VILLARREAL v. ST. LUKE'S EPISCOPAL HOSPITAL

Protection team focused on all aspects of information protection and conducted forensic investigations involving improper or unauthorized use of Defendant's computers by employees, along with enforcing policies for passwords and data encryption.

Id. at Ex. D, Affidavit of Williams, ¶ 4.

Id. at Ex. D, Affidavit of Williams, ¶¶ 5-6.

Id. at Ex. D, Affidavit of Williams, ¶ 5.

Id. at Ex. D, Affidavit of Williams, ¶¶ 6-7.

d. Application Technology Services

Application Technology Services, formerly known as the Technology Implementation group, had the primary responsibility of distributing applications and ensuring they functioned properly. These employees were generally required to have a four-year college degree, had a pay range of between $69,000 and $116,000 per year, and were all classified as exempt.

Id. at Ex. E, Affidavit of Wallace, ¶¶ 3-4.

Id. at Ex. E, Affidavit of Wallace, ¶ 6.

The group oversaw the implementation and maintenance of advanced applications on Defendant's servers. Its responsibilities were only to ensure that applications were correctly installed and operated within the other information technology infrastructures; the team was not responsible for issues arising within the applications themselves. The team also distributed applications; developed specifications for in-coming applications; implemented the applications to ensure they worked and functioned properly; handled the use of interface engines between applications; encrypted data on laptops; and handled backend database structures.

Id. at Ex. B, Affidavit of Thorpe, ¶ 13; Ex. E, Affidavit of Wallace, ¶ 4.

Id.

Id.

e. Information Management Applications

This group was responsible for software applications, such as patient care and billing, with specific analysts assigned to different applications. All employees were classified as exempt and were required to have a four-year degree. They were also all required to have at least five years of relevant experience and specialized skills, such as experience and knowledge with respect to host and client server architectures, logical and physical data architectures, and a history of development of projects in a medium-to-large data processing environment with mainframes, midrange, and client servers. Non-managerial employees were paid between $62,000 and $116,000 a year, while the pay for systems analysts ranged from $62,000 to $104,000 a year.

Id. at Ex. B, Affidavit of Thorpe, ¶ 15.

Id. at Ex. B, Affidavit of Thorpe, ¶ 24.

Id.

Id.

These analysts were required to have in-depth knowledge of databases, including their build and application configurations. They needed to know the function and purpose of each application, how it served that function, and the methods by which the application could be manipulated with programming to better serve its function and to resolve issues. They would address tickets only when the identified problems implicated the applications being utilized. This troubleshooting was secondary to the larger focus of development and maintenance of the applications. They also participated in strategic development planning.

Id. at Ex. B, Affidavit of Thorpe, ¶ 16.

Id.

Id. at Ex. B, Affidavit of Thorpe, ¶ 17.

Id. at Ex. B, Affidavit of Thorpe, ¶ 18.

Id.

Wroe worked as a systems analyst in this group. Her job description was as follows:

Id. at Ex. B, Affidavit of Thorpe, ¶ 19.

Under the direction of the Manager or Project Manager, working in a team environment on large projects or independently on small projects, the Systems Analyst performs software upgrades, maintenance, new software implementation projects with vendor provided software, or custom developed enhancements and interfaces. Coordinates and provides problem resolution, technical analysis, costs and resource estimates, work plans, workflow documentation, and progress reports on assigned projects. Assists assigned customer areas in identifying potential benefits, setting standards, developing procedures, and re-engineering business and clinical processes to achieve expected benefits of new andPGPage 14 existing systems. Provides production support and functional assistance.

Wroe's position thus required advanced knowledge of the processing behind the data and how to determine what was happening during the process. This required developing and using code, along with the ability to program how to generate reports for end users for the various applications that the hospital used. Wroe was also required to transfer data from the mainframe into applications; she claims that she was the only person in her department who had the knowledge and expertise to work in the mainframe.

Id. at Ex. B, Affidavit of Thorpe, ¶ 21.

Id. at Ex. B, Affidavit of Thorpe, ¶¶ 21-22.

Id. at Ex. B, Affidavit of Thorpe, ¶ 23.

II. Defendant's Objections to Plaintiff's Declarations

Defendant objects to portions of three declarations submitted by Plaintiff in support of his motion for conditional class action certification.

