Wilson v. Atlas Oilfield Construction Co. LLC

Filing 22

ORDER GRANTING 13 Motion to Conditional Certification Class. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
WAYNE WILSON, ET. AL,

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Plaintiffs,
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v.
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ATLAS OILFIELD CONSTRUCTION CO., §
LLC,
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Defendant.
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Civil Action No. SA-14-CV-304-XR

ORDER
On this day came to be considered Plaintiffs’ motion for conditional certification (docket no. 13).
For the following reasons, the Court GRANTS the motion.
Background
Plaintiffs bring this Fair Labor Standards Act (FLSA) suit on behalf of themselves and all other
similarly situated employees pursuant to the “collective action” provisions of 29 U.S.C. § 216(b).
Plaintiffs were employed as solids control technicians for Defendant Atlas Oilfield Construction Co.,
LLC. Defendant Atlas is an oilfield services company providing support services in the oil and gas
industry.
Defendant paid solids control technicians, including Plaintiffs, on a day rate basis. Plaintiffs
allege they, as solids control technicians, worked in excess of sixty hours per week without proper
overtime compensation.
Analysis
29 U.S.C. § 216 permits an employee to bring an action against an employer “[on] behalf of
himself . . . and other employees similarly situated.” Unlike a Rule 23 class action, in which plaintiffs
“opt out” of the class, a § 216 plaintiff must “opt in” to become part of the class. See FED. R. CIV. P. 23;

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Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995). Accordingly, the method adopted by
this Court1 for determining whether to certify a collective action under § 216(b)—the Lusardi two-tiered
approach—involves conditional certification, allowing the plaintiff to notify potential members of the
action, followed by a factual determination at a second stage as to whether the putative class members are
similarly situated. Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987); Mooney, 54 F.3d at 1213–14.
In the first stage, called the notice stage, the District Court must make an initial determination
whether notice of the action should be sent to potential class members. Lusardi v. Xerox Corp., 118
F.R.D. at 351; Mooney, 54 F.3d at 1213. This determination is based solely on the pleadings and
affidavits. The pleadings and affidavits must make a preliminary factual showing that a similarly situated
group of potential plaintiffs exists. Trezvant v. Fid. Employer Servs. Corp., 434 F. Supp. 2d 40, 43 (D.
Mass. 2006). The standard is a lenient one typically resulting in conditional certification of a
representative class to whom notice is sent and whose members receive an opportunity to opt in. “The
decision to create an opt-in class under § 216(b), like the decision on class certification under Rule 23,
remains soundly within the discretion of the district court.” Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d
1208, 1219 (11th Cir. 2001); see U.S.C. § 216(b); Mooney, 54 F.3d at 1213–14.
Once conditional certification is granted, the case proceeds through discovery as a representative
action. Mooney, 54 F.3d at 1214. Upon completion of discovery, the defendant will typically file a
motion for decertification. Id. At this second stage of the analysis, the District Court should make a
factual determination as to whether the putative class members are similarly situated. Id. If so, then the
representative action may proceed; if not, then the class should be decertified, the opt-in plaintiffs
dismissed, and the class representatives should be 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).

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The Fifth Circuit has specifically permitted district courts to apply the Lusardi approach at the district court’s
discretion, but has not formally adopted the Lusardi approach itself. Mooney, 54 F.3d at 1214. This Court has
previously applied the Lusardi approach. See, e.g., Barrera v. MTC, Inc., SA-10-CV-665-XR, 2011 WL 809315
(W.D. Tex. Mar. 1, 2011).

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Here, the Court has reviewed Plaintiffs’ pleadings, affidavits, opposed motion for conditional
certification, and held a hearing. The Court finds Plaintiffs’ pleadings and affidavits state a violation of
the FLSA and make a preliminary showing that a similarly situated group of potential plaintiffs exists.
The Court therefore conditionally certifies the case as a collective action. The class is defined as follows:
All Persons employed by Atlas Oilfield Construction Co., LLC, as solids control
technicians (and all Persons with the exact same job duties as solids control
technicians under different titles) in Texas at any time from April 3, 2011 to the
present within fourteen (14) days of the date of this Order.
CONCLUSION
For the foregoing reasons, the Court finds Plaintiffs’ allegations and affidavits are sufficient to
allow an initial conditional certification of the case as a collective action. Therefore, the Court GRANTS
Plaintiff's motion for conditional certification (docket no. 13).
To facilitate the progression of this case through a final determination of the collective action
status, the Court ORDERS Defendant to provide Plaintiffs with a list (in an electronic spreadsheet) of the
names and last known addresses (and the last four digits of their social security number) of all current or
former employees who worked as solids control technicians (and all others with the exact same duties
under different job titles) at any Atlas location in Texas at any time between April 3, 2011, to the present
within fourteen (14) days of the date of this Order. Upon receipt of said list by Plaintiffs, Plaintiffs shall
send to potential class members the court-approved notice of this action (docket no. 13, exs. 1 and 2) as
amended by the definition of the class above, with a date-specific deadline for opting-in that is sixty (60)
days from the date of the mailing of the notices.

It is so ORDERED.
SIGNED this 12th day of September, 2014.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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