Montelongo et al v. Housing Authority City Of El Paso
ORDER GRANTING in part 14 Motion to Expedite Signed by Judge Kathleen Cardone. (dl1, )
M o n t e l o n g o et al v. Housing Authority City Of El Paso
D o c . 15
I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS E L PASO DIVISION L E T I C I A MONTELONGO, et al., Plaintiffs, v. H O U S I N G AUTHORITY CITY OF EL PASO , Defendant. § § § § § § § § § § ORDER On this day, the Court considered Plaintiffs' Motion for Expedited Notice to Potential P l a in t iffs and to Toll the Statute of Limitations ("Motion") (Doc. No. 14). For the reasons set fo r th below, the Motion is GRANTED in part. I. BACKGROUND D e fe n d a n t operates housing properties in the El Paso, Texas, area. See Pls.' Orig. Compl. (" C o m p l ." ) ¶ 16. Plaintiffs are current and former "housing managers," "asset managers" and " a s s is ta n t managers" in the employ of Defendant. Id. Plaintiffs filed the instant suit on October 2 3 , 2009, alleging that Defendant failed to pay them appropriate overtime wages for weeks in w h ic h they worked more than forty hours. See id. They also allege that other current or former e m p lo ye e s of Defendant are similarly situated, and therefore seek to make this suit a collective a c tio n . See id. ¶ 3; see also generally Brief in Supp. of Pls.' Mot. ("Brief") (Doc. No. 14-1). As a collective action suit for unpaid overtime wages is conducted on an "opt-in" basis, Plaintiffs are s e e k in g authorization of this Court to issue notice to other potential claimants who may be in te re s te d in opting-in to the instant suit. Brief 3. To that end, they filed the instant Motion on
J u n e 23, 2010. See generally Mot. Defendants have not filed a response. Plaintiffs also seek to t o l l the statute of limitations that would be applied to any prospective plaintiffs who opt-in to this s u it at a later point in time. See Brief 9-11. The Court addresses the notice issue in this Order, a n d will address the statute of limitations tolling issue in a separate order. II. DISCUSSION A. Standa rd
S e c tio n 216(b) of the Fair Labor Standards Act ("FLSA") authorizes plaintiffs seeking re lie f under the FLSA to bring a collective action on behalf of themselves and similarly situated p e rs o n s , subject to the requirement that any person wishing to become a party must opt into the a c tio n by filing their consent with the court in which the action is bought. 29 U.S.C. § 216(b). By contrast, in a class action, such as one under Rule 23(b)(3) of the Federal Rules of Civil P ro c e d u re , a person must take affirmative measures to opt out of the action. See FED. R. CIV. P. 2 3 (c )(2 )(B ) (v ). The logical result of either procedure is a strong tendency, on the part of in d iv id u a l claimants, towards the course of least resistance not opting to change the legal status q u o , whatever it might be. See generally Edward H. Cooper, The (Cloudy) Future of Class A c tio n s , 40 ARIZ. L. REV. 923, 936 (1998) ("Inertia, the complexity of class notices, and the w id e s p re a d fear of any entanglement with legal proceedings will lead many reluctant class m e m b e r s to forgo the opportunity to opt out, and likewise will deter many willing class members fr o m seizing the opportunity to opt in."). T h e difference between class actions under Rule 23 and collective actions under section 2 1 6 ( b ) is "fundamental [and] irreconcilable," as under the latter "no person can become a party p l a in t iff and no person will be bound by or may benefit from judgment unless he has a ffirm a tiv e l y `opted into' the class." La Chapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th
C ir. 1975). As a result, a plaintiff may not bring group FLSA claims through a Rule 23 class a c tio n , because the statute makes a section 216(b) collective action the exclusive method for litiga tin g such claims. Id. However, the only guidance that the text of the FLSA provides on the s t a n d a r d for inclusion in a section 216(b) collective action is that all plaintiffs must be "similarly s i t u a t e d ." 29 U.S.C. § 216(b). C o u r ts currently recognize two methods of determining whether to authorize notice to p o te n tia l parties in a FLSA collective action. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1 2 1 3 -1 5 (5th Cir. 1995) (explicitly declining to endorse either method). The first method, typ ifie d by Lusardi v. Xerox Corp.,1 involves a two-step approach to determining whether p r o p o s e d plaintiffs are similarly situated. At the first step, a court conditionally certifies a class if th e re are "substantial allegations that the putative class members were together the victims of a s in g le decision, policy, or plan." Mooney, 54 F.3d at 1214 n.7 (quoting Sperling v. Hoffman-La R o c h e , Inc., 118 F.R.D. 392, 407 (D.N.J. 1988), aff'd, 493 U.S. 165 (1989)). This standard is " fa irly lenient" and "typically results" in conditional certification. Mooney, 54 F.3d at 1213. At t h e second step, "precipitated by a motion for `decertification' by the defendant [and] usually fi le d after discovery is largely complete . . . the court has much more information on which to b a s e its decision" as to whether plaintiffs are similarly situated, and may proceed to decertify the c la s s if they are not. Id. at 1214.
