McElroy et al v. Tucker Energy Services, Inc. et al

Filing 28

ORDER DENYING 13 Motion to Certify Class; DENYING 14 Motion to Certify Class Signed by Judge Elizabeth S. Chestney. (aej)

Case 5:18-cv-00010-FB-ESC Document 28 Filed 10/25/18 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
BRANDON MCELROY, ROBERT
HARRINGTON, AVERIL OWENS,
MICHAEL RIDER,
Plaintiffs,
vs.
TUCKER ENERGY SERVICES, INC.,
TUCKER ENERGY SERVICES U.S.A.,
INC.,
Defendants.

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CIVIL NO.
SA-18-CV-00010-FB

ORDER
Before the Court in the above-styled cause of action are Plaintiffs‘ Motion for
Conditional Certification with Incorporated Brief in Support [#13] and Plaintiffs‘ Motion for
Approval and Distribution of Notice and for Disclosure of Contact Information [#14]. In ruling
on Plaintiffs‘ motions, the Court has also considered Defendants‘ Response to Plaintiffs‘ Motion
for Conditional Certification [#24], Defendants‘ Response to Plaintiffs‘ Motion for Approval and
Distribution of Notice and for Disclosure of Contact Information [#25], Plaintiffs‘ Reply in
Support of Plaintiffs‘ Motion for Conditional Certification [#26], and Plaintiffs‘ Reply in
Support of Plaintiffs‘ Motion for Approval and Distribution of Notice and for Disclosure of
Contact Information [#27].
This action was referred to the undersigned for pretrial proceedings pursuant to Federal
Rule of Civil Procedure 72 and Rules CV-72 and 1(c) of Appendix C of the Local Rules of the
United States District Court for the Western District of Texas [#9]. The undersigned has
authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A). For the reasons set forth
herein, the Court will DENY the motions.

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I. Background
Plaintiffs Brandon McElroy, Robert Harrington, Averil Owens, and Michael Rider bring
this action on behalf of themselves and all others similarly situated against their former employer
Defendants Tucker Energy Services, Inc. (―Tucker‖).1 (Compl. [#1].) Plaintiffs seek to recover
unpaid overtime compensation from Tucker pursuant to the Fair Labor Standards Act (―FLSA‖),
29 U.S.C. § 201, et seq. (Id. at ¶¶ 51–61.)
Tucker is a multinational company providing a variety of services to the oil and gas
industry. (Van Buren-Schele Decl. [#24-2] at 2.) According to Plaintiffs‘ Complaint, Plaintiffs
worked as hourly-paid oilfield workers for Tucker within the three years preceding the filing of
their Complaint and regularly worked more than 40 hours per week. (Compl. [#1] at ¶¶ 43, 46.)
Plaintiffs identify their duties as performing manual labor at oil and gas well sites to assist in
pumping and fracking the wells and claim they routinely were required to use hard hats, drilling
equipment, lubricators, blow-out preventers, wrenches, and other tools in performing these
duties. (Id. at ¶¶ 44, 49.)
Plaintiffs now move to conditionally certify their FLSA claims as a collective action
pursuant to Section 216(b) of the FLSA. The Court has subject-matter jurisdiction over this case
based on federal-question jurisdiction, because Plaintiffs‘ claims arise from federal law. See 28
U.S.C. § 1331.
II. Certification Standard
The FLSA requires covered employers to pay non-exempt employees for hours worked in
excess of defined maximum hours, 29 U.S.C. § 207(a), and allows employees to sue their
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Plaintiffs‘ Complaint also named Tucker Energy Services U.S.A., Inc. as a Defendant,
but Plaintiffs and Defendants stipulated to the dismissal of Tucker Energy Services USA, Inc. on
June 14, 2018 [#16].
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employers for violation of its wage and hour provisions, see 29 U.S.C. §§ 215–16. An employee
may sue his employer under the FLSA on ―behalf of himself . . . and other employees similarly
situated.‖ 29 U.S.C. § 216(b). However, unlike Rule 23 class actions, collective actions proceed
on an ―opt-in‖ rather than an ―opt-out‖ basis. Tolentino v. C & J Spec-Rent Servs., Inc., 716 F.
Supp. 2d 642, 646 (S.D. Tex. 2010); see also 29 U.S.C. § 216(b) (―No employee shall be a party
plaintiff to any such action unless he gives his consent in writing to become a party and such
consent is filed in the court in which such action is brought.‖). District courts have discretion to
decide whether and how to issue notice for putative plaintiffs to opt-in to a FLSA collective
action and to modify the proposed class if it is overly broad. See Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 172 (1989); Baldridge v. SBC Commc’ns, Inc., 404 F.3d 930, 931–32
(5th Cir. 2005).
In this circuit, there are two approaches used to guide a court‘s decision to certify a
collective action: the Lusardi approach and the Shushan approach. See Mooney v. Aramco
Servs. Co., 54 F.3d 1207, 1213–14 (5th Cir. 1995), overruled in part on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003); see also Lusardi v. Xerox Corp., 118 F.R.D. 351
(D.N.J. 1987); Shushan v. Univ. of Colo., 132 F.R.D. 263 (D. Colo. 1990). The Shushan
approach embraces the Rule 23 procedure for certifying class actions, whereas the Lusardi
approach uses a two-step process to determine whether employees are similarly situated under
the FLSA. See Mooney, 54 F.3d at 1213–14. Most courts in this Circuit apply the Lusardi
approach, and the Court will do so here. See Sandoz v. Cingular Wireless LLC, 553 F.3d 913,
915 n.2 (5th Cir. 2008); Tolentino, 716 F. Supp. 2d at 646 (collecting cases).
The Lusardi analysis involves two stages: (1) the notice stage and (2) the decertification
stage. See Sandoz, 553 F.3d at 915 n.2. At the notice stage, the court reviews the pleadings and

