Vega v. Point Security, LLC DBA Point Secured, LLC et al

Filing 22

REPORT AND RECOMMENDATIONS re 15 Motion to Certify Class, filed by Juan Vega. Signed by Judge Andrew W. Austin. (ml)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JUAN VEGA, on behalf of himself
and all others similarly situated
V.
POINT SECURITY, LLC DBA POINT
SECURED, LLC, et al.

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A-17-CV-049-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Plaintiff’s Motion for Conditional Certification of a Collective Action

and Authorization for Notice (Dkt. No. 15); Defendant’s Response (Dkt. No. 19); and Plaintiff’s
Reply (Dkt. No. 21). The District Court referred the motion to the undersigned for a report and
recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.
I. GENERAL BACKGROUND
This is a collective action brought pursuant to the Fair Labor Standards Act. The Plaintiff,
Juan Vega was employed as an installation technician for Point Security from 2014 until July of
2015. Dkt. No. 1. Point Security provides security monitoring and security equipment to business
and residential customers. Its corporate office is in Hutto, Texas and it has additional offices in San
Antonio, Houston, Dallas/Fort Worth, and Waco/Killeen. Point Security sells security equipment,
such as alarm systems, motion detectors, and cameras, and it employs installation technicians to
install this equipment. An installation technician’s regular job duties consist of installing security
equipment, such as sensors, keypads, and cameras at the homes and businesses of Point Security
customers. Installation technicians are paid at a “piece rate” of a defined amount for each type of

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installation performed, or set rate for each service call, or at a flat weekly rate—whichever was
higher. Dkt. No. 1 at ¶ 41; Dkt. No. 15 at 1. Installation technicians are provided a company truck
to complete their work, but are required to pay for maintenance and gas for the trucks themselves,
which Vega alleges costs hundreds of dollars per month. Dkt. No. 1 at ¶ 44. Vega alleges that he and
other installation technicians regularly work in excess of 60 hours per week. Dkt. No. 1 at ¶ 42.
Vega alleges Point Security failed to pay installation technicians overtime, in violation of 29
U.S.C. § 207, and failed to pay them the minimum wage, in violation of 29 U.S.C. § 206(a). Vega
further alleges that the expenses Vega and other installation technicians incurred to operate Point
Security trucks, in the weeks when those payments reduced the effective hourly rate below the
minimum wage, constitute an illegal kickback in violation of 29 C.F.R. § 531.35. Vega asserts that
Point Security failed to pay overtime for at least 20 other similarly situated installation technicians
over the last three years. Dkt. No. 15 at 8. In his motion now before the Court, Vega moves to
conditionally certify a collective action of all current and former Point Security installation
technicians who worked for Point Security at any location throughout the United States from three
years prior to the date of certification. He also requests Court authorization to identify and notify
potential class members. Defendants respond that Vega has failed to submit adequate evidence of
a similarly situated class sufficient to warrant certification.
II. ANALYSIS
A.

Conditional Certification Standard
Section 216(b) of the FLSA allows a suit to be filed by an employee against his employer for

unpaid minimum wages or unpaid overtime compensation, either individually or as a collective
action on behalf of himself and “other employees similarly situated.”
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An action . . . may be maintained against any employer . . . by any one or more
employees for and in behalf of himself or themselves and other employees similarly
situated. No employee shall be a party to any such action unless he gives his consent
in writing to become such a party and such consent is filed in the court in which such
action is brought.
29 U.S.C. § 216(b). Putative class members must “opt-in,” i.e., affirmatively notify the court of their
intention to become parties to the collective action by written consent. Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa,
539 U.S. 90, 91-92 (2003). While the FLSA allows an employee to bring a claim on behalf of
similarly situated employees, those other employees do not become plaintiffs in the suit unless and
until they consent in writing. § 216(b) .
Typically such putative collective class actions proceed in two stages. See Lusardi v. Xerox
Corp., 118 F.R.D. 351, 381-82 (D.N.J. 1987) (describing two-step procedure—conditional
certification and notice, followed by possible decertification—in putative FLSA cases used by most
district courts in the Fifth Circuit). Before notice may issue to potential class members, the court
must conditionally certify the class as a collective action. Conditional certification “is not tantamount
to class certification under Rule 23.” Genesis Healthcare Corp. v. Symcyk, 133 S. Ct. 1523, 1532
(2013). The primary effect of a conditional certification is that a court-approved written notice is
sent to similarly situated putative class members, who then may choose to become parties to a
collective action by filing a written consent with the court. Id. at 1530, citing 29 U.S.C. § 216(b).
Courts have discretion in determining whether to certify a collective action under the FLSA and to
authorize notice to similarly situated employees advising them of their right to join such a collective
action. Mooney, 54 F.3d at 1213.

