Opinion
SA-21-CA-00423-XR
10-03-2022
RODNEY HOFFMAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARY SITUATED; Plaintiff v. FLUID FLEET SERVICES, LLC, Defendant
ORDER
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
On this date, the Court considered Plaintiff Rodney Hoffman's motion to authorize notice to similarly situated workers (ECF No. 30), Defendant's response (ECF No. 34), and Plaintiff's reply (ECF No. 36). After careful consideration, the Court issues the following order.
BACKGROUND
Plaintiff Rodney Hoffman (“Hoffman”) began working as a salaried repair and maintenance technician for Defendant Fluid Fleet (“Fluid Fleet”) on February 17, 2020. Fluid Fleet is a peer-to-peer truck sharing platform that offers 24/7 mobile access to a variety of trucks, vans, and SUVs. ECF No. 11 ¶ 1.1. Fluid Fleet referred to Hoffman and other repair and maintenance technicians as Fleet Lieutenants. ECF No. 30-1 ¶ 2. Fleet Lieutenants were responsible for the repair and maintenance of fleet vehicles, and were responsible for vehicle inspections, coordinating repairs and maintenance of fleet vehicles, picking up and dropping off fleet vehicles, running basic diagnostics on fleet vehicles, and cleaning fleet vehicles. Id.; ECF No. 30-2 at 16:1725, 18:1-24; ECF No. 30-3 at 7; ECF No. 30-4 at 148.
Hoffman was an employee of Fluid Fleet until October 21, 2021. ECF No. 30-1 ¶ 2. From February 17, 2020 until March 15, 2021, Hoffman was paid on a salary basis. Id. ¶ 3. On March 16, 2021, Fluid Fleet formally changed its payroll practices and began paying its Fleet Lieutenants on an hourly basis. Id. at ¶ 4; ECF No. 30-2 at 30:21-25; 31:1-18; 35:2-15; ECF No. 30-5 at 48.
Plaintiff filed the present suit on April 24, 2021, alleging that Defendant violated the Fair Labor Standards Act (“FLSA”). ECF No. 1. Specifically, Plaintiff claims that Defendant failed to pay overtime compensation by wrongfully classifying its salaried repair and maintenance technicians as exempt employees up until March 16, 2021. See 29 U.S.C. § 201. Plaintiff filed an amended complaint on September 29, 2021, and Defendant filed its answer to the amended complaint on October 25, 2021. ECF Nos. 11, 18. Plaintiff moves this Court to authorize notice to similarly situated workers under 29 U.S.C. § 216(b). ECF No. 30.
DISCUSSION
I. Legal Standard
Under 29 U.S.C. § 216, an employee may bring an action against an employer “[on] behalf of [her]self . . . and other employees similarly situated.” Unlike a Rule 23 class action in which plaintiffs must opt out of the class, § 216 provides that plaintiffs must opt in to become part of the class. FED. R. CIV. P. 23; 29 U.S.C. § 216. In deciding to certify a § 216 collective action, “a district court should identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of ‘employees' is ‘similarly situated.' And then it should authorize preliminary discovery accordingly.” Swales v. KLLM Transp. Servs., 985 F.3d 430, 441 (5th Cir. 2021). The purpose of this analysis is to determine “early in the case, whether merits questions can be answered collectively.” Id. “To determine, then, whether and to whom notice should be issued in this case, the district court needs to consider all of the available evidence.” Id.
The plaintiff bears the burden to demonstrate that potential opt-in plaintiffs are similarly situated such that certification is proper. Id. at 443 n.65. Once the plaintiff seeks certification, “a district court must rigorously scrutinize the realm of ‘similarly situated' workers.” Id. at 434. The plaintiff must establish “that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination.” Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8 (5th Cir. 1995) (overruled on other grounds). In examining whether an FLSA plaintiff has met her burden for certification, courts may consider “whether potential plaintiffs were identified; whether affidavits of potential plaintiffs were submitted; and whether evidence of a widespread discriminatory plan was submitted.” H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (internal citations omitted).
II. Application
For the reasons that follow, the Court concludes that Plaintiff has not made a sufficient showing that potential opt-in plaintiffs are similarly situated such that notice should be authorized in this case. Specifically, Plaintiff has provided no indication that any of the other identified Fleet Lieutenants seeks to join the lawsuit or similarly worked overtime hours until March 16, 2021.