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), m a n d a m u s granted in part and appeal dismissed sub nom. L u s a r d i v. Lechner, 855 F.2d 1062 (3rd Cir. 1988), modified in part, Lusardi v. Xerox Corp., 122 F.R.D. 463 (D.N.J. 1 9 8 8 ) , aff'd in part, appeal dismissed, Lusardi v. Xerox Corp., 9 7 5 F.2d 964 (3rd Cir. 1992). W h i l e Lusardi does not fully a r tic u la te the method it has come to stand for, that method has b e e n dubbed the "Lusardi analysis" by later cases. See, e.g., M o o n e y , 54 F.3d at 1213 n.6.
U n d e r the second method, a court simply looks to Rule 23 factors "numerosity," " c o m m o n a lity," "typicality" and "adequacy" to determine class certification, without dividing th e process into two steps. Id. P la in tiffs urge the Court to adopt the two-step approach. See Brief 4-5. Indeed, this C o u rt generally elects to utilize the two-step Lusardi approach, rather than the one-step Rule 23 a p p ro a c h , and so elects in this case. See Escobedo v. Dynasty Insulation, Inc., No. EP-08-CV1 3 7 (W.D. Tex. Sept. 19, 2008) (order certifying a FLSA class under the two-step approach). The leniency of the certification standard at the first stage of the Lusardi analysis is balanced by th e onus that the terms of section 216(b) place on potential parties to affirmatively opt-in to a c o lle c tiv e action. Id. A potential plaintiff in a section 216(b) collective action who takes no s te p s to be part of the class effectively screens himself or herself out without a court needed to do s o . Id. As a result, an affected individual who is in the best position to decide whether he or she is similarly situated to the named plaintiffs has the opportunity to make this decision a ffirm a tiv e ly, yet the Court retains the option to decertify the class later, if it disagrees. Id. W h i le the first step of the Lusardi approach is lenient, it is by no means automatic. See B a d g e tt v. Tex. Taco Cabana, L.P., No. H-05-CV-3624, 2006 U.S. Dist. LEXIS 74530, at *5 (S .D . Tex. Oct. 3, 2006). "[E]mployers should not be unduly burdened by a frivolous fishing e x p e d i tio n conducted by the plaintiff at the employer's expense." H&R Block v. Housden, 186 F .R .D . 399, 400 (E.D. Tex. 1999) (quoting D'Anna v. M/A-Com, Inc., 903 F. Supp. 889, 894 (D. M d . 1995)). Courts have arrived at notably varying conclusions in applying this standard. Compare Bursell v. Tommey's Seafood Steakhouse, No. H-06-CV-386, 2006 U.S. Dist. LEXIS 8 0 5 2 6 (S.D. Tex. Nov. 3, 2006) (granting conditional class certification for a class of all e m p l o ye e s of a restaurant between 2003 and 2006 based on statements of two former employees)
w ith H&R Block, 186 F.R.D. 399 (denying conditional class certification based on statements of tw o former employees). At the very least, it is clear from the relevant case law that courts must s triv e to balance the efficiency of aggregating claims in one action against the expense and in c o n v en ie n c e of frivolous litigation. B. A n a lys is
T h e Court will first address the conditional certification of the proposed class. It will then a d d re s s the particular requests related to furnishing notice of this suit to potential class members. 1. C o n d itio n a l certification
C o u rts will conditionally certify a FLSA collective-action class if there are "substantial a lle ga tio n s that the putative class members were together the victims of a single decision, policy, o r plan." Mooney, 54 F.3d at 1214 n.7. Three factors are usually considered as part of the c o n d i tio n a l certification step. There must be reasonable basis for believing that (1) aggrieved i n d i v i d u a l s exist; (2) the aggrieved individuals are similarly situated to the named plaintiff(s) in w a ys relevant to the FLSA claims at issue; and (3) at least some of those individuals want to opt in to the suit. See Tolentino v. C & J Spec-Rent Servs., Inc., --- F. Supp. 2d. ----, No. C-09-CV3 2 6 , 2010 WL 2196261 (S.D. Tex. May 26, 2010). In the instant case, Plaintiffs have mustered sufficient evidence to meet the "fairly lenient" b u rd e n imposed by the conditional certification step. Mooney, 54 F.3d at 1213. Plaintiffs have b ro u gh t three sworn declarations stating that some number of workers classified as "housing or a s s e t managers and assistant managers" were required to work more than forty hours per work w e e k and were not properly compensated for their overtime. See Decl. of Leticia Montelongo ( " M o n t e l o n g o Decl.") ¶¶ 4-5 (Doc. No. 14-2 Ex. 1); see also Decl. of Pablo Puente ("Puente D e c l . " ) ¶¶ 4-5 (Doc. No. 14-2 Ex. 2); see also Decl. of Manuela Perez ("Perez Decl.") ¶¶ 4-5
