Opinion
No. SA-03-CA-170-RF
August 21, 2003
BEFORE THE COURT are the three consolidated motions of Plaintiffs: (1) for notice to potential plaintiffs/class certification, (2) for expedited discovery, and (3) for leave to late file motion for class certification. Upon consideration of Plaintiffs' requests and Defendant's response thereto, the Court GRANTS the motions for notice to potential plaintiffs and for expedited discovery, but DENIES AS MOOT the motion for leave to late file motion for class certification.
The Court believes the latter motion is unnecessary since this is not a class action proceeding under Federal Rule of Civil Procedure 23. Rather, the Court, as explained below, shall conditionally certify the class pursuant to § 216(b) of the Fair Labor Standards Act and allow Plaintiffs to notify the potential class members that they may join the action.
I. Background
The instant controversy centers around Defendant City of San Antonio's (the "City") employment of Plaintiffs in the Youth Services Division of its Parks and Recreation Department. In their complaint, Plaintiffs allege a number of violations of the Fair Labor Standards Act ("FLSA") on behalf of themselves and others similarly situated. Specifically, Plaintiffs claim that the City did not pay them overtime at the proper rate, required them to forfeit unused accrued compensatory time at the end of the year, and failed to fully pay them for overnight and weekend recreational trips. At present, Plaintiffs request the Court to allow them to notify all of the putative class members of the pending lawsuit in order to obtain their consent to join the action. Plaintiffs also ask the Court to order the City to turn over the names and addresses of potential class members.
Plaintiff describes "Youth Services" as programs involving planning, supervising, and overseeing recreational activities, staffing the recreation centers and facilities, and helping in the maintenance and operation of youth services conducted at and from such facilities. See Pls.' 1st Am. Compl. at 2.
Unless noted otherwise, all references to Plaintiffs' "complaint" are the first amended complaint filed on May 7, 2003.
Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (2000).
II. Discussion
The Fair Labor Standards Act permits an aggrieved employee to bring suit against an offending employer "for and in behalf of himself . . . and other employees similarly situated." Importantly, the FLSA representative action differs from the class action highlighted in Federal Rule of Civil Procedure 23 in that under the FLSA, "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Thus, FLSA class members must "opt-in" rather than "opt-out" from the class.
Id. § 216(b).
Id. § 216(b). See La Chapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288-89 (5th Cir. 1975) (finding that the Rule 23 class action and the § 216(b) representative action are "mutually exclusive and irreconcilable").
See Mooney v. ARAMCO Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995) (citing La Chapelle, 513 F.2d at 289).
It is within a district court's discretion to allow a party asserting FLSA claims on behalf of others to notify potential class members that they may choose to "opt-in" to the suit. Although the Fifth Circuit has specifically declined to adopt a specific approach in resolving the "similarly situated" inquiry under § 216(b), it has found no abuse of discretion where a district court employed the prevailing federal standard. This test, originating in Lusardi v. Xerox Corp., consists of two considerations.
See Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989).
See Mooney v. ARAMCO Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995).
118 F.R.D. 351 (D.N.J. 1987).
Preliminarily, the district court must weigh whether the evidence presented by the plaintiff sufficiently demonstrates the existence of a "similarly situated" class of employees. At this stage, the district court uses a "fairly lenient standard" to determine whether similarly situated persons exist, relying on information garnered from the pleadings, affidavits, or the "substantial allegations" of the plaintiff. If the district court determines that certification is appropriate, then it may in its discretion "conditionally" certify the class and allow notice to the putative class members as well as the opportunity to participate in the lawsuit.
See Mooney, 54 F.3d at 1213-14.
Id. at 1214 n. 8 (citation omitted); see also Tucker v. Labor Leasing, Inc., 872 F. Supp. 941, 947 (M.D.Fla. 1994) (citation omitted) (affirming that to establish that employees are similarly situated, a plaintiff must show that they are `"similarly situated' with respect to their job requirements and with regard to their pay provisions").
Id. 1214.
