     Case: 15-30576      Document: 00513834601         Page: 1    Date Filed: 01/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                    FILED
                                                                              January 13, 2017
                                      No. 15-30576
                                                                               Lyle W. Cayce
                                                                                    Clerk
COURTNEY SANDOZ; GREGORY L. PRATT; KRISTA STEGALL; ANDRE
SAVOIE; EBONY MARTIN PLUMBAR,

               Plaintiffs–Appellants,

v.

CINGULAR WIRELESS, L.L.C., doing business as AT&T Mobility, L.L.C.;
CINGULAR WIRELESS EMPLOYEE SERVICES, L.L.C.; AT&T MOBILITY,
L.L.C.,

               Defendants–Appellees.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:07-CV-1308


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM:*
       Courtney Sandoz and several other former employees (Opt-In Plaintiffs)
of   Cingular    Wireless,     L.L.C.    (Cingular)     appeal    the    district   court’s
decertification of their Fair Labor Standards Act (FLSA) collective action as



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-30576
well as the dismissal of Sandoz’s individual claim. The district court did not
abuse its discretion by determining that Sandoz was not similarly situated to
the Opt-In Plaintiffs, and we affirm the district court’s order decertifying the
class. The Supreme Court’s recent decision in Campbell–Ewald Co. v. Gomez, 1
however, requires that we reverse the district court’s order dismissing Sandoz’s
individual claim.
                                           I
      Sandoz, a former part-time employee of Cingular, initiated this collective
action suit against Cingular in state court pursuant to 29 U.S.C. § 216(b) for
alleged violations of the FLSA. 2        During Sandoz’s employment, Cingular
authorized its part-time employees to work nineteen hours per week as
“regular hours” but also allowed them to work additional hours, which it
classified as “exception time.” To account for hours, Cingular required the
part-time employees to submit a time card, which the store manager would
verify, before a specified date. If the employee failed to submit his or her time
card, or the store manager failed to verify the time card, before the specified
date, Cingular, Sandoz avers, would pay the employee for regular hours only,
adding exception time to a subsequent paycheck. Sandoz claims that this
payment scheme resulted in a weekly salary below the minimum wage, in
violation of the FLSA, in weeks when she worked more than thirty-four hours. 3
      Cingular removed the case to federal court and promptly served Sandoz
with a Rule 68 offer of judgment in full satisfaction of Sandoz’s demand plus
reasonable attorney’s fees. 4 After Sandoz rejected Cingular’s Rule 68 offer,
Cingular, asserting that the offer of judgment mooted Sandoz’s claim, moved



      1 136 S. Ct. 663 (2016).
      2 29 U.S.C. §216.
      3 29 U.S.C. § 206(a).
      4 FED. R. CIV. P. 68(a), (b).

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                                      No. 15-30576
to dismiss for lack of subject-matter jurisdiction. The district court denied the
motion but certified the question concerning the effect of the offer of judgment
for interlocutory review.
       This court permitted the appeal and held that “when a FLSA plaintiff
files a timely motion for certification of a collective action, that motion relates
back to the date the plaintiff filed the initial complaint.” 5 If Sandoz filed a
warranted motion for certification “without undue delay,” we concluded, an
offer that would satisfy only Sandoz’s demand would not moot the case, 6 but if
Sandoz’s motion to certify was either untimely or unwarranted, “then
Sandoz . . . represents only herself, and Cingular’s Rule 68 offer of judgment
rendered the case moot.” 7 In light of this determination, we remanded the case
for a decision on “the timeliness and, if necessary, the merits of Sandoz’s
motion to certify.” 8
       On remand, the district court, after concluding that Sandoz had timely
filed the certification motion, provisionally certified the collective action. Once
the parties agreed on the content of the notice to provide to prospective
collective action members, four former Cingular employees opted in. However,
unless an equitable defense applied, the maximum three-year statute of
limitations barred each Opt-In Plaintiff’s claim. 9
       The district court subsequently issued two orders from which Sandoz and
the Opt-In Plaintiffs now appeal. In the first, the court granted Cingular’s
motion to decertify the conditional collective action on the basis that the Opt-
In Plaintiffs’ claims could not benefit from equitable tolling or equitable