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any affidavits that have been submitted to determine whether to conditionally certify the class
and to give notice to potential class members. Hernandez v. Robert Dering Constr., LLC, 191 F.
Supp. 3d 675, 680 (S.D. Tex. 2016). A court is not to consider the ultimate merits of a given
cause of action in making a decision on certification. Walker v. Honghua Am., LLC, 870 F.
Supp. 2d 462, 465 (S.D. Tex. 2012).
Although the plaintiff‘s burden at the notice stage is ―not onerous, neither is it invisible.‖
Songer v. Dillon Res., Inc., 569 F. Supp. 2d 703, 706 (N.D. Tex. 2008). A plaintiff still must put
forth ―substantial allegations that the putative class members were together the victims of a
single decision, policy or plan.‖ Mooney, 54 F.3d at 1214 & n.8 (citations omitted). In making
this determination, courts consider such factors as whether ―(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 into the lawsuit.‖2 Tolentino, 716 F. Supp. 2d at 647 (internal
citations omitted). After conditional certification the ―putative class members are given notice
and the opportunity to ‗opt-in.‘‖ Mooney, 54 F.3d at 1214.
With regards to the similarly-situated inquiry, Plaintiffs must demonstrate that they are
similarly situated ―in relevant respects given the claims and defenses asserted.‖ Tolentino, 716
F. Supp. 2d at 647. In wage and hour cases, this means the proposed class must be ―similarly
situated in terms of job requirements and similarly situated in terms of payment provisions.‖
Pedigo v. 3003 S. Lamar, LLP, 666 F. Supp. 2d 693, 698 (W.D. Tex. 2009) (internal quotation

