IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS DOMINICK ROBINSON, § Individually and on behalf of all § OTHERS SIMILARY SITUATED § Civil Action N o. 4:16-cv-00917 § Plaintiff(s) § § § v. § § § § § ST. MORITZ SECUTIRY § SERVICES INC. § § Defendant(s). § § PLAINTIFF DOMINICK ROBINSON’S MOTION FOR CONDITIONAL COLLECTIVE ACTION CERTIFICATION & EXPEDITED DISCOVERY Respectfully submitted, THE FOLEY LAW FIRM BY: /s/ Taft L. Foley Taft L. Foley SBN: 24039890 3003 South Loop West, Suite 108 Houston, TX 77054 Phone: (832) 778-8182 Fax: (832) 778-8353 [email protected]Attorney for Plaintiff Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 1 of 23
23
Embed
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 ...d.classactionreporternewsletter.com/f/16/txsd16-00917-0009.pdf · Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
TEXAS DOMINICK ROBINSON, § Individually and on behalf of all § OTHERS SIMILARY SITUATED § Civil Action N o. 4:16-cv-00917 § Plaintiff(s) § § § v. § § § § § ST. MORITZ SECUTIRY § SERVICES INC. § § Defendant(s). § §
BY: /s/ Taft L. Foley Taft L. Foley SBN: 24039890 3003 South Loop West, Suite 108 Houston, TX 77054 Phone: (832) 778-8182 Fax: (832) 778-8353 [email protected]
Attorney for Plaintiff
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 1 of 23
2
TABLE OF CONTENTS
I. Nature and Stage of Proceeding.............................................................................. 7
II. Issue To Be Ruled Upon by the Court.................................................................... 7
III. Summary of the Argument.......................................................................................7
IV. Summary of the FLSA Violations...........................................................................9
A. Statement of Facts...............................................................................................9
B. Plaintiff Dominick Robinson and the members of the Putative Class Are Entitled To Overtime Pay For Hours Worked In Excess of Forty Per Workweek..............................................................................................................10 C. Defendant Has Not Specifically Pleaded Any Overtime Exemptions..............11
V. The Analytical Framework....................................................................................13
A. Conditional Certification Is The Preferred Methodology.................................13
B. The Key Issue Is Whether Employees Are Similarly Situated........................ 14
C. Defendant Has The Right To Move To Decertify Later.................................. 15
VI. The Issuance of Notice Is Appropriate In this Case As Plaintiffs Meet The Similarly Situated Standard.................................................................................. 16
A. There Are Other Similarly Situated Employees Who May Desire to Opt In.. 16
B. The Other Potential Class Members Are Similarly Situated With Respect To Their Relevant Job Requirements and Pay Practices....................................... 17 C. Plaintiff Has Carried his Burden Of Demonstrating A Reasonable Basis For Conditional Certification of a Collective Action...................................... 18
VII. Notice Should Be expedited Due To the Running of the Statute of Limitations..19
VIII. The Proposed Notice Is Fair and Accurate........................................................... 20
IX. The Proposed Limited Discovery Is Essential To Ensure Timely Notice............ 21
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 6 of 23
7
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW PLAINTIFF Dominick Robinson (referred to as “Plaintiff”)
individually and on behalf of all other similarly situated current and former employees of
St. Moritz Security Services Inc. (referred to as “Defendants”), and files this Motion for
Conditional Collective Action Certification & Expedited Discovery. In support thereof,
Plaintiff would respectfully show the Court as follows:
I. NATURE AND STAGE OF PROCEEDING
On April 5, 2016, Plaintiff Dominick Robinson filed a putative action lawsuit
under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (“FLSA”) alleging
that Defendant St. Moritz Security Services Inc. failed to pay him overtime wages as
required by law. (Docket Entry No. 1.) Pursuant to 29 U.S.C. § 216(b), Plaintiff now
seeks to notify other current and former employees of Defendant of the pendency of this
lawsuit and their right to participate.
II. ISSUE TO BE RULED UPON BY THE COURT
At this stage, the issue is whether the named Plaintiff, Dominick Robinson, and
potential opt-ins are “similarly situated.” If so, the Court should conditionally certify this
case as a collective action pursuant to 29 U.S.C § 216 (b) and authorize the issuance of
notice to members of the putative class.
