United States District Court, E.D. Arkansas, Western Division
SIDNEY MCLENDON, individually and on behalf of others similarly situated PLAINTIFFS
SCHLUMBERGER TECHNOLOGY CORPORATION DEFENDANT
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE
McLendon brings this action against his former employer,
Schlumberger Technology Corporation, alleging that
Schlumberger failed to pay McLendon and other similarly
situated employees for overtime in violation of the Fair
Labor Standards Act (“FLSA”). 29 U.S.C. §
216(b). McLendon has filed a motion for conditional class
certification and court-authorized notice. For the following
reasons, the motion is denied.
provides products and services to the oil and gas industry.
Its corporate headquarters are in Sugar Land, Texas, but it
operates in locations through the United States. McLendon
worked for Schlumberger from October 2008 until November 17,
2015. He primarily worked out of the Conway, Arkansas
location. McLendon’s proposed FLSA class includes:
All Senior Field Technicians and Expert Field Technicians
employed by Defendant at any time since December 9, 2012.
Document #10 at 1, ¶2. The FLSA authorizes
“similarly situated” employees to proceed
collectively to recover damages for violations of the
FLSA’s overtime provisions. 29 U.S.C. § 216(b)
FLSA does not expressly define “similarly
situated.” Although the Eighth Circuit has not
addressed the issue, this Court and others within the Eighth
Circuit have applied the two-step approach set out in
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.
1987). See Maclin v. Montgomery and Sons Const.,
Inc., No: 4:12CV5, 2012 WL 5818163 at *1 (E.D. Ark. Nov.
15, 2012) (applying the two-step approach); In re
Pilgrim’s Pride, No. 1:07CV1832, 2008 WL 4877239,
at *2 (W.D. Ark. Mar. 13, 2008) (citing to federal courts
that follow the two-step approach and adopting it); Davis
v. NovaStar Mortgage, Inc., 408 F.Supp.2d 811, 815 (W.D.
Mo. 2005) (applying the two-step approach); Kalish v.
High Tech Inst., Inc., No. Civ. 041440, 2005 WL 1073645,
at *1 (D. Minn. Apr. 22, 2005) (applying the two-step
approach); McQuay v. Am. Int’l Group, No.
4:01CV00661, 2002 WL 31475212, at *2 (E.D. Ark. Oct. 25,
2002) (noting that “a majority of courts have adopted a
two-step process”). “This approach provides for a
two-step determination as to whether class certification is
proper.” Davis, 408 F.Supp.2d at 815.
Generally, the plaintiffs move for conditional certification
at an early stage in the litigation, and a class is
conditionally certified for notice purposes. Id.
Then, the defendant is allowed the opportunity to move for
de-certification at the close of discovery. Id.
first stage, or “notice stage, ” courts apply a
lenient standard to determine whether persons similarly
situated to the named plaintiffs exist and should receive
notice. Chin v. Tile Shop, LLC, 57 F.Supp.3d 1075,
1082 (D. Minn. 2014). The plaintiffs bear the burden
of proof at this stage, and they “can meet this burden
by making 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.”
Kautsch v. Premier Commc’ns, 504 F.Supp.2d
685, 689 (W.D. Mo. 2007) (quoting Realite v. Ark Rests.
Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y. 1998)). The
plaintiffs can satisfy their burden through the use of
affidavits, supported by admissible evidence. Jost v.
Commonwealth Land Title Ins. Co., No. 4:08CV734, 2009 WL
211943, at *2-3 (E.D. Mo. Jan. 27, 2009). “The
plaintiffs may not meet this burden through unsupported
assertions of additional plaintiffs and widespread FLSA
violations.” Littlefield v. Dealer Warranty Servs.,
LLC, 679 F.Supp.2d 1014, 1017 (E.D. Mo. 2010). However,
the Court “does not make any credibility determinations
or findings of fact with respect to contrary evidence
presented by the parties.” Chin, 57 F.Supp.3d
issue is whether McLendon has shown that his position is
similarly situated to the other employees he contends were
harmed by Schlumberger’s practice of refusing to pay
overtime. “To determine whether employees are similarly
situated, a district court considers several factors,
including the following: (1) whether the plaintiffs hold the
same job title; (2) whether they worked in the same
geographic location; (3) whether the alleged violations
occurred during the same time period; (4) whether the
plaintiffs were subjected to the same policies and practices;
and (5) the extent to which the acts constituting the alleged
violations are similar.” Smith v. Frac Tech Serv.,
Ltd., No. 4:09CV00679 JLH, 2010 WL 743296 at *3 (E.D.
