United States District Court, S.D. Ohio, Eastern Division
JESUS CASAREZ, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
PRODUCERS SERVICE CORPORATION, Defendant.
Jolson, Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR., CHIEF JUDGE
matter is before the Court on the Motion for Conditional
Certification of Collective Action, For Disclosure of
Potential Opt-In Plaintiffs' Contact Information, and To
Send Court-Approved Notice filed by Plaintiff Jesus
Casarez, Individually and on Behalf of All Others Similarly
Situated ("-Motion to Conditionally Certify a Class
and Provide Notice"). (ECF No. 7.) For the reasons
set forth below, the Court GRANTS IN PART AND DENIES
IN PART Plaintiffs Motion to Conditionally
Certify a Class and Provide Notice.
Producers Service Corporation ("Producers" or
"Defendant") provides high pressure pumping, shale
fracturing and acidizing, and water pumping services in the
oil and gas industry. (Casarez Decl. ¶ 4, ECF No. 7-7.)
Defendant operates in oil and gas fields throughout the
states of Ohio, Oklahoma, West Virginia, New Mexico,
Pennsylvania, and Texas. (Id. ¶ 18.) Plaintiff
Jesus Casarez ("Mr. Casarez" or "Plaintiff)
worked as an oilfield equipment operator for Producers from
July to November of 2016. (Id. ¶ 3.)
December 14, 2017, Mr. Casarez filed this action, both
individually and on behalf of all others similarly situated,
alleging that "Defendant does not pay its non-management
oilfield operations employees overtime wages as required by
the [Fair Labor Standards Act] [("FLSA")], 29
U.S.C. § 201 et seq" (Compl. ¶ 4, ECF
No. 1.) Mr. Casarez moves as a purported representative of
the proposed class. (Id. ¶¶ 1, 4.)
January 23, 2018, Producers filed its Answer to the
Complaint, denying all of the claims in it. (ECF No. 5.)
March 14, 2018, Mr. Casarez filed the Motion to
Conditionally Certify a Class and Provide
Notice, which is the subject of this Opinion and Order.
(ECF No. 7.) He moves for conditional certification of a
collective action under the FLSA, 29 U.S.C. § 216(b),
asking the Court to certify the following class:
All current and former employees of Defendant who were
employed as non-management oilfield operations employees for
Defendant at any time since December 14, 2014.
(Pls.' Mem. in Support of Mot. to Cond. Certify a Class
and Provide Notice at 2, ECF No. 7-1.)
March 21, 2018, the Magistrate Judge held the Preliminary
Pretrial Conference, memorialized in the Memorandum of
First Pretrial Conference, at which she directed the
parties to engage in informal discovery for 30 days, and file
a status report with her by April 20, 2018. (ECF No. 9.)
Pursuant to that Order, the parties provided their status
report via electronic mail ("email").
April 25, 2018, the Magistrate Judge set the briefing
schedule on the issue of conditional class certification.
(ECF No. 14.) On May 4, 2018, Defendant filed its
Memorandum in Opposition to Plaintiff's Motion
(ECF No. 15), and Plaintiff filed a Reply Brief
in Support of his Motion on May 16, 2018 (ECF No.
17). Plaintiffs Motion to Conditionally Certify a Class
and Provide Notice is now ripe for review.
FLSA 'was enacted by Congress to be a broadly remedial
and humanitarian statute, ' Dunlop v. Carriage Carpet
Co., 548 F.2d 139, 143 (6th Cir. 1977), and in
interpreting the FLSA the Supreme Court has long noted that
the statute attempted to mitigate the effects of the
'unequal bargaining power . . . between employer and
employee, ' Brooklyn Sav. Bank v. O'Neil,
324 U.S. 697, 706 (1945)." Myers v. Marietta Meml.
Hosp., 201 F.Supp.3d 884, 889 (S.D. Ohio 2016).
"Due to the 'remedial nature of this statute, '
the employee's burden 'of proving that he performed
work for which he was not properly compensated' should
not be made 'an impossible hurdle for the employee.'
" Id. (citing Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686-87 (1946), superseded
by statute on other grounds as recognized in Integrity
Staffing Solutions, Inc. v. Busk, ___ U.S.
