Bandy v. TRC Sols.

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HERMAN BANDY, Plaintiff, v. TRC SOLUTIONS, INC., RTC ENGINEERS, INC., TRC FIELD SERVICES - TRC ENGINEERS, INC. Defendants.

No. 1:22-cv-144

United States District Court, W.D. Texas, Austin Division

April 11, 2024

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE; AND (2) GRANTING PLAINTIFF'S MOTION TO CERTIFY CLASS WITH MODIFICATION TO CLASS DEFINITION

DAVID ALAN EZRA, SENIOR UNITED STATES DISTRICT JUDGE

Before the Court is a Report and Recommendation (“Report”) submitted by United States Magistrate Judge Dustin Howell. (Dkt. # 68.) The Court finds this matter suitable for disposition without a hearing. After reviewing the Report, the Court ADOPTS Judge Howell's recommendation, and Plaintiff's Motion to Certify Class is GRANTED, with slight modification in the class description and notice requirements. (Dkt. # 48.)

BACKGROUND

Plaintiff Herman Bandy filed his amended complaint on July 5, 2022 alleging a cause of action under the Fair Labor Standards Act (“FLSA”) arising out of his employment with TRC from approximately January 1, 2019, to July 7, 2020.

(Dkt. # 45-1 at 2.) TRC is a consulting, engineering, and construction management firm. (Id.) Bandy worked for TRC as a Lead Right-of-Way Agent/Landman Supervisor. (Id. at 7.) In this position, Bandy “made phone calls and personal visits to land and mineral rights owners, prepar[ed] land leases and easements, submit[ted] documents to his supervisors, review[ed] titles and pipeline construction related matters, and attend[ed] regular meetings.” (Id.) Bandy's role was a “full time, exempt, day rate position” for which he was paid a “daily rate of $235 per day,” plus a $100 per day toolkit allowance, and $144 per diem. (Dkt #48-5 at 2.) Bandy alleges that TRC did not pay him overtime for hours worked in excess of 40 hours per week, as required by the FLSA. (Dkt. # 45-1 at 2-3.)

Bandy claims he was not the only employee TRC failed to compensate appropriately. In his complaint, Bandy alleges other individuals similarly “work[ed] on [TRC's] behalf including other landmen, right-of-way agents, title agents and supervisors, who provide[d] land leasing services obtain[ed] easements from property owners, research[ed] land titles, and [performed] other related work for Defendants' oil and gas customers.” (Id.) Bandy states these other TRC employees “are similarly situated to [him] in all relevant respects” in that they were also “paid a day rate for each day worked, regardless of hours worked” and were allegedly “wrongly denied . . . overtime premium compensation ... for hours worked in excess of 40-hours in any workweek.” (Id. at 10.)

Based on these allegations, Bandy moved for a certification of a collective action of a class comprising:

All current and former employees, employed by, or working on behalf of, TRC Companies, Inc., TRC Solutions, Inc., and/or TRC Field Services, who worked in excess of 40 hours in any workweek, and who were paid a day rate which failed to include overtime compensation at any time during the three (3) years preceding the filing of Plaintiff's Complaint (the “Putative Collective Action Members”).

(Dkts. # 45-1 at 4, 48 at 5.)

TRC opposes class certification, asserting the putative class includes employees not similarly situated to Bandy. (Dkt. # 60 at 4.) TRC alleges the class includes employees with different duties, job site locations, and supervisor status from Bandy, making it inapt for the purposes of class certification. (Id.) For the Court to allow class certification, Bandy must have demonstrated that “all current and former” TRC and TRC subsidiary employees who were paid a daily rate are similarly situated.

Judge Howell issued his Report and Recommendation on February 22, 2024, recommending the Court grant Plaintiff's motion to certify with slight modifications to the proposed class and notice. (Dkt # 68.) Plaintiff objected to the Report on March 7, 2024. (Dkt. # 69.) Defendants filed a Response to the objections on March 21, 2024. (Dkt. # 71.) Defendants also objected to the Report on March 7, 2024. (Dkt. # 70.) Plaintiff filed a Response to Defendants' objections on March 21, 2024. (Dkt. # 72.)

