Vargas et al v. HEB Grocery Company, LP et al
Filing
30
ORDER DENYING 24 Motion to Strike Declarations. Plaintiff's Motion for Notice of Potential Class Members 21 is under advisement. Additional briefs due within five (5) days of this order. Signed by Judge Xavier Rodriguez. (tr1)
In the United States District Court
for the
Western District of Texas
ROSA ELVA VARGAS, et. al.
v.
HEB GROCERY COMPANY, LP and
PASTRANAS PRODUCE, INC.
§
§
§
§
§
SA-12-CV-116-XR
ORDER
Plaintiffs are employed by Pastranas Produce. They allege in their complaint that they
were also jointly employed by HEB. They allege they are “low-wage manual laborers who were
employed by the Defendants to cut, prepare, and package fruit and produce in HEB stores in
Texas.” They allege they were not paid minimum wages or overtime pay as prescribed under the
Fair Labor Standards Act.1 They bring this suit individually and also seek to bring this suit as a
collective action under the FLSA.
Plaintiffs’ Motion for Notice to Potential Class Members (document no. 21)
In this motion “Plaintiffs request conditional certification of this case as a collective
action under the FLSA. They request notice be issued to all current and former Produce Workers
employed during the three years preceding the filing of Plaintiffs‟ Original Complaint.”
Plaintiffs argue that a “similar collective action, involving the same defendants and the
same category of workers, was approved in 2011.” See Canela et al v. HEB Grocery Company,
LP, et al., Case No. 1:10-cv-788-LY in the United States District Court for the Western District
of Texas, Austin Division.
1
Plaintiffs further argue that “the workers in this case did not
In their motion for notice to potential class members (docket no. 21) Plaintiffs assert: “Although the Produce
Workers regularly worked an average of 60 or more hours per week, they were never paid overtime pay, and their
wages often fell below the federal and state minimum wage rate. The Defendants compensated them through a
piece-rate system based on the amount of produce cut and packaged and/or the amount of pre-packaged fruit and
produce sold to HEB customers.”
participate in the earlier collective action based in large part on assurances of the longevity of
their employment with the Defendants if they refrained from joining.” Docket no. 21.2
In support of their motion, counsel for Plaintiffs has attached sworn declarations written
in English from various individuals. The declarations state that they were translated to the
affiant into the Spanish language.3
Generally, the sworn declarations state that:
(1) the
individual “worked cutting, preparing, stocking, and packaging fruit and produce for HEB”; (2)
the individual “worked exclusively inside of HEB stores in Texas”; (3) “the fruit and produce …
was sold to HEB customers”; (4) pay “depended on the type of fruit and produce being cut and
packaged and was based either on the number of packages of fruit and produce sold by HEB
and/or the number of packages produced”; (5) the individual worked more than 40 hours per
week; (6) the individual was never paid overtime; (6) the individual worked full-time on
premises owned by HEB; (7) the individual worked under the supervision of HEB managers,
who “provided constant supervision of my production and the cleanliness of my worksite”; (8)
the individual “worked alongside produce workers who were paid directly by HEB”; and (9) the
individual used fruit, produce, tools and materials supplied by HEB.
HEB’s motion to strike declarations (docket no. 24)
HEB, relying upon two Fifth Circuit cases4, seeks to strike the declarations because
Plaintiffs‟ attorneys translated the documents into Spanish for their clients and thus, it argues that
the declarations are inadmissible. Alternatively, HEB seeks to strike portions of the declarations
arguing that they contain conclusory statements and inadmissible hearsay. Plaintiffs respond that
2
HEB ceased its relationship with Pastranas in January 2012.
The declarations included a certification signed by counsel for Plaintiffs stating: “I certify that I am fluent in
English and Spanish, that I translated this document to the Declarant in Spanish, and that the Declarant indicated
that the Declarant clearly understood its contents and significance.”
4
Cruz v. Aramark Services, Inc., 213 Fed. Appx. 329, 334 (5th Cir. 2007) and United States v. Martinez-Gaytan,
213 F.3d 890, 892 (5th Cir. 2000).
3
2
they need not provide admissible evidence in support of their motion for conditional
certification, but only need provide a “modest factual showing” to support certification.
