Taylor v. C6 Disposal Systems, Inc.

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

Opposed MOTION to Certify Class by Charles Taylor.

Interested in this case?

Current View

Full Text

2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CHARLES TAYLOR, § Individually and on behalf § Civil Action No. 5:19-cv-00347-ESC of all others similarly situated § § Plaintiff § JURY TRIAL DEMANDED § v. § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. § 216(b) C6 DISPOSAL SYSTEMS, INC. § § CLASS ACTION PURSUANT TO Defendant § FED. R. CIV. P. 23 PLAINTIFF'S OPPOSED MOTION FOR CONDITIONAL CERTIFICATION AND NOTICE TO THE PUTATIVE CLASS MEMBERS Plaintiff Charles Taylor, individually and on behalf of all others similarly situated, brings this Motion for Conditional Certification and Notice to the Putative Class Members pursuant to the Fair Labor Standards Act ("FLSA"). 29 U.S.C. § 216(b). Plaintiff will show that he, the opt-in Plaintiffs, and the Putative Class Members are similarly situated, as defined herein as: "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"1 and that it is appropriate for this Court to issue notice to the Putative Class Members to advise them of their ability to join this lawsuit and potentially recover the unpaid wages owed to them. I. SUMMARY OF ARGUMENT Conditional certification is appropriate here because the employees that Plaintiff Taylor seeks to represent performed similar job duties and were all the victims of a single company-wide policy 1Plaintiff has also brought claims arising under the state laws of Texas, which qualify as a Federal Rule of Civil Procedure 23 class action. Plaintiff moves only for conditional certification under FLSA section 216(b), and not Rule 23 class certification, at this time. Motion for Conditional Certification and Notice to Putative Class Members Page 1 2 that uniformly failed to compensate them for all hours worked (regardless of any allegedly individualized factors) and are thus similarly situated. Because, as will be shown in greater detail below, Taylor has met the lenient standard for conditional certification, he respectfully requests that this Court conditionally certify this case as a collective action and authorize notice to the class of Drivers who are owed overtime wages. Notice at this stage is critical so that these workers can make an informed decision about whether to join this suit and stop the statute of limitations from running on their claims for unpaid overtime compensation. II. FACTS C6 Disposal Systems, Inc. ("C6 Disposal") provides waste collection services to commercial, industrial, and residential customers across the State of Texas. To provide these services, C6 Disposal employs numerous Waste Disposal Drivers—including Plaintiff and the Putative Class Members. While exact job titles may differ, these employees were subjected to the same or similar illegal pay practices for similar work in the waste disposal industry. Plaintiff and the Putative Class Members were responsible for the collection, transportation, and delivery of waste containers and compactors to C6 Disposal's customers. See Declaration ("Decl.") of Charles Taylor, at ¶¶ 2–4 (attached as Exhibit 1 to this Motion); Decl. of Jerry Garibay, at ¶¶ 2–4 (Ex. 2); Decl. of Tommy Santana, at ¶¶ 2–4 (Ex. 3). Plaintiff and the Putative Class Members had thirty (30) minutes of their pay automatically deducted each and every day for a meal-period break. Exs. 1–3, at ¶ 7. C6 Disposal made these deductions regardless of whether Plaintiff and the Putative Class Members actually took their breaks. See Exs. 1–3, ¶¶ 7–9. In fact, Plaintiff and the Putative Class Members rarely, if ever, took an uninterrupted 30-minute lunch break. See Exs. 1–3, ¶¶ 7–8. Instead, they would regularly skip lunch entirely or eat while working due to the time constraints of completing their assigned daily routes. Id. Even if a Waste Disposal Driver did try to take a lunch, management would call them, ask them why they stopped and tell them to get back on their route. Ex. 2, at ¶ 13. Motion for Conditional Certification and Notice to Putative Class Members Page 2 2 The result, in practice, of C6 Disposal's auto-deduction policy was (and is) to deny Plaintiffs and the Putative Class Members compensation for 2.5 to 3 overtime hours each week. C6 Disposal's policy and practice of making automatic lunch period pay deductions described above applied (and continues to apply) to