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At the notice stage, the district court “determines whether the putative class members’ claims
are sufficiently similar to merit sending notice of the action to possible members of the class.”
Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010) (citing Mooney, 54
F.3d at 1213–14). “Because the court has minimal evidence, the court makes this determination
using a fairly lenient standard, [which] typically results in ‘conditional certification’ of the
representative class.” Mooney, 54 F.3d at 1214. This lenient standard requires only “substantial
allegations that the putative class members were together the victims of a single decision, policy, or
plan.” Id. at 1214 n.8 (internal citation and citation marks omitted).
A court will customarily make its decision “based only on the pleadings and any affidavits
which have been submitted.” Id. at 1213–14. Generally, to meet its burden a plaintiff must show:
(1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) 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. Vasquez v. Am. Bor-Trench, Inc., 2014
WL 297414, at *3 (S.D. Tex. Jan. 23, 2014) (internal citations and citation marks omitted).1 In
evaluating these elements, courts consider factors such as whether potential plaintiffs were identified,
whether affidavits of potential plaintiffs were submitted, and whether evidence of a widespread

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Some courts have rejected the third element as non-statutory. See, e.g., Dreyer v. Baker
Hughes Oilfield Operations, Inc., 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008) (rejecting
argument that FLSA collective action can be certified only if the plaintiff proves that others are
interested in opting in to the lawsuit); Baucum v. Marathon Oil Corp., 2017 WL 3017509 (S. D. Tex.
July 14, 2017 (declining to apply the third element because it is not statutorily required and conflicts
with the Supreme Court's directive that the FLSA be liberally construed to effect its purposes)
(quoting Tony and Susan Alamo Foundation v. Secretary of Labor, 105 S. Ct. 1953, 1959 (1985)).
The Court concurs with this rejection of the third element, although it finds that Vega has submitted
evidence, in the form of the Declaration of William Breslin, that other individuals want to opt into
the suit. (Dkt. No. 15-11).
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discriminatory plan was submitted. Velazquez v. FPS LP, 2014 WL 3843639, at *4 (S.D. Tex. Aug.
4, 2014) (internal citations and citation marks omitted). If the court finds that the putative class
members were similarly situated under this analysis, then conditional certification is warranted and
the plaintiff is given the opportunity to send notice to potential class members. Id.
B.

Evidence in Support of Certification
Defendants argue that Vega has not submitted adequate evidence to identify a similarly

situated class in support of his request to certify a collective action. In support of his Motion, Vega
has submitted his own declaration (Dkt. No. 15-2), an email from Fitch discussing how pay is
calculated (Dkt. No. 15-9); a Declaration from William Breslin, a former Point Security installation
technician (Dkt. No. 15-11); and various discovery responses from Defendants.
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. See also Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856, 862 (S.D.
Tex. 2012). Attached to plaintiff’s motion are his own declaration and that of William Breslin,
another former Point Security installation technician. Both men declare that they and other
installation technicians were paid using a piece rate system where they were paid a weekly flat rate
or a total piece rate associated with the work during the week and not paid overtime. Both men
declare that typical workweeks for installation technicians exceeded 50to 60 hours and they were not
paid overtime. Additionally, Vega has submitted an email from Travis Fitch corroborating the piecerate method of payment. Both men also state that they know other installation technicians who were