       5 Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 920-21 (5th Cir. 2008).
       6 Id. at 921.
       7 Id.
       8 Id. at 922.
       9 See 29 U.S.C. §256(b); Atkins v. General Motors Corp., 701 F.2d 1124, 1130 n.5 (5th

Cir. 1983).
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estoppel and, thus, were time-barred. As a result, the court concluded that
they were not “similarly situated” to Sandoz (whose claim was not time-
barred), decertified the collective action, and dismissed the Opt-In Plaintiffs’
claims. In the second order, the district court held that, with the collective
action decertified, Sandoz represented “only herself,” rendering the case moot,
and dismissed Sandoz’s claim.              Sandoz and the Opt-In Plaintiffs timely
appealed both orders.
                                               II
       We review a district court’s decertification of a collective action for abuse
of discretion. 10 “A district court abuses its discretion if it bases its decision on
an erroneous view of the law or on a clearly erroneous assessment of the
evidence.” 11 Although there is considerable uncertainty over the appropriate
standard of review of equitable tolling and equitable estoppel claims, 12 we do
not resolve because, even reviewing de novo, Sandoz has not established that
either equitable tolling or estoppel is appropriate. 13



       10  Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir. 1995), abrogated on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Although Mooney is an Age
Discrimination in Employment Act (ADEA) case, Congress has directed that courts must
enforce it “in accordance with the powers, remedies, and procedures provided in [29 U.S.C. §
216] (except for subsection (a) thereof).” 29 U.S.C. § 626(b).
        11 Hesling v. CSX Transp., Inc. 396 F.3d 632, 638 (5th Cir. 2005) (internal quotation

marks omitted) (quoting Kennedy v. Texas Utils., 179 F.3d 258, 265 (5th Cir. 1999)).
        12 Compare Ramirez v. City of San Antonio, 312 F.3d 178, 183-86 (5th Cir. 2002)

(reviewing district court’s equitable tolling decision de novo), and Rhodes v. Guiberson Oil
Tools Div., 927 F.2d 876, 881 (5th Cir. 1991) (“We review the applicability of equitable
estoppel . . . de novo as a question of law), with Bridas S.A.P.I.C. v. Turkmenistan, 345 F.3d
347, 360 (5th Cir. 2003) (“The use of equitable estoppel is within a district court’s discretion.
We, therefore, review the district court’s decision to apply equitable estoppel only to ensure
that the court did not abuse its discretion.”) (citations omitted)); Fisher v. Johnson, 174 F.3d
710, 712-13 (5th Cir. 1999) (noting that when the district court declined to invoke equitable
tolling, “we review . . . only for abuse of discretion”).
        13 Cf. United States v. Wheaten, 826 F.3d 843, 851 (5th Cir. 2016) (refraining from

resolving whether the applicable standard was de novo or abuse of discretion because “even
reviewing de novo,” the district court was correct).

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       The FLSA allows, in pertinent part, an employee who alleges that his or
her employer violated the FLSA’s minimum wage requirement to initiate a suit
“for and [on] behalf of himself . . . and other employees similarly situated.” 14
Sandoz’s primary argument is that the district court erred by refusing to apply
either equitable tolling or equitable estoppel and decertifying the collective
action because the application of either form of equitable relief would eliminate
Cingular’s statute of limitations defense and result in Sandoz and the Opt-In
Plaintiffs being similarly situated. We conclude that Sandoz has not shown
entitlement to equitable tolling or equitable estoppel and, accordingly, that the
district court did not abuse its discretion in decertifying the class.
                                              A
       Equitable tolling “is a narrow exception . . . that should be ‘applied
sparingly.’” 15 For this narrow exception to apply, a plaintiff must show “(1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” 16
This standard requires “reasonable diligence,” not “maximum feasible
diligence,” 17 and an extraordinary circumstance that derives from some
“external obstacle to timely filing . . . beyond [the plaintiff’s] control,” not from
self-inflicted delay. 18




       14 29 U.S.C. § 216(b).
       15 Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 457 (5th Cir. 2011) (quoting Ramirez,
312 F.3d at 183).
       16 Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016) (internal

quotation marks omitted) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)); see also
Lugo-Resendez v. Lynch, 831 F.3d 337, 334 n.41 (5th 2016) (describing the Menominee
standard as the “general standard for equitable tolling”).
       17 Holland, 560 U.S. at 653 (internal quotation marks omitted) (quoting Starns v.

