Molina-Torres v. Harris Cnty. Constable Precinct 6

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CARLOS MOLINA-TORRES, Plaintiff, v. HARRIS COUNTY CONSTABLE PRECINCT 6, et al., Defendants.

Civil Action No. 4:23-CV-01786

United States District Court, S.D. Texas, Houston Division

April 19, 2024

MEMORANDUM & ORDER

KEITH P. ELLISON UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff's Motion to Authorize Notice to Potential Plaintiffs. ECF No. 37. For the reasons that follow, the Motion is GRANTED, subject to the qualifications on the form of notice discussed below.

I. BACKGROUND

Plaintiff Carlos Molina-Torres worked as a canine deputy for the Harris County Constable Precinct 6 (“Precinct 6”) from June 2020 until August 2021. Plaintiff now brings this suit against Defendant Harris County on behalf of himself and all others similarly situated, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“FLSA”).

Plaintiff challenges two of Defendant's payment practices. First Plaintiff claims that Defendant failed to pay canine deputies for at home care of their police dogs. Each canine deputy is responsible for caring for the police dog assigned to them including after hours and on days off. While the last 45 minutes of a canine deputy's eight-hour shift is reserved for canine care, Plaintiff alleges that the canine deputies received no compensation for time caring for their canines between shifts, on weekends, and on days off.

Second, Plaintiff alleges that Defendant did not incorporate the canine deputy's $200 monthly incentive payment into its calculation of employees' regular rate for compensatory time purposes. The parties agree that deputies are non-exempt employees. However, when deputies work over 40 hours, they accrue compensatory time (“comp time”) instead of overtime. Rodriguez Dep. 33:1-6. Comp time entitles employees to obtain paid time off and is calculated at a rate of 1.5 times that amount of overtime worked. For example, if a canine deputy works an hour beyond their scheduled shift, they're entitled to take an hour and a half off at a later date. Accrued comp time is paid out when a deputy is terminated. ECF No. 38-1 at 17.

The parties have conducted limited initial discovery, and Plaintiff now moves the Court to authorize notice to all Canine Deputies employed by Harris County Constable Precinct 6 within the three years prior to the filing of the Complaint. Plaintiff's proposed notice plan is as follows:

• 7 days from order approving notice: Defendant will produce required information about putative class members in a usable electronic format.

• 14 days from order: Plaintiff will send Notice to employees over mail, email, and text. Defendant will post the notice and consent form at its facilities for sixty days at an open and obvious location. Putative class members have 60 days to opt in.

• 30 days from date notice is mailed: Plaintiff can send a text and email reminder to potential class members who have not responded to notice.

II. APPLICABLE LAW

An employee may bring an action under the FLSA either individually or as a collective action on behalf of herself and “other employees similarly situated.” 29 U.S.C. § 216(b). To become a party plaintiff, each individual must affirmatively opt in to the collective action by submitting written consent. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 (5th Cir. 2008). To facilitate this opt-in process, courts have the discretion to facilitate notice to potential plaintiffs early in litigation. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989).

The question of whether notice is appropriate is governed by Swales v. KLLM Transport Services, LLC, 985 F.3d 430 (5th Cir. 2021). Swales discarded the prior two-step approach from Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). Instead, Swales instructs that courts “must rigorously scrutinize the realm of ‘similarly situated' workers, and must do so from the outset of the case, not after a lenient, step-one ‘conditional certification.' Only then can the district court determine whether the requested opt-in notice will go to those who are actually similar to the named plaintiffs.” Swales, 985 F.3d at 434. In other words, the district court proceeds directly to step two of Lusardi-the “similarly situated” inquiry-with the benefit of pre-certification discovery if needed.

In determining whether employees are similarly situated, “there is no one-size-fits-all analysis or mechanical test to apply.” Loy v. Rehab Synergies, L.L.C., 71 F.4th 329, 337 (5th Cir. 2023). Still, “courts may still find it useful to consider the Lusardi factors to help inform or guide the similarly situated analysis.” Id. at 337. Those factors are: “(1) [the] disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to [the] defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Swales, 985 F.3d at 437 (quoting Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)).

