Taylor v. C6 Disposal Systems, Inc.

Western District of Texas, txwd-5:2019-cv-00347

Defendant's Response in Opposition to Motion, filed by C6 DISPOSAL SYSTEMS, INC., re {{19}} Opposed MOTION to Certify Class filed by Plaintiff Charles Taylor

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3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CHARLES TAYLOR, § Individually and on behalf of all § others similarly situated § § PLAINTIFF, § § v. § CIV. ACTION NO. 5:19-CV-00347-ESC § C6 DISPOSAL SYSTEMS, INC., § DEFENDANT. § § DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION AND NOTICE TO PUTATIVE CLASS MEMBERS Defendant C6 ("Defendant" or "C6") files this Response in Opposition to Plaintiff's Motion for Conditional Certification and Notice to Potential Class Members (the "Motion") and respectfully shows the Court as follows: I. SUMMARY OF RESPONSE In this Fair Labor Standards Act ("FLSA") lawsuit, Plaintiff Charles Taylor ("Plaintiff") alleges the C6 failed to properly calculate and compensate him for hours worked over forty in a workweek. Specifically, in his Original Complaint, Plaintiff alleges that Defendant violated the FLSA by subjecting him to an automatic thirty-minute lunch break deduction; and (2) failing to pay him for time spent in line waiting at the dump. See, Original Complaint at ¶ 5-6. Plaintiff does not address the latter claim in the Motion, and thus it must be presumed this claim has been abandoned for purposes of the Motion. Plaintiff is seeking conditional certification of a broad class of "All Waste Disposal Drivers Who Worked for C6 Disposal Systems, Inc. Anywhere in the United States, At Any Time From April 3, 2016 Through the Final Disposition of this Matter." See, Motion 3 at p. 1. Conditional certification of the requested class is untenable for the following reasons: 1. Plaintiff has failed to establish the existence of an unlawful policy or practice in the Motion. Maintenance of an automatic lunch break deduction by itself is not per se unlawful, and Plaintiff has failed to provide sufficient evidence in the Motion to articulate a violation of the FLSA. It is undisputed that C6 had a clear written policy requiring all of its drivers to take a 30-minute lunch break as required by federal safety regulations, and that C6's drivers repeatedly were informed of and acknowledged that policy before and during their employment with C6. However, Plaintiff provides no evidence that he or any other driver ever told C6 that they were not taking their lunch break and yet were not paid for the time they claim to have worked through lunch. 2. Because Plaintiff provides no evidence to suggest that C6 failed to pay its drivers after being informed that those drivers did not take their required 30-minute lunch break, individualized inquiries concerning whether a particular driver did not take a lunch break on a particular day and whether that driver informed C6 of that fact would predominate over any common issues and would eliminate any economy of scale envisioned by the FLSA collective action procedure, as would inquiries regarding C6's fraud counterclaims. 3. Plaintiff seeks to represent all of C6's waste haulers, but differences between the pay practices and job requirements of drivers like Plaintiff and putative collective action member Tommy Santana ("Santana") who only hauled construction debris, drivers who serviced commercial dumpsters, and drivers who generally serviced 3 residential customers such as putative collective action member Jerry Garibay ("Garibay") make such a broad class unworkable. 4. In addition, Plaintiff's request for Court approval of his proposed notice and his requests for overbroad and unfounded methods of transmission and for sensitive information about the putative collective action members should be denied as improper and unwarranted under the circumstances of this case. II. FACTUAL BACKGROUND C6 provides waste collection and disposal services in the San Antonio area. There are three types of waste disposal drivers who work for C6: those who service roll- off containers containing construction and demolition debris ("Roll-Off Drivers"), those who service front and side load dumpsters at commercial establishments ("Front/Side Load Drivers"), and those who service residential customers via curbside pickup of bins of trash ("Residential Drivers"). These three types of drivers have very different job requirements and pay provisions. See, Ex. A, Declaration of Jorge Cantu at ¶ 4-11. C6 has a strict company policy requiring all of its drivers to take a 30-minute lunch break during which they are completely relieved of duty. This policy is consistent with Federal Motor Carrier Safety Act regulations, which require drivers of large vehicles to take an uninterrupted 30-minute break at least once every 8 hours. See, 49 CFR § 395.3(a)(3)(ii). All drivers for C6 acknowledge this policy in writing on numerous occasions, and further sign daily timesheets on which they confirm that they had been "relieved of duty for one half hour for meals." Id. at ¶ 15-20. On the rare occasion that a