Ark. Feb. 26, 2010) “However, the plaintiff need not
show that members of the conditionally certified class are
identically situated.” Pressler v. FTS USA,
LLC, No. 4:09CV00676 JLH, 2010 WL 1904974 at *4 (E.D.
Ark. May 12, 2010).
alleges in his complaint that he was employed as a senior
field technician throughout 2013 and 2014, and that he was
employed as an expert field technician from January 2015
through November 2015. Document #1 at 5, ¶¶ 22, 23.
The complaint describes his job as “manual labor. He
ran tubing conveyed perforating at various oil sites, which
involved loading perforating guns, transporting them to the
job site, and performing the perforating operations at the
site. When the job was completed, [he] transported the
equipment back to the shop and ensured that it was ready for
the next job.” Id. at 5-6, ¶ 28. McLendon
is less descriptive about the duties he performed in the two
affidavits he submitted to the Court in support of the motion
for conditional certification. See Document #10-7;
Document #14-1. He states in his first affidavit: “I
spent part of my day in the shop assembling and de-assembling
equipment and part of my day outdoors at well sites operating
equipment.” Document #10-7 at 1, ¶ 4. He also
states: “As both a Senior Field Technician and an
Expert Field Technician, my primary job duties were to
transport, maintain, and run equipment at various job sites.
I observed other Senior Field Technicians and Expert Field
Technicians working on various locations, and we all
performed similar work.” Id. at 2, ¶ 12.
McLendon maintains that he was always classified as a
salaried employee and was not paid any overtime pay, but that
he “did not regularly supervise any group of employees,
nor did [he] have the authority to hire or fire other
employees. This was true for all of the other Senior Field
Technicians and Expert Field Technicians that [he] worked
with, as well.” Id. at 3, ¶ 13.
second affidavit, McLendon stresses that his job primarily
involved the performance of manual labor and that he was able
to observe the work of other senior field technicians and
expert field technicians. Document #14-1 at 2, ¶ 9. He
states: “The work that I and other Senior Field
Technicians and Expert Field Technicians performed was
similar regardless of the location where we worked or the
specific jobs assigned us to, and primarily involved
transporting, maintaining and running equipment at
Schlumberger’s various job sites.” Id.
McLendon also stated that although he worked primarily out of
Conway, Arkansas, he also worked in Oklahoma, Texas, and
Louisiana. Id. at 2, ¶ 7. According to
McLendon, the work he did in other states was substantially
the same work that he did in Arkansas, and
Schlumberger’s policies applied at all of the
company’s locations. Id. at 2, ¶ 8.
argues that McLendon is not similarly situated to members of
the proposed class because Schlumberger did not employ
McLendon as an or senior field technician or expert field
technician during the relevant statutory time period.
Document #13 at 1. Rather, Schlumberger employed McLendon as
a Tubing-Conveyed and Perforating Specialist (“TCP
Specialist”). Id. McLendon clarifies this job
title issue in his second affidavit, stating:
“‘TCP Specialist’ describes the work I
performed during the time that I was a Senior Field
Technician and an Expert Field Technician; That is
[Schlumberger] assigned me to Tubing-Conveyed Perforating
jobs.” Document #14-1 at 1, ¶ 4.
first asks the Court to rely on the affidavit of its business
manager over the affidavit of McLendon to find that he did
not share the same job title as the employees to whom he
claims to be similarly situated, Document #13-3, but the
Court declines to do so at this stage of the analysis and
assumes that McLendon’s job title during the relevant