(D o c . No. 14-2 Ex. 3).2 Each of the declarants claims to have had numerous years of experience w o r k i n g for Defendant, and claims to have gained knowledge of these wage underpayments th ro u gh personal experiences and observations, as well as contact with co-workers. Decls. ¶ 3, 5. The declarants also state that the functions and duties of workers bearing the titles of "housing m a n a g e r ," "assistant housing manager," "asset manager" and "assistant housing managers" were e s s e n tia lly equivalent, suggesting that they received similar treatment in terms of working c o n d itio n s and pay. See Decls. ¶ 6. Finally, the declarants state that these similarly situated in d iv id u a ls are interested in joining the instant suit. See Decls. ¶ 7. All of this uncontradicted e v i d e n c e satisfies the three traditional factors and thus gives rise to an inference that workers b e a r i n g the aforementioned job titles were subject to a "single decision, policy, or plan" in c o n n e c tio n with their overtime pay, and are therefore similarly situated under section 216(b). Sperling, 118 F.R.D. at 407. The Court therefore conditionally certifies the proposed class. 2. N o t ic e to potential class members
P la in tiffs also seek permission of the Court to send notice to potential class members, and e x p e d ite d discovery of information to help them identify and contact potential class members. The Supreme Court has held that district courts can, and often should, involve themselves in s t r u c t u r i n g the notices that are furnished to potential class members who may be in a position to o p t into a collective action. See Sperling, 493 U.S. at 171 (observing that "trial court involvment i n the notice process is inevitable in cases with numerous plaintiffs where written consent is r e q u i re d by statute" and holding that it "lies within the discretion of the trial court to begin its
Each of the Declarations cited here is in nearly identical form. A c c o r d i n g ly , these documents may sometimes be cited c o lle c tiv e ly as the "Declarations," and any reference to a p a r tic u la r paragraph number is meant as a reference to that p a r a g r a p h in each of the individual Declarations.
in v o lv e m e n t early, at the point of initial notice"). Accordingly, district courts may review the fo rm of the proposed notice, set a cut-off date for potential plaintiffs to join the suit, and a u th o riz e discovery of information related to locating potential class members. See id. at 170-72. a. F o r m of proposed notice
P l a in t iffs have filed a form of proposed notice to potential class members, as well as a p ro p o s e d form of an opt-in consent return for the use of any such interested class members. See P l .'s Mot. Exs. 4-5 (Doc. No. 14-2 at 6-10). Upon due consideration, the Court finds that these p ro p o se d forms are adequate for the purposes of informing potential class members of the p e n d e n c y of this suit, their rights to opt-in to it, and the effects of choosing to opt-in or not. Furthermore, these forms adequately inform potential class members that Defendant disputes the c la im s at issue and that the Court expresses no opinion as to the ultimate merits of the case or the u ltim a te validity of the conditionally-certified class. See id.; see also Eggelston v. Sawyer S p o r t s b a r , Inc., No. H-09-CV-3529 (S.D. Tex. July 9, 2010) (order approving similar notice and o p t-in forms). Accordingly, the Court approves of the form of proposed notice and the proposed o p t -i n form. Plaintiffs are authorized to send such notices by U.S. mail as soon as they deem it p ra c tic a b le , but shall deposit all such authorized notices at the Post Office on the same day. Plaintiffs shall file notice with the Court of their depositing such notices within three days of h a v in g done so. b. C u t o f f date
P la in tiffs propose that opt-in returns from prospective class members be postmarked no m o r e than sixty (60) days from the date that the notices are mailed, if they are to be deemed tim e ly for the purposes of joining the instant suit. See Brief 8. The Court finds that this is a re a s o n a b l e time-frame and adopts it as follows:
T h e deadline for postmarking the opt-in returns shall be sixty (60) calendar days fro m the date the notices are sent by the Plaintiffs to the potential class members, in c lu s iv e of such sending day.