Defendant's Objections to Plaintiff's Evidence in Support of Plaintiff's Motion ("Defendant's Objections"), Docket Entry No. 23.

A. Plaintiff's Declaration

Defendant objects to Plaintiff's references to "computer technical support staff" as vague and lacking foundation because Plaintiff does not provide detailed information regarding the composition of such a group. The court disagrees.

Id. at pp. 2-4 (objecting to ¶¶ 3-4 12 of Plaintiff's declaration).

Here, Plaintiff sufficiently describes the composition of this group. First, Plaintiff states that this group is within IT Services. Second, he states that the group is composed of those employees whose purpose and function is to assist the users of computers and computer-related equipment in various departments of St. Luke's. Third, Plaintiff provides a description of what the relevant employees within each group of IT Services does. The court does not find these descriptions to be so vague that these portions of Plaintiff's declaration should be stricken.

Plaintiff's Motion, Docket Entry No. 9, Ex. A, Declaration of Plaintiff, ¶ 4.

Id. at Ex. A, Declaration of Plaintiff, ¶ 5.

Id. at Ex. A, Declaration of Plaintiff, ¶ 4 ("[E]mployees of the [TSC] are responsible for all desktop or laptop computers in all St. Luke's departments and facilities. The employees of [IT Infrastructure Computer Operations] are responsible for supporting the servers to which most desktops or laptops are connected. The employees of [Information Management Applications] help the accounting or business departments when their computer applications fail to perform as expected.").

Defendant also objects to Plaintiff's statements regarding the areas of responsibilities, purposes, and functions of various employees located in different departments within St. Luke's IT Services as lacking foundation because Plaintiff failed to specify in which positions those employees worked and failed to state how he came to have personal knowledge of the information. Defendant further objects to Plaintiff's statement that "St. Luke's required all non-managerial members of [IT Services] to respond to `tickets,' which are requests for help from other employees of St. Luke's," as lacking foundation because Plaintiff failed to state how he came to have personal knowledge of the requirements and expectations of this group.

Defendant's Objections, Docket Entry No. 23, pp. 4-5 (objecting to ¶¶ 4-5 of Plaintiff's declaration).

Id. at 5 (objecting to ¶ 6 of Plaintiff's declaration).

Plaintiff worked within IT Services and claims to have personal knowledge of the various positions within IT Services' groups. By virtue of his position, he has properly stated a basis upon which he may have gained personal knowledge of the organization by way of his day-to-day work and interaction with other employees of IT Services during his tenure with Defendant. Defendant's objections here are overruled.

Defendant also claims that Plaintiff cannot have personal knowledge of the work schedules of members of the computer technical support staff. Plaintiff supports his general statements by stating that he personally observed extra hours worked by some other members. Defendant's objection is overruled.

Further, although Defendant asserts that Plaintiff has stated that Defendant was in violation of the FLSA because these employees were owed compensation for their overtime hours, Plaintiff actually did not state such. Plaintiff only stated that these employees complained of not being compensated for their overtime hours (a factual assertion), not that the FLSA had been violated because they were actually owed compensation for overtime hours (a legal determination). Thus, Defendant's objection here is also overruled.

Finally, Defendant objects to Plaintiff's statement that "I know that the other computer technical support employees were salaried, because many of them said so. They also complained of the lack of `comp-time' or other compensation for their overtime hours," as inadmissible hearsay. To the extent that these statements are offered for the truth of the statements therein, Defendant's objection is sustained. However, whether true or not, these statements provide a basis for Plaintiff's belief that aggrieved individuals exist who may be owed overtime compensation. Accordingly, Defendant's objection is overruled to that extent.

Id. at 5-6 (objecting to ¶ 12 of Plaintiff's declaration).

Thus, the court overrules in part, sustains in part Defendant's objections to Plaintiff's declaration.

B. Tran's Declaration

Defendant objects to the descriptions of the two positions held by Tran during his ten years at St. Luke's as vague because Tran failed to state the time frames within that ten-year period for which he worked in each of the groups.

Id. at 6 (objecting to ¶¶ 2-7 of Tran's declaration).