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paid in the same manner, and worked the same hours as they did, and that these similarly situated
former coworkers would be interested in joining in this action. The Court finds that Vega has
satisfied the first element of the Lusardi test by showing that there is a reasonable basis for believing
Vega’s assertion that other aggrieved individuals exist.
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, a plaintiff must demonstrate a reasonable basis for believing that a class of
similarly situated persons exists. See Heeg, 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)). “A 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.
In this case, Vega has submitted sufficient evidence that other employees had similar job
duties and pay structures. He has submitted Defendants’ admissions in their Answer that Defendants
employ installation technicians such as Vega and the class members, and that installation
technicians’ primary responsibility is installing security equipment. Dkt. No. 6. Further, Defendants
concede that Point Security installation technicians have similar job duties. Dkt. No. 15-1. With
regard to method of payment, Vega has submitted adequate evidence to support certification.
Defendants stated in an Interrogatory Answer that Vega was paid the higher of a base salary or an

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amount based upon the number of installations performed. Dkt. No. 15-1. Additionally, Vega
submitted his own Declaration and that of Breslin stating that in their personal knowledge from their
own payment and from speaking to other installation technicians, all installation technicians were
paid in the same manner. Dkt. Nos. 15-2, 15-11. See also, Lee v. Metrocare Servs., 980 F. Supp.
2d 754, 763-64 (N.D. Tex. 2013) (finding it reasonable to infer at the notice stage that employees
“had personal knowledge of the employment conditions of other [employees] based on their own
observations and experiences during their employment.”); Dyson v. Stuart Petroleum Testers, Inc.,
308 F.R.D. 510, 514 (W.D. Tex. 2015) (finding that the affiant acquired personal knowledge “by
way of his own employment with the company, as well as specifically inquiring of other workers
concerning their experiences”). These are not circumstances purely personal to Vega, but applicable
to a larger class of employees, and accordingly, Vega has established the second element of the
Lusardi analysis.
3.

Other Individuals Desire to Opt In

The Vega Declaration and the Breslin Declaration are sufficient to establish that other
aggrieved individuals who are similarly situated desire to opt into the case. See Pacheco v. Aldeeb,
2015 WL 1509570 at *7 (W.D. Tex. Mar. 31, 2015) (two declarations attesting “many” current and
former employees would join lawsuit sufficient basis for conditional certification); Jones v.
SuperMedia, Inc., 281 F.R.D. 282, 291 (N.D. Tex. 2012) (noting that “other courts have allowed for
class certification without either the submission of statements from similarly situated employees, or
affidavits from named plaintiffs that provide specific information about other employees”); Tolentino
v. C & J Spec–Rent Servs. Inc., 716 F. Supp. 2d 642, 653 (S.D. Tex. 2010) (two declarations of

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similarly situated individuals and complaint sufficient to demonstrate existence of employees who
would opt in).
4.

Conclusion

Because the evidence before the Court shows that there is a reasonable basis for crediting
Vega’s assertion that other aggrieved individuals exist, that they are similarly situated to Vega, and
at least some of them desire to opt into this case, Vega has provided sufficient evidence to satisfy
the first stage of the Lusardi analysis. Accordingly, this matter should be conditionally certified as
a collective action under 29 U.S.C. § 216(b) with respect to the following class:
All current and former installation technicians, who worked for Datapoint Security,
LLC, at any location throughout the United States from three years prior to the date
of the district judge’s order adopting this Report & Recommendation to the present.
C.

Content of the Notice
Defendants argue that the class notice should only be sent via first class mail, and should not

be sent via email and text. They also contend that no reminder Notice should be allowed.
Defendants assert that allowing Vega to contact potential opt in Plaintiffs via methods other than first
class mail will “stir up” litigation and risk suggesting to recipients that the Court is placing its
imprimatur on them opting into the litigation. “In exercising the discretionary authority to oversee
the notice-giving process, the court must be scrupulous to respect judicial neutrality” and “must take
care to avoid even the appearance of judicial endorsement of the merits of the action.” Hoffmann–La
Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989). However, in the world of 2017, email and cell
phone numbers are a stable, if not primary, point of contact for the majority of the U.S. population,
and thus that using email and texts to notify potential class members is entirely appropriate.

