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Encinas v. J.J. Drywall Corp.

March 8, 2010


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiffs Gabriel and Felix Encinas and Silvano Carbajal bring claims on their own behalf and on behalf of all others similarly situated against defendants J.J. Drywall Corporation and Jose Luis Jimenez under the Fair Labor Standards Act ("FLSA"), codified at 29 U.S.C. § 201 et seq., and various District of Columbia and Maryland statutes to recover unpaid overtime and other wages. The plaintiffs have filed unopposed motions to conditionally certify the collective class challenging the denial of overtime compensation under the FLSA and to certify sub-classes of plaintiffs asserting claims under District of Columbia and Maryland Law under Rule 23 of the Federal Rules of Civil Procedure. Because the plaintiffs have made the modest factual showing necessary for conditional certification under the FLSA and satisfied the requirements of Rule 23 to certify the state sub-classes, their unopposed motions will be granted.


Defendant J.J. Drywall, owned by pro se defendant Jose Luis Jimenez, installs drywall in commercial construction sites in Washington, D.C. and Maryland. (Compl. ¶¶ 7, 9, 12.) J.J. Drywall employed plaintiffs Gabriel and Felix Encinas and Silvano Carbajal as drywall mechanics. (Id. ¶¶ 4-6.) Plaintiffs allege in their complaint that Gabriel and Felix Encinas worked more than forty hours in a workweek but did not receive time and one-half overtime compensation for those hours. (Id. ¶ 19.) Plaintiffs further allege that J.J. Drywall has a policy of not paying its drywall workers for overtime hours worked and of deducting and retaining ten percent of its drywall employees gross wages without "legal authorization or justification for the deductions." (Id. ¶¶ 20-21.)

Plaintiffs move to conditionally certify a collective action under the FLSA for all similarly situated employees who did not receive time and one-half compensation for overtime, and to certify Washington, D.C. and Maryland sub-classes under Federal Rule of Civil Procedure 23 for all similarly situated employees bringing claims of unpaid wages under D.C. and Maryland law. Plaintiffs have also moved for approval of a proposed notice for collective action class members and for members of each sub- class, and for discovery of the names, last known addresses, and telephone numbers of potential class members.*fn1



The FLSA provides that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). If an employer violates this section, "any one or more employees for and in behalf of himself or themselves and other employees similarly situated" may bring a cause of action.

29 U.S.C. § 216(b). Such a collective action is not subject to the class certification standards ---- numerosity, commonality, typicality, and adequacy of representation ---- under Rule 23. Castillo v. P & R Enterprises, Inc., 517 F. Supp. 2d 440, 444 (D.D.C. 2007). "Instead, a collective action has only two threshold requirements: the plaintiff[s] must show that [they are] similarly situated to the other members of the proposed class, and those other members must 'opt in' to the proposed class." Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C. 2004).

While the D.C. Circuit has yet to articulate the procedure for certifying a class under the FLSA, courts in this district typically engage in a two-step process. First, "plaintiffs must make a 'modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.'" Castillo, 517 F. Supp. 2d at 445 (quoting Chase v. AIMCO Props., 374 F. Supp. 2d 196, 200 (D.D.C. 2005). Such a showing, as an initial matter, satisfies the FLSA requirement that putative class members be similarly situated to the plaintiffs, id., and is "ordinarily based mostly on the parties' pleadings and affidavits." Chase, 374 F. Supp. 2d at 200; see also McKinney v. United Stor-All Ctrs., Inc., 585 F. Supp. 2d 6, 8 (D.D.C. 2008) (noting that "[t]his showing may be made through pleadings and affidavits that demonstrate that 'the putative class members were together the victims of a single decision, policy or plan' that violated the law" (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8 (5th Cir. 1995))). Second, defendants may move at the close of discovery to decertify the conditional class if the record establishes that the plaintiffs are not, in fact, similarly situated. Castillo, 517 F. Supp. 2d at 445.

Because conditional certification is not binding and is merely meant to facilitate providing notice to potential class members so that they may choose to opt in to the collective action, "[t]he court employs a lenient standard" in making such a determination. McKinney, 585 F. Supp. 2d at 8. While the FLSA does not define "similarly situated[,]" id., courts have considered three factors that bear on the commonality of the claims: "(1) whether [putative class members] all worked in the same corporate department, division and location; (2) whether they all advanced similar claims; and (3) whether they sought substantially the same form of relief." Hunter, 346 F. Supp. 2d at 119 (quoting Lawrence v. City of Phila., No. 03-CV-4009, 2004 WL 945139, at *1 (E.D. Pa. Apr. 29, 2004)). In Castillo, the court conditionally certified a class even though some putative class members did not have identical job titles or duties and worked in different locations. It found these distinctions immaterial in light of the substantive similarity of the putative class members' job responsibilities, their shared classification as non-exempt for purposes of the FLSA, and the allegation that the employer subjected all of its workers to a uniform payroll policy. 517 F. Supp. 2d at 446-48.

Here, the putative class members are similarly situated to the plaintiffs. As in Castillo, the plaintiffs allege that "the duties and responsibilities of the jobs held by members of the proposed Collective Class were the same as or substantially similar to the duties and responsibilities of the jobs held by Plaintiffs Gabriel Encinas and Felix Encinas." (Compl. ¶ 69.)

The named plaintiffs worked for J.J. Drywall installing drywall and insulation at various construction sites (see Pls.' Mem. of P. & A. in Supp. of Mot. for Conditional Certification of Collective Class ("Pls.' § 216(b) Mem."), Gabriel Encinas Decl. ¶¶ 11, 16; Compl. ¶ 14), and the collective class members worked as "drywall finisher[s], drywall mechanics[s], carpenter[s], and/or mechanic[s], who perform work similar to the work performed by employees in those classifications[.]" (Compl. ¶ 68.) J.J. Drywall classified the named plaintiffs and all putative class members as exempt employees under the FLSA. (Id. ¶ 17.) Additionally, the plaintiffs have alleged that J.J. Drywall has "a company policy of not paying its employees for overtime hours worked" (id. ¶ 20), and the plaintiffs' and putative class members' FLSA claims stem from this policy. These similarities are sufficient to overcome any differences in job titles or work locations between the plaintiffs and putative class members, and the class will be conditionally certified.

"The scope of a collective action for overtime pay is limited, however, in that putative class members must affirmatively opt in to the action in order to become part of the lawsuit." Cryer v. Intersolutions, Inc., Civil Action No. 06-2032 (EGS), 2007 WL 1053214, at *1 (D.D.C. Apr. 7, 2007). To opt in to the class, a plaintiff must give "his consent in writing[,]" and such consent must be filed in the court in which the suit is brought. 29 U.S.C. § 216(b). A court may facilitate notice of a collective action, informing putative members of the class about the suit and the requirement to opt in to the litigation, so long as it "take[s] care to avoid even the appearance of judicial endorsement of the merits of the action." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989). Ninety days is a reasonable period for putative class members to respond to the notice. Cryer, 2007 WL 1053214, at *3. Here, plaintiffs have filed a proposed notice, to be posted "at all of J.J. Drywall Corporation's job sites, in the same areas in which it is required to post government-required notices." (Pls.' ยง 216(b) Mem. at 13.) The proposed ...

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