Mateos et al v. Select Energy Services, LLC

Filing 27

ORDER GRANTING #19 Motion for Conditional Certification. Signed by Judge David Ezra. (rf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SELENE MATEOS and NOE
MONTEMAYOR, on behalf of
themselves and all others similarly
situated,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
SELECT ENERGY SERVICES, LLC, )
)
Defendant.
)
________________________________ )

CV NO. 5:12-cv-00529-DAE

ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION AND
NOTICE TO POTENTIAL OPT-IN PLAINTIFFS
Before the Court is Plaintiffs’ Motion for Conditional Certification
and Notice to Potential Opt-In Plaintiffs. (Dkt. # 19.) Defendant filed a response
opposing conditional certification. (Dkt. # 22.) On October 10, 2013, this Court
held a hearing to discuss the merits of Plaintiffs’ request for conditional
certification. Having considered the parties’ arguments, the record, and the
applicable law, the Court GRANTS Plaintiffs’ Motion for Conditional
Certification.

1

BACKGROUND
Defendant Select Energy Services, LLC (“Select Energy”), provides
water sourcing, transfer, reuse, and disposal services to oilfield operators
throughout the United States and Canada. Select Energy operates eight regional
office facilities located throughout the United States in regions where oil and gas
production occurs.
Within each region, Select Energy employees are divided into
operations or support. Operations employees perform the work Select Energy
offers to clients, such as laying water pipe, transporting water, and construction of
oilfield locations. Support employees administer support to operations personnel.
A Heath, Safety, and Environmental Manager (“HSE Regional
Manager”) is assigned to each region. There are eight HSE Regional Managers;
one for each region. Each region also employs several Safety Coordinators, each
of whom reports to his or her respective HSE Regional Manager. Approximately
fifty current and fifteen to twenty former Safety Coordinators reside across all of
the regions. Safety Coordinators are involved in a variety of safety-related issues
across various job sites within their assigned region, including participating in jobsafety meetings, conducting Job Hazard Analyses, responding to safety incidents,
and documenting safety issues. Select Energy pays Safety Coordinators a flat
salary and does not provide additional compensation for overtime.
2

Selene Mateos (“Mateos”), Noe Montemayor (“Montemayor”), and
Fernando Y. Cedillo (“Cedillo”) (collectively, “Plaintiffs”) formerly worked for
Select Energy as Safety Coordinators in the South Texas region. On May 30,
2012, Plaintiffs Mateos and Montemayor filed a claim against Select Energy for
allegedly violating the Fair Labor Standards Act (“FLSA”), asserting that despite
working in excess of forty hours per week, they were not compensated for their
overtime hours. (Dkt. # 1.) On September 8, 2012, Plaintiff Cedillo submitted a
notice of filing consent to participate as a plaintiff in this collective action. (Dkt.
# 11-1.)
DISCUSSION
The FLSA requires certain employers to compensate non-exempt
employees at overtime rates for time worked in excess of statutorily defined
maximum hours. 29 U.S.C. § 207(a). Section 216(b) of the FLSA creates a cause
of action for employees against employers that are allegedly violating the overtime
compensation requirements. Section 216(b) also permits an employee to bring suit
on “behalf of himself . . . [a]nd other employees similarly situated.” This section
creates an “opt-in” scheme whereby potential plaintiffs must affirmatively notify
the court of their intention to become parties to the suit. See 29 U.S.C. § 216(b)
(“No employee shall be a party plaintiff to any such an action unless he gives his

3

consent in writing to become a party and such consent is filed in the court in which
such action is brought.”).
Whether a claim should go forward as a representative action under
§ 216(b) requires the court to determine whether the plaintiffs are “similarly
situated,” and this determination is generally made by using one of two analyses:
(1) the two-stage analysis described in Lusardi v. Xerox Corp., 118 F.R.D. 351,
359 (D.N.J. 1987), or (2) the “spurious class action” analysis described in Shushan
v. Univ. of Colo., 132 F.R.D. 263, 266–67 (D. Colo. 1990). See Mooney v.
Amarco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (declining to decide which
of the two analyses is preferred), overruled on other grounds by Desert Palace, Inc.
v. Costa, 539 U.S. 90, 90–91 (2003); see also Acevedo v. Allsup’s Convenience
Stores, Inc., 600 F.3d 516, 518–19 (5th Cir. 2010) (“We have not yet ruled on how
district courts should determine whether plaintiffs are sufficiently ‘similarly
situated’ to advance their claims together in a single § 216(b) action.”). In the
absence of Fifth Circuit guidance, district courts in the Fifth Circuit have generally
adopted the Lusardi two-stage approach to determine whether a collective action
should be certified under the FLSA. See, e.g., Pedigo v. 3003 South Lamar, LLP,
666 F. Supp. 2d 693, 696–97 (W.D. Tex. 2009); Valcho v. Dallas Cnty. Hosp.
Dist., 574 F. Supp. 2d 618, 621–22 (N.D. Tex. 2008). This Court will apply
Lusardi’s two-stage approach in this case.
4

A.

