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Naicker v. Warrior Energy Services, Inc.

United States District Court, W.D. Pennsylvania

April 9, 2015

SCARLENA NAICKER and KOLBY OSWALD, on behalf of themselves and all others similarly situated, Plaintiffs,


MARK R. HORNAK, District Judge.

This is a case brought by two former employees of Warrior Energy Services, Inc. ("Warrior") 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 Pa. Stat. Ann. § 333.101 et seq. The Plaintiffs, Scarlena Naicker and Kolby Oswald, were "snubbers" for Warrior (out of the district in Belle Vernon, Pennsylvania) from February 2011 until about March 2013, when Warrior got out of the snubbing business. Plaintiffs claim they were wrongfully denied overtime wages for snubbing work[1] they did. According to them, Warrior incorrectly classified its snubbers as exempt (under the Motor Carrier Act ("MCA") Exemption, 29 U.S.C. §213(b)(1)) from the overtime requirements of the FLSA. Plaintiffs say that they drove a number of "little trucks, " i.e., vehicles weighing less than 10, 000 pounds, making them non-exempt under a complex statutory scheme that involves the FLSA, the MCA, and its amendatory counterparts, SAFETEA-LU, [2] and the SAFETEA-LU TCA.[3]

The Court blazed this trail in its earlier opinion in Dunkel v. Warrior Energy Servs., Inc., 304 F.R.D. 193 (W.D. Pa. 2014). In Dunkel, the issues, parties, lawyers, statutory provisions, arguments, and pretty much everything else, were the same as in this case.[4] The difference? Dunkel involved "coil tubers, " and this case deals with "snubbers." What's the difference between a coil tuber and a snubber? According to the parties, not all that much.[5]

Plaintiffs are now asking this Court to "conditionally certify" this collective action for the purpose of sending out notice to potential opt-in plaintiffs. ECF No. 19. Although this is essentially round two of the same fight, [6] the parties approached the issues with heartily-renewed vigor and filed a total of five (5) briefs on the subject-ECF Nos. 20, 34, 37, 43, and 46-along with declarations and appendices and exhibits and depositions-ECF Nos. 21-23, XX-X-XX-X, 39, XX-X-XX-X, 49, and 50-and the Court has reviewed everything, and entertained oral argument. For the reasons that follow, the Court concludes that notice should be sent to potential "opt-ins, " but only those who worked out of the Warrior district set up in Belle Vemon, Pennsylvania.


Naicker and Oswald were snubbers for Warrior until March 15, 2013, Naicker having started in April 2012 and Oswald in February 2011. ECF No 1, at ¶¶, 11 and 13. They both worked out of the Belle Vernon, Pennsylvania district and worked at natural gas well sites in Pennsylvania, West Virginia, Ohio, and New York. Id. at ¶¶ 12 and 14. They were usually assigned to a 3-person crew consisting of a supervisor (whose exempt status under the FLSA/PMWA Plaintiffs do not contest), and two snubbers (an operator and a "hand"). Id. at ¶¶ 19-20. According to Plaintiffs, from around August 2011 until about March 15, 2013, Warrior employed approximately 50-60 snubbers (not including supervisors) out of the district in Belle Vernon, Pennsylvania.

During the relevant time period, Warrior provided snubbing services from two additional districts: Richardson, North Dakota, and Decatur, Texas. ECF No. 34-2, at ¶ 10. Neither of the Plaintiffs worked in these other shops.[7] Plaintiffs allege that they were wrongfully denied overtime wages because Warrior misclassified them as exempt under the MCA. ECF No.1, at ¶¶ 79-90. Warrior's snubbing operations used a spread of vehicles that included a snubbing unit and one or two pick-up trucks. ECF No. 21, at, ¶ 44; ECF No. 22, at, ¶ 18. The Plaintiffs say they used the small pick-up trucks (weighing less than 10, 000 pounds) regularly for lengthy transportation to far-flung job sites, ECF No. 21, at ¶¶ 37, 39-42; ECF No. 22, at, ¶¶ 10, 14, for "hot shots, " which are supply runs, ECF No. 21, at ¶¶ 39-42; ECF No. 22, at ¶¶ 14, and for fuel runs, ECF No. 21, at ¶¶ 47-50; ECF No. 22, at ¶¶ 18, 23. According to Plaintiffs, the use of these "smaller vehicles"-that is, pick-up trucks weighing less than 10, 000 pounds-pulls them outside the MCA exemption and puts them back within the contours of the FLSA, under which they would be entitled to overtime.[8]


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:

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).

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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