At the hearing held on August 13, 2010, the period Tran worked for each of the groups was clarified. He worked in the TSC from some time in 2001 until mid-2008; then, from mid-2008 until March 15, 2010, he worked for IT Infrastructure Computer Operations. Because Plaintiff's lawsuit alleges violation of the FLSA from January 27, 2007, to the present, Tran clearly worked in each of the two groups during the relevant period. Thus, the information he provides in relation to each of his positions is relevant and is not so vague as to be inadmissible. Therefore, the court overrules Defendant's objection on this ground.

See Plaintiff's Motion, Docket Entry No. 9, Ex. B, Declaration of Tran, ¶ 2.

Defendant also objects to Tran's statements with respect to the other employees within his groups as vague and lacking foundation, because Tran did not work in each position within each group and, thus, Defendant avers, he cannot provide competent testimony with respect to other positions within the group.

Defendant's Objections, Docket Entry No. 23, pp. 6-7 (objecting to ¶ 6 of Tran's declaration).

Tran need not have worked in each position within each of his groups to competently testify as to whether his colleagues tended to work overtime. He has only testified with respect to what was generally expected of the members of his groups and as to his observations that the employees of these groups tended to work overtime. Tran's assertions are therefore sufficient to show that he had personal knowledge of the matters to which he testified concerning other employees within his groups. See Fed.R.Civ.P. 602. Therefore, the court overrules Defendant's objection on this ground.

Plaintiff's Motion, Docket Entry No. 9, Ex. B, Declaration of Tran, ¶ 6.

Thus, the court overrules all of Defendant's objections to Tran's declaration.

C. Wroe's Declaration

Defendant objects to Wroe's statement that:

I know that other computer technical support employees have worked substantial overtime, because I have personally seen them working late. For example, I know that one of my peers in the computer technical support department routinely worked twelve hours a day, and worked at least five days a week.

Defendant argues that the terms "computer technical support staff," "staff," and "department" are not defined by Wroe's affidavit or by reference to a defined group within the St. Luke's community and thus are vague and lack foundation.

Defendant's Objections, Docket Entry No. 23, p. 7. The court notes that the word "staff" does not appear in the paragraph that Defendant has objected to, and thus any objection to this word is overruled. See Plaintiff's Motion, Docket Entry No. 9, Ex. C, Declaration of Wroe, ¶ 11.

Wroe states that she worked for St. Luke's Information Management Applications group as a systems analyst, helping solve problems with the computer applications used in accounting, payroll, and similar bookkeeping functions. In the paragraph to which Defendant objects, Wroe refers to "one of [her] peers in the computer technical support department." As Wroe had previously described with particularity in which department she worked, reference to her peer clearly refers to a colleague within her own department. She is not required to name her peer for this portion of her declaration to be admissible. Further, for purposes of this motion, the court does not find that the words "computer technical support employees" are so vague as to be inadmissible. Finally, Plaintiff's statement that "other computer technical support employees have worked substantial overtime" is clearly not lacking foundation, as she alleges that she had personally seen them working late. Defendant's objection to this paragraph is overruled.

Plaintiff's Motion, Docket Entry No. 9, Ex. C, Declaration of Wroe, ¶¶ 2-3.

Id. at Ex. C, Declaration of Wroe, ¶ 11.

Accordingly, Defendant's objections to evidence submitted by Plaintiff in support of his motion for conditional class certification is OVERRULED IN PART, SUSTAINED IN PART.

III. Conditional Class Certification A. Legal Framework

1. Class Action Certification Under the FLSA

The FLSA requires covered employers to pay non-exempt employees for hours worked in excess of defined maximum hours. 29 U.S.C. § 207(a). It allows employees to bring an action against their employers for violation of its hour and wage provisions. See 29 U.S.C. §§ 215- 216. An employee may bring this action against his employer on "behalf of himself . . . and other employees similarly situated. No employee shall be a party plaintiff to any such an action unless he gives his consent in writing to become a party and such consent is filed in the court in which such action is brought." 29 U.S.C. § 216(b). Courts have the authority to implement the representative action process by facilitating notice to potential plaintiffs, i.e., to persons alleged to be "similarly situated" to the named plaintiff(s). Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989).