The Lusardi Two-Stage Analysis
Under Lusardi, the court first determines whether the putative class

members’ claims are sufficiently similar to merit sending notice of the action to
possible members of the class. Acevedo, 600 F.3d at 519 (citing Mooney, 54 F.3d
at 1213–14). “If they are, notice is sent and new plaintiffs are permitted to ‘opt-in’
to the lawsuit.” Id. Second, after discovery is largely complete, the court then
makes a final determination regarding whether all plaintiffs are sufficiently
similarly situated to proceed together in a single action. Id. If they are not
similarly situated, then the court decertifies the class, the opt-in plaintiffs are
dismissed, and the class representatives are allowed to proceed on their individual
claims. See Johnson v. TGF Precision Haircutters, Inc., 319 F. Supp. 2d 753, 754–
55 (S.D. Tex. 2004). This Court’s current inquiry need only address the merits of
the first stage.
B.

Similarly Situated
Plaintiffs seek to conditionally certify a class consisting of employees

designated as Safety Coordinators. (Dkt. # 19.) As described above, the statutory
standard for bringing a collective action under the FLSA requires that the
claimants be “similarly situated.” Generally, courts have ruled that “similarly
situated” need not mean “identical.” Walker v. Honghua Am., LLC, 870 F. Supp.
2d 462, 468 (S.D. Tex. 2012) (quoting Jesiek v. Fire Pros, Inc., 275 F.R.D. 242,
5

246 (W.D. Mich. 2011)). To satisfy the “similarly situated” standard, Plaintiffs
must show “substantial allegations that the putative class members were together
the victims of a single decision, policy, or plan infected by discrimination.”
Mooney, 54 F.3d at 1214 n.8 (quoting Sperling v. Hoffman-LaRoche, Inc., 118
F.R.D. 392, 407 (D.N.J. 1988)). The class member representatives “must be
similarly situated in terms of job requirements and similarly situated in terms of
payment provisions.” Ryan v. Staff Care, Inc., 497 F. Supp. 2d 820, 824–25 (N.D.
Tex. 2007). Although Plaintiffs bear the burden of proof to make this factualnexus showing, this is a “fairly lenient standard” due to the lack of evidence
available during the first stage. Mooney, 54 F.3d at 1214. Instead, a court decides
whether to conditionally certify “based only on the pleadings and any affidavits
which have been submitted.” England v. New Century Fin. Corp., 370 F. Supp. 2d
504, 508 (M.D. La. 2005).
Though Plaintiffs are held to a “lenient standard,” the decision to
create an opt-in class under § 216(b) remains soundly within the discretion of the
district court. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989).
That is because “the relevant inquiry in each particular case is whether it would be
appropriate to exercise the court’s discretion to facilitate notice” to potential
plaintiffs. Valcho, 574 F. Supp. 2d at 621–22 (internal citation and quotation
marks omitted).
6

Here, Plaintiffs satisfy the first stage of the Lusardi two-stage analysis
warranting conditional certification. Plaintiffs proffer evidentiary support in their
Motion for Conditional Certification demonstrating that Safety Coordinators
perform substantially identical tasks. (See Dkt. # 19, Ex. 1 (“Mateos Decl.”) ¶ 3
(detailing that as a Safety Coordinator, Mateos inspected several jobsites, observed
crews to ensure they were following proper safety guidelines, investigated
accidents, and conducted meetings discussing safety issues); Dkt. # 19, Ex. 2
(“Montemayor Decl.”) ¶ 3 (explaining that his job as a Safety Coordinator
involved traveling from jobsite to jobsite, providing inspection and safety
observation); Dkt. # 19, Ex. 3 (“Cedillo Decl.”) ¶ 3 (detailing how his role as a
Safety Coordinator involved providing inspection and safety observation at several
jobsites, investigating accidents, and conducting meetings to discuss safety issues
and actual compliance trainings).)
Plaintiffs also submit that as Safety Coordinators, they were subject to
Select Energy’s policy of providing a flat salary for all hours including overtime
hours. (See Mateos Decl. ¶ 5 (“I would work an average of about ninety (90)
hours per week but I would get a flat salary with no extra compensation for
working extra hours based on a 40 hour week.”); Montemayor Decl. ¶ 3 (“I would
work an average of about 55 hours per week but I would get a flat salary with no
extra compensation for working more than 40 hours in a week.”); Cedillo Decl. ¶ 3
7

