Peery v. Nixon Engineering,llc

Western District of Texas, txwd-6:2018-cv-00358

REPLY to Response to Motion, filed by Jayme Peery, re {{26}} Opposed MOTION to Certify Class filed by Plaintiff Jayme Peery

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION JAYME PEERY, § Individually and on behalf of all others § similarly situated § Civil Action No. 6:2018-cv-00358 § Plaintiff, § JURY TRIAL DEMANDED § v. § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. §216(b) NIXON ENGINEERING, LLC, § § CLASS ACTION PURSUANT TO Defendant. § FED. R. CIV. P. 23(b) PLAINTIFF'S REPLY IN SUPPORT OF CONDITIONAL CERTIFICATION AND NOTICE TO PUTATIVE CLASS MEMBERS Jayme Peery, individually and on behalf of all opt-in plaintiffs and others similarly situated (hereinafter "Plaintiff and the Putative Class Members") files this Reply in Support of his Motion for Conditional Certification and Notice to Putative Class Members pursuant to 29 U.S.C. § 216(b). Plaintiff's Reply in Support of Conditional Certification 1 I. SUMMARY OF REPLY Plaintiff has moved to conditionally certify a class of current and former hourly employees so that they can learn of this action and take the necessary steps to preserve their claims for unpaid wages against Defendant Nixon Engineering, LLC ("Nixon"). Plaintiff has more than met the lenient standard applicable at this preliminary notice stage of conditional certification and shown that a group of similarly situated employees suffering from a company-wide FLSA violation does exist. Nothing in Nixon's response can detract from that fact—instead, the evidence provided by Nixon only provides further proof that the complained of violation not only exists, but exists on a company-wide basis. II. ARGUMENT & AUTHORITY A. PLAINTIFF HAS PROVIDED SUFFICIENT EVIDENCE OF A COMPANY-WIDE FLSA VIOLATION AND THE EXISTENCE OF A GROUP OF SIMILARLY SITUATED EMPLOYEES Plaintiff has shown through the pleadings and declarations on file that a group of similarly situated employees exist who were all paid in a similar manner (hourly), who performed similar work (control and manage traffic), and who all suffer the same FLSA violation (not paid for all hours worked). Plaintiff has alleged that this travel time, that is explicitly stated in the Employee handbook that ALL employees abide by, should have been paid for as employees performed duties prior to the drive time that officially started their workday. See ECF 26, at 2–3; Vega v. Gasper, 36 F.3d 417, 424 (5th Cir. 1994), abrogated on other grounds by Integrity Staffing Sols., 135 S. Ct. at 519. The fact that Plaintiff has identified the existence of a common policy and/or plan, applicable to all members of the putative class, and in violation of the FLSA, is sufficient for conditional certification. See Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 536–41 (S.D. Tex. 2008). Ironically, Nixon's own evidence, included in its Response, establishes the very FLSA violation that Plaintiffs complain of herein not only occurs, but is indeed a company-wide violation. See ECF No. 29–2, at ¶¶ 8 and 13 (Employee Handbook). The employee handbook clearly explains that "[t]here is no travel time for anyone" and that "[t]here is no other drive time to and from the job once the Plaintiff's Reply in Support of Conditional Certification 2 driver arrives at the lodging facility." Although Nixon's policy explicitly states that it does not provide for "travel time" the federal law clearly requires compensation for the travel time described by Plaintiffs in their declarations. B. NIXON SEEKS TO ARBITRARILY LIMIT THE SCOPE OF THE PUTATIVE CLASS Nixon's argument that the class should be constricted to only employees under the supervisor Teena Fogarty ignores critical evidence before this Court. First, as Nixon admits but then tries its hardest to obfuscate, Plaintiff Peery had other supervisors and still suffered from the company-wide policy to not pay for all hours worked. ECF No. 29, at 6. Second, Nixon's company policy explicitly states, "[t]here is no travel time for anyone." See ECF No. 29–2, at ¶ 8. Finally, Nixon's argument completely ignores Plaintiff's Declarations which state that Plaintiff and the Opt-ins told Nixon about the unpaid hours and that Nixon informed them that time was non-compensable and would not be paid. See ECF 26, Exs. 1–5, at ¶ 14. The Swinner brothers