III. SUMMARY OF THE ARGUMENT
Plaintiff Dominick Robinson has worked as a “Security Guard” for Defendant St.
Moritz Security Services Inc. since December 3, 2015. Ex. A, Aff. of Dominick
Robinson ¶ 3. Plaintiff. Plaintiff routinely works more than forty (40) hours per week
but has not been paid at one and one-half times the regular rate for most overtime hours
worked. Ex. A, Aff. of Dominick Robinson ¶¶ 3-4. As a result, Plaintiff filed this
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 7 of 23
8
lawsuit to recover unpaid overtime wages owed to him under the FLSA and the
regulations promulgated under it.
At this phase of the litigation, Plaintiff seeks to notify other current and former
employees of Defendant St. Moritz Security Services Inc. of their right to recover their
unpaid overtime wages by joining this lawsuit. Accordingly, it is important to note that
this lawsuit is a collective action under § 216(b) of the FLSA. 29 U.S.C. §216 (b). This
is not a class action under FED. R. CIV. P. 23. Section 216(b) collective actions have an
“opt-in” requirement, which means that only employees who fill out consent forms and
file them with the Court may join the lawsuit. 29 U.S.C. §216 (b). By contrast, Rule 23
makes class participation mandatory unless class members affirmatively “opt-out” of the
action. FED. R. CIV. P. 23. Therefore, courts have found that plaintiffs in FLSA
collective actions need not satisfy Rule 23 requirements of numerosity, commonality,
commonality of issues, typicality of claims, and adequacy of representation. See, e.g.,
Grayson v. Kmart Corp., 79 F.3d 1086, 1096 n.12 (11th Cir. 1996) (“Although not at
issue in this case, it is clear that the requirements for pursuing a §216(b) class action are
independent of, and unrelated to, the requirement for class actions under Rule 23 of the
Federal Rules of Civil Procedure.”).
Plaintiff brings this action on behalf of himself and all other similarly situated
employees of the Defendant. The similarly situated employees who may join this action
as opt-in plaintiffs are all current and former nonexempt employees of Defendant who
held the title of “Security Guard” who worked for Defendant during the class period.
Furthermore, these employees were not paid for all overtime hours worked at one and
one-half times their regular rates and now seek payment for such overtime wages
(collectively referred to as “the Employees”). To facilitate the development of a
collective action, courts authorize the issuance of notice to potential class members.
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 8 of 23
9
Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989); Villatoro v. Kim Son
Rest., L.P., 286 F.Supp.2d 807, 809 (S.D. Tex. 2003). This collective action focuses on a
cohesive group of employees who worked for Defendant and who were subjected to the
same illegal pay practices, they are not merely similarly situated-they are identically
situated. As such, the wage and overtime claims presented in this cases can and should
be adjudicated on a collective action basis.
IV. SUMMARY OF FLSA VIOLATIONS
A. STATEMENT OF FACTS.
Defendant St. Moritz Security Services Inc. is a security company dedicated to
providing security plans and services to different companies. In connection with their
business operations, Defendant employs numerous individuals to patrol premises, draft
reports related to security, and provide security for certain places. All of these
individuals, including plaintiff, were paid on an hourly basis. Ex. A, Aff. of Dominick
Robinson ¶¶ 3-4; Ex. B, Paystubs. In Plaintiff’s case, he was paid at $10 per hour.1 Ex.
A, Aff. of Dominick Robinson ¶ 3; Ex. B, Paystubs. Security Guards, including Plaintiff,
were not paid at one and one-half times their regular rate for all hours worked in excess
of forty (40) per workweek. Ex. A, Aff. of Dominick Robinson ¶¶ 3-4; Ex. B, Paystubs.
Instead, they were paid a their regular rate. Ex. A, Aff. of Dominick Robinson ¶¶ 3-4;
Ex. B, Paystubs.
B. Plaintiffs and the Members of the Putative Class Are Entitled To Overtime Pay For Hours Worked In Excess of Forty Per Workweek.
