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Estorga v. Santa Clara Valley Transportation Authority

United States District Court, N.D. California, San Jose Division

June 15, 2017



          BETH LABSON FREEMAN United States District Judge.

         Plaintiff Robert Estorga (“Estorga”) alleges that Defendant Santa Clara Valley Transportation Authority (“VTA”) fails to compensate bus drivers at an overtime rate when they accrue travel time by working in excess of 40 hours in a week. Mot. 1, ECF 34-1. VTA claims that this suit is merely a collateral attack on the judgment entered in a separate suit, Rai v. Santa Clara Valley Transportation Authority, Case No. 12-cv-04344-PSG (“Rai”). Opp'n 1, ECF 36. At this juncture, Estorga seeks conditional certification of a collective action under the Fair Labor Standards Act (“FLSA”). For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Estorga's motion for conditional certification.

         I. BACKGROUND

         Prior to his retirement effective June 1, 2016, Estorga was a VTA bus driver. Estorga Decl. ¶ 3, ECF 34-5. Estorga asserts that during his employment with VTA, VTA failed to pay him and other bus drivers for two types of travel time. First Am. Compl. ¶ 8 (“FAC”), ECF 27. One is the “start-end” travel time, in which Estorga claims that a bus driver would begin a shift at the “division, ” but would end the shift on the street, a geographical location distant from the “division.” FAC ¶ 10; Russell Decl. ¶ 8. The second is unpaid travel time incurred by “mid-shift” travel, in which Estorga alleges he was required to travel from the end of his first bus run in Gilroy to the beginning of a second bus run starting in San Jose, for example. FAC ¶ 9; Mot. 3; Russell Decl. ¶ 16. Estorga claims VTA's policies violate FLSA overtime requirements for “hours worked.”

         An overview of the Rai suit is also recounted here as the Rai suit will be relevant to the Court's evaluation of Estorga's motion. In 2012, Beljinder Rai and other class representatives filed a class action and collective action complaint in this District asserting violation of FLSA and state labor laws due to VTA's failure to compensate bus drivers for two forms of travel time. Ex. B to McLaughlin Decl. (Rai Dkt.), ECF 36-1. Rai claimed that “Start-End Travel Time, ” Ex. A to McLaughlin Decl. ¶¶ 10, 12 (“Rai Fourth Am. Coml.”); Ex. C to McLaughlin Decl. ¶ 6.3.7 (“Rai Settlement”), and “Split-Shift Travel Time” required time and one-half overtime pay. Id. ¶ 6.3.8; Rai Fourth Am. Coml. ¶¶ 13, 15. The parties in the Rai suit proceeded through conditional certification of the collective action, motion for class certification and fact and expert discovery. E.g., Rai Dkt. Following numerous settlement conferences overseen by Magistrate Judge Spero, the parties came to an agreement in which VTA agreed to pay $4.2 million and to take certain steps to ensure compliance with applicable wage-and-hour laws. Rai Settlement. Amalgamated Transit Union, Local 265 (“ATU”) representing all bus and light rail operators at VTA but not a party to Rai, objected to the settlement. Opp'n 36. On May 17, 2016, the Court found ATU's objections and other objections to be untimely and without merit, and approved the final class action settlement. Ex. J to McLaughlin Decl. (Final Approval Hr'g Tr.) 6:17-14; 23:8-11; Exs. E and F to McLaughlin Decl. Plaintiff Estorga opted out of the settlement class, along with sixteen other members including Kenneth Dura, Wayne Metrick, Kevin Golden, Paul Cooper, Juanito Alberto, Emile Betti, Kenneth Norrington, J.L. Pitts, Fred Hernandez, David Howard, Chao Yong Li, Richard Lewis, Richard Chavarria, Clifton Sledge, John Marini, and Harold Sheehy. Ex. E to McLaughlin Decl. ¶¶ 8, 13 (“Final Approval”). Apparently, none of these individuals opted-in to the FLSA collective action, either. On May 17, 2016, Estorga filed this suit. Compl., ECF 1.

         Now before the Court is Estorga's motion for conditional certification of a collective action pursuant to 29 U.S.C. § 216(b). ECF 34-1.


         The Fair Labor Standards Act (“FLSA”) provides that actions against employers for violation of overtime and minimum wage requirements may be brought “in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b).

         A suit brought on behalf of other employees is known as a “collective action, ” a type of suit that is “fundamentally different” from class actions. Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1529 (2013) (citation omitted). Unlike class actions certified under Rule 23, potential members of an FLSA collective action must “opt-in” to the suit by filing a written consent with the Court in order to benefit from and be bound by a judgment. 29 U.S.C. §216(b); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). Employees who do not opt-in may bring a subsequent private action. Leuthold, 224 F.R.D. at 466 (citing EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1508 n.11 (9th Cir. 1990)). Once an FLSA “action is filed, the court has a managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989) (discussing collective action in context of Age Discrimination in Employment Act).