In the Fifth Circuit, the determination of whether plaintiffs are "similarly situated" is generally made by using one of two analyses: (1) the two-step analysis described in Lusardi v. Xerox Corporation, 118 F.R.D. 351, 359 (D.N.J. 1987), or (2) the "spurious class action" analysis described in Shushan v. University of Colorado, 132 F.R.D. 263 (D. Colo. 1990). See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5^th Cir. 1995) (expressly declining to decide which of the two analyses is appropriate).

Mooney v. Aramco Services Co. was an action under the Age Discrimination in Employment Act ("ADEA"), but it applies here because the ADEA explicitly incorporates Section 216(b) of the FLSA to there also provide for an "opt-in" class action procedure for similarly-situated employees. See Mooney, 54 F.3d at 1212.

Under the Lusardi approach, the court first "determines whether the putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class." Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5^th Cir. 2010) (citing Mooney, 54 F.3d at 1213-14). The court makes this determination by using a fairly lenient standard, requiring only "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Mooney, 54 F.3d at 1214 n. 8. If the court determines that the employees are similarly situated, then notice is sent and new plaintiffs may "opt in" to the lawsuit. Acevedo, 600 F.3d at 519 (citing Mooney, 54 F.3d at 1214). Next, once discovery has largely been completed, and, thus, more information on the case made available, the court makes a final determination on whether the plaintiffs are similarly situated and whether they can proceed together in a single action. Id.

According to the Fifth Circuit, the Shushan approach, known as the "spurious class action" analysis, is similar to the class certification procedure used under Federal Rule of Civil Procedure 23 ("Rule 23"):

Shushan espouses the view that [ 29 U.S.C. § 216(b) ("Section 216(b)")] merely breathes new life into the socalled "spurious" class action procedure previously eliminated from [Rule 23]. Building on this foundation, the court determined that Congress did not intend to create a completely separate class action structure for the FLSA . . . context, but merely desired to limit the availability of Rule 23 class action relief under . . . [the FLSA]. In application, the court determined that Congress intended the "similarly situated" inquiry to be coextensive with Rule 23 class certification. In other words, the court looks at "numerosity," "commonality," "typicality" and "adequacy of representation" to determine whether a class should be certified. UnderPGPage 23 this methodology, the primary distinction between a . . . [FLSA] representative action and a [Rule 23] class action is that persons who do not elect to opt-in to the . . . [FLSA] representative action are not bound by its results. In contrast, Rule 23 class members become party to the litigation through no action of their own, and are bound by its results.

Mooney, 54 F.3d at 1214.

The Fifth Circuit has not ruled which method the courts should use to determine whether plaintiffs are sufficiently "similarly situated" to advance their claims together in a single action under Section 216(b). Acevedo, 600 F.3d at 518-19. Although it has stated that not all class action standards are applicable to Section 216(b) actions, it has explicitly left open the question of whether the Lusardi approach, the Shushan approach, or some third approach should be used in determining whether employees' claims are sufficiently similar to support the maintenance of a representative action. Id. (citing Mooney, 54 F.3d at 1216;LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5^th Cir. 1975)).

However, most courts in this District follow the Lusardi approach in suits under Section 216(b). See, e.g., Tolentino v. C J Spec-Rent Servs., Inc., No. C-09-326, 2010 WL 2196261, at *3 (S.D. Tex. May 26, 2010) (collecting cases). The Lusardi approach is consistent with Fifth Circuit dicta, stating that the two-step approach is the typical manner in which these collective actions proceed. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n. 2 (5^th Cir. 2008). The Fifth Circuit has also stated that "[t]here is a fundamental, irreconcilable difference between the class action described by [Rule 23] and that provided for by [Section 216(b)]," i.e., the "opt out" procedure for class members under Rule 23 as opposed to the "opt in" procedure under Section 216(b). LaChapelle, 513 F.2d at 288; see also Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201, 1206 (5^th Cir. 1981) ("The FLSA procedure, in effect, constitutes a congressionally developed alternative to the [Rule 23] procedures."). This court, therefore, will analyze Plaintiff's claims using the Lusardi method.

2. Lusardi

The present case is at the "notice stage" of the Lusardi analysis. At this stage, the court's decision is "made using a fairly lenient standard;" a plaintiff need only make a minimum showing to guide the court's determination in whether to issue notice to potential class members. Mooney, F.3d at 1214.