all Plaintiff and Putative Class Members and evinces C6 Disposal's systemic failure to comply with the overtime requirements of Section 207 of the FLSA. II. ARGUMENT AND AUTHORITY A. LEGAL STANDARD FOR SECTION 216(B) NOTICE TO PUTATIVE CLASS MEMBERS The FLSA's "collective action" provision allows one or more employees to bring an action for overtime compensation on "behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). District courts have broad discretion to allow a party asserting FLSA claims on behalf of others to notify potential Plaintiffs that they may choose to "opt-in" to the suit. See Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). Court-authorized notice protects against "misleading communications" by the parties, resolves the parties' disputes regarding the content of any notice, prevents the proliferation of multiple individual lawsuits, assures joinder of additional parties is accomplished properly and efficiently, and expedites resolution of the dispute. Id. at 170– 72. The method adopted by this Court for determining whether to certify a collective action under § 216(b)—the Lusardi two-tiered approach—involves a preliminary decision regarding notice to putative class members. Gomez v. Loomis Armored US, LLC, No. SA-16-CA-00931-DAE, 2017 WL 2999422, at *3 (W.D. Tex. Apr. 3, 2017); Townsend v. Cent. Pony Express, Inc., No. SA-17-CV-00552- OLG, 2018 WL 2432962, at *1–2 (W.D. Tex. Jan. 26, 2018). In the first stage, called the notice stage, the district court makes an initial determination whether notice of the action should be sent to potential class members. Gomez, 2017 WL 2999422, at *3. This determination is based solely on the pleadings and affidavits, and the standard is a lenient one typically resulting in conditional certification Motion for Conditional Certification and Notice to Putative Class Members Page 3 2 of a representative class to whom notice is sent and who receive an opportunity to "opt in." Townsend, 2018 WL 2432962, at *2. (emphasis added). Conditional certification "is not tantamount to class certification under Rule 23." Genesis Healthcare Corp. v. Symcyk, 133 S. Ct. 1523, 1532 (2013). In applying the lenient standard, the Court inquires as to whether the plaintiff has provided sufficient evidence that the class member representatives are "similarly situated in terms of job requirements and similarly situated in terms of payment provisions" or whether the plaintiff substantially alleged that the potential class members were "together the victims or a single decision, policy, or plan." Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214, n. 8 (5th Cir. 1995); Townsend, 2018 WL 2432962, at *4; Mateos v. Select Energy Servs., LLC, 977 F. Supp. 2d 640, 643 (W.D. Tex. 2013); Pedigo v. 3003 S. Lamar, LLP, 666 F. Supp. 2d 693, 698 (W.D. Tex. 2009) (same). Importantly, plaintiffs need only show that they are similarly situated, not that they are identically situated. See Grayson, 79 F.3d at 1096; Contreras, et al. v. Land Restoration LLC, et al. No. 1:16- cv-883-RP, 2017 WL 663560, at *6 (W.D. Tex. Feb. 17, 2017). As one district court in the Fifth Circuit recently noted: [T]he court need not find uniformity in each and every aspect of employment to determine [that] a class of employees is similarly situated. The remedial nature of the FLSA and § 216 militate strongly in favor of allowing cases to proceed collectively. Tolentino v. C&J Spec-Rent Services, Inc., C.A. 2:09-cv-00326, 2010 WL 2196261, at *4 (S.D. Tex. May 26, 2010) (Jack, J.) (citing Albanil v. Coast 2 Coast, Inc., C.A. 4:08-cv-00486, 2008 WL 4937565, at *3 (S.D. Tex. Nov. 17, 2008)). Further, the plaintiffs need only demonstrate "a reasonable basis" for the allegation that a class of similarly situated persons exists. Grayson, 79 F.3d at 1097. See, e.g., Townsend, 2018 WL 2432962, at *4 (Garcia J.) (one declaration sufficient); Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510, 512 (W.D. Tex. 2015) (Pitman, J.) (finding declaration of single plaintiff and one co-worker sufficient to Motion for Conditional Certification and Notice to Putative Class Members Page 4 2 grant conditional certification); Villatoro v. Kim Son Restaurant, 286 F. Supp. 2d 807, 810-11 (S.D. Tex. 2003) (Atlas J.) (one declaration plus employer documents sufficient). B. NOTICE IS APPROPRIATE ON THE FACTS PRESENTED BECAUSE THE PUTATIVE CLASS MEMBERS ARE SIMILARLY SITUATED At the notice stage, courts determine