The first factor “assesses the opt-in plaintiffs' job duties, geographic location, supervision, and salary to determine if the potential opt-ins are similarly situated.” Snively v. Peak Pressure Control, LLC, 314 F.Supp.3d 734, 739 (W.D. Tex. 2018). Class members do not have to hold identical employment to be similarly situated. Cortez v. Casa do Brasil, LLC, 646 F.Supp.3d 847, 853 (S.D. Tex. 2022) Rather, plaintiffs “must show a ‘demonstrated similarity' among the purported class members, as well as a ‘factual nexus' that binds the class members' claims together such that hearing the claims in one proceeding is fair to all parties and does not result in an unimaginable trial of individualized inquiries.” Cotton-Thomas v. Volvo Grp. N. Am., LLC, No. 3:20-CV-113, 2021 WL 2125003, at *2 (N.D. Miss. May 25, 2021) (citing Swales, 985 F.3d at 443). “Second, courts look to whether the defendant's defenses are so individualized that it is inefficient or unmanageable to proceed with a representative class.” Cortez, 646 F.Supp.3d at 854. Even though a “defense may require specific factual inquiries about each Plaintiff,” when the Defendant asserts the defense against each Plaintiff, “collective treatment is less problematic.” Segovia v. Fuelco Energy LLC, No. SA-17-CV-1246, 2021 WL 2187956, at *10 (W.D. Tex. May 28, 2021). Finally, courts examine whether notice would facilitate the primary purposes of FLSA collective actions, namely, “(1) to lower costs to the plaintiffs through the pooling of resources, and (2) to limit the controversy to one proceeding which efficiently resolves common issues of law and fact that arise from the same alleged activity.” Snively v. Peak Pressure Control, LLC, 314 F.Supp.3d 734, 743 (W.D. Tex. 2018).

Conducting this similarly situated analysis does not require assessing the merits of a plaintiff's claims. Cortez, 646 F.Supp.3d at 855-56. However, it may require deciding “potentially dispositive, threshold matters” such as whether there is a binding arbitration agreement or whether the plaintiff is an employee under the FLSA. Swales, 985 F.3d at 441; Klick v. Cenikor Found., 94 F.4th 362, 368 (5th Cir. 2024). Aside from this narrow set of threshold issues, the Court's consideration of merits issues is limited to deciding “whether merits questions can be answered collectively.” Swales, 985 F.3d at 442.

III. ANALYSIS

a. Whether Notice is Appropriate

At the outset, the Court notes that Defendant primarily argues the merits of Plaintiff's claims instead of addressing whether the canine deputies are similarly situated. Finding that none of Defendant's merits arguments presents “threshold issues” that require resolution before notice is dispensed, the Court considers only whether the proffered defenses suggest that the putative class members are not similarly situated.^[1]

i. Claim 1: Payment for After Hours Canine Care

Plaintiff first contends that all canine deputies were not compensated for caring for their canines after hours. Plaintiff provides several pieces of evidence to suggest that this alleged lack of compensation applied to all canine deputies. First, Plaintiff points to the Department Canine Policy, which states, “On a daily basis the Handler shall spend time with the canine, walking, grooming, feeding, and providing medication if needed. Handlers will be compensated for the daily time spent with the canine as set forth in this policy.” ECF No. 37-2 at 10. The policy's provision on payment states, in full, “Canine Handlers who are responsible for the care, feeding, walking, bathing and administering medications for the canine shall be allowed 45 minutes per work day to care for the dog, with total compensation for a 40 hour week.” Id. at 11.

The policy indicates two things. First, although the last 45 minutes of each canine deputy's shift is specifically set aside to care for their canine, canine deputies were also required to care for their canines between shifts, on weekends, and on days off. Second, the payment policy only mentions compensation for the 45 minutes of care provided during the deputy's shift. Caring for a dog undoubtably requires some amount of work between shifts and on days off, yet the policy's payment provision neglects to address payment for this time. Plaintiff's timesheets and overtime records, which show he received essentially no compensation for caring for his canine between shifts, are consistent with this understanding of the Department Canine Policy. ECF No. 37-3; ECF No. 38-2.^[2]

Testimony from Captain Joe Martinez, who previously supervised the canine deputies in Precinct 6, further confirms that canine deputies were uniformly not paid for this time:

Q: Does the department pay the canine deputy for the additional time that t

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