In lieu of Fifth Circuit guidance on the appropriate test to use at the notice stage of the Lusardi analysis, courts are split on the appropriate elements to consider in determining whether to grant conditional certification. Some courts use three elements, requiring the plaintiff to show that: (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit. See, e.g., Cantu v. Vitol, Inc., No. H-09-0576, 2009 WL 5195918, at *4 (S.D. Tex. Dec. 21, 2009) (unpublished); Tolentino, 2010 WL 2196261, at *8-9. Other courts, however, have rejected the third, non-statutory element. See, e.g.,Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008) (unpublished); Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 780 (N.D. Ill. 2007).

The court agrees that a plaintiff need not present evidence at this stage of the third element, that aggrieved individuals actually want to opt in to the lawsuit. There are several reasons for this. First, as already stated, this element is not a statutory requirement at this stage. See 29 U.S.C. § 216(b). Second, this element has not been required, or even discussed, by any higher court opinion that this court has been able to find or to which the parties have cited. Rather, the Fifth Circuit's discussion of the Lusardi approach only requires, at the first stage, that "putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class." See Acevedo, 600 F.3d at 519 (citing Mooney, 54 F.3d at 1213-14). Third, unlike under Rule 23, there is no numerosity requirement in a FLSA class action lawsuit under theLusardi approach. See, e.g., Badgett v. Tex. Taco Cabana, L.P., No. Civ.A.H 05-3624, 2006 WL 367872, at *2 (S.D. Tex. Feb. 14, 2006) (Lake, J.) (unpublished) (citing Mooney, 54 F.3d at 1214 n. 8) (stating that "at the notice stage [in a FLSA action using the Lusardi approach], courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan" (internal quotations omitted)). Fourth, this element, requiring evidence of purported class members who are willing to join a class action before an appropriate class is even determined, is dissonant with the Supreme Court's directive that the FLSA be liberally construed to effect its purposes. See Tony Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296 (1985). Liberally construing the FLSA to effect its purposes, the court finds that it is enough for the plaintiff to present evidence that there may be other aggrieved individuals to whom a class action notice should be sent, without requiring evidence that those individuals actually intend to join the lawsuit.

Therefore, based on these considerations, the court finds that it need not determine whether Plaintiff has alleged sufficient information that aggrieved individuals are actually willing to opt in to this lawsuit. The court will now proceed to look at the first two elements of the test.

B. Analysis

For the purposes of determining the outcome of this motion only, the court assumes that Plaintiff has stated a cognizable claim under Section 207 of the FLSA.

1. Existence of Aggrieved Individuals

The court first notes that Defendant's argument here relies, in large part, upon its assertion that Plaintiff has not provided evidence that similarly-situated, aggrieved individuals exist. That argument, however, impermissibly combines the first and second elements of the test. See Cantu, 2009 WL 5195918, at *4. The test for the first element is actually much more lenient than that; Plaintiff need only show that it is reasonable to believe that there are other aggrieved employees who were subject to an allegedly unlawful policy or plan. See Morales v. Thang Hung Corp., No. 4:08-2795, 2009 WL 2524601, at *3 (S.D. Tex. Aug. 14, 2009) (Miller, J.) (unpublished); Prater v. Commerce Equities Mgmt. Co., Inc., No. H-07-2349, 2007 WL 4146714, at *5 (S.D. Tex. Nov. 19, 2007) (Rosenthal, J.) (unpublished). In short, the court does not conduct a similarly-situated analysis until it examines the second element of the test. See Cantu, 2009 WL 5195918, at *4.

See Defendant's Response, Docket Entry No. 24, pp. 18-22. The court also notes that Defendant's argument relies in large part upon its attack of the statements made in the declarations of Plaintiff, Tran, and Wroe. Id. The court has already dealt with those arguments and will not address them again here. See supra § II.

Plaintiff presents the court with three declarations in support of his assertion that there were other non-exempt, aggrieved individuals who worked more than forty hours in a week but were not paid overtime. Plaintiff's own declaration states:

I know that other computer technical support employees have worked substantial overtime, because I have personally seen them working late. For big projects such as large scale replacements of hardware or software updates to applications or operating systems, many of the computer technical support employees would come in to work over the weekends, together. I know that other employees worked on-call, because sometimes they asked to trade on call time slots. For example, I know that Julie Rector, Mario Zamora, Glenn Hickerson, Jim Christiansen, Marcus Tran, Solomon Medhin, and Rurik Wilmot worked more than forty hours in some weeks, because they worked after their regular schedule or on weekends. I know that the other computer technical support employees were salaried, because many of them said so. They also complained of the lack of "comp-time" or other compensation for their overtime hours.