complained of this unpaid time to the owners of Nixon itself and still were not paid. See ECF 26, Exs. 4–5, at ¶ 14. This evidence demonstrates that the policy to not pay for all hours worked was indeed company-wide. To the extent Nixon argues its policies prevent the harm alleged by Plaintiff and that Nixon contradicts Plaintiff's sworn affidavits, these arguments are premature. Arguments on the merits are better reserved for the second stage of Lusardi. Jones v. JGC Dallas LLC, No. 3:11-CV-2743-O, 2012 WL 6928101, at *4 (N.D. Tex. Nov. 29, 2012) ("[C]ourts are not to engage in merits-based analysis at the notice stage of a collective action."). Indeed, "argument about dissimilarities in the class is more appropriately decided at step two, after it is known who the class will consist of, and after some of the factual issues can be fleshed out in discovery." Jirak v. Abbott Labratories, Inc., 566 F.Supp.2d 845, 850 (N.D. Ill 2008) (citing Bastian v. Apt. Invest. & Mgmt. Co., No. 07-2069, 2007 WL 5234235, at *1 (N.D. Ill. Sept. 17, 2007). "The mere potential that individual issues may predominate after further discovery does not preclude conditional certification of the class." Id. (emphasis added); see also Maynor v. Dow, Plaintiff's Reply in Support of Conditional Certification 3 671 F.Supp.2d 902, 935 (S.D. Tex. May 28, 2009); Metcalfe v. Revention, Inc., No. 4:10-cv-3515, 2012 WL 3930319, at *6 (S.D. Tex. Sept. 10, 2012). Here, the overwhelming evidence warrants conditional certification because Plaintiff has made the requisite showing that Plaintiff and the Putative Class Members were not paid for all hours worked in violation of the FLSA. C. NIXON'S ARBITRATION AGREEMENTS ARE VOLUNTARY AND DO NOT PREVENT PUTATIVE CLASS MEMBERS FROM JOINING THIS CASE Nixon has not moved to compel arbitration in this case and after reading the non-binding arbitration agreement it is patently obvious why—they cannot. In Chase the Fifth Circuit stated notice should not go out "to employees who are unable to join the action because of binding arbitration agreements." In re JP Morgan Chase & Co., 916 F.3d 494, 504 (5th Cir. 2019). Should Chase have moved for arbitration, its employees did not have the right to decline arbitration and join the case. According to the arbitration at issue, "[e]ither party can deny the other party's request for arbitration." ECF 28, Ex. 3, at ¶ 2. Because the Putative Class Members are able to join this action (and further maintain this action) by opting-in and declining the non-binding arbitration, Nixon's arbitration argument falls flat. D. THE REQUESTED CONTACT INFORMATION IS NECESSARY Nixon objects to providing the following information for each putative class member: (1) drivers' license number; (2) phone numbers; (3) dates of birth; and (4) dates of employment. Plaintiff notes that with a class of unknown size, dates of birth are necessary to distinguish those class members with the same names. Plaintiff requests the dates of employment because some Putative Class Members statute of limitations may lapse during the Notice period, without the correct dates of employment Plaintiff will be unable to determine who is eligible to join this case. Further, Plaintiff has requested the other information so that they can adequately locate those individuals in the event their mail and/or email is returned as undeliverable or "bounces back." B. THE PROPOSED NOTICE AND SCHEDULE ARE APPROPRIATE Plaintiff's Reply in Support of Conditional Certification 4 Plaintiff agrees with Nixon that no additional non-approved communication should be included in the email notice, should it be granted. Plaintiff proposes the email notice simply include the entire Court Authorized Notice Form in its body. Plaintiff objects that the subject line should only say "Please see attached," such a subject line simply reeks of spam.1 Plaintiff proposes a fully informative subject line such as, "Court Authorized Notice Regarding Overtime Lawsuit Against Nixon Engineering, LLC." Nixon does not cite to any precedent that text-notice is inappropriate. Cell phones are an integral part of every-day life for the modern American and in a case like this, where putative class members may be away from home for long periods of time working on road projects and unable to access mail or email, text-message notice insures they will be