1 Based on a forty (40) hour workweek, this is equivalent to $20,800.00 annually ($10.00 * 40 * 52 = $20,800.00).
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 9 of 23
10
The FLSA was enacted to eliminate “labor conditions detrimental to the
maintenance of the minimum standard of living for health, efficiency and general well-
being of workers ... .” 29 U.S.C. § 202(a). It generally requires that employers pay their
covered2 nonexempt employees at one and one-half times their regular rate of pay for all
hours worked in excess of forty (40) in any given workweek. 29 U.S.C § 207(a)(1); 29
C.F.R. §§ 778.102—778.105. An employee’s regular rate is an hourly rate and includes
“all remuneration for employment paid to, or on behalf of, the employee.” 29 U.S.C. §
207 (e); 29 C.F.R. §§ 778.108-778.110. The FLSA does not define work, but the
Supreme Court has adopted a broad definition, holding that work is any “physical or
mental exertion (whether burdensome or not) controlled or required by the employer and
pursued necessarily and primarily for the benefit of the employer and his business.”
Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944).
Finally, covered employers are required to maintain certain records to document
compliance with the FLSA. 29 U.S.C. § 211(c); 29 C.F.R. §516. Specifically, employers
are required to maintain the following records: the employee’s personal identifying
information and essential wage and hour information (i.e., pay period and date of
payment; basic pay rate; daily and weekly hours; straight time and overtime earnings;
additions to and deductions from wages; and total wages paid each pay period). 29
C.F.R. § 516.27.
Plaintiff has requested evidence of the total number of hours worked weekly and
daily. Once this evidence is released through discovery, Plaintiff will have a more
2 An employee is covered by the FLSA if he is engaged in interstate commerce. 29 C.F.R. § 779.100. “Employees are ‘engaged in [interstate] commerce’ within the meaning of the Act when they are performing work involving or related to the movement of person or things (whether tangibles or intangibles, and including information and intelligence) among the several States or between any State and any place outside thereof.” 29 C.F.R. § 779.103. This requirement has been interpreted to include workers “who regularly use the mails, telephone or telegraph for interstate communication.” Id. In this case, since Defendant St. Moritz Security Services Inc.offers medical services to patients, its employees are clearly covered by the FLSA.
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 10 of 23
11
accurate depiction of the overtime wages owed. In an action to recover unpaid overtime
wages, an employee who prevails is entitled to liquidated damages, attorneys’ fees, and
costs. The law is very clear:
Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.
***
The Court in such action shall, in addition to any judgment awarded to the Plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b) (emphasis added). Based on the foregoing, the above-described
unlawful pay practices also apply to members of the putative class.
C. Defendant Has Not Specifically Pleaded Any Overtime Exemptions.
Any exemption from the minimum wage or overtime requirements of the FLSA
must be asserted as an affirmative defense to a claim under the FLSA. Corning Glass
Works v. Brennan, 417 U.S. 188, 196-97 (1974) (“[T]he application of an exemption
under the Fair Labor Standards Act is a matter of affirmative defense on which the
employer has the burden of proof.”); Magana v. Northern Mariana Islands, 107 F.3d
1436, 1446 (9th Cir. 1997). Under the Federal Rules of Civil Procedure, affirmative
defense[.]”). Importantly, a defendant cannot introduce evidence in support of an
affirmative defense that is not pleaded in its answer. Prinze v. Greate Bay Casino Corp.,
705 F.2d 692, 694 (3d Cir. 1983). In fact, if a defendant intends to rely on an affirmative
defense a trial, it generally must plead the defense in its answer or else the defense is
waived. Day v. McDonough, 547 U.S. 198, 202 (2006); see also, Renfro v. City of
Emporia,, 948 F.2d 1529, 1539 (10th Cir. 1991) (FLSA case holding that defendants’
failure to plead an exemption prior to filing its motion for summary judgment resulted in
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 11 of 23
12
waiver); see also, Magana, 107 F.3d at 1446 (holding that district court erred in granting
summary judgment on exemption contained in 29 U.S.C. § 213(a)(1) because defendants
raised FLSA affirmative defense three months after filling answer).
Affirmative defense are subject to the dame pleading requirements as a complaint
and must provide the other party fair notice of the defense. Woodfield v. Bowman, 193
F.3d 354. 365 (5th Cir. 1999); TrancFone Wireless, Inc. v. King Trading, Inc., No. 3:08-
cv-0398, 2008 U.S. Dist. LEXIS 90613, at *3 (N.D. Tex Nov. 6, 2008). Thus, under
FED. R. CIV. P. 8, an affirmative defense must be pled with sufficient particularity to
state a claim for relief that is “plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570
(2007). In an FLSA case, a defendant cannot meet the “fair notice” requirement by
merely stating that a plaintiff is exempt; instead, the defendant must identify the
particular exemption(s) upon which it intends to rely and set forth sufficient facts to make
the exemption(s) plausible. Hogue v. Gyarmathy & Assoc., Inc., No. 2:10-cv-195, 2010
U.S. Dist. LEXIS 68826, at *3 (M.D. Fla. Jun. 21, 2010).