whether plaintiff and potential opt-ins are "similarly situated" based upon allegations in a complaint supported by affidavits. Mooney, 54 F.3d at 1213–16; Grayson, 79 F.3d at 1096. To be similarly situated, each class member's situation need not be identical, but merely similar. Riojas v. Seal Produce, Inc., 82 F.R.D. 613, 616 (S.D. Tex. 1979). In order for notice to be issued, some evidence of "a single decision, policy, or plan" should be presented. Collazo, 2010 WL 335327, at *2 (emphasis added); Dreyer v. Baker Hughes Oilfield Operations, Inc., 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008); see generally H&R Block, LTD. v. Housden & Beard, 186 F.R.D. 399, 400 (E.D. Tex. 1999). Proof of such a single practice can be provided through declarations of potential plaintiffs, identification of potential plaintiffs, and/or evidence of a widespread plan. Id. (citations omitted). In addition to these factors, some courts consider whether other individuals desire to opt-in and are similarly situated to those bringing the suit. See, e.g., Flowers v. Mo's Steakhouse, 2012 WL 1941755, at *2 (S.D. Tex. May 29, 2012); Dybach v. State of Fla. Dept. of Corrections, 942 F.2d 1562, 1567–68 (11th Cir. 1991); Pedigo v. 3003 South Lamar, LLP, 666 F.Supp.2d 693, 698 (W.D. Tex. 2009) ("[t]he joinder of additional plaintiffs after the inception of the case is persuasive evidence that a putative class does exist); but see Dreyer v. Baker Hughes Oilfield Operations, Inc., C.A. No. H-08-1212, 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008) (rejecting the argument that an FLSA collective action can be certified only if the plaintiffs proves that others are interested in opting in to the lawsuit); Townsend, 2018 WL 2432962, at *2 (Garcia, J.) ("'requiring Plaintiffs to identify and obtain preliminary support from potential class members' at this stage is akin to 'putting the cart before the horse.'") (quoting Contreras, 2017 WL 663560, at *7). Additionally, "[i]f there is a reasonable Motion for Conditional Certification and Notice to Putative Class Members Page 5 2 basis to conclude that the same policy applies to multiple locations of a single company, certification is appropriate." Id. (quoting Rueda v. Tecon Servs., Inc., 2011 WL 256607, at *4 (S.D. Tex. June 28, 2011)). In this case, Plaintiff has more than met the lenient standard of showing that notice to the Putative Class Members is appropriate. Specifically, since the filing of the lawsuit, two additional Waste Disposal Drivers have filed their consents to join this collective action.2 This Court is well within its authority to issue notice based on this fact alone. Shaffner v. Cash Register Sales & Serv. of Houston, Inc., 2006 WL 1007542, at *1 (S.D. Tex. Apr. 17, 2006). Plaintiffs have shown that there are other similarly situated drivers who desire to opt-in to this case. Exs. 1 and 3, at ¶ 17; Ex. 2, at ¶ 18. The fact that C6 Disposal automatically deducted 30 minutes per day from all of its non- exempt Waste Disposal Drivers regardless of whether they actually took a meal break, where they worked, how long they worked, what type of route/truck they drove, or any other individualized factors demonstrates that all Waste Disposal Drivers are similarly situated for purposes of conditional certification. See Taylor v. Republic Services, Inc., No. 2:16-cv-00502, Minute Entry (S.D. Tex. Feb. 24, 2017) (Ramos, J.) (certifying a nation-wide class of more than 20,000 waste disposal drivers who alleged that they worked through their automatically-deducted meal-period breaks); Velasquez v. WCA Mgmt. Co., L.P., No. 4:15-cv-02329, 2016 WL 4440332, at *1 (S.D. Tex. Aug. 23, 2016) (Harmon, J.) (certifying a class of waste disposal drivers and helpers who alleged that they were underpaid for their overtime hours); Turner v. BFI Waste Servs., LLC, 268 F. Supp. 3d 831, 840 (D.S.C. 2017) (Norton, J.) (certifying class of waste disposal drivers who alleged that they worked through their automatically- deducted meal-period breaks); Macias v. BF Waste Services of Texas, LP, No. 2:16-cv-00245-J, 2017 WL 1929496, (N.D. Tex. May 9, 2017) (Robinson, J.) (certifying class of waste disposal drivers who alleged that they worked through their automatically-deducted meal-period breaks); Villegas v. Grace Disposal 2 See ECF Nos. 11 and 15 Tommy Santana and Jerry Garibay, respectively. Motion for Conditional Certification and Notice to Putative Class Members Page 6 