driver tells C6 that he was unable to take his lunch break, C6 pays that driver for the amount of time that he claimed he had worked through 3 lunch. But because this is a violation of company policy and federal regulations that can result in termination of employment, it is exceedingly rare for drivers to tell C6 that they did not take their lunch break. Neither Plaintiff nor Garribay ever told C6 that they were not taking their lunch break. In 2015, on two occasions Santana did inform C6 that he had not taken his lunch break as required and C6 paid him for the time he claimed to have worked. Id. at ¶ 21-22. Contrary to the conclusory and self-serving declarations provided by Plaintiff, Garibay, and Santana, C6 does not use GPS to track its drivers' movements and has never permitted, suffered, encouraged, or required any driver to skip their lunch break or work through their lunch break or not to stop for their lunch break. Id. at ¶ 23-24. C6 has always paid its drivers for all time that they work, and overtime for time worked over 40 hours. Id. at ¶ 12. III. ARGUMENT AND AUTHORITIES A. Standard of Review The Motion accurately sets forth the basic two-step Lusardi approach to determine conditional certification under the FLSA. See, Motion at p. 3. At this initial notice stage, the Court must make a "factual determination as to whether the employees are similarly situated; if it so finds, the collective action may proceed." Rivenbark v. JPMorgan Chase & Co., 340 F. Supp. 3d 619, 623 (S.D. Tex. 2018). The plaintiff bears the burden of proving that conditional certification is warranted. See Songer v. Dillon Res., Inc., 569 F. Supp. 2d 703, 706 (N.D. Tex. 2008) (denying conditional certification and noting that, "[w]hile the plaintiffs' burden at this stage is not onerous, neither is it invisible."). A plaintiff's "conclusory allegations" are insufficient to 3 satisfy this burden, even at the notice stage. See Austin v. Onward, LLC, 161 F. Supp. 3d 457, 465 (S.D. Tex. 2015). B. Plaintiff Has Failed to Provide Sufficient Evidence or Allegations to Indicate That the C6's Lunch Break Policy or Practice Violates the FLSA. Plaintiff's Motion assumes without any legal or factual support that the adoption of an automatic 30-minute lunch break deduction violates the FLSA. However, the maintenance of such a policy is not per se a violation of the FLSA. See Valcho v. Dallas County Hosp. Dist., 574 F. Supp. 2d 618, 620 (N.D. Tex. 2008); Dudley v. Texas Waste Sys., Inc., CIV.A.SA-05-CA-0078-, 2005 WL 1140605, at *2 (W.D. Tex. May 16, 2005). Moreover, Plaintiff's declaration and the declarations of Santana and Garibay are devoid of any allegation that they were subject to the deduction on days when they did not take a lunch break and they specifically notified C6 that they did not take the lunch break. The law is clear that an employer cannot be held liable under the FLSA where the employee failed to notify the employer that he or she had worked additional overtime hours. See Pickney v. Express Auto Grp., Inc., 4:13-CV- 02031, 2014 WL 4794587 (S.D. Tex. Sept. 24, 2015) ("An employee cannot, however, perform overtime work without the employer's knowledge or contrary to the employer's directions and then assert a right to be paid"); Ihegword v. Harris Cnty. Hosp. Dist., 929 F. Supp. 2d 635, 663 (S.D. Tex. 2013) (Lake, J.), aff'd, 555 F.App'x 372 (5th Cir. 2014)(same). And while Garibay (and only Garibay) claims that he was told to "hurry up" and that he "shouldn't stop" for his lunch break, he does not claim that on those alleged occasions he did not take his lunch break and then told C6 that he hadn't taken his lunch break. See, Doc. 19-2 at ¶ 13. 3 Without proof that C6 was told that its employees were not taking their required lunch break and failed to pay them for time allegedly worked through lunch, Plaintiff's and the putative collective action members' conclusory and self- serving statements in their declarations are insufficient to establish a class-wide violation of the FLSA with respect to C6's automatic 30-minute lunch break deduction policy. See, Dudley, 2005 WL 1140605, at *2 (W.D. Tex. May 16, 2005)(holding that where the waste hauling employer had a written policy that required lunch breaks, the record did not support certification because it contained only "unsupported assertions of improper lunch break adjustments"). C. Individualized Inquiries Prevent Conditional Certification Courts have refused to permit FLSA suits to proceed as collective actions if the individualized inquiries required would eliminate "the economy of scale envisioned by the FLSA collective action procedure." Maynor v. Dow Chem. Co., CIV. A. G-07-0504, 2008 WL 2220394, at *7 (S.D. Tex. May 28, 2008)(internal citation omitted). Thus, in a case almost identical to this one, Judge Xavier Rodriguez found that a waste hauling driver complaining of his employer's automatic 30-minute lunch break deduction had failed to demonstrate the existence of a similarly situated class of employees. Judge Rodriguez explained that: [a]ny analysis of lunch breaks will result in this