs. Id. at 439. “The bottom line is that the district court has broad, litigation-management
discretion [in class certification].” Id. at 443.
Swales implements two requirements relevant to determining whether to certify a
collective action on a conditional basis and issue notice: “(1) the FLSA’s text, specifically
§ 216(b), which declares (but does not define) that only those ‘similarly situated’ may proceed as
a collective; and (2) the Supreme Court’s admonition that while a district court may ‘facilitate[e]
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notice to potential plaintiffs’ for case-management purposes, it cannot signal approval of the merits
or otherwise stir up litigation.” Id. at 434. “These are the only binding commands on district
courts.” Id. Swales emphasizes that those plaintiffs suing as representatives have the burden of
demonstrating that the plaintiffs and the proposed opt-ins are similarly situated. Id. at 443 n.65.
When “the plaintiffs all have the same job description and the allegations revolve around
the same aspect of that job,” certification should be granted. Id. at 441–42. In Swales, the Fifth
Circuit reaffirmed that certification depends on “whether merits questions can be answered
collectively,” and that the certification decision should be made “as early as possible.” Swales at
441–42. There should be “[n]o judicial thumbs (or anvils) on the scale” related to the merits of
the case at the certification stage. Id. at 436.
Metro’s argument that certification is not appropriate under Swales until the court
determines whether Metro employed the drivers is unpersuasive. The issue at this stage is not
whether Sterling will ultimately prevail in proving all the elements of the alleged FLSA violation,
including employment status, but whether the court can determine if the named plaintiffs and
proposed class members are employees or independent contractors on a class-wide basis. Miller
v. Mackey Intern., Inc., 452 F.2d 424, 427 (5th Cir. 1971) (“In determining the propriety of a class
action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will
prevail on the merits, but rather whether the requirements of [class certification] are met.”).
Sterling has sufficiently shown, on the current record, that the court can determine the
relevant threshold issues on a class-wide, rather than, individualized, basis. Sterling points to
driver deposition testimony showing that the drivers in the METROLift program all had the same
job title, performed the same duties, were paid under the same compensation arrangements, wore
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the same uniforms, followed the same policies and procedures, were subject to the same hiring
requirements, completed the same training, were supervised in the same way, were subject to the
same level of control, and were required to follow identical METROLift contracts. These contracts
implement federal requirements for drivers and many of the provisions are required for compliance
under federal law. (Docket Entry No. 78 at 14; Docket Entry No. 79 at 19).
While Metro disputes Sterling’s allegations, it has not identified differences that require
individualized proof or determination material to the employment status of the METROLift
drivers. (Docket Entry No. 79). Metro argues that the drivers’ deposition testimony highlights
some differences in job duties. These differences include, driving a fixed route as opposed to
flexible routes; and getting the job through application or through recruitment; wearing prescribed
uniforms provided directly by Yellow Cab or wearing prescribed uniforms that the drivers obtain
themselves. Metro also asserts differences in pay frequency; how hours worked were recorded;
how vehicles were obtained; and who paid for vehicle insurance. (Docket Entry No. 87 at 7 (citing
Docket Entry No. 79 at 7-20)). Metro fails to show that any or all of these differences mean that
the drivers are not similarly situated with respect to whether they are Metro employees or
independent contractors. Similar, immaterial differences are not disqualifications for finding
employees who are similarly situated. See Young v. Energy Drilling Co., No. Civ. A. 4:20-cv1716, 2021 WL 1550343
(S.D. Tex. Apr. 20, 2021) (despite having different job duties,
certification of a class of hourly paid oil-field workers was appropriate because the workers were
subject to the same pay practice); see also Hernandez v. Pritchard Indus. (Southwest), LLC, No.
Civ. A 20-cv-0508, 2021 WL 1146005 (W.D. Tex. Mar. 25, 2021) (certifying a class of janitorial
workers with different job titles, such as “working building supervisor,” “general service worker,”
“general cleaner,” and “janitor”).
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Sterling has shown that the potential members’ claims center on the same facts and
evidence as to whether the drivers are employees or independent contractors. See T.S. v. The Burke
Foundation, No. Civ. A. 1:19-cv-809, 2021 WL 1807994 (W.D. Tex. Feb. 22, 2021) (class
certification was appropriate because the central merits question could be resolved on a class-wide
basis). The same is true here.
Sterling’s motion for conditional class certification is granted. The court limits the class to:
All current and former drivers of the METROLift program who were classified as
independent contractors for at least one week during the three year period prior to the date
the court authorizes notice to the present. Excluded from this class are any drivers in the
METROLift program who either (1) owned a taxi cab for use in the METROLift program
during the entire three year period prior to the date the court authorizes notice, or (2) who
were under a lease to own program during the entire three year period prior to the date the
court authorizes notice.
SIGNED on July 14, 2021, at Houston, Texas.
Lee H. Rosenthal
Chief United States District Judge
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