Taylor v. C6 Disposal Systems, Inc.

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

PLAINTIFF'S REPLY in Support, filed by Charles Taylor, re {{19}} Opposed MOTION to Certify Class filed by Plaintiff Charles Taylor

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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 REPLY IN SUPPORT OF HIS MOTION FOR CONDITIONAL CERTIFICATION AND NOTICE TO THE PUTATIVE CLASS MEMBERS Plaintiff Charles Taylor files this Reply in Support of his Motion for Conditional Certification and Notice to Putative Class Members (ECF No. 19). Plaintiff has moved to conditionally certify a class of non-exempt Waste Disposal Drivers so that they can learn of this action and take the necessary steps to preserve their claims for unpaid wages and other applicable damages against Defendant C6 Disposal System, Inc. ("C6" or "Defendant").1 Plaintiff has more than met the lenient standard applicable at this preliminary notice stage of conditional certification and nothing in C6's Response detracts from those facts. Further, C6's objections to Plaintiff's proposed Notice and Consent Form are meritless. A. PLAINTIFF HAS PROVIDED EVIDENCE OF A GROUP OF SIMILARLY SITUATED EMPLOYEES The Plaintiffs who have already joined this lawsuit are former non-exempt Waste Disposal Drivers. That Plaintiffs and the Putative Class Members have similar job titles and duties is not in 1 Plaintiff notes that he has not abandoned any claims contained in his live pleading. Plaintiff's Reply in Support of Conditional Certification Page 1 dispute—they collect and dispose of waste for C6's customers in San Antonio, Texas. It is also not disputed that C6 has a company-wide policy of deducting thirty-minute meal-period breaks from Plaintiffs and the Putative Class Members' daily work hours. By way of the specific allegations made in their Original Collective Action Complaint, and the detailed and consistent declarations filed in support of their Motion, Plaintiffs have identified a company-wide common policy and/or plan whereby C6 makes these thirty-minute meal-period deductions despite having actual knowledge that Plaintiffs and the Putative Class Members regularly work through their respective meal-period breaks.2 The fact that Plaintiffs have 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). C6 cannot use its own written policy regarding automatic meal-period breaks as both a sword and shield. The existence of a policy (especially in light of evidence that it is not followed or enforced) will not prevent the certification of a collective action. See Falcon, 580 F.Supp.2d at 536–41. In Jewell v. Aarons, Inc., the district court was faced with the same arguments C6 makes herein, and it dealt with them as follows: Defendant's contention that conditional certification should be denied because Defendant has a written policy that all non-exempt hourly associates working more than six hours a day are required to take a minimum thirty[-]minute lunch break holds no water at this stage of the case. Nor does the corollary of this argument that violations of such a written policy must have necessarily resulted from isolated decisions by individual managers acting contrary to the express orders of their employer. Indeed, the existence of a formal policy of requiring employees to take a lunch break should not immunize the defendant where the plaintiffs have presented evidence that this policy was commonly violated in practice. 2 Since Plaintiff filed this lawsuit, two additional individuals have opted-in to this litigation as party plaintiffs. See ECF Nos. 11 and 15 (Notice of Filing Consent to Join Litigation for Tommy Santana and Jerry Garibay, respectively). By way of the specific allegations made in their Collective Action Complaint and the testimony provided by three former Waste Disposal Drivers, the Plaintiffs have identified a company-wide corporate policy whereby C6's Waste Disposal Drivers are pressured to, and do, perform necessary services off-the-clock and without compensation in violation of the FLSA. Specifically, Plaintiffs and the Putative Class Members regularly work through their lunch periods without compensation, and with C6's actual knowledge. Plaintiff's Reply in Support of Conditional Certification Page 2 Jewell v. Aarons, Inc., No. 1:12-cv-0563, 2012 WL 2477039, at *7 (N.D. Ga. June 28, 2012) (internal citations omitted). Here, the overwhelming evidence warrants conditional certification because Plaintiffs have made the requisite showing that C6's automatic thirty-minute meal-period deductions were made despite its knowledge that Plaintiffs and the Putative Class Members were working through their respective meal-periods, was (and continues to be) in violation of the FLSA. Curiously, C6 argues that the above allegations are somehow not enough. C6 appears to contend that, in addition to identifying a reasonable basis for the proposition that Plaintiffs are together the victims of common corporate policy, that Plaintiffs must also be able to support those allegations with concrete proof—proof that Plaintiffs do not, and cannot, have until after engaging in merits-based discovery. See Freeman v. Progress Resid. Prop. Mgr. LLC, No. 3:16-cv-00356, 2018 WL 1609577, at *7 (S.D. Tex. Apr. 3, 2018). This is simply not the law at the conditional certification stage. See id. (recognizing that a "rigorous" analysis is conducted at the decertification stage, after discovery is largely complete, and when the court has more information). Indeed, establishing C6's FLSA violations and proving that Plaintiffs are similarly situated for trial purposes (as opposed to discovery purposes) is a question to be answered after discovery has been substantially completed, and at the decertification or "second" stage of the certification analysis. See id. The fact that Plaintiffs have identified the existence of a common corporate policy that they allege (and support with evidence) to be applicable to the members of the Putative Class and causes Plaintiffs and the Putative Class Members to work off-the-clock and without compensation is