Andrews, 524 F.3d 612, 618 (5th Cir. 2008)).
       18 Menominee, 136 S. Ct. at 756 (quotations and alterations omitted).

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      Sandoz contends that she did not need to prove that the Opt-In Plaintiffs
engaged in any diligence “in the absence of notice of an [FLSA] offense
sufficient to trigger a duty to inquire within the limitations period.” She does
so because, as the court below concluded, “there is no detail . . . offered in the
record to establish the requisite individual due diligence.” In lieu of evidence
on due diligence, Sandoz maintains that Cingular did not provide its employees
with information sufficient to discover that their hourly rate for certain weeks
was below the minimum wage and, thus, no diligence was necessary. Perhaps
a case could exist in which no diligence suffices as reasonable diligence, but we
do not have that case here.
      The timesheets and paycheck memos that were available to all Cingular
employees provided the information necessary for the Opt-In Plaintiffs to
discover that their effective hourly wage fell below the minimum wage required
by the FLSA. The timesheets clearly contain the total hours worked in a given
week, and the paycheck memos state the current earned pay for two weeks and
the amount of hours to which that pay correlates, which was always thirty-
eight hours if the Opt-In Plaintiffs worked more than nineteen hours each
week. Although Cingular listed the total earned pay and the hours to which
that pay correlated in the bi-weekly aggregate on the paycheck memos, the
Opt-In Plaintiffs could easily deduce (either from the line on the timesheet
stating that nineteen hours were the “standard hours paid” or the fact that the
times sheets had as “Overtime at Regular Rate” and “Overtime Pay 1.5x” the
difference between the total hours worked and the nineteen standard hours
paid) that the thirty-eight aggregate hours listed was simply the combination
of two nineteen-hour, or “regular hour,” weeks. Thus, the Opt-In Plaintiffs
could discover their weekly pay by dividing the bi-weekly aggregate pay by two.
After completing this step, the Opt-In Plaintiffs could determine whether a
week of pay fell below the minimum wage by simply dividing their weekly pay
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by the total hours worked in a week and comparing that number to the
minimum wage, which was $5.15 at the time. Even if the Opt-In Plaintiffs had
not performed this basic arithmetic or had not inferred that the thirty-eight
current hours listed on the paycheck memos were merely the combination of
two regular-hour work weeks, the magnitude of the difference alleged between
the stated hourly wage—$9.30—and the claimed actual hourly wage—less
than $5.15—is more than enough to warrant some level of diligence. The Opt-
In Plaintiffs failure to conduct either of these minimal levels of diligence voids
Sandoz’s equitable tolling claim.
      Sandoz’s       assertion    that     Cingular’s   litigation     strategy   was    an
extraordinary circumstance that prevented timely filing is equally unavailing.
Sandoz maintains that Cingular’s “protracted litigation over an ineffectual
offer of judgment . . . and opposition to certification and notice until after the
limitations period expired” was an external obstacle that “effectively delayed
notice of the [FLSA] violations and of the right [to] join this action to potential
claimants,” preventing timely filing. Equitable tolling, however, focuses on
whether an external obstacle “prevented timely filing,” not on whether an
external obstacle prevented timely filing in a specific suit. 19 Nothing prevented
the Opt-In Plaintiffs from discovering their claims and initiating a suit. We do
not hold that protracted litigation can never constitute an extraordinary
circumstance, but when, as here, an employee’s own inaction relegates opt-in
notice from a specific suit as the only means of discovering an FLSA violation,
we will not transform routine litigation into an extraordinary circumstance.