Similarly, Tran's declaration states:

. . . St. Luke's company policy required members of the [TSC] and [IT Infrastructure Computer Operations] to serve "oncall" at regular intervals. [TSC] employees served on call about one week a month, and during that week were expected to respond to calls even very late at night or on weekends, whenever the user had a need. Employees of [IT Infrastructure Computer Operations] served oncall about once every six weeks. As a result, employees of the [TSC] and [IT Infrastructure Computer Operations] tended to work more than forty hours in a week spent oncall, because we worked our regular daily shift, but still had to return in the evenings as needed. I routinely worked more than forty (40) hours per week during my on call periods. Sometimes when I was oncall, I was required to return to the office late at night or early in the morning to address emergency problems with a computer or server. However, prior to December 2008, I was classified as a salaried employee by St. Luke's and did not get paid for the hours I worked in excess of forty (40) per week at one and a half (1.5) times my regular rate.

Wroe further states in her declaration that she regularly worked more than forty hours in a week but that she did not get paid for those extra hours. She also claims to have personally seen other employees in IT Services often working overtime, and she points to one colleague in particular whom she avers routinely worked twelve-hour days, five days a week.

Id. at Ex. C, Declaration of Wroe, ¶¶ 6, 10-11.

Id.

Together, these declarations allege that Tran, Wroe, and other named and unnamed employees of IT Services were allegedly treated in the same manner. Each declaration provides allegations that Defendant failed to properly pay overtime wages. They show that Defendant allegedly implemented the same policy with respect to different employees. See, e.g., Ali v. Sugarland Petroleum, No. 4:09-cv-0170, 2009 WL 5173508, at *5 (S.D. Tex. Dec. 22, 2009) (Ellison, J.) (unpublished). In light of these statements, the court finds that Plaintiff has shown that it is reasonable to believe that there are other aggrieved employees.

2. Similarly Situated

Defendant contends that Plaintiff, along with Tran and Wroe, have failed to demonstrate that they are similarly situated to each other or to members of the proposed class.

See Defendant's Response, Docket Entry No. 24, pp. 22-27.

Potential class members are considered similarly situated to the named plaintiff if they are:

"similarly situated" with respect to their job requirements and with regard to their pay provisions.

The positions need not be identical, but similar. A court may deny a plaintiff's right to proceed collectively only if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice.

Yaklin v. W-H Energy Servs., Inc., No. C-07-422, 2008 WL 1989795, at *2 (S.D. Tex. May 2, 2008) (Jack, J.) (unpublished) (internal quotations and citations omitted). If the job duties among putative class members vary significantly, then class certification should be denied. See, e.g., Dreyer, 2008 WL 5204149, at *3; Aguirre v. SBC Commc'ns, Inc., No. H-05-3198, 2007 WL 772756, at *9 (S.D. Tex. Mar. 12, 2007) (Rosenthal, J.) (unpublished).

Here, the court has already described the various groups and teams within IT Services, including the groups for which Plaintiff, Tran, and Wroe each worked. Plaintiff worked as a DSA in the TSC group, which was composed of two teams: Help Desk and Desktop Support. The evidence shows that the Help Desk team provided the first level of support for end users; Desktop Support provided the second level of support, solving issues that Help Desk employees were unable to resolve. Although Desktop Support employees handled more complex problems than did Help Desk employees, the court finds that these two teams within the TSC group had sufficiently similar job responsibilities to warrant collective action. It is not apparent that any differences between these two teams are relevant or make the jobs so dissimilar as to deny collective action. See, e.g., Tolentino, 2010 WL 2196261, at *7; Johnson v. Big Lots Stores, Inc., Nos. 04-3201, 05-6627, 2007 WL 5200224, at *9 (E.D. La. Aug. 21, 2007) (unpublished) ("To pursue claims against an employer, plaintiffs must be similarly situated. They do not have to be identically situated." (emphasis omitted)).

See supra § I.B.2.