2 Sys., LLC, No. CIV.A. H-13-320, 2014 WL 793977, at *6 (S.D. Tex. Feb. 27, 2014) (Miller J.) (conditionally certifying a class of similarly situated waste disposal drivers); Johnson v. Nation Waste, Inc., No. 4:18-cv-04476, Minute Entry (S.D. Tex. June 11, 2019) (Ellison, J.) (certifying a class of all non- exempt drivers who worked for Nation Waste, Inc. who alleged that they worked through their automatically-deducted meal-period breaks). C. THE STATUTE OF LIMITATIONS IS RUNNING ON PUTATIVE CLASS MEMBERS' VALUABLE (AND VIABLE) CLAIMS Unlike Rule 23 class actions in which the statute of limitations is tolled for all potential class members with the filing of the lawsuit, the statute of limitations under the FLSA is not tolled with the commencement of the action or even with an order granting conditional certification. Fisher v. Michigan Bell Telephone Co., 2009 WL 3427048, at *8 (E.D. Mich. Oct. 22, 2009). Rather, the statute of limitations continues to run on each individual's claim until they file their written consent to join the action with the court. Id.; see also 29 U.S.C. § 216(b). Although the notice process does not stop the statute of limitations, it does, at a minimum, notify the putative collective class members of the case, and that the statute of limitations is running on their claims. Fisher, 2009 WL 3427048, at *8 (citing Hoffman-La Roche, 493 U.S. at 170). IV. RELIEF SOUGHT Plaintiff seeks the issuance of notice to all potential plaintiffs and the disclosure of the names and contact information (including the addresses, e-mail addresses and telephone numbers) of all Waste Disposal Drivers who worked for C6 Disposal at any time during the past three years. A. PLAINTIFF'S PROPOSED SCHEDULE AND NOTICE/CONSENT FORM To facilitate the notice process and preserve the rights of those who have not yet opted-in (or learned of this lawsuit), Plaintiff has attached a proposed Notice and Consent form to be approved by the Court. See Ex. 4. These forms are based on various Notice and Consent forms previously Motion for Conditional Certification and Notice to Putative Class Members Page 7 2 approved courts within the Western District of Texas, though they have been modified for this particular case. Plaintiff seeks to notify a group of potential plaintiffs described as follows: 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 Additionally, Plaintiff seeks an Order from this Court adopting the following schedule: SUBJECT DEADLINE Defendant to disclose the names, addresses, e- 14 Days from Order Approving Notice mail addresses, and telephone numbers of the to Putative Class Members Putative Class Members in a usable electronic format. Plaintiff's counsel shall send by mail, e-mail, and text-message the Court-approved Notice and 21 Days from Order Approving Notice Consent Form to the Putative Class Members. to Putative Class Members Defendant shall post a copy of the Notice and Consent Form at all job sites and office locations. The Putative Class Members shall have 60 days to return their signed Consent forms for filing with 60 Days from Notice is Mailed to the Court. Putative Class Members Defendant may take down the posted Notice and Consent Form. Plaintiff's Counsel is authorized to send by mail, e- mail, and text-message a second identical copy of the Notice/Consent Form to the Putative Class 30 Days from Notice is Mailed to Members reminding them of the deadline for the Putative Class Members submission of the Consent forms. Plaintiff's Counsel is authorized to call Putative Class Members to ensure the Consent forms were received. Motion for Conditional Certification and Notice to Putative Class Members Page 8 2 Plaintiff proposes that the Notice and Consent forms be mailed via First Class Mail, e-mail, and text-message to all Putative Class Members.3 E-mail notice is a common form of notification in FLSA cases and is routinely granted by courts in the Fifth Circuit and across the United States. See Page v. Crescent Directional Drilling, L.P., No. 5:15-cv-193-RP, 2015 WL 12660425, at *3 (W.D. Tex. Dec. 10, 2015) ("Email is not the wave of the future; [it] is the wave of the last decade and a half[.]"); Wade v. Furmanite Am., Inc. No. 3:17-cv-00169, 2018 WL 2088011, at *6–7 (S.D. Tex. May 4, 2018) (recognizing that first-class mail, like the Pony Express, telegrams, and the fax machine before it, is probably soon to be considered a "relic of a bygone era"). To further quote Magistrate