The Court concludes that the admissibility requirements of Cruz and Martinez-Gaytan
are not applicable in the conditional certification setting. Motions for conditional certification of
collective actions are nondispositive pretrial matters.
See Lazo v. Queens Health Food
Emporium, Inc., 2012 WL 2357564 (E.D. N.Y. 2012). In Lazo, the Court rejected the same
argument advanced in this case, i.e. Plaintiffs did not provide affidavits in Spanish with a
certified translation into English. See also Espinoza v. 953 Associates LLC, 280 F.R.D. 113
(S.D. N.Y. 2011) (declining to strike disputed affidavits).
To demonstrate that the proposed “class” members are “similarly situated,” a plaintiff
need make only a “modest factual showing” that she and the other putative collective action
members “were victims of a common policy or plan that violated the law.” Realite v. Ark Rests.
Corp., 7 F.Supp.2d 303, 306 (S.D. N.Y. 1998)). The “modest factual showing” requirement is
met where plaintiffs offer “substantial allegations” of a factual nexus between them and the
potential opt-in plaintiffs with regard to their employer's alleged FLSA violation. Davis v.
Abercrombie & Fitch Co., No. 08 Civ. 1859(PKC), 2008 U.S. Dist. LEXIS 86577, at *27
(S.D.N.Y. Oct 22, 2008). Numerous courts have noted that it is a “low bar” for allegations
required for collective action certification.
Plaintiff's burden is minimal because the
determination that the parties are similarly situated is merely a preliminary one, and that
determination may be modified or reversed after discovery. Diaz v. S & H Bondi's Dept. Store,
2012 WL 137460 (S.D. N.Y. 2012).
Accordingly, because the Plaintiffs were not required to present affidavits that would
otherwise meet the requirements of a dispositive motion to meet their “modest factual showing,”
3
the Court declines to strike the declarations merely because Plaintiffs did not provide affidavits
in Spanish with a certified translation into English.5
However, as discussed below, some
portions of the declaration contain conclusory statements that impact the scope of the class to be
certified. The motion to strike declarations (docket no. 24) is denied.
HEB’s Response to the Motion for Notice to Potential Class Members
HEB argues that conditional certification should be denied because there is insufficient
evidence that it jointly employed the plaintiffs. HEB has submitted its agreement with Pastranas
Produce.6 It states that Pastranas was to supply cactus (nopales) and cactus flowers to HEB and
that HEB would allow Pastranas to prepare and process those products in stores designated by
HEB. Pastranas agreed it was entering into an independent contractor agreement and that all
persons employed by Pastranas would remain Pastranas‟ employees for all purposes. Pastranas
agreed to comply with all applicable laws, including wage and hour laws.7
HEB also presents declarations from a number of managers that state: (1) “HEB‟s policy
was not to interfere or allow interference by HEB in the running of Pastranas and to not direct
Pastranas employees at all”; (2) “Pastranas‟ employees reported to a Pastranas‟ supervisor”; (3)
the affiant manager did not “direct or supervise Pastranas‟ employees while they worked on HEB
premises”; (4) the affiant manager did not hire, discipline or terminate Pastranas‟ employees; and
(5) the affiant manager was “unaware of any instances where HEB produce managers directed or
supervised Pastranas‟ employees.”
5
The Court is disturbed by the innuendo injected by HEB that counsel for Plaintiffs may “have a strong motive to
mislead or distort the translation….” HEB offers no evidence to substantiate its claims. That said, the Court is
equally troubled by Plaintiffs‟ failure to cure any defect in their declarations once the defect was brought to their
attention.
6
Although the agreement between HEB and Pastranas contemplated that the Plaintiffs were to be employees of
Pastranas, this fact alone is not dispositive. See e.g., Itzep v. Target Corp., 543 F.Supp.2d 646 (W.D. Tex. 2008).
7
Joint employers, however, are responsible, both individually and jointly, for compliance with all the applicable
provisions of the FLSA. See, e.g., Martin v. Bedell, 955 F.2d 1029, 1034 n. 10 (5th Cir. 1992); Hodgson v. Griffin &
Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir. 1973) (citations omitted).