At the second stage, usually at the completion of discovery and upon the defendant's motion, the district court reexamines the class to ensure that it is indeed composed of similarly situated members. If the district court determines, in light of the developed record, that the class members are no longer similarly situated, then it may decertify the class and dismiss the opt-in plaintiffs without prejudice. The original plaintiffs, or class representatives, proceed to trial on their individual claims.
Id.
Id.
Id.
Here, Plaintiffs seek to avail themselves of the FLSA's "opt-in" provision, and maintain that the proposed opt-in class is approximately 100 to 130 people. Plaintiffs assert that the putative class comprises
those who worked in Defendant's recreational facilities in the Youth Services Division in any of the positions temporary worker, aide, Leader I, or Leader II . . . during the three year period prior to the date notice of this action is approved and forwarded to potential opt-in class members . . . who were affected by any of the following common polices and practices effected by Defendant in the Youth Services Division: (i) the failure to either pay overtime wages in accordance with the FLSA, or credit compensatory time at a rate of one and one-half times the regular rate of pay for Overtime Hours; (ii) the requirement that such employees forfeit accrued unused compensatory time from time to time; and (iii) the failure to pay such employees for all hours worked during over-night camping and recreational trips worked by such employees, resulting in a loss of overtime compensation that ought to have been paid or credited.
Pls.' Mot. Notice Potential Pls. at 2-3. The Court notes that in their First Amended Complaint, Plaintiffs limited the class to the three-year period preceding the filing of the Original Complaint. See Pls.' 1st Am. Compl. at 11.
As evidence of the common situations experienced by the proposed class members, Plaintiffs have attached the affidavits of two union organizers, Guillermo Vazquez and Ogden Chamberlain, who attest that forty-four employees of the City's Youth and Services Division have complained of similar violations. Plaintiffs have also submitted the affidavits of Plaintiffs Cruz, Butler, and Ramirez as further proof of the similarity of their circumstances.
The City opposes the notification on the grounds that the facts surrounding the various claims are specific to each Plaintiff, and that class certification would merely complicate the issues. The City also argues that the number of potential class members is not so numerous so as to necessitate the formation of a class. Finally, the City maintains that the claims of each past or present employee would be better served by individual, not collective, representation.
Applying the Lusardi two-step procedure for FLSA opt-in suits, the Court concludes that Plaintiffs have adequately established, through their pleadings, affidavits, and averments, that their job requirements and remuneration are sufficiently alike so as to warrant conditional certification of the class. As such, the Court will allow Plaintiffs to notify the class members of the pending suit in order to allow them to join. Pursuant to the Lusardi protocol, the Court will entertain a motion to decertify the class at the completion of discovery.
In order to aid them in forming the class, Plaintiffs have also requested the Court to order the City to produce the name and last known address of any person fitting the class description above by September 10, 2003. The Court will also grant that request.
III. Conclusion
The Court GRANTS Plaintiffs' motion for notice to potential plaintiffs. Plaintiffs have attached a proposed notice ("Notice") along with a consent form ("Consent") and have requested the Court to allow them to forward the Notice and Consent to each member of the putative class. Plaintiffs further propose that upon receipt of the Notice and Consent, each potential opt-in class member shall have forty-five days to join the action. But the City also requests that the Court allow it to provide allegations for inclusion within the Notice. The Court finds the City's request to be reasonable and therefore ORDERS the parties to confer and agree upon the precise language of the Notice and Consent by September 10, 2003. If the parties are unable to reach a consensus on the wording of the Notice and Consent, they should submit the disputed portions to the Court for review no later than September 15, 2003. Once approved (by mutual agreement or by Court review), Plaintiffs will send the Notice and Consent to each putative class member, who will in turn have forty-five days to consent to representation in the instant lawsuit.
In addition, the Court GRANTS Plaintiffs' motion for expedited discovery and ORDERS the City to provide the names and last known addresses of the potential class members by September 10, 2003.
Finally, the Court DENIES AS MOOT Plaintiffs' motion for leave to late file motion for class certification.