court and any jury hearing individual testimony regarding whether drivers regularly took lunch breaks, or only occasionally. If they did not take lunch breaks, the fact finder will need to hear the dates each driver actually worked through lunch and whether they needed to be compensated for an extra 30 minutes or one hour for the particular day. Further, 3 the fact finder will need to hear whether any driver advised management that they worked through their break and required compensation. Dudley, 2005 WL 1140605, at *2. Furthermore, individualized inquiries regarding C6's fraud counterclaim against Plaintiff, which are based in part on documents signed by Plaintiff and the two putative conditional class members in which they all acknowledge, agree to follow, and represent that they have followed C6's mandatory lunch break policy would militate against conditional certification. See, e.g., In re: Narconon Drug Rehab. Mktg., Sales Practices & Products Liab. Litig., 84 F. Supp. 3d 1367(U.S. Jud. Pan. Mult. Lit. 2015)(denying centralization of proceedings because individualized inquiries regarding fraud claims would predominate over common ones). D. Plaintiff Has Failed to Establish that He Is Similarly Situated With "All Waste Disposal Drivers" at C6 The only evidence Plaintiff submits regarding his job duties and the job duties of the putative collective action members is a single allegation repeated verbatim in both Plaintiff's declaration and the declarations of Garibay and Santana that "[m]y daily job duties included the collection, transportation and disposal of waste for C6 Disposal and/or its clients in the San Antonio, Texas area." Not only do these unspecific and conclusory allegations fail to sufficiently describe the declarants' job duties, the declarations fail to even mention the type of waste hauling they performed for C6 or the differences in job duties and pay provisions applicable to the different types of waste haulers at C6. And even the unspecific and conclusory declarations of Plaintiff, Garibay, and Santana acknowledge differences in pay practices, with Plaintiff and Garibay being claiming to 3 have been paid hourly and/or at a piece rate at various unspecified times and Santana claiming to have only been paid a piece rate. "For the class representative to be considered similarly situated to the potential opt-in class members, the class representative must be similarly situated in terms of job requirements and similarly situated in terms of payment provisions." Vanzzini v. Action Meat Distrib. Inc., No. 4:11-CV-04173, 2012 WL 1941763 (S.D. Tex. May 29, 2012). Furthermore, "if the job duties among putative class members vary significantly, then class certification should be denied." Harris v. Fee Transp. Servs., No. Civ.A.3:05CV0077-P, 2006 WL 1994586, at *5 (N.D. Tex. May 15, 2006) (noting the "significant" differences between the job duties of potential plaintiffs); Aguirre v. SBC Commc'ns, Inc., No. H-05-3198, 2007 WL 772756, at *9 (S.D. Tex. Mar. 12, 2007) (noting that plaintiffs are not similarly situated if their job duties vary "substantially"); Dreyer v. Baker Hughes Oilfield Operations, Inc., No. CIV.A. H-08-1212, 2008 WL 5204149, at *2 (S.D. Tex. Dec. 11, 2008)(same). Plaintiff nonetheless asks the Court to overlook the divergent job duties and pay practices among C6 drivers and still certify a class of "All Waste Disposal Drivers." Plaintiff, who was a Roll-Off Driver, impermissibly seeks to represent Front/Side Load Drivers and Residential Drivers who had different job requirements and were subject to different pay provisions. Plaintiff thus attempts to establish an expansive class of "All Waste Disposal Drivers" under the faulty premise that a broad allegation of entitlement to unpaid overtime wages alone (regardless of job duties, pay practice or legal theory) is sufficient to meet the "lenient" Lusardi standard. Adoption of Plaintiff's rationale would swallow the rule and 3 render the "similarly situated" inquiry obsolete. Under Plaintiff's proffered theory, the class does not have to be similarly situated, just allegedly entitled to some overtime wages based on an automatic 30-minute lunch break deduction policy that is perfectly legal, is required by federal safety regulations, and would only arguably violate the FLSA if (as neither Plaintiff nor Garibay nor Santana allege) C6 was informed that its drivers were not taking the required lunch break and yet still did not pay them for the time they claimed to have worked through lunch. See, Dudley, 2005 WL 1140605, at *2. E. Plaintiff's Request for Approval of His Proposed Notice and Additional Requests Should Be Denied. As set forth above, Plaintiff's Motion for Conditional Certification should be denied. Subject to and without waiving that contention, C6 would show that Plaintiff's proposed notice (the "Notice") is deficient in several respects, as follows: First, the Notice contains many statements that are misleading, one-sided, and solicitous. See, e.g. Notice at p. 5 (directing recipients to call Plaintiff's counsel and encouraging recipients to