4
Analysis
The FLSA applies to employees but not to independent contractors. Hopkins v.
Cornerstone Amer., 545 F.3d 338, 342 (5th Cir. 2008). The definition of an employee under the
FLSA, however, is particularly broad. Id. at 343 (citing Nationwide Mut. Ins. Co. v. Darden, 503
U.S. 318, 326 (1992) (noting that the FLSA “stretches the meaning of „employee‟ to cover some
parties who might not qualify as such under a strict application of traditional agency law
principles”)).
To determine whether a defendant is a joint employer, the court considers the “economic
realities” of the relationship between the alleged employer and employee. Watson v. Graves, 909
F.2d 1549, 1553 (5th Cir. 1990) (citations omitted). Some of the relevant factors under the
economic realities test are whether the alleged employer: (1) had the power to hire and fire
employees; (2) supervised and controlled employee work schedules or conditions of
employment; (3) determined the rate and method of payment; and (4) maintained employment
records. Id.
Given the “modest” showing that Plaintiffs are required to make at this stage, the Court
concludes that Plaintiffs have sufficiently pled that HEB is their joint employer. Plaintiffs have
alleged that they worked full-time and exclusively inside of HEB stores, under the supervision of
HEB managers, who provided constant supervision8 of their production and the cleanliness of
[their] worksite, using fruit, produce, tools and materials supplied by HEB. In addition, although
the various HEB managers/affiants state that they have not supervised or controlled any of the
Plaintiffs‟ work, they cannot attest that their produce managers complied with the independent
8
Plaintiffs state that their Pastranas‟ supervisor would meet with them only once every seven days, that HEB
managers provided daily directives, including supervising production, cleanliness, stocking of produce, and
directing that they remain at their work station to do more work even when they had already cleaned their area and
were ready to leave the premises.
5
contractor agreement in every respect. The Court thus turns to the question of whether a
collective action should be certified, and if so, what should be the scope of the class.
The Fifth Circuit has declined to adopt a specific test for determining whether to certify a
collective action pursuant to 29 U.S.C. § 216(b). Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1212 (5th Cir. 1995). The prevailing analysis used by federal courts, however, and the analysis
adopted by the Court in this case, is the two-stage test set forth in Lusardi v. Xerox Corp., 118
F.R.D. 351 (D.N.J. 1987). Mooney, 54 F.3d at 1212; see also Detho v. Bilal, C.A. No. H-072160, 2008 WL 1730542 (S.D.Tex. Apr.10, 2008); Bernal v. Vankar Enterprises, Inc., C.A. No.
SA-07-CA-695-XR, 2008 WL 791963 (W.D.Tex. Mar. 24, 2008). Explaining the Lusardi test,
the Fifth Circuit stated:
The first determination is made at the so-called “notice stage.” At the notice stage, the
district court makes a decision-usually based only on the pleadings and any affidavits which have
been submitted-whether notice of the action should be given to potential class members. Because
the court has minimal evidence, this determination is made using a fairly lenient standard, and
typically results in “conditional certification” of a representative class. If the district court
“conditionally certifies” the class, putative class members are given notice and the opportunity to
“opt-in.” The action proceeds as a representative action throughout discovery.
The second determination is typically precipitated by a motion for “decertification” by
the defendant usually filed after discovery is largely complete and the matter is ready for trial. At
this stage, the court has much more information on which to base its decision, and makes a
factual determination on the similarly situated question. If the claimants are similarly situated,
the district court allows the representative action to proceed to trial. If the claimants are not
similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed
6
without prejudice. The class representatives- i.e. the original plaintiffs-proceed to trial on their
individual claims. Mooney, 54 F.3d at 1213-14.
To determine whether conditional certification is appropriate, the Court must determine
whether the potential class Plaintiffs are “similarly situated” to the named Plaintiffs. 29 U.S.C. §
216(b).
Plaintiffs seek certification of a class of all Pastranas employees who worked in any HEB
store in Texas during the three-year period preceding the filing of the Complaint in this case.
