Campbell v. Reliance Health Care Inc et al

Filing 187

ORDER granting as modified 165 Motion to dismiss: Judgment will be entered for Hodges, Walters, and Riley. Stipulation on the related reasonable attorney's fee and costs, or a motion for them, due by 14 March 2014. Granting in part 158 Motio n for summary judgment on Crow's claims; Granting in part 140 Motion for conditional certification. Joint report and proposed notice due by 28 February 2014. Usable electronic lists due to Plaintiffs' counsel by 7 March 2014.The opt-in period will close 16 May 2014. 183 Motion to sever denied, but the Court will hold two trials. Signed by Judge D. P. Marshall Jr. on 2/13/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
'
WESTERN DIVISION
CARROLYN CAMPBELL; AMANDA
HODGES; CRYSTAL WALTERS; and
HEATHER CROW, all individually and
on behalf of others similarly situated

v.

PLAINTIFFS

No. 4:12-cv-176-DPM

NORTHWEST HEALTH & REHAB,
INC. dfb/a North Hills Life Care &
Rehab; OCNC, INC. dfb/a Silver Oaks
Heath & Rehabilitation; SCNC, INC.
dfb/a Spring Creek Health & Rehab;
and JBNC, INC., dfb/a Ridgcrest Health
and Rehabilitation

DEFENDANTS

ORDER
1. Several motions need deciding in this case about alleged unpaid
overtime at some long-term-care facilities. The deep issue is the shape of case
going forward. The five remaining Plaintiffs seek conditional certification of
a collective action with five subclasses, one for each nursing home.
Defendants oppose certification, alternatively requesting severance.
Defendants seek summary judgment on Plaintiff Crow' s claims. Defendants
also seek a partial dismissal, arguing mootness based on unaccepted offers of
judgment to Plaintiffs Hodges, Walters, and Riley. Taking these issues in
reverse order seems most sensible.

2. The motion to dismiss is granted. While Alpern v. Utili Corp United,
Inc., 84 F.3d 1525 (8th Cir. 1996) and Hartis v. Chicago Title Ins. Co., 694 F.3d

935 (8th Cir. 2012) are helpful, neither is directly in point. The Court of
Appeals for the Eighth Circuit has not decided the intertwined
mootness/Rule 68/FLSA issue presented. The Court appreciates Plaintiffs
providing a copy of Brother Holmes's opinion in Hendricks v. Inergy, 2013 WL
6984634 (E.D. Ark. 2013), which faced nearly identical circumstances. I'm
persuaded by his careful analysis and therefore adopt it. The issue is not the
letter of Federal Rule of Civil Procedure 68; it is whether any controversy in
the constitutional sense remains between Defendants and Hodges, Walters,
and Riley. None does. The unaccepted settlement offers, NQ 166-3, NQ 166-7,
& NQ 166-11, would make them completely whole: no dispute exists about

their damage numbers; and they're to receive costs and a reasonable
attorney's fee, in an amount to be fixed by the Court.
One other circumstance bears mention: all Plaintiffs, including these
three, moved for conditional certification at the end of July 2013. The offers
to Hodges and Walters were made about a week before that, while the offer
to Riley was made two days later. NQ 166-4, NQ 166-8, & NQ 166-12. Everything

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happened contemporaneously. While the cases about picking off Rule 23
class representatives emphasize that the offers came after denial of
certification, the timing does not make a legal difference here. See, e.g., Alpern,
84 F.3d at 1539. The Supreme Court made clear in Genesis Healthcare Corp. v.

Symczyk, 133 S. Ct. 1523, 1530 (2013) that FLSA collective actions and Rule 23
class actions are different. Hodges, Walters, l:lnd Riley have no unsettled
interest in the proposed collective action because of its nature- most
importantly, any judgment will have no preclusive effect on any similar claim
later pursued by a fellow employee.
In the circumstances, the Court lacks subject matter jurisdiction to
proceed further on these three Plaintiffs' FLSA claims, other than to resolve
any fee/ cost issue that cannot be resolved by agreement and enter judgment.
The judgment will award these damages:

•

$810.60 to Amanda Hodges against SCNC, Inc., d/b/a
Spring Creek Health & Rehab;

•

$912.00toCrystalWaltersaga~nstOCNC,Inc.,d/b/aSilver
Oaks Health & Rehab; and

•

$3,108.76 to Tabitha Riley against JBNC, Inc., d/b/a
Ridgecrest Health & Rehab

1

1

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These Plaintiffs' claims under the Arkansas Minimum Wage Act are coextensive with their FLSA claims. These state-law claims will therefore be
resolved by the judgment too.
3. Defendants' motion for summary judgment on Plaintiff Crow' s
claims is granted in part and denied in part. Many facts are agreed. The
Court takes those that are genuinely disputed in Crow' s favor. And the Court
gives her the benefit of all reasonable inferences. N2 177; Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

Crow' s claim has boiled down to alleged overtime in a few weeks of her
employment. The dollars supposedly lost are few, but that fact doesn't
answer whether a reasonable fact-finder could decide for Crow. Crow has,
the Court concludes, said enough in her deposition to support a finding of
some earned but unpaid overtime. The meal deduction was automatic; there
was lots of work to do; the reclamation form was available, and Crow used
it many times; one of Crow' s supervisors discouraged reclaiming time, while
insisting that Crow had to get all the work done and take meal breaks; a few
times Crow worked through a meal break without getting paid for what
would have been overtime. Whether Crow is telling the truth is for the fact-