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Some courts have declined to enforce the third requirement. See, e.g., Dreyer v. Baker
Hughes Oilfield Operations, Inc., No. CIV.A. H-08-1212, 2008 WL 5204149, at *3 (S.D. Tex.
Dec. 11, 2008) (citing Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 296 (1985))
(―such a requirement is at odds with the Supreme Court‘s command that the FLSA be liberally
construed to effect its purposes‖).
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and citation omitted). Thus, the relevant inquiry for the court is whether the proposed class
members ―performed the same basic tasks as part of their employment and were subject to the
same pay decisions, policies, or practices.‖ Id. (citing Tice v. AOC Senior Home Health Corp.,
826 F. Supp. 2d 990, 996 (E.D. Tex. 2011)). Employees need not be ―similarly situated in each
and every aspect of their employment,‖ but rather there must be simply ―some identifiable facts
or legal nexus‖ binding together the claims ―so that hearing the cases together promotes judicial
efficiency.‖ Id. (internal quotations omitted).
After the opt-in period has concluded and discovery is largely complete, the defendant
may file a motion to decertify the collective action. Hernandez, 191 F. Supp. 3d at 680. At the
decertification stage, the court makes a final factual determination on the similarly-situated
question, and the court may decertify the class and dismiss the opt-in plaintiffs without prejudice.
Mooney, 54 F.3d at 1214.
III. Analysis
Plaintiffs seek to certify a class of ―all current and former hourly-paid oilfield workers
employed by [Tucker] at any time since January 4, 2015.‖ (Mot. Cond. Cert. [#13] at 1.) The
only evidence offered by Plaintiffs in support of their motion is the declaration of Plaintiff
Brandon McElroy, who worked as an Equipment Operator for Tucker from 2014 through 2017.
(McElroy Decl. [#13-1].) Plaintiffs argue that this declaration demonstrates that there is a
reasonable basis to believe other aggrieved individuals exist that are interested in joining this
lawsuit and the proposed class is similarly situated as to pay and job duties so as to justify
certifying this case as a collective action. (Mot. Cond. Cert. [#13] at 6–10.)
Tucker responds that certification is inappropriate here, where Plaintiffs seek to certify a
nationwide class of all oilfield workers, not just all Equipment Operators holding the same

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position as McElroy, and have not identified a systematic pay policy that applies to all divisions
of oilfield workers or a basis for certifying such an expansive class. (Def.‘s Resp. [#24].) The
Court agrees with Tucker. Having reviewed the pleadings and McElroy‘s declaration, as well as
the declarations of non-Plaintiff Tucker employees submitted with Tucker‘s response,3 the Court
finds that Plaintiffs have failed to come forth with the ―substantial allegations‖ required to
warrant certification, even under the lenient standard set forth by Lusardi. See Mooney, 54 F.3d
at 1214.
In determining whether potential plaintiffs are similarly situated, the primary issue is
whether they performed the same basic tasks and were subject to the same pay decisions,
policies, or practices. Mathis v. Stuart Petroleum Testers, Inc., 5:16-CV-094-RP, 2016 WL
4533271, at *2 (W.D. Tex. Aug. 29, 2016) (citing Tice, 826 F. Supp. 2d at 996). Plaintiffs‘
allegations must be substantial, and they must be bolstered by some factual support based on the
personal knowledge and experience of the representative plaintiff. See Mooney, 54 F.3d at 1214
& n.8 (citations omitted); Songer, 569 F. Supp. 2d at 707. Without such evidence, a Court
cannot find a class-wide policy or practice such that would authorize class certification and
notice. See Songer, 569 F. Supp. 2d at 707–08.
Here, Plaintiffs‘ allegations are far from substantial, and the factual support provided to
the Court is minimal.

