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Dunkel v. Warrior Energy Services, Inc.

United States District Court, W.D. Pennsylvania

December 23, 2014

PAUL DUNKEL, et al., on behalf of themselves and all others similarly situated, Plaintiffs,


MARK R. HORNAK, District Judge.

Plaintiffs, Paul Dunkel, Marlin Addison, Latrice Allen, Michael Andiorio, Thomas Ezequiel, Bryan Franklin, Keith Kozlesky, Paul Ramsey, Terry Ramsey, et al. ("Plaintiffs"), brought this civil action to recover unpaid overtime on behalf of themselves and other allegedly similarly situated employees of Warrior Energy Services Corporation ("Warrior") and Integrated Production Services, Inc. ("IPS") (collectively "Defendants") as a collective action under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. ("FLSA") and as a Rule 23 class action under the Pennsylvania Minimum Wage Act ("PMWA"), 43 P.S. § 333.101 et seq. The Complaint boils down to this: the Defendants allegedly misclassified Plaintiffs (and other employees) as exempt under the Motor Carrier Exemption from the overtime requirements of the FLSA and the relevant provisions on the PMWA.

Pending before the Court is Plaintiffs' Motion for Conditional Class Certification pursuant to 29 U.S.C. § 216(b), ECF No. 50, and a Joint Motion for Approval of Court-facilitated Notice, ECF No. 85. In evaluating these Motions, the Court has carefully considered Plaintiffs' Second Amended Complaint, ECF No. 14-1; Defendant IPS's Answer, ECF No. 21; Defendant Warrior's Answer, ECF No. 22; Plaintiffs' Motion for Class Certification, ECF No. 50, and Brief in Support, ECF No. 51; Defendants' Brief in Opposition, ECF No. 63, and related appendix, ECF No 64; Plaintiffs' Reply Brief, ECF No. 68; Defendants' Sur-Reply Brief, ECF No. 73; the Supplemental Brief in Support of the Joint Motion for Approval of Court-Faciliated Notice, ECF No. 86; Plaintiffs' Memorandum Concerning "Court Costs, " ECF No. 87; Plaintiffs' Confirmation and Compilation of Current Plaintiffs, ECF No. 97; as well as all attached Exhibits and other relevant documents submitted by the parties. For the reasons that follow, the Court will grant Plaintiffs' Motion for Conditional Class Certification[1] in part and will approve the proposed Court-Facilitated Notice, as modified.


Plaintiffs[2] brought this action as an individual and collective action under the Fair Labor Standards Act and as a putative class action applying the Pennsylvania Minimum Wage Act to recover damages for non-payment of allegedly-due unpaid overtime wages. Plaintiffs filed their Complaint on May 17, 2013, and an Amended Complaint on August 1, 2013. ECF Nos. 1 and 9. Following Defendants' Motion to Dismiss, Plaintiffs filed a Second Amended Complaint ("SAC"). ECF No. 14-1. Although the initial Complaint listed three Defendants Superior Energy Services, Inc., Warrior Energy Services, Inc. ("Warrior"), and Integrated Production Services, Inc. ("IPS")-the parties stipulated to the dismissal of Superior Energy Services, Inc. pursuant to Fed.R.Civ.P. 41(a)(1)(A). ECF No. 19. Defendants filed Answers to the SAC on November 25, 2013. ECF Nos. 21-22. Following the filing of several consents to opt-in, the Plaintiffs filed a motion to "conditionally certify" the FLSA collective action and an accompanying brief on July 9, 2014. ECF No. 50-51. Defendants filed a brief in opposition on August 18, 2014, ECF No. 63, to which Plaintiffs replied on August 27, 2014, ECF No. 68. Defendants filed a sur-reply brief on September 5, 2014. The Court heard oral argument on September 29, 2014.

Count I of the Second Amended Complaint alleges that Defendants failed to pay overtime in violation of the Fair Labor Standards Act ("FLSA") pursuant to 29 U.S.C. § 216(b). Count II, which alleges a failure to pay overtime wages in violation of the Pennsylvania Minimum Wage Act, 43 Pa. Cons. Stat. § 333 et seq. ("PMWA"), is purportedly brought as a class action pursuant to Fed.R.Civ.P. 23. Count III of the Second Amended Complaint alleges violations of both the FLSA and the PMWA for failure to include bonuses in the calculation of regular rate of pay.[3]

In February 2012, the parent corporations of Warrior and IPS merged. ECF No. 63, at 6. Plaintiffs' lawsuit thus concerns former Warrior employees and legacy Warrior employees currently employed by IPS as the successor company. Id. Both Warrior (formerly) and IPS (presently) provide(d) oil field services, including, as relevant here, coil tubing services. Id. On March 1, 2012[4], IPS assumed operational control of Warrior's coil tubing business unit. Id.