      19   Menominee, 136 S. Ct. at 755.
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                                              B
       Equitable estoppel prevents a defendant “from asserting a limitations
defense when its conduct induced or tricked a plaintiff into allowing a filing
deadline to pass.” 20 Although “a hallmark of [equitable estoppel] is its flexible
application,” it typically applies only when a defendant “makes a definite
misrepresentation of fact to another person having reason to believe that the
other will rely upon it,” and the person does, in fact, reasonably rely. 21 Thus,
“[a] defendant is equitably estopped from asserting that a claim is time-barred
where its conduct induced a plaintiff to refrain from exercising its rights.” 22 In
the employment context, this may result from “the employer’s deliberate
design to delay the filing or actions that the employer should unmistakably
have understood would result in the employee’s delay.” 23 The party requesting
equitable estoppel bears the burden of establishing that the application of
estoppel to the case is warranted. 24
       In support of her equitable estoppel argument, Sandoz essentially
reiterates her tolling argument, asserting that Cingular took steps to conceal
its alleged minimum wage violations by violating Department of Labor
disclosure requirements, understating hours worked and total earnings in the
paycheck memos, leaving the effective hourly rate unaltered despite paying for
some hours in subsequent paychecks, and providing payable hours in two-week
increments.      This conduct, Sandoz maintains, had the invidious effect of



       20 McAllister v. F.D.I.C., 87 F.3d 762, 767 (5th Cir. 1996).
       21 Heckler v. Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 59 (1984).
       22 Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992) (quoting

Amburgey v. Cohart Refractories Corp., 936 F.2d 805, 810 n.14 (5th Cir. 1991).
       23 Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 391 (5th Cir. 2002) (internal quotation

marks omitted) (quoting Clark v. Resistoflex Co., 854 F.2d 762, 769 (5th Cir. 1988)).
       24 Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 879 (5th Cir. 1991) (citing

Blumberg v. HCA Mgmt., Co., 848 F.2d 642, 644 (5th Cir. 1988), cert denied 488 U.S. 1007
(1989)).
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inducing the Opt-In Plaintiffs to refrain from initiating suit within the statute
of limitations period. As with the equitable tolling claim, Sandoz’s equitable
estoppel claim lacks merit. Before the statute of limitations expired, the Opt-
In Plaintiffs had obtained sufficient information—the same information that
Sandoz had before initiating suit—to discover that their effective hourly wage
fell below the minimum wage. Cingular’s provision of this information is
plainly at odds with Sandoz’s conclusion that Cingular induced or tricked the
Opt-In Plaintiffs from timely filing. The Opt-In Plaintiffs have not carried
their burden of establishing entitlement to equitable estoppel.
                                              C
       Sandoz devotes one sentence of her brief to argue that “in this Circuit a
time limitations defense is not an appropriate reason to deny . . . certification.”
“[G]enerally we do not pay attention to unargued assertions,” 25 and therefore,
we do not consider this issue.
                                             III
       The Supreme Court’s recent decision in Campbell–Ewald Co. v. Gomez 26
has made our review of the dismissal of Sandoz’s claim for lack of subject-
matter jurisdiction straightforward. In Campbell–Ewald, the Court relied on
“basic principles of contract law” to conclude that a “Rule 68 offer of judgment,
once rejected, ha[s] no continuing efficacy” and “does not moot a plaintiff’s
case.” 27 As a result, the fact that Sandoz represented only herself after the
district court decertified the collective action is irrelevant, for Cingular’s
rejected offer lacked force to moot the claim. We therefore reverse the district
court’s order dismissing Sandoz’s claim.


       25 Walker v. Epps, 550 F.3d 407, 417 (5th Cir. 2008); see also N.W. Enters. Inc. v. City
of Houston, 352 F.3d 162, 183 n.24 (5th Cir. 2003) (noting that a “failure to provide legal or
factual analysis results in waiver”).
       26 136 S. Ct. 663 (2016).
       27 Id. at 670, 672.

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                              *        *         *
     For the foregoing reasons, we AFFIRM the district court’s decertification
of the collective action and REVERSE its order dismissing Sandoz’s claim.




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