In this case, Defendant failed to “affirmatively state any … affirmative defense”
in its first responsive pleading as required be FED. R. CIV. P. 8(c)(1). This falls well
short of the accepted pleading standard for affirmative defenses. FED. R. CIV. P. 8(c).
Therefore, based on the overwhelming weight of authority, Defendant has waived any
affirmative defense that Plaintiff was exempt from the overtime requirement of the
allegations supported by his sworn testimony and the other evidence more than satisfies
the “lenient” standard for § 216(b) collective action notice. Mooney, 54 F.3d at 1213-14;
Harrison v. Enterprise Rent-A-Car Co., 1998 U.S. Dist. LEXIS 13131 at *12 (M.D. Fla.
Jul. 1, 1988).
Plaintiff has shown that Defendant had a company-wide policy, which resulted in
Defendant’s failure to compensate at one and one-half times their regular rates for all
overtime hours worked as required by the FLSA. The evidence demonstrates that all
“Security Guards” are similarly situated and subject to a uniform payroll policy.
Accordingly, the evidence Plaintiff provided more than justified certification of this case
as a collective action and court-supervised notice regarding the pendency of this lawsuit
to all “Security Guards” who were employed by Defendant during the three years
immediately preceding conditional certification. See, Baum v. Shoney’s Inc., 1998 U.S.
Dist. LEXIS 21484 at *4 (M.D. Fla. Dec. 3, 1998) (while plaintiff need not show putative
class members were victimized by single decisions, policy, or plan, such a showing is
probative in determining whether potential class members are similarly situated).
VII. NOTICE SHOULD BE EXPEDITED DUE TO THE RUNNING OF THE STATUTE OF LIMITATIONS
Notice to the class should be expedited in this action in order to prevent the
wasting of the Employees’ claims. These claims are governed by a two-year statue of
limitations or, in the case of a “willful violation” committed by a defendant, a three- year
statue of limitations. 29 U.S.C. § 255(a). The statute of limitations is generally not tolled
for any individual class member until that individual has filed with the court a written
consent to take part in the lawsuit. 29 U.S.C. § 256(b); 29 C.F.R. § 790.21(b)(2)(ii);
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 19 of 23
20
Grayson, 79 F.3d at 1105-06. Consequently, the statue of limitations diminishes the
value of the Employees’ claims with each passing day. The information contained in the
purposed notice should therefore be issued as soon as possible to allow these employees
to act to protect their interest. Ex. C, Proposed Notice to Potential Class Members.
Without notice, the putative class members are unaware of their right to opt-in, and they
are powerless to prevent their claims from wasting away.
Moreover, due to employee attrition or turnover, a number of potential class
members likely no longer work for Defendant. Their whereabouts will be increasingly
difficult to trace, and evidence may be lost with the passing of time. Notice should thus
be expedited in this action to the maximum extent feasible and should be sent to all
“similarly situated” employees who were employed by Defendant during the maximum
three-year potential liability period. See, Belcher v. Shoney’s Inc,, 927 F.Supp. at 251
(ordering notice to all employees who were employed within the maximum three-year
statue of limitations); see also, Herrera v. Unified Mgmt. Corp., 200 U.S. Dist. LEXIS
12406 at *4-5 (N.D. Ill. Aug. 17, 2000) (same).
VIII. THE PROPOSED NOTICE IS FAIR AND ACCURATE
A collective action depends “on employees receiving accurate and timely notice
concerning the pendency of the collective action, so that they can make informed
decisions about whether to participate.” Hoffman-La Roche, 493 U.S. at 170. Use of
court-authorized notice also prevents “misleading communications.” Id. At 172; Garner,
802 F.Supp. at 422. Plaintiff’s Proposed Notice to Potential Class Members is “timely
accurate, and informative” as required by the applicable case law. Hoffman-La Roche,
493 U.S. at 172. It provides notice of pendency of this action and of the opportunity to
opt-in. Plaintiffs’ legal claims are accurately described. Potential class members are
advised that they are not required to participate. The notice provides clear instructions on
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 20 of 23
21
how to opt-in. It also accurately states the prohibition against retaliation or
discrimination for participation in the FLSA action. 29 U.S.C. § 215(a)(3); Reich v.