___, 135 S.Ct. 513, 516-17 (2014)). The FLSA
requires employers to pay their employees "at a rate not
less than one and one-half times the regular rate" for
work exceeding forty hours per week. 29 U.S.C. §
FLSA provides that a court may certify a collective action
brought "by any one or more employees for and on behalf
of himself or themselves and other employees similarly
situated." 29 U.S.C. § 216(b). Similarly situated
employees are permitted to "opt into" the
collective action. Myers, 201 F.Supp.3d at 889-90
(citing Comer v. Wal-Mart Stores, Inc., 454 F.3d
544, 546 (6th Cir. 2006). The lead plaintiff bears the burden
of showing that the proposed class members are similarly
situated to the lead plaintiff. Id. at 890 (citing
O 'Brien v. Ed Donnelly Enters., Inc., 575 F.3d
567, 584 (6th Cir. 2009), abrogated on other grounds by
Campbell-Ewald Co. v. Gomez, ___ U.S. ___,
136 S.Ct. 663, 669 (2016)). The FLSA does not define
"similarly situated" and neither has the Sixth
Circuit. Id. "But notably, plaintiffs seeking
to certify a collective action under the FLSA face a lower
burden than plaintiffs seeking class certification under
Federal Rule of Civil Procedure 23." Id.
"District courts conduct a two-phase inquiry to
determine whether plaintiffs are similarly situated:
conditional and final certification." Id.
(citing Frye v. Baptist Mem'l Hosp., Inc., 495
Fed.Appx. 669, 671 (6th Cir. 2012)).
the first phase, the conditional-certification phase,
conducted at the beginning of the discovery process, named
plaintiffs need only make a 'modest factual showing'
that they are similarly situated to proposed class
members." Id. (citing Waggoner v. U.S.
Bancorp, 110 F.Supp.3d 759, 764 (N.D. Ohio 2015);
Comer, 454 F.3d at 547). The standard at the first
step is "fairly lenient. .. and typically results in
'conditional certification' of a representative
class." Id. (citing Comer, 454 F.3d at
547). As this Court recently explained in Myers v.
Marietta Memorial Hospital:
Plaintiffs are similarly situated "when they suffer from
a single, FLSA-violating policy, and when proof of that
policy or of conduct in conformity with that policy proves a
violation as to all the plaintiffs." O
'Bhen, 575 F.3d at 585. Showing a "unified
policy" of violations is not required. Id. at
584. The named plaintiff "need only show that [her]
position is similar, not identical, to the positions held by
the putative class members." Lewis v. Huntington
Nat'l Bank, 789 F.Supp.2d 863, 867-68 (S.D. Ohio
2011) (alteration omitted); see also Comer, 454 F.3d
201 F.Supp.3d at 890.
conditional certification is granted, 'plaintiffs are
permitted to solicit opt-in notices, under court supervision,
from current and former employees.' " Id.
(citing Cornell v. World Wide Bus. Servs.
Corp., No. 2T4-CV-27, 2015 WL 6662919, at *1 (S.D. Ohio
Nov. 2, 2015)).
whether to allow an action to proceed as a collective action
is left to the trial court's discretion. Comer,
454 F.3d at 546. Because the statute of limitations on an
FLSA claim continues to run until written consent is filed
with the trial court, it is important that notice of the
collective action be given to all potential opt-in plaintiffs
as soon as practicable so they can decide whether to
participate in the lawsuit. Lewis v. Huntington Nat'l
Bank, 789 F.Supp.2d 863, 867 (S.D.Ohio 2011).
notice has been sent and discovery has been completed, a
defendant can move to decertify the class, challenging a
court's preliminary determination that other employees
are similarly situated. Meyers, 201 F.Supp.3d at
890. At this second stage, "courts 'examine more
closely the question of whether particular members of the
class are, in fact, similarly situated.' "
Id. (citing Comer, ASA F.3d at 547).
"If [a court] concludes that they are similarly
situated, the collective action proceeds to trial; if not,
the court de-certifies the class, dismisses the opt-in
plaintiffs without prejudice, and proceeds to trial on the
named plaintiffs)]' individual claims." Sisson
v. OhioHealth Corp., 2:13-CV-0517, 2013 WL 6049028, at
*2 (S.D. Ohio Nov. 14, 2013) (citing Smith v. Lowe's
Home Ctrs., 236 F.R.D. 354, 357 (S.D. Ohio 2006)).
moves for conditional certification of a collective action
class for all of Producers' non-management oilfield
operations employees, disclosure of potential opt-in
plaintiffs' contact information, and to send
court-approved notice to the potential opt-in plaintiffs.
Defendant opposes (A) conditional certification of a class,
and (B) the Plaintiffs proposal to send the opt-in notices
via text message.
Certification of a Class of AH Non-Management ...