Again, the only evidence Plaintiffs submitted to aid the Court in

determining whether the proposed class is similarly situated is the declaration of McElroy.
(McElroy Decl. [#13-1]). According to the declaration, ―[t]he job of an Oilfield Worker, such as
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See Van Buren-Schele Decl. [#24-2] at 2 (Corporate Human Resources Manager);
Massey Decl. [#24-2] at 28 (Senior Operator); Ridgway Decl. [#24-2] at 36 (Equipment
Operator); Eeds Decl. [#24-2] at 44 (Equipment Operator); Schmelzer Decl. [#24-2] at 51
(Equipment Operator); Stearman Decl. [#24-2] at 59 (Equipment Operator); Eaves Decl. [#24-2]
at 66 (Coil Operator); Green Decl. [#24-2] at 73 (Equipment Operator and Supervisor in Frac
Division).
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[Plaintiff‘s] job as an Equipment Operator, is a very physical and demanding job that is worked
outdoors.‖ (Id. at ¶ 5.) McElroy describes his ―primary job duties‖ as ―manual labor.‖ (Id.)
McElroy states he ―maintained and operated the equipment, including pumps, used at the oilfield
well sites‖ and ―worked with chemicals.‖ (Id.) No other description of McElroy‘s duties or
employment is provided. These vague and generalized statements fail to satisfy even the modest
factual showing required of Plaintiffs at this initial stage in the litigation.
Again, Plaintiffs bear the burden to demonstrate they are similarly situated to the
proposed class of Plaintiffs in this case. See Songer, 569 F. Supp. 2d at 706. Plaintiffs have
designated as the proposed class a group of all hourly-paid oilfield workers employed by Tucker
at all oilfield sites nationwide. Yet Plaintiffs make no attempt to explain to the Court the
structure of Tucker‘s workforce, the other job titles that would fall under the broad category of
oilfield workers, or how Equipment Operators like McElroy share the same basic tasks as these
other workers. McElroy merely makes the conclusory statement that ―[a]ll Oilfield Workers
performed the same duties I performed because these were the duties to be performed in
providing the services Defendant offered to its customers.‖ (McElroy Decl. [#13-1] at ¶ 6.)
Although McElroy indicates he has traveled to Tucker‘s well sites in Texas, Oklahoma,
and Louisiana, this fact still does not establish that a nationwide class of all oilfield workers is
warranted, and the declarations submitted by Tucker raise further doubts as to the similarity of
the proposed class.

Christina Van Buren-Schele, Tucker‘s Corporate Human Resources

Manager, states that Tucker is divided into several distinct and unique operating divisions—
stimulation, coiled tubing, and wireline—each with its own managers, supervisors, and
operators. (Van Buren-Schele Decl. [#24-2] at 2.) McElroy‘s declaration does not identify these
divisions or attempt to reconcile any differences between them. The declaration of Andrew

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Massey, a Senior Operator in the Wireline Division, states that his division does not have an
Equipment Operator position and describes the divisions at Tucker as ―well separated.‖ (Massey
Decl. [#24-2] at 28–29.) Massey describes his duties as handling explosives for the purpose of
shooting perforated guns, a duty he does not believe is shared by any Equipment Operator in the
Stimulation or Coiled Tubing Divisions, as they do not handle explosives or the wireline truck.
(Id. at 29.) The declaration of Richard Eaves, a Coil Operator in the Coil Tubing Division, states
that his Division does not have Equipment Operators. (Eaves Decl. [#24-2] at 66.) Plaintiffs
have not put forth substantial evidence that all oilfield workers, regardless of division, job title,
or location, perform the same basic tasks. See Mathis, 2016 WL 4533271, at *2 (W.D. Tex.
Aug. 29, 2016) (citing Tice, 826 F. Supp. 2d at 996).
Nor is the Court convinced that the certification of a more narrow class of all Equipment
Operators is appropriate, as Plaintiffs have failed to provide sufficient support for their allegation
that the proposed class was subject to a single policy of denying overtime compensation.
McElroy‘s declaration states that he and other Equipment Operators ―were made to work off the
clock and were not properly compensated for these hours.‖ (McElroy Decl. [#13-1] at ¶ 9.) Yet
Plaintiffs have not submitted any other declarations aside from McElroy‘s. The Court only has
knowledge as to the fact that the other named Plaintiffs were also Equipment Operators like
McElroy from consulting the evidence attached to Tucker‘s response. Tucker submitted to the
Court the declarations of five other non-Plaintiff Equipment Operators, all of whom uniformly
state that they were responsible for keeping track of all hours worked, often using an app entitled
Kronos to do so on their phones; that Tucker had a policy of paying overtime compensation to its
Equipment Operators; and they were regularly paid for all hours worked, including ―time and a
half‖ for overtime. (Ridgway Decl. [#24-2] at 38–40 (stating he was consistently paid for