fully apprised of their right to join this case. Vega v. Point Sec., LLC, No. A-17-CV-049-LY, 2017 WL 4023289, at *4 (W.D. Tex. Sept. 13, 2017), report and recommendation approved, No. A-17-CV-049-LY, 2017 WL 8774233 (W.D. Tex. Oct. 12, 2017) ("[I]n the world of 2017, email and cell phone numbers are a stable, if not primary, point of contact for the majority of the U.S. population, and thus using email and texts to notify potential class members is entirely appropriate."). Defendant offers no reason as to why reminder notice is unnecessary other than that reminding putative class members of their legal rights would somehow be harassing. Courts in this district regularly approve of sending reminder notices as it facilitates the remedial purposes of the FLSA. Gronefeld v. Integrated Prod. Servs., Inc., No. 5:16-CV-55, 2016 WL 8673851, at *6 (W.D. Tex. Apr. 26, 2016). 1 https://www.lmeservices.com/beware-the-please-view-attached-email/; https://dshield.org/forums/diary/Have+You+Seen+an+Email+Virus+Recently/24634/. Warning of phishing campaigns with the headline "Please View Attached" where the attachment contains malicious malware and/or viruses. Plaintiff's Reply in Support of Conditional Certification 5 Defendant objects to follow up phone calls to insure the notices are received. Defendant suggests the parties confer regarding a proposed script and Plaintiff agrees. Follow up phone calls should be restricted to their sole purpose, insuring the notices are properly received and if they are not, curing the defective delivery. Defendant objects to the inclusion in the Order and Notice of language prohibiting Nixon from discussing this case with its employees. The only reason Nixon would need to discuss this action with Putative Class Members before the end of the opt-in period would be to dissuade (read: intimidate) them from participating. Plaintiff agrees that all communications with Putative Class Members should be structured and use only Court approved language to prevent any misleading communications. If this Court rules that Defendant is not prohibited from discussing this matter with Putative Class Members, Defendants should be restricted, like Plaintiff, to only using the same specifically Court approved language as Plaintiff in any discussion with Putative Class Members during the opt-in period. Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d 511, 516 (N.D. Tex. 2014). IV. CONCLUSION Plaintiff has met his burden to show that other similarly situated individuals exist and are interested in asserting their claims. In order to facilitate the remedial purposes of the FLSA's collective action provisions, Plaintiff respectfully requests that the Court grant this Motion and (1) conditionally certify this collective action for purposes of notice and discovery; (2) order that notice of this collective action be sent to all Putative Class Members; (3) order Nixon to produce to Plaintiff's counsel the contact information for each Putative Class Member; (4) authorize a 60-day notice period for Putative Class Members to opt-in to this case; and (5) authorize notice to be sent via First Class Mail, e-mail, and text message to the Putative Class Members. Plaintiff's Reply in Support of Conditional Certification 6 Date: June 21, 2019 Respectfully submitted, ANDERSON ALEXANDER, PLLC By: /s/ Clif Alexander Clif Alexander Federal I.D. No. 1138436 Texas Bar No. 24064805 clif@a2xlaw.com Lauren E. Braddy Federal I.D. No. 1122168 Texas Bar No. 24071993 lauren@a2xlaw.com Alan Clifton Gordon Federal I.D. No. 19259 Texas Bar No. 00793838 cgordon@a2xlaw.com Carter T. Hastings Federal I.D. No. 3101064 Texas Bar No. 24101879 carter@a2xlaw.com 819 N. Upper Broadway Corpus Christi, Texas 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 Attorneys in Charge for Plaintiff and the Putative Class Members Plaintiff's Reply in Support of Conditional Certification 7 CERTIFICATE OF SERVICE I hereby certify that on June 21, 2019, I electronically filed the foregoing document with the clerk of the court for the U.S. District Court, Western District of Texas using the electronic case filing system of the court. The electronic case filing system sent a "Notice of Electronic Filing" to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. /s/ Clif Alexander Clif Alexander Plaintiff's Reply in Support of Conditional Certification 8