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McLendon v. Schlumberger Technology Corp.

United States District Court, E.D. Arkansas, Western Division

July 15, 2016

SIDNEY MCLENDON, individually and on behalf of others similarly situated PLAINTIFFS



         Sidney 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.


         Schlumberger 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) (2006).

         The 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.

         In the 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 at 1083.


         The key 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).

         McLendon 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.

         In his 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.

         Schlumberger 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.

         Schlumberger 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 statutory ...

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