Judge Edison, When playing darts, one has a much better chance of hitting a bull's-eye if he uses more than one dart. The same reasoning applies here. Utilizing two means of delivery—first class mail and email—is more likely to result in the potential plaintiffs receiving notice of the lawsuit than by a single delivery method. Id. at *7 (recognizing that social networking might soon replace email as the most effective means of reaching potential class members). Sending notice by email therefore effectuates the broad remedial purpose of the FLSA by facilitating notice to members of the putative class. Jones, 149 F. Supp. 3d at 775–76. District Courts in the Fifth Circuit also recognize that "[n]otice via text message is also reasonable and routinely granted by courts for a variety of reasons–including that email and text notice can be a more reliable and effective way to reach potential plaintiffs." Wade, 2018 WL 2088011, at *21 (citing Miranda v. Mahard Egg Farm, Inc., No. 4:15-cv-406-ALM (E.D. Tex. Apr. 28, 2016); 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) 3Plaintiff's counsel will oversee the dissemination of such notices and pay the up-front charges. All Putative Class Members interested in joining this lawsuit would be required to return their respective consent form to Plaintiff's counsel for filing with this Court within sixty (60) days of the initial mailing of the Notice and Consent forms. Motion for Conditional Certification and Notice to Putative Class Members Page 9 2 ("[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.") Plaintiff proposes sending a text-message link that will redirect Putative Class Members to a webpage containing the full Court authorized Notice and Consent Form.4 V. CONCLUSION Plaintiff has more than met his minimal burden to show that other similarly situated individuals exist and are interested in asserting their claims. In order to facilitate the purposes of the FLSA's collective action provisions, Plaintiff respectfully requests that the Court grant this Motion and: (1) conditionally certify this action for purposes of notice and discovery; (2) order that judicially- approved notice be sent to all Putative Class Members; (3) approve the form and content of Plaintiff's proposed judicial notice and reminder notice; (4) order Defendant to produce to Plaintiff's counsel the contact information (including the names, address, telephone number and e-mail address) for each Putative Class Member in a usable electronic format; (5) authorize a 60-day notice period for Putative Class Members to join the case; and (6) authorize notice to be sent via First Class Mail and e-mail to the Putative Class Members. 4Plaintiff requests that the Putative Class Members be given the option to execute their consent forms on-line through an electronic signature service. This service allows Putative Class Members to sign their consent forms electronically by clicking on a link in an encrypted email or text-message designated only for that user, which in turn takes to them to a website where they can review the document they are signing, click a box indicating they have read and understood the consent form and insert information such as their name and date. Users are instantaneously provided with a PDF copy of the form they signed and a copy of the form is made accessible to Plaintiff's counsel who will in turn file the same with the Court, just as if such document had been received via regular mail. Motion for Conditional Certification and Notice to Putative Class Members Page 10 2 Date: June 21, 2019 Respectfully submitted, ANDERSON ALEXANDER, PLLC By: /s/ Clif Alexander Clif Alexander Texas Bar No. 24064805 clif@a2xlaw.com Lauren E. Braddy Texas Bar No. 24071993 lauren@a2xlaw.com Alan Clifton Gordon Texas Bar No. 00793838 cgordon@a2xlaw.com Carter T. Hastings Texas Bar No. 24101879 carter@a2xlaw.com 819 N. Upper Broadway Corpus Christi, Texas 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 Attorneys for Plaintiff and the Putative Class Members Motion for Conditional Certification and Notice to Putative Class Members Page 11 2 CERTIFICATE OF CONFERENCE I hereby certify that I have conferred with Defendant's counsel of record and Defendant is opposed to the relief requested in this Motion. /s/ Clif Alexander Clif Alexander 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 Motion for Conditional Certification and Notice to Putative Class Members Page 12