APPLICABLE LAW

The Court must conduct a de novo review of any of the Magistrate Judge's conclusions to which a party has specifically objected. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). The objections must specifically identify those findings or recommendations that the party wishes to have the district court consider. Thomas v. Arn, 474 U.S. 140, 151 (1985). A district court need not consider “[f]rivolous, conclusive, or general objections.” Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

Findings to which no specific objections are made do not require de novo review; the Court need only determine whether the Recommendation is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

DISCUSSION

In his Report, Judge Howell found that Plaintiff's proposed class are “similarly situated” for the purpose of a collection action under the meaning of the FLSA and that the putative class should be limited to positions subjected to the same pay scheme as Bandy whose claims fall into the standard three-year statute of limitations for willful violations under the FLSA. (Dkt. # 68.) As a result, Judge Howell recommends this Court authorize Bandy to send the proposed notice and consent forms to the following potential members of the collective action:

All current and former land acquisition personnel, employed by, or working on behalf of TRC Companies, TRC Solutions Inc., and/or TRC Field Services during the 3 years preceding class certification who were paid a day rate, received a toolkit allowance, and per diem, and who worked in excess of 40 hours in any workweek without being paid overtime compensation.

(Id. at 15.) Judge Howell further recommends this Court order the parties to confer on the specifics of the notice within 21 days of the date of adoption of this report and recommendation. Defendants should disclose to Bandy the potential class members' names, addresses, e-mail addresses, telephone numbers, and dates of employment in a useable electronic format to allow circulation of the notice and consent forms.

Plaintiff objected to the report. (Dkt. # 69.) Plaintiff first objected to Judge Howell's finding that equitable tolling of the statute of limitations is not warranted. (Id. at 5.) Plaintiff next objects to limiting the class to employees who had the same pay scheme as Plaintiff. (Id. at 8.) Plaintiff also objected to Judge Howell excluding TRC Field Solutions, Inc. from the collective action definition. (Id. at 11-12.)

Defendants also objected to the report. (Dkt. # 70.) Defendants assert the Report adopted Plaintiff's assertions without rigorously evaluating the evidence as required by Swales. (Id. at 2.) Defendants also argue that the Report improperly determined Plaintiff met his burden to show there is a category of similarly situated employees. (Id. at 3.) Defendants ask the Court to deny Plaintiff's Motion to Certify Class. (Id. at 7.)

1. Equitable Tolling of the Statute of Limitations is Not Warranted

The FLSA provides for a three-year statute of limitations for willful violations. 29 U.S.C. § 255(a). Under the FLSA, the statute of limitations period runs until a plaintiff or a putative class member opts-in to a collective action by filing a Notice of Consent or files suit. 29 U.S.C. § 256.

A district court generally has the discretion to equitably toll the statute of limitations. See Granger v. Aaron's, Inc., 636 F.3d 708, 712 (5th Cir. 2011); Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2002). However, the Fifth Circuit only allows equitable tolling in FLSA litigation if the plaintiff demonstrates it has “acted diligently and the delay concerns extraordinary circumstances.” Shidler v. Alarm Sec. Grp., LLC, 919 F.Supp.2d 827, 830 (S.D. Tex. 2012) (citing Caldwell v. Dretke, 429 F.3d 521, 530 n.23 (5th Cir. 2005)); Teemac, 298 F.3d at 457. Moreover, equitable tolling should only be applied in “rare and exceptional circumstances.” Teemac, 298 F.3d at 457 (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)); see also Caldwell, 429 F.3d at 530 n.23. “Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996). “Courts may also grant equitable tolling when, ‘despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim.'” Orozco v. Anamia's Tex-Mex Inc, 3:15-CV-2800-L-BK, 2016 WL 6311237, at *1 (N.D. Tex. Oct. 6, 2016) (quoting Pacheco v. Rice, 966 F.2d 904, 906-07 (5th Cir. 1992)). “The party who invokes equitable tolling bears the burden of proof.” Teemac, 298 F.3d at 457.

Judge Howell found Plaintiff's assertion that he met the extraordinary circumstances element because the “stringent requirements of Swales^[1] will inherently cause delays ... [which] for obvious reasons, will negatively impact the cases of unsuspecting putative collective action members who likely are not even aware that their damages are dwindling as the statute of limitations runs against them” to be insufficient. (Dkt. # 68 at 12 (quoting Dkt. # 24 at 4.))

Plaintiff objects that ...