sufficient for conditional certification. See Falcon v. Starbucks Corp., 580 F. Supp. 2d at 536–41. C6's attempt to distinguish Plaintiffs and the Putative Class Members' job duties and job titles is equally faulty. Although Plaintiffs and the Putative Class Members are all C6's non-exempt Waste Disposal Drivers who drive C6's waste disposal vehicles for the purposes of collecting C6's customers' waste, and transport to a designated disposal location—it is true that their specific job titles may differ. Plaintiff's Reply in Support of Conditional Certification Page 3 However, contrary to C6's assertions, those slight variations are immaterial to this Court's conditional certification analysis. Instead, "as long as the differences between class members are not material to the allegations of the case" "[a] class that encompasses a wide range of job positions may be conditionally certified[.]" Minyard v. Double D Tong, Inc., 237 F. Supp. 3d 480, 490 (W.D. Tex. 2017). The minor differences here "are not legally relevant because the alleged FLSA violations in this case do not turn on the nature of the work performed." See id. (citing Tamez v. BHP Billiton Petro., No. 5:15- cv-330, 2015 WL 7075971, at *3–4 (W.D. Tex. Oct. 5, 2015)) (recognizing that specific job titles and responsibilities are more relevant in misclassification cases). B. MERITS-BASED ISSUES ARE INAPPROPRIATE By arguing that Plaintiffs' claims are too "individualized" for collective treatment, C6 is asking this Court to skip the first step of the Lusardi analysis—the "notice" stage—and delve into a merits- based analysis that is consistently reserved for later stages of the litigation after discovery has been completed. Indeed, C6's"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) "The mere potential that individual issues may predominate after further discovery does not preclude conditional certification of the class." Id.; see also Maynor v. Dow, 671 F. Supp. 2d 902, 935 (S.D. Tex. May 28, 2009) ("The need for individual plaintiffs to establish the amount of uncompensated time does not defeat certification."); Metcalfe v. Revention, Inc., 2012 WL 3930319, at *6 (S.D. Tex. Sept. 10, 2012) ("Whether individualized determinations are necessary to define the extent of Plaintiff's damages, if any, does not weigh against efficiently establishing Defendant's class-wide liability."); C. THE FORM AND CONTENT OF PLAINTIFF'S NOTICE IS APPROPRIATE Plaintiff opposes C6's request to submit its proposed notice form. See ECF No. 31, p. 9. Plaintiff timely submitted his proposed notice with their Motion for Conditional Certification and C6 Plaintiff's Reply in Support of Conditional Certification Page 4 had the opportunity to review Plaintiff's notice, lodge any objections, and provide the Court its version of notice. It did not and it should not be permitted to do so at a later date. Moreover, C6's objections are meritless. C6 objects to the portions of Plaintiff's Proposed Notice that are "misleading, one-sided, or solicitous" without identifying any statements that could reasonably fall under that definition. Initially, instructing Putative Class Members to contact Plaintiff's counsel with questions merely preserves the integrity of the class—it would be wholly improper for them to contact C6 with questions about the lawsuit or their rights. Further, the statement informing the Putative Class Members of the three-year wasting statute of limitations is not only correct, but it is necessary to assist the Putative Class Members in understanding the time limits for their claims. C6 also objected to the notice because it does not inform the Putative Class Members that they could be responsible for the costs of the action. In the event C6 is the prevailing party, Plaintiffs and the Putative Class Members will not bear any risk of loss as a result of court costs or expenses. According the fee agreement between Plaintiff and the undersigned counsel, any loss will be borne by ANDERSON ALEXANDER, PLLC. As such, no warning is necessary in the Notice itself, and it would create an unnecessary chilling effect for the putative class. C6 further objects to providing the e-mail addresses for the putative class members, the issuance of e-mail notice, and posting the notice at its facilities. C6's objections are misplaced and incredibly outdated. See Wade v. Furmanite Am., Inc. No. 3:17-cv-00169, 2018 WL 2088011, at *6–7 (S.D. Tex. May 4, 2018) (disagreeing "strongly" with the defendants' position that "first-class mail alone is sufficient to ensure that potential plaintiffs receive notice"). It is common knowledge that "[t]oday, millions of Americans rely on email as their primary method for communication." See id. (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 Andrew M. Edison, Plaintiff's Reply in Support of Conditional Certification Page 5 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). Equally appropriate is notice via text message as cell phones increasingly provide the best method for contacting individuals. "[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." 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). Equally, posting the notice at C6's facilities is another meaningful method by which to notify the Putative Class Members of the existence of this lawsuit. See Gronefeld v. Integrated Prod. Servs., Inc., No. 5:16-CV-55, 2016 WL 8673851, at *6 (W.D. Tex. Apr. 26, 2016). This Court has the authority to issue text notice as it is within this Court's broad discretion to oversee the notice process. See Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 172 (1989). CONCLUSION For these reasons, 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 his Motion for conditional certification and authorize notice to the Putative Class Members. Plaintiff's Reply in Support of Conditional Certification Page 6 Date: July 17, 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 Plaintiff's Reply in Support of Conditional Certification Page 7 CERTIFICATE OF SERVICE I hereby certify that on July 17, 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 Page 8