Plaintiffs argue that this class of workers all did the same job and that it is undisputed that all
such workers were paid on a “piece rate system”, rather than minimum wages and overtime.
HEB responds that the plaintiffs in this case worked in the Austin area and urge that any class
certification be limited to stores that Plaintiffs worked at.
The Court agrees with this aspect of HEB‟s response. Plaintiffs only offer conclusory
statements that they are aware that other workers were denied minimum wages and/or overtime.
This is insufficient to establish even the “modest” showing that other HEB managers were
disregarding the independent contractor arrangement and supervising and controlling the other
workers‟ job duties.
Plaintiffs state that there are 12 named Plaintiffs in this case and eight other individuals
have already opted in. They also argue that there is a Department of Labor investigation and
another FLSA action involving these defendants.9 They argue these factors mitigate for a class
of all workers in all 80 stores where Pastranas placed workers. Plaintiffs argue that HEB‟s
“supervision and direction [of Pastranas workers] cannot be explained by the actions of one
rogue HEB store manager or regional supervisor.” Plaintiffs fail to appreciate, however, that
they must establish the “modest” showing to establish the “lenient standard” for certification.
9
See Silva v. Pastranas Produce, Inc., et. al., 4-12-cv-470 (S.D. Tex.).
7
Although all parties agree that the workers were paid on a piece rate basis and HEB was aware of
Pastranas arrangement, Plaintiffs fail to establish at this time any showing that HEB had a policy
that Pastranas workers were jointly employed by them and that they directed and supervised all
these workers at all 80 stores.
Plaintiffs have only offered a conclusory statement to support
that claim.
Additionally, HEB argues that 162 individuals of Plaintiffs‟ putative class have already
signed releases settling their FLSA claims in other cases. 10 HEB argues that such workers
should be excluded from any class. Plaintiffs question whether the releases were valid waivers
(ostensibly because they may not have received either DOL or court approval). The potential
class Plaintiffs are not “similarly situated” to the named Plaintiffs. The named Plaintiffs have
not signed releases. Those who have signed releases have waived any FLSA claims. See Martin
v. Spring Break '83 Productions, L.L.C., 688 F.3d 247 (5th Cir. 2012) (adopting the holding and
logic of Martinez v. Bohls Bearing Equip. Co., 361 F.Supp.2d 608 (W.D. Tex. 2005), that “a
private compromise of claims under the FLSA is permissible where there exists a bona fide
dispute as to liability.”).
Neither party addresses how this case should proceed if HEB is subsequently found not to
be a joint employer.11 Accordingly, the Court questions whether one class should be certified as
to all produce workers (excluding workers who have already settled their FLSA claims)
employed by Pastranas Produce from February 3, 2009 through February 3, 2012 and assigned to
any HEB store in Texas. This class is similarly situated regarding whether Pastranas Produce
(and only this Defendant) properly paid employees in conformance with the FLSA. A second
class would be certified as to all produce workers (excluding workers who have already settled
10
See Canela, supra and Fructouso v. HEB, 1:10-cv-951 and 1:11-cv-557 (W.D. Tex).
HEB informs the Court that the EEOC has already made an administrative determination that HEB is not a joint
employer for Title VII purposes.
11
8
their FLSA claims) employed by Pastranas Produce from February 3, 2009 through February 3,
2012 and assigned to the following HEB stores: [identification of stores where the named
Plaintiffs worked]12.
Conclusion
Accordingly, considering all of the above, the Court orders the parties to provide
additional briefing within 5 days of this Order as to whether two classes should be certified. In
addition, the parties should provide the Court the additional information regarding store locations
where the named Plaintiffs worked to complete its ruling. The parties are also ordered to brief
the Court as to whether any other FLSA lawsuits involving Pastranas and these same allegations
remain active and whether any dispositive rulings have been made in those cases.
HEB‟s motion to strike declarations (docket no. 24) is denied. Plaintiffs‟ Motion for
Notice to Potential Class Members (document no. 21) is taken under advisement.
SIGNED this 17th day of September, 2012.
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
12
No party has provided this information to the Court.
9
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