A n y papers sent to potential class members shall have the deadline for p o s tm a rk in g the returns spelled out as a date certain, and not specified in terms of a n interval of time related to some other date.
If the aforementioned postmark deadline shall fall on a date for which there is no s c h e d u le d Post Office service, then the postmark deadline shall be extended to the n e x t succeeding day on which Post Office service is scheduled. This later date s h a l l be noted as the return postmark deadline on any notices sent to potential c la s s members.
P l a i n t i ffs shall inform the Court of this postmark deadline as part of their notice to t h e Court described above in subsection (a). c. D is c o v e r y of identity of potential class members
P l a in t iffs request expedited discovery of information to be used to identify and contact p o te n t ia l class members. Plaintiffs in FLSA class actions are permitted to use discovery for such p u rp o s e s . See Sperling, 493 U.S. at 171. District courts commonly grant expedited discovery of s u c h information to Plaintiffs in order to enable efficient joinder of interested parties at an early s ta ge in the case. See Eggelston, (S.D. Tex. June 28, 2010) (order conditionally certifying class a n d granting expedited discovery of information relating to the identity of potential class m e m b ers ). Plaintiffs have specifically requested the full name, the last known address, and the s o c i a l security number of each putative class member. Brief 8. Plaintiffs specifically aver that th e social security numbers are needed to identify the current addresses of any persons who have
m o v e d away from their last known address. Id. n.11. T h e Court finds that this discovery request is well taken, and therefore grants it subject to th e following conditions: 1. D e fe n d a n ts shall have fourteen (14) calendar days to turn over the identifying in fo r m a tio n specified above to Plaintiffs' attorneys. 2. 3. D e fe n d a n t s shall turn over the information in a reasonable electronic format. P la in tiffs ' attorneys shall use the furnished social security numbers only for the p u rp o s e s of obtaining the current addresses of the putative class members, and s h a ll promptly delete and destroy any record of these numbers once the current a d d re s s e s are verified. 4. P l a i n t i ffs ' attorneys shall use all commercially reasonable privacy and data s e c u r it y measures to safeguard the personal information furnished by Defendant, a s well as any such measures required by law. III. C O N C L U S I O N AND ORDERS F o r the reasons set forth above, Plaintiffs' Motion (Doc. No. 14) is GRANTED in part. The Court hereby enters the following orders: 1. T h e Court ORDERS that the following class is conditionally certified for the p u r p o s e s of the instant suit: " A l l of Defendant's current and former non exempt `housing managers or assistant m a n a g e r s ' or non exempt `asset managers or assistant managers,' regardless of pay s tr u c tu r e , working between October 2006 and the present." 2. T h e Court ORDERS Defendant to turn over to Plaintiffs' attorneys the requested id e n tifyin g information, subject to the conditions set forth above in Section II(B ) (2 )(c ), and ORDERS Plaintiffs' attorneys to abide by all the restrictions set
fo rth therein. 3. T h e Court ADOPTS the cut-off date for the opt-in returns proposed by Plaintiffs, a s modified in Section II(B)(2)(b). 4. T h e Court AUTHORIZES Plaintiffs to send notice to potential class members, at th e ir earliest convenience, using the proposed forms approved above in Section II( B ) (2 ) (a ) . The Court ORDERS Plaintiffs to comply with the conditions set forth a b o v e in Sections II(B)(2)(a) and (b) when sending such notice. 5. T h e Court ORDERS Plaintiffs to file notice with the Court within three (3) days o f their sending the notices to potential class members. Such filing shall specify th e date on which the notices were sent, the precise class of mailing by which they w e re sent, and the specific cut-off date that was propounded, in said notices, to the p o te n t ia l class members. S O ORDERED. S I G N E D on this 16 th day of July, 2010.
______________________________________ K A T H LE E N CARDONE U N IT E D STATES DISTRICT JUDGE
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