Prior to December 2008, Help Desk employees were apparently already classified as non-exempt. Defendant's Response, Docket Entry No. 24, p. 7 n. 3; Ex. A, Affidavit of Robicheaux, ¶ 22. However, the record is not entirely clear as to whether all of these employees were properly paid for overtime in accordance with the FLSA. As the court notes infra, only if they were not properly paid according to the time-and-a-half provisions of the FLSA may they join this lawsuit.

The employees of the TSC were "Jacks-of-all-trades." The four other groups within IT Services were different, however. While employees in each of these groups might work on issues that the TSC team could not resolve, end-user issue resolution was not a primary focus for any of these groups. Rather, each of the four groups had its own area of expertise. IT Infrastructure Computer Operations specialized in the servers. Telecommunications Security Services specialized in security and privacy. Application Technology Services specialized in advanced applications. Information Management Applications specialized in application functionality. These groups were not primarily responsible for diagnosing and addressing "break/fix" issues, as was the TSC.

Plaintiff states that all of the employees working in IT Services had "a common purpose and function, which is to help the users of computers and computer related equipment, at various departments of St. Luke's, to get the most performance from their computers and to overcome problems or obstacles." However true this may be, the generic quality of the statement creates a far broader categorization than that permitted under the "similarlysituated" analysis. While slight differences in job duties or functions do not run afoul of the similarly-situated requirement, significant variation of job duties among potential class members means that class certification should not be granted. See, e.g., Dreyer, 2008 WL 5204149, at *2. Generally speaking, TSC employees dealt with fixing the computer issues that arose on a daily basis at St. Luke's; the other four groups specialized in the implementation of and maintenance of specific software or hardware issues. They only occasionally dealt with complex "break/fix" issues that arose with respect to their areas of expertise. This specialization prevents the court from finding that employees in those groups are similarly situated to those employees who worked in the TSC.

Plaintiff's Motion, Docket Entry No. 9, p. 3.

Therefore, the court finds that only those employees working within the TSC are similarly situated. Accordingly, the court GRANTS IN PART, DENIES IN PART Plaintiff's motion to conditionally certify class.

The following class is conditionally certified for purposes of this FLSA collective action:

All current and former employees of St. Luke's Episcopal Hospital who held non-managerial positions in the Technology Service Center in the Information Technology Services department (formerly known as the Information Management Division) at any time between January 26, 2007, and December 31, 2008, and who were not paid for hours worked in excess of forty (40) in any given work week at one-and-a-half (1.5) times their regular rate.

See Baldridge v. SBC Commc'ns, Inc., 404 F.3d 930, 931-32 (5^th Cir. 2005) (stating that the court has the power to limit the scope of a proposed class in a FLSA collective action).

If Tran, Wroe, or any member of the IT Services department, other than those in the TSC, wish to proceed on a claim for overtime compensation under the FLSA, they must file a separate lawsuit.

The court notes that Tran allegedly worked for the TSC during part of the relevant period. Accordingly, he may join this lawsuit only with respect to the time spent in his position in that group, and not with respect to his job in the IT Infrastructure Computer Operations group.

C. Notice

Having examined Plaintiff's and Defendant's proposed notices, the court finds that Defendant's notice should issue to proposed class members, with the exception that the limitations date should begin on January 26, 2007, not January 26, 2008, as the notice currently states.

Defendant's Response, Docket Entry No. 24, Ex. F, Notice of Pendency of FLSA Lawsuits; Ex. G, Consent to Join.

Within fourteen (14) days of this opinion, Defendant shall provide Plaintiff with a list of all employees fitting the description of the conditionally certified class. This list shall include each individual's full name, last known mailing address, any alternate addresses, date of birth, and date(s) of employment. Plaintiff shall have fourteen (14) days from the receipt of this information to mail the notice to the potential class members.

Defendant need not post the notice and consent forms in a place where potential class members are likely to view them, as Plaintiff requests. Notice by mail is sufficient under the circumstances of this case.

IV. Conclusion

Accordingly, the court GRANTS IN PART, DENIES IN PART Plaintiff's Motion for Conditional Certification of a Collective Action (Docket Entry No. 9). Furthermore, the court OVERRULES IN PART, SUSTAINS IN PART Defendant's Objections to Plaintiff's Evidence in Support of Plaintiff's Motion for Conditional Certification of a Collective Action (Docket Entry No. 23).