Coil tubing involves using large lengths of coiled tubing to stimulate the production of oil and gas in wells and to clean out oil and gas wells. ECF No. 64-1, at ¶4. Most of the work performed by coil tubing crews for the Defendants involves drilling out plugs in well casings that are left by the companies that perform "fracking."[5] ECF No. 51-1, at ¶5. Although drilling out plugs is the primary job of the coil tubing crews, they also occasionally perform preparatory work to get the wells ready for fracking and are also sometimes called out to well sites to help retrieve equipment and tools that other companies may have lost in the wells. ECF No. 51-1, at ¶ 6. A given well site may have between 2 and 10 wells, and each well may have between 10 and 40 plugs. ECF No. 64-1, at ¶ 9.

To perform these tasks, the Defendants used coil tubing crews that normally consisted of 5 workers: a ground hand, a pump/coil hand, a pump operator, a coil operator, and a supervisor. ECF No 51-1, at ¶15. Each crew was based out of a coil tubing district (or "shop"). Id. at ¶ 11; see also, ECF No. 64-1, at ¶¶ 16-7. According to the Declaration of Michael Davis, submitted by Defendants, from the years 2010 to 2013, the Defendants had the following ten coil tubing districts: (1) Belle Vernon, Pennsylvania; (2) Williamsport, Pennsylvania; (3) Dickinson, North Dakota; (4) Laurel, Mississippi; (5) Odessa, Texas; (6) Longview, Texas; (7) Victoria, Texas; (8) Arcadia, Louisiana; (9) Broussard, Louisiana; and (10) Decatur, Texas.[6] ECF No. 64-1, at ¶ 7. From these districts, coil tubing crews would work at well sites in the surrounding areas, including other states. For example, as explained in his Declaration, Keith Kozlesky reported out of two shops/districts-Belle Vernon, Pennsylvania and Williamsport, Pennsylvania-but worked at well sites in Pennsylvania, Ohio, and West Virginia. ECF No. 51-4, at ¶¶ 9-10. Robert Knowles, another Plaintiff, reported out of three shops/districts-Belle Vernon, Pennsylvania; Williamsport, Pennsylvania; and Decatur, Texas-but worked at well sites in eight states: Pennsylvania, Texas, West Virginia, Ohio, New York, Oklahoma, Louisiana, and New Mexico. ECF No. 51-6, at 3-4. Plaintiffs did not submit Declarations from anyone who worked out of the following seven (7) Districts: Dickinson, North Dakota; Laurel, Mississippi; Odessa, Texas; Longview, Texas; Victoria, Texas; Arcadia, Louisiana; and Broussard, Louisiana.[7] Crews were required to report to the shops/districts (such as Belle Vernon or Williamsport) before their shift began and then travel to the well site from there. ECF. No. 51-2, at ¶¶ 37-38. If the well site was too far from the District, the crews would set out from the hotel where they were staying. Id. at ¶ 37.

According to Plaintiffs, coil tubing crews "had one common objective: meet the needs of the customer, " which "required every member of the coil tubing crew to do whatever tasks they were qualified to perform that were required at any given time, whether those tasks officially fit any job title or not...." ECF No. 51-2, at ¶¶ 24-25. The coil tubing operation involved several large pieces of equipment (a coil unit, a fluid pump, a crane, a blow-out protector truck, and a nitrogen truck), all of which are commercial vehicles with a gross vehicle weight rating ("GVWR") of more than 10, 000 pounds. ECF No. 51-1, at ¶ 24. Each coil tubing operation also made use of one or more smaller vehicles (an F-150 or ¶ 250 truck), which, in many cases, would have a GVWR of 10, 000 or less. ECF No. 51-2, at ¶27.[8] This is known as a spread of vehicles. Id. at ¶ 29.

The larger pieces of equipment were either driven to well sites on their own or mounted on flat beds and hauled by tractors, and then once these bigger pieces of equipment reached the well site, they remained there until the job was completed. ECF No. 51-2, at ¶¶ 30, 32. The smaller vehicles (the F-150 and F-250 trucks) were driven regularly to and from the well site. Id. at ¶ 33. According to Plaintiffs, the smaller vehicles "were an indispensable part of the coil tubing operation on the sites and of the crew being able to do its job." Id. at ¶ 34. Plaintiffs allege that smaller vehicles were necessary (1) to transport the coil tubing crews back and forth to the site every day; (2) to make "fuel runs" offsite to get diesel fuel (which was not normally stored on site) for the on-site operating equipment; and (3) to make "hotshots, " which were trips to haul supplies and repair parts (such as chemicals needed during coil tubing to reduce friction, absorbent to clean up spills, gloves, overalls, earplugs, hardhats, safety glasses, towels, trash bags, cleaning fluids, and so on) and also to get food for crew members. Id. at ¶¶ 35, 48-50, 55-56. Furthermore, "every one in the crew was required, as necessary and as ordered, to drive the smaller vehicles, " and "the smaller vehicles were regularly used by any and all of the crew members." Id. at ¶¶ 45, 47.