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approximately 100 hours of overtime during a ―long week‖ and 58 hours of overtime on a
―medium week‖); Eeds Decl. [#24-2] at 44–47 (describing method of tracking hours worked,
including overtime hours); Schmelzer Decl. [#24-2] at 51–55 (claiming he received ―an
exorbitant amount of overtime hours‖ in his position as Sand Coordinator and that he
consistently received pay for all hours worked, including ―extensive amount of overtime hours,‖
as an Equipment Operator); Stearman Decl. [#24-2] at 59–61 (stating he was ―always paid for all
of [his] overtime hours as an Equipment Operator); Green Decl. [#24-2] at 73–78 (attesting to
always being paid for overtime hours whenever he worked over 40 hours per week and never
hearing any of the named Plaintiffs complaining of not being paid for hours worked.) All five
of these Equipment Operators also stated that, if there was ever an error related to performing
work prior to clocking in or other issues with regular or overtime compensation, Tucker
promptly fixed the issues. (See id.)
In light of this record, the Court is unable to credit McElroy‘s sole statement that
Equipment Operators were made to work overtime without compensation for purposing of
conditional certifying this case as a collective action. Plaintiffs have failed to come forth with
―substantial allegations that the putative class members were together the victims of a single
decision, policy or plan‖ of Tucker to deny its workers overtime compensation. See Mooney, 54
F.3d at 1214 & n.8 (citations omitted). Plaintiff‘s allegations fall short of convincing the Court
that there is a nationwide class of victims subject to the same pay practice or plan, whether the
expansive requested class of all oilfield workers or a more narrow class of Equipment Operators.
Finally, the Court would be remiss is not again mentioning that the declaration filed in
support of Plaintiffs‘ motion by McElroy is virtually identical to declarations filed by Plaintiffs‘
counsel in other cases pending before this Court and other courts seeking conditional

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certification under the FLSA. See, e.g., Lindsey v. Schlumberger Tech. Corp., 5:16-CV-458-FBESC (Lindsey Decl. [#28-1].) Both this Court and at least two other courts have rejected these
same declarations as too generalized and conclusory to support certification. See Lindsey, 2017
WL 2999428, at *4; Mathis, 2016 WL 4533271; McLendon v. Schlumberger Tech. Corp., No.
4:15CV00752 JLH, 2016 WL 3911897 (E.D. Ark. July 15, 2016). The language used in these
declarations is insufficient for the aforementioned reasons to support certification. As a result,
this case should proceed with the four named Plaintiffs, and any other Plaintiffs that intend to
join this lawsuit, for the individual recovery of any unpaid overtime compensation. Conditional
certification of a larger class of workers and the issuance of notice is not warranted at this time.
However, this denial will be without prejudice to refile an amended motion for conditional
certification in the event that Plaintiffs are later able to submit more persuasive information
showing that there is a class of similarly situated aggrieved individuals.
IV. Conclusion
Having considered Plaintiffs‘ motions, the responses and replies thereto, the exhibits and
declarations attached, and the governing law,
IT IS HEREBY ORDERED that Plaintiffs‘ Motion for Conditional Certification with
Incorporated Brief in Support [#13] and Plaintiffs‘ Motion for Approval and Distribution of
Notice and for Disclosure of Contact Information [#14] are DENIED WITHOUT
PREJUDICE.
SIGNED this 25th day of October, 2018.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE
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