         The determination of whether a collective action is appropriate is within the Court's discretion. See Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 535 (N.D. Cal. 2007). The named plaintiff bears the burden to show that they and the proposed class members are “similarly situated.” See Id . (citing 29 U.S.C. § 216(b)). The FLSA does not define “similarly situated.” District courts in this Circuit generally apply a two-step inquiry in an FLSA action. See, e.g., Leuthold, 224 F.R.D. at 466-67; Adams, 242 F.R.D. at 536. The two-step approach distinguishes between conditional certification of the action and final certification. Under the first step, the court makes an initial “notice-stage” determination of whether potential opt-in plaintiffs are similarly situated to the representative plaintiff, determining whether a collective action should be certified for the sole purpose of sending notice of the action to potential class members. Leuthold, 224 F.R.D. at 466-67; Adams, 242 F.R.D. at 536. The sole consequence of conditional certification is the “sending of court-approved written notice, ” to the purported members of the class. Genesis, 133 S.Ct. at 1530. Those individuals become parties to a collective action only by filing written consent with the court.

         For conditional certification at this notice-stage, courts require little more than substantial allegations, supported by declarations or discovery, that “the putative class members were together the victims of a single decision, policy, or plan” and a showing that plaintiffs are “generally comparable to those they seek to represent.” Villa v. United Site Servs. of Cal., No. 12-00318-LHK, 2012 WL 5503550, at *13 (N.D. Cal. Nov. 13, 2012) (citation omitted); Stanfield v. First NLC Fin. Serv., LLC, No. 06-3892-SBA, 2006 WL 3190527, at *2 (N.D. Cal. Nov. 1, 2006); see also Morton v. Valley Farm Transp., Inc., No. 06-2933-SI, 2007 WL 1113999, at *2 (N.D. Cal. Apr. 13, 2007) (describing burden as “not heavy” and requiring plaintiffs to merely show a “reasonable basis for their claim of class-wide” conduct (internal quotation marks and citation omitted)). Thus, a named plaintiff must show that he or she is similarly situated to the absent members of the collective action and present “some identifiable factual or legal nexus [that] binds together the various claims of the class members in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA.” Russell v. Wells Fargo & Co., No. 07-3993-CW, 2008 WL 4104212, at *3 (N.D. Cal. Sept. 3, 2008); Sanchez v. Sephora USA, Inc., No. 11-3396-SBA, 2012 WL 2945753, at *2 (N.D. Cal. July 18, 2012) (“Plaintiff need not show that his position is or was identical to the putative class members' positions; a class may be certified under the FLSA if the named plaintiff can show that his position was or is similar to those of the absent class members.” (citations and quotation marks omitted)).[1]

         The standard for conditional certification is a lenient one that typically results in certification. Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 627-28 (E.D. Cal. 2009) (citing Wynn v. Nat'l Broad. Co., Inc., 234 F.Supp.2d 1067, 1082 (C.D. Cal. 2002)). As a practical matter, “[a]t this stage of the analysis, courts usually rely only on the pleadings and any affidavits that have been submitted.” Leuthold, 224 F.R.D. at 468. Plaintiffs need not conclusively establish that collective resolution is proper, because a defendant will be free to revisit this issue at the close of discovery. Kress, 263 F.R.D. at 630. However, “[u]nsupported allegations of FLSA violations are not sufficient to meet the plaintiffs' burden.” Shaia v. Harvest Mgmt. Sub LLC, 306 F.R.D. 268, 272 (N.D. Cal. 2015) (citation omitted).

         Courts have emphasized that a lenient standard is used at the notice-stage step because a court does not have much evidence at that point in the proceedings-just the pleadings and any declarations submitted. In contrast, at the second step, a stricter standard is applied because there is much more information available, “which makes a factual determination possible.” Vasquez v. Coast Valley Roofing, Inc., 670 F.Supp.2d 1114, 1123 (E.D. Cal. 2009); see also Labrie v. UPS Supply Chain Sols., Inc., No. 08-3182-PJH, 2009 WL 723599, at *4 (N.D. Cal. Mar. 18, 2009) (noting that the first step “is characterized by a fairly lenient standard, necessitated by the fact that not all discovery will have been completed at the time of the motion, ” while, at the second step, “the court engages in a more stringent inquiry into the propriety and scope of the collective action” because “discovery is complete and the case is ready to be tried”).

         In considering whether the lenient notice-stage standard has been met in a given ...

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