decide whether to take action promptly "if they wish to have the opportunity to make a full recovery.") In light of the number of such inaccuracies and unbalanced statements contained throughout the Notice, Defendant respectfully requests that Court permit Defendant to submit a proposed revised notice for the Court's consideration if the Court grants Plaintiff's Motion in whole or in part, which would include a "brief explanation of Defendant's bases for disputing liability." See, Tolentino v. C & J Spec-Rent Services Inc., 716 F. Supp. 2d 642, 655 (S.D. Tex. 2010) Second, Plaintiff improperly seeks to notify drivers who worked for C6 within the three years prior to the date of suit. Motion at p. 8. However, "[t]he date of approval of notice is determinative for purposes of establishing a class period." Snively v. Peak 3 Pressure Control, LLC, 174 F. Supp. 3d 953, 963 (W.D. Tex. 2016). Thus, any class definition and notice should be limited to those drivers who worked for C6 during the three-year period before the date the Court authorizes notice, if any. Third, the proposed Notice fails to inform potential opt-ins of the possibility that C6's court costs and expenses could potentially be assessed against them and all other plaintiffs if they do not prevail on their claim. Ramos v. Capitan Corp., MO:16-CV-00075- RAJ, 2016 WL 8674617, at *6 (W.D. Tex. May 18, 2016). The proposed Notice further fails to inform potential opt-ins of the pendency of C6's counterclaim against Plaintiff arising out of his misrepresentations regarding hours worked. Fourth, Plaintiff's request that he be allowed to email putative class members in addition to mailing them the notice should be denied or, alternatively, only be permitted where the mailing was returned as undeliverable. See Garcia v. TWC Admin, LLC, No. SA:14-CV-985- DAE, 2015 WL 1737932, at *4 (W.D. Tex. Apr. 16, 2015)(not allowing contact by both mail and email because mail was sufficient, but allowing another method of contact if mail was returned as undeliverable). For the same reason, Plaintiff's request to send the notice also by text message and call the putative class members directly is not warranted or appropriate in this case. Plaintiff does not even specify exactly what the email or text would say. Fifth, Plaintiff's requests to post notice at C6's job sites and office locations should be denied as unnecessary and overly intrusive. See In re Wells Fargo Wage & Hour Employment Practices Litig. (No. III), No. 11-2266, 2013 WL 2180014, at *2 (S.D. Tex. May 17, 2013) ("[P]ostings [only reaching current employees] would thus merely be supplemental to the mailed notice and are therefore overly intrusive.") 3 Lastly, Plaintiff's Proposed Order improperly includes the language which is not addressed or requested in the Motion at all and improperly seeks to prohibit C6 from communicating with its employees or potential witnesses "about any matters which touch or concern" the claims in this lawsuit "or other matters related to this suit" during the pendency of the lawsuit and further contains language suggesting that in the absence of an order of this Court C6 would "intimidate, threaten, restrain, harass, coerce, or in any manner discriminate against" Plaintiff, putative collective action members, witnesses or related parties. There is simply no basis for inclusion of such language in the Court's Order, and Plaintiff has not provided evidence or argument to support its inclusion. IV. CONCLUSION For the foregoing reasons, C6 respectfully requests that this Court deny Plaintiff's Motion for Conditional Certification and grant C6 all other relief to which it is justly entitled at law or in equity. Respectfully submitted, Riley & Riley, Attorneys at Law By: /s/ Charles Riley CHARLES RILEY State Bar No. 24039138 320 Lexington Avenue San Antonio, Texas 78215 Telephone: (210) 225-7236 Facsimile: (210) 227-7907 Attorney for Defendant 3 CERTIFICATE OF SERVICE I certify that on the 10th day of July, 2019 a true and correct copy of the above and foregoing was served on the following in the manner indicated: Clif Alexander Via CM/ECF ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 clif@a2xlaw.com Attorney for Plaintiff /s/ Charles Riley CHARLES RILEY 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CHARLES TAYLOR, § Individually and on behalf of all § others similarly situated § § PLAINTIFF, § § v. § CIV. ACTION NO. 5:19-CV-00347-ESC § C6 DISPOSAL SYSTEMS, INC., § DEFENDANT. § § ORDER DENYING PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION AND NOTICE TO PUTATIVE CLASS MEMBERS On this date the Court considered Plaintiff's Motion for Conditional Certification and Notice to Putative Class Members ("Motion"). After consideration of the evidence and argument presented by the parties, the Court has decided to deny the Motion. IT IS THEREFORE ORDERED that Plaintiff's Opposed Motion for Conditional Certification and Notice to Putative Class Members is DENIED. SIGNED on this ___ day of ______, 2019. ____________________________________ JUDGE ELIZABETH S. CHESTNEY UNITED STATES MAGISTRATE JUDGE