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With regard to the reminder notice, the circuits are split as to whether such notices are proper
in collective FLSA actions. Garcia v. TWC Admin., LLC, No. 2015 WL 1737932 at *6 (W.D. Tex.
Apr. 16, 2015) (citing Guzelgurgenli v. Prime Time Specials, Inc., 883 F. Supp. 2d 340, 357–58
(E.D.N.Y. 2012)). Courts often require the plaintiff to identify reasons why a reminder notice is
necessary in the particular case. Guzelgurgenli, 883 F. Supp. 2d at 358. Though Vega has identified
several general reasons why a reminder notice would be convenient, Vega has not stated any reason
particular to this case that supports the necessity of a reminder notice. Accordingly, the undersigned
recommends that the district judge deny the request for a reminder notice at this time but allow Vega
the opportunity to renew his request if he has evidence demonstrating its necessity.
Defendants also object to the following two portions of the proposed Notice and Consent
forms submitted by Vega:
1.

Paragraph 2 because it confuses Defendants’ denial of the claims made by
Plaintiff. Specifically, Defendants object to the phrase “Point acknowledges
that its installation technicians are entitled to overtime.”

2.

Defendant objects to Paragraph 4 because it unnecessarily cites to the statute
of limitations to bring a claim under the Fair Labor Standards Act, contending
that the information is unnecessary to notify potential opt-in plaintiffs of their
rights to bring their claims individually.

The Court agrees with both points. The first statement could be read not only to mean that Point
Security agrees that installation technicians were eligible for overtime, but also that they in fact did
work overtime hours and Point Security owes them additional wages as a result. The statement
regarding the statute of limitations is not needed to notify the potential class members of their right
to opt in, and risks appearing to be a statement by the Court encouraging individuals to act and opt

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into the case. Accordingly, attached to the this Report and Recommendation is a revised version of
the proposed notice and consent forms, edited to be consistent with the Court’s findings here.
III. RECOMMENDATION
Based upon the foregoing, the undersigned RECOMMENDS that the District Court
GRANT Plaintiff’s Motion for Conditional Certification of a Collective Action and Authorization
for Notice (Dkt. No. 15) and conditionally certify this matter as a collective action under 29 U.S.C.
§ 216(b) with respect to all current and former installation technicians who worked for Defendant
Point Security, LLC at any location throughout the United States from three years prior to the date
of this Order to the present.
The undersigned FURTHER RECOMMENDS that the District Court ORDER that
Defendants shall provide counsel for Plaintiff with the names, positions, dates of employment, all
personal addresses, telephone numbers (home and mobile) and all personal email addresses for the
class members as defined above (“Class List”). Defendant shall provide such information in a
computer-readable format within 10 days of the date of this Order. Plaintiff’s counsel shall mail a
copy of the “Notice of Rights and Consent Form” (as revised in the attached document, and with the
highlighted fields completed accordingly) via regular U.S. Mail and via electronic mail to all persons
contained on the Class List within ten (10) days of receiving the Class List. Simultaneous with the
first mailing, Plaintiff’s counsel shall send a text message to the Class Members with a link to the
Notice of Rights and Consent Form. Class Members shall also be given the option to execute their
Consent Forms electronically online. All consent forms shall be returned to Plaintiff’s counsel who
in turn will be responsible for filing them with the Court. The Class Members shall have 60 days
from the date of the mailing of the Notice to file their Notice of Consent opting-in to this lawsuit as
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plaintiffs. Further, Defendants are hereby prohibited from communicating, directly or indirectly,
with any current or former installation technician about any matters which touch or concern the
settlement of any outstanding wage claims or other matters related to this suit during the opt-in
period. Defendants shall so instruct all of their branch managers. This order shall not restrict
Defendants from discussing with any current employee matters that arise in the normal course of
business.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 13th day of September, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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