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Albelo v. Epic Landscape Productions, L.C.

United States District Court, W.D. Missouri, Western Division

May 23, 2018

RADAMES MOLINA ALBELO, o/b/o himself and all other persons similarly situated, Plaintiff,
v.
EPIC LANDSCAPE PRODUCTIONS, L.C., Defendant.

          ORDER AND OPINION GRANTING PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending is a motion for conditional certification pursuant to 29 U.S.C. § 216(b) filed by Plaintiff on behalf of himself and all other persons similarly situated. Doc. #38. The motion is granted. As explained below, the Court authorizes notices to be sent to potential opt-in class members in a form consistent with this order.

         I. BACKGROUND[1]

         Plaintiff Radames Molina Albelo is a former hourly landscape laborer for Defendant Epic Landscape Productions, L.C. Defendant is a full-service landscape company providing landscaping, maintenance, and irrigation services to residential and commercial customers throughout the greater Kansas City metro area. Plaintiff alleges Defendant violated the Fair Labor Standards Act (“FLSA”) by failing to properly compensate hourly landscape laborers for all hours worked in excess of forty hours per week.[2] Defendant contends it properly compensated Plaintiff and other hourly landscape laborers in accordance with the FLSA, and other applicable state wage and hour laws. At this stage of the proceedings, Plaintiff seeks conditional certification of a class of similarly situated hourly landscape laborers who allegedly were not properly compensated for overtime hours worked in excess of forty hours per week.

         II. STANDARD

         The FLSA mandates an employer may not subject non-exempt employees to a work week in excess of forty hours, unless the employee is compensated for his or her overtime with additional pay of at least one and one-half times his or her regular hourly wage. 29 U.S.C. § 207. An action to recover overtime compensation and liquidated damages may be maintained, “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). However, an employee does not become a party to the suit “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.” Id. Under this FLSA framework, an employee's statute of limitations continues to run until his or her written consent to become a party plaintiff to the action is filed with the court. 29 U.S.C. § 257.

         The Eighth Circuit has not adopted a particular standard for evaluating conditional certification of a collective action, but a majority of district courts in this circuit have used the analysis adopted by the Fifth Circuit. “Under this two step-process, the plaintiff first moves for class certification for notification purposes. . . . At this early stage of litigation, the Court does not reach the merits of the plaintiff's claims. Once the Court conditionally certifies the class, potential class members are given notice and the opportunity to ‘opt-in.'” Kautsch v. Premier Commc'ns., 504 F.Supp.2d 685, 688 (W.D. Mo. 2007) (citations omitted). “At the second step of the process, the defendant may move to decertify the class. This is typically done after the close of discovery when the Court has much more information and is able to make a more informed decision.” Id.

         Because the decision at this stage is made with limited information and is conditional in nature, Plaintiff's burden is not onerous. There is no need to show that the would-be members are identical. It is sufficient if the plaintiff presents some evidence demonstrating the class members are similar in important respects, most notably by demonstrating they are subjected to similar policies or circumstances. E.g., Robertson v. LTS Mgmt. Servs. LLC, 642 F.Supp.2d 922, 926 (W.D. Mo. 2008); Huang v. Gateway Hotel Holdings, 248 F.R.D. 225, 227 (E.D. Mo. 2008); Kautsch, 504 F.Supp.2d at 689; Young v. Cerner Corp., 503 F.Supp.2d 1226, 1229 (W.D. Mo. 2007).

         III. DISCUSSION[3]

         A. Conditional Certification of Class The second amended complaint identifies the proposed class to which notice would be sent as “[a]ll current and former landscape laborers of Defendant who were not fully compensated at the applicable wage rates for all work performed.” Doc. #34, ¶ 47. Several parts of the record support conditionally certifying the class as proposed. The second amended complaint, among other things, alleges Plaintiff, and others similarly situated to him, are current or former landscape laborers who worked in excess of forty hours per week while performing similar job duties for Defendant, but were not paid overtime compensation for all hours worked in excess of forty hours. See generally Doc. #34. In support of their motion, Plaintiff supplied pay records of potential class members (Doc. #38-1), job advertisements placed by Defendant describing the duties required for landscape laborers (Doc. #38-2), and Defendant's answers to interrogatories (Doc. #38-3). Although the Court will need further explanation of the pay records, it is clear hourly employees worked in excess of forty hours per week for Defendant. Furthermore, the Court has no reason to believe, at this juncture, landscape laborers do not perform the duties as described in Defendant's advertisements seeking landscape laborers.

         Defendant argues conditional certification is improper because Plaintiff fails to show he and others similarly situated were victims of a common policy or plan that violated the law. Defendant states landscape laborers were properly classified as exempt under the Motor Carrier Act exemption in 29 U.S.C. § 782.2, and asserts this exemption was lawfully applied. While the applicability and validity of Defendant's employment practices cannot be ascertained until the second stage of the two-stage process described above, Defendant's answer to Interrogatory No. 10 represented landscape laborers are exempt from FLSA overtime rules under the Motor Carrier Act exemption. This assertion alone is sufficient to conditionally certify the proposed class because it shows landscape laborers were subject to a single policy in that they were classified as exempt. See Kennedy v. Boulevard Bank, No. 12CV40JCH, 2012 WL 3637766, at *3 (E.D. Mo. Aug. 22, 2012) (citations omitted) (identifying similar claim as a “misclassification claim” and conditionally certifying class). Accordingly, the Court finds conditional certification is proper.

         Defendant argues, if conditional certification of a class is granted, the class should be limited to those individuals working in the same positon, location, and under the same supervisor as Plaintiff Albelo. Although Defendant argues the proposed class definition is vague and inadequate, the Court declines to limit the class in the drastic fashion proposed by Defendant. To the extent there are differences in the duties of landscape laborers, the Court is confident Defendant will fully brief the issue for the Court at the appropriate time.[4]

         Defendant also raises two objections to the requested notice. First, Defendant seeks to limit the class to those who worked for Defendant for a two year period, rather than a three-year period as permitted under the FLSA for “willful” violations, because there is no factual basis for a three-year period or “willful” FLSA violations. See 29 U.S.C. § 255(a). The second amended complaint alleges an FLSA action was brought against Defendant in 2009 for failure to properly pay overtime wages, but Defendant did not change its practices with respect to hourly laborers. Doc. #34, at 1. It is further alleged Defendant's continual violation of the FLSA is “willful.” Doc. #34, at 8.

         Additionally, whether a violation is “willful” is typically a question of fact addressed at summary judgment or trial, and judicial economy is often served by conditionally certifying a “larger, more inclusive” class during this first stage of FLSA litigation. Littlefield v. Dealer Warranty Servs., LLC, 679 F.Supp.2d 1014, ...


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