The workers' job titles-"whether a so-called ground hand, coil or pump hand, pump operator, coil operator or any other crew member title" did not matter when it came to making trips in smaller vehicles. Id. at ¶ 58. The declarations also allege a high frequency of smaller vehicle use: "I drove the smaller vehicles on average some 10 or more times each week when I was a coil operator"; "There was not a week that I was on site that I can recall not driving one of the smaller vehicles off site"; "I drove the smaller vehicles many more times per week, and many more times over the course of the time I was a crew member before becoming a Supervisor, than I drove the big rigs (the commercial vehicles)"; "In fact, there were many weeks I did not drive any of the big rigs: but there wasn't a single week I can remember when I was assigned to a coil tubing crew that I didn't drive one of the smaller vehicles." Id. at ¶¶ 64, 66-68.[9]

The Plaintiffs allege that they worked an average of 100 hours per week when assigned to gas sites, working nearly every day for approximately 28 days (and sometimes more). Id. at ¶ 83-85. These crew members were paid salaries, see, e.g., ECF No. 51-1, at ¶¶ 72-73, were given a daily on-site bonus, see, e.g., ECF No. 51-3, at ¶78, and were not paid overtime, ECF No. 51-2, at ¶¶ 71-81 Plaintiffs allege that Defendants' failure to pay them overtime (both for hours worked in excess of 40 each week and inclusive of on-site bonuses) violated the FLSA. ECF No. 51, at 7. They allege as the basis for Defendants' violation a misclassification of Plaintiffs as exempt under the Motor Carrier Exemption to the FLSA. Id. Plaintiffs argue that certain changes in the statutory scheme (as will be explained hereafter) have produced the following result:

The hours of service of drivers, drivers' helpers, loaders, and mechanics or vehicles weighing 10, 000 lbs. or less GVWR ("small" vehicles) no longer remain unregulated after SAFETEA-LU TCA[10], and these employees (such as Plaintiffs and the putative class) are not to be disqualified from overtime protection under the FLSA merely because they also perform tasks that affect the safety of "commercial" vehicles (vehicles over 10, 000 lbs. GVWR) operating in interstate commerce.

Id. at 9. According to Plaintiffs, there are more than 500 former Warrior coil tubing employees who were employed by Defendants during the relevant time period and were affected by this alleged misclassification under the MCA. Id. at 6-7.


A. Legal Standard

"The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract" and "gives employees the right to bring a private cause of action on their own behalf and on behalf of other employees similarly situated for specified violations of the FLSA, " which is known as a "collective action." Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1527 (2013) (internal quotation marks omitted). The Third Circuit has explained that "[in deciding whether a suit brought under § 216(b) may move forward as a collective action, courts typically employ a two-tiered analysis." Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 195 (3d Cir. 2011), rev'd on other grounds sub nom. Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013). More recently, the Third Circuit explained the twostep FLSA certification process as follows:

Courts in our Circuit follow a two-step process for deciding whether an action may properly proceed as a collective action under the FLSA. Applying a fairly lenient standard at the first step, the court makes a preliminary determination as to whether the named plaintiffs have made a modest factual showing that the employees identified in their complaint are similarly situated. If the plaintiffs have satisfied their burden, the court will "conditionally certify" the collective action for the purpose of facilitating notice to potential opt-in plaintiffs and conducting pre-trial discovery. At the second stage, with the benefit of discovery, a court following this approach then makes a conclusive determination as to whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff. This step may be triggered by the plaintiffs' motion for "final certification, " by the defendants' motion for "decertification, " or, commonly, by both. If the plaintiffs succeed in carrying their heavier burden at this stage, the case may proceed on the merits as a collective action.

Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013) (internal citations and quotation marks omitted).

A plaintiff's burden at the first tier is light, requiring only that the plaintiff make a "modest factual showing" by "produc[ing] some evidence, beyond pure speculation, of a factual nexus between the manner in which the employer's alleged policy affected her and the manner in which it affected other employees." Symczyk, 656 F.3d at 195. If the Plaintiff makes this modest factual showing, "the court will conditionally certify the collective action for the purposes of notice and pretrial discovery." Id. at 192. Put differently, the first stage looks at "whether similarly situated' plaintiffs do in fact exist, while at the second stage, the District Court determines whether the plaintiffs who have opted in are in fact similarly situated' to the named plaintiffs." Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 n.4 (3d Cir. 2012) (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)) (internal quotation marks omitted). As the Zavala Court explained:

"conditional certification" is not really a certification. It is actually the district court's exercise of its discretionary power, upheld in Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, (1989), to facilitate the sending of notice to potential class members, and is neither necessary ...

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