(“I would work an average of about seventy five (75) to ninety (90) hours per week
but I would get a flat salary with no extra compensation for working extra hours
based on a 40 hour work week.”).)
Most importantly, Plaintiffs demonstrate that they know of at least
three additional Safety Coordinators who perform similar duties as Safety
Coordinators and are also subject to Select Energy’s compensation policy for
Safety Coordinators. (See Mateos Decl. ¶ 5 (identifying Rolando Cedillo as
another Safety Coordinator who worked similar hours and was paid in the same
fashion); Montemayor Decl. (identifying Sergio Avila as another Safety
Coordinator who worked similar hours and was paid in the same fashion); Cedillo
Decl. ¶ 5 (identifying Sergio Avila and Mark Smith as other Safety Coordinators
who worked similar hours and were paid in the same fashion).) There may be
additional Safety Coordinators who perform similar functions and are subject to
the same compensation policy. According to Select Energy, there are
approximately fifty current and fifteen to twenty former Safety Coordinators across
all of the regions.
Moreover, “the joinder of additional plaintiffs after the inception of
the case is persuasive evidence that a putative class does exist.” Pedigo, 666 F.
Supp. 2d at 698. Here, Cedillo submitted a Notice of Filing Consent to join the
litigation after Mateos and Montemayor had filed suit. (See Dkt. # 11.)
8

Defendant disputes that conditional certification is warranted.
Defendant first asserts that conditional certification is inappropriate because the
particular job duties of Safety Coordinators are dictated by the local HSE Regional
Managers at each of Select Energy’s regional offices. But Defendant has not
shown that the job duties vary among Select Energy’s eight regions. Furthermore,
this argument fails to recognize that the decision to conditionally certify a class at
the notice stage is lenient, primarily because little or no discovery has been
completed at the notice stage. See Bernal v. Vankar Enters., Inc., SA-07-CA-695XR, 2008 WL 791963, at *4 (W.D. Tex. Mar. 24, 2008). Plaintiffs have not had
the opportunity to gather information regarding each of Select Energy’s additional
regional offices.
Defendant also asserts that although Cedillo and Montemayor were
primarily involved with safety issues in the oil yards, Mateos and the other
individuals named in Plaintiffs’ Declarations do not perform similar job functions.
For example, Defendant argues that even though Mateos was listed as a “Safety
Coordinator” on her Performance Evaluation Form, Mateos performed almost
exclusively training-related tasks that were substantially different from traditional
Safety Coordinators like Cedillo and Montemayor. Defendant also argues that
Mark Smith, an individual identified as a potential plaintiff, was primarily involved
in ensuring the rules of the United States Department of Transportation, Federal
9

Motor Carrier Safety Administration, and Texas Department of Transportation
were properly being followed because of his experience with Department of
Transportation rules and regulations. Thus, Defendant explains, the primary duties
of Mateos and Smith were materially different than the duties of Cedillo and
Montemayor.
Defendant’s second assertion fails to demonstrate that Plaintiffs are
not “similarly situated.” Plaintiffs have shown two overarching themes that each
of their tasks required: performing safety observations and investigating accidents.
Plaintiffs also demonstrated that they each allegedly worked more than forty hours
per week without additional compensation. See St. Luke’s Episcopal Hosp. v.
Villarreal, 751 F. Supp. 2d 902, 918 (S.D. Tex. 2010) (holding that potential class
members are “similarly situated” to the named plaintiffs if they are “similarly
situated” with respect to their job requirements and pay provisions). It is
understandable that, among the more than fifty Safety Coordinators Select Energy
employs and the fifteen to twenty Safety Coordinators Select Energy formerly
employed, there would be some slight difference in the tasks performed among the
various regions and the various HSE Regional Managers. However, “[s]light
differences in job duties or functions do not run afoul of the similarly situated
requirement.” Tolentino v. C & J Spec–Rent Servs., Inc., 716 F. Supp. 2d 642,
651 (S.D. Tex. 2010). As several district courts have instructed, the positions
10

“need not be identical” for conditional certification. Pedigo, 666 F. Supp. 2d at
698; c.f. St. Luke’s Episcopal Hosp., 751 F. Supp. 2d at 918 (“If the job duties
among putative class members vary significantly, then class certification should be
denied.” (emphasis added)). Plaintiffs’ job functions are sufficiently similarly
situated to warrant conditional certification.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Conditional
Certification is GRANTED. The above-entitled case is hereby conditionally
certified as a collection action.
The parties shall submit a joint proposed notice to potential opt-in
plaintiffs within TEN (10) DAYS. If for whatever reason the parties cannot agree
to a joint proposed notice, the parties shall submit a joint proposed notice to the
extent the parties do agree. The parties shall then submit their separate proposed
provisions and the reasons for the provision’s inclusion in (or exclusion from) the
proposed notice within the ten day timeframe.
Defendant Select Energy shall provide Plaintiffs’ counsel with a list of
names and last known addresses for all Safety Coordinators employed by Select
Energy Services, LLC during the period of October 10, 2010 to October 10, 2013
within THIRTY (30) DAYS.
IT IS SO ORDERED.
11

DATED: San Antonio, Texas, October 10, 2013.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

12