First, Plaintiff Hoffman has not specifically identified any potential opt-in plaintiffs by name or submitted any affidavits or other evidence from any potential opt-in plaintiffs indicating that they performed the same job duties as Hoffman and were not properly compensated for their overtime work. Rather, he relies on his own declaration that other Fleet Lieutenants were treated similarly to him, ECF No. 30-1 ¶¶ 2, 6, and Defendant's list of 41 salaried Fleet Lieutenants, ECF No. 34-2, as probative of the fact that other similarly situated employees exist. “[T]ypically,” however, “a showing is necessary that at least a few similarly situated individuals seek to join the lawsuit.” Carey v. 24 Hour Fitness USA, Inc., No. H-10-3009, 2012 WL 4857562, at *3 (S.D. Tex. Oct. 11, 2012) (citing H & R Block, Ltd., 186 F.R.D. at 400). Even though this case has been pending for more than a year, Plaintiff has yet to identify a single potential opt-in plaintiff who seeks to join this lawsuit.
Defendant argues in its response that Plaintiff's declaration should be disregarded as a sham declaration. ECF No. 34 at 6-8. The Court notes that, notwithstanding its consideration of the declaration, the motion for notice should be denied for the reasons discussed herein.
Second, whether employees are similarly situated depends, in part, on whether Fleet Lieutenants worked similar overtime hours for which they were not compensated. While Plaintiff's declaration does assert that other salaried Fleet Lieutenants worked similar hours to his and that Defendant failed to track their overtime, these conclusory allegations are insufficient to establish that similarly situated employees exist without supporting affidavits or testimony from potential opt-in plaintiffs. See Austin v. Onward, LLC, 161 F.Supp.3d 457, 465 (S.D. Tex. 2015) (finding the lead plaintiff's “brief, conclusory” allegations insufficient to authorize conditional certification).
Plaintiff does provide evidence that the other Fleet Lieutenants performed the same duties he did and were classified as exempt in the same manner and paid under the same common policy or plan as he was. See ECF No. 30-1, Hoffman Decl. ¶ 2; ECF No. 30-3 at 7. However, the only evidence that this classification of other Fleet Lieutenants similarly resulted in their working overtime hours without compensation is found in conclusory statements in Hoffman's declaration and deposition. At his deposition, Plaintiff testified that he did “know that [other Fleet Lieutenants] were also celebrated if they went above and beyond. We would have weekly meetings with our Fleet Manager and our Fleet Supervisor, Jen and J.D., and they would actually single Lieutenants out who have gone above and beyond or worked until midnight or 2:00 in the morning or those things.” ECF No. 34-1, Hoffman Dep. at 82:20-25; 83:1-11. Plaintiff asserts that this testimony satisfies the requirement that other potential plaintiffs worked overtime hours under the same classification plan as he did until Defendant changed its classification system on March 21, 2021. However, as Plaintiff further testified, he dealt with other Fleet Lieutenants on Defendant's list “every day,” Id. at 92:17-25, and yet has not provided so much as the name of one of the other Fleet Lieutenants who allegedly complained to Plaintiff about working unpaid overtime hours, let alone an affidavit from a potential opt-in plaintiff.
It is impossible for the Court to “rigorously scrutinize the realm of ‘similarly situated' workers” based on a job description, a list of names, and Plaintiff's conclusory assertions that other exempt employees also worked overtime for which they were not compensated. Swales, 985 F.3d at 434; see Eltayeb v. Deli Mgmt., Inc., No. 4:20-CV-00385, 2021 WL 5907781, at *4 (E.D. Tex. Dec. 14, 2021) (“While Eltayeb has demonstrated that delivery drivers performed the same basic tasks and were subject to the same pay practices, Swales demands more.”) (citing Swales, 985 F.3d at 442). Swales was not only concerned with the practical question of whether merits questions can be answered collectively but also with the risk that “a court's ‘intervention in the notice process' [might] devolve into ‘the solicitation of claims.'” Swales, 985 F.3d at 436 (quoting Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 174 (1989)). Indeed, the Supreme Court has cautioned that, in overseeing the notice process, the district court “must be scrupulous to respect judicial neutrality” and “take care to avoid even the appearance of judicial endorsement of the merits of the action.” Hoffmann-La Roche, 493 U.S. at 174. The Court cannot conclude that any other Fleet Lieutenants worked unpaid overtime without according multiple layers of favorable inferences to Plaintiff's bare assertion that “[t]he extreme number of hours that we worked days, nights and weekends was a frequent topic of conversation among Fleet Lieutenants.” ECF No. 301, Hoffman Decl. ¶ 3.
Without any affidavits from any potential opt-in plaintiffs or other evidence any specific Fleet Lieutenant worked over forty hours in a workweek without proper overtime compensation, Hoffman has failed to satisfy the burden that Swales imposes at the certification stage.
Because Plaintiff has failed to present sufficient evidence that other Fleet Lieutenants were not compensated for their overtime work and seek to join this lawsuit, authorization of the proposed notice is not appropriate in this case.
CONCLUSION
For the reasons stated herein, Plaintiff's motion to authorize notice to similarly situated workers (ECF No. 30) is DENIED.
It is so ORDERED.