Davis, 50 F.3d 962, 964 (11th Cir. 1995).
Plaintiff requests the Court to authorize mailing of the Proposed Notice to
Potential Class Members and Opt-in/Consent Form to all “Security Guards” who were
employed by Defendant at any time during the three years immediately preceding
conditional certification. Ex. D, Proposed Opt-In/Consent form. Plaintiffs’ counsel will
oversee the mailing of such notices. Those class members interested in participating
would be required to file an executed opt-in/consent form with the Court with in forty-
five (45) days after the notices are mailed. This is consistent with the established practice
for collective actions under § 216(b) of the FLSA. Hoffman-La Roche, 493 U.S. at 172;
Garner, 802 F.Supp. at 422 (cut-off date expedites resolution of action).
IX. THE PROPOSED LIMITED DISCOVERY IS ESSENTIAL TO ENSURE TIMELY NOTICE
Discovery of a mailing list and contact information for class is a routine
component of notice in collective actions. See, Alba v. Madden Bolt Corp., No. 4:02-cv-
01503 (S.D. Tex Jun. 5, 2002) (J. Hoyt) (defendant required to produce the full name, last
known address, telephone numbers, dates and location of employment for three years);
Hoffman-La Roche, 493 U.S. at 170 (“district Court was correct to permit discovery of
the names and addresses . . . .”); Grayson, 79 F.3d at 1111 (ordering production of
mailing list); Belcher v. Shoney’s Inc., 972 F.Supp. at 252 (same); Hipp, 164 F.R.D. at
576 (same). Indeed, such a mailing list is essential to the facilitation of timely notice.
Hoffman-La Roche, 493 U.S. at 170 (“timely notice” required). Defendant should
therefore be ordered to produce the last known addresses, phone numbers, and dates of
birth of all “Security Guards” who were employed by Defendant at any time with in the
three (3) years immediately preceding conditional certification. This information is
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 21 of 23
22
discoverable as a matter of right even in the absence of a collective action, because these
other employees are persons with relevant knowledge. FED. R. CIV. P. 26(b)(1).
Therefore, requiring the production of such information would merely be making
Defendant provide information that is otherwise discoverable.
All of the requested information is necessary, including dates of birth, in order for
Plaintiff to confirm current addresses and to locate those persons who may have moved
form their last known addresses. Without this information, the notices are more likely to
be returned due to outdated or inaccurate addresses. If notices are returned as
undeliverable, Plaintiffs’ counsel would necessarily request an extension of the opt-in
period to accommodate those class members, thereby further delaying the timely
resolution of this matter. Finally, Plaintiff also requests that the Court order Defendant’s
designated representative to produce this list along with an affidavit. Ex. E, Proposed
Affidavit of Defendant’s Representative. The affidavit requires Defendant’s
representative to state, under oath and penalty perjury, that the list is complete and
accurate.
X. CONCLUSION
For the foregoing reasons, the Court should grant Plaintiff’s Motion to: (1)
conditionally certify this matter as a collective action pursuant to 29 U.S.C. § 216(b); (2)
authorize mailing of the Notice to Potential Class Members and Opt-In/Consent Form to
all “Security Guards” who were employed by Defendant at any time within the three (3)
years immediately preceding conditional certification; and (3) require Defendant’s
representative(s) to produce under oath and under penalty of perjury, the names,
addresses, phone numbers, dates of birth, and Social Security numbers of all such class
members so that notice may be timely implemented.
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 22 of 23
23
Respectfully submitted,
THE FOLEY LAW FIRM
BY: /s/ Taft L. Foley Taft L. Foley SBN: 24039890 3003 South Loop West, Suite 108 Houston, TX 77054 Phone: (832) 778-8182 Fax: (832) 778-8353 [email protected]
Attorney for Plaintiff
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was forwarded to all counsel of record on the 22nd day of June in the year 2016 via the Court’s CM/ECF system.
/s/ Taft L. Foley
Taft L. Foley
Case 4:16-cv-00917 Document 9 Filed in TXSD on 06/22/16 Page 23 of 23