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finder. The Court is not persuaded by Defendants' no-notice arguments. The
jury could view the time sheet certification either as the deception Defendants
claim it is or as something Crow felt compelled to do in the circumstances.
There is much to be said for Defendants' view of the proof about alleged
wilfulness; but given that a supervisor at the second Spring Creek supposedly
put Crow in this bind, the jury could find a willful violation. Crow has
effectively abandoned her record-keeping claim. Defendants are correct that
no private right of action for this alleged conduct exists. Helmert v. Butterball,
LLC, 805 F. Supp. 2d 655,668, n.15 (E.D. Ark. 2011).

4. The motion for conditional certification is granted in part and denied
in part. First, with Reliance and the Adamses having been dismissed, no
joint-employer issue remains. Second, the potential claims about Silver Oaks
and Ridgecrest facilities have been mooted by the Court's decision on Walters
and Riley.

The case comes down, then, to Campbell/North Hills and

Crow /Spring Creek.
Much, though not all, discovery has been done. All Plaintiffs, most
former Plaintiffs and opt-ins, seven defense witnesses, and one former
employee have been deposed. The parties have engaged in extensive written

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discovery: sixteen sets from Defendants, and seven sets from Plaintiffs.
Defendants have produced more than 14,000 pages of documents. There are
many employee declarations submitted by Defendants.

NQ 164 at 56

(summarizing discovery done). The Court's Scheduling Order anticipated
more discovery if a collective action was conditionally certified. NQ 120 at 2.
And based on earlier motions and proceedings, a substantial percentage of all
this discovery was likely on the Reliance and Adamses issues- corporate
relationships, management practices, and roles.
In the circumstances, it is fair and appropriate to look harder than usual

at the similarly situated question. This case stands much as Bouaphakeo v.

Tyson Foods, Inc. did, and I agree with Judge Bennett's common sense
approach on scrutiny: the Court's rulings on certification are tentative, but
made after considering the whole (albeit incomplete) record. 564 F. Supp. 2d
870, 894-5 (N.D. Iowa 2008). The case is not ready for trial, so the Court
cannot make ultimate findings. Compare Morales v. Farmland Foods, Inc., 2012
WL 202237, *5 (D. Neb. 2012). The Court has considered all the usual
circumstances in evaluating similarity. See, e.g., Smith v. Frac Tech Servs., Ltd.,
2009 WL 4251017 (E. D. Ark. 2009).

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Plaintiffs' theory of a common policy or practice is this: meal time was
deducted automatically; pressing tasks often required working through
meals; employees could reclaim this time, and sometimes did, but were
discouraged by some supervisory personnel from doing so.

Thus, as

Plaintiffs' say, the case is about how an otherwise acceptable policy was
applied. As Defendants emphasize, however, the as-applied nature of the
allegedly common policy opens a host of difficulties because of the many
departments and supervisors and jobs at North Hills and Spring Creek.
The short answer is that Campbell and Crow have made a sufficient
showing for conditional certification of a collective action about their jobs at
these two facilities during relevant periods when there was an automatic
mealtime deduction, but no more. Campbell worked as an LPN and then in
the records department; Crow was a CNA. There need to be two subclasses
because of the conflict problem Defendants identify about LPN' s supervising
CNAs. The Court declines to conditionally certify across all non-exempt
hourly workers at each facility. As Defendants argue in great detail, NQ 164

passim, many differences exist across the many departments at North Hills
and Spring Creek. (This problem would only be amplified if one were to look

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across all four facilities.) There is, most importantly, the supervisor point.
The time records indicate that there was much reclaiming of time. It appears
that the meal-time problem, to the extent one existed, was with particular
supervisors and particular periods when too much work and too few staff
combined. The as-applied nature of Plaintiffs' theory makes the varying
supervisors and circumstances necessarily critical in evaluating what
employees were similarly situated. Though the case has been pending for
almost two years, there has been no rush of opt-ins from employees holding
other jobs in other departments. In sum, there might well have been a
problem from time to time in the jobs where Campbell and Crow worked, but
the record discloses no real likelihood that the problem extended facility-wide
to all hourly employees.
The Court directs the parties to confer about notice. Please start with
the version approved in Johnson v. Arkansas Convalescent Centers. Inc., No. 5:12cv-143-DPM, NQ 56-1, which updated the Roco notice. Prepare one notice for
the Campbell subclass and one for the Crow subclass. The Court agrees with
Defendants that the notice should make plain that this case is only about

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meal-break claims. The Court also agrees with Defendants' proposed lookback period. NQ 164 at 86.
5. Defendants' motion to sever is denied. While severance would work,
further discovery and motion practice is best handled together. Counsel are
the same; the issues are similar; the two employers are corporate siblings; and
we've already come a long way in one case. If the claims are tried, we'll have
two bench trials: one about North Hills and the second about Spring Creek.
This separation will avoid confusing the issues and unfair prejudice. It will
also focus the proof on each individual, supervisors, department, and facility.
FED.

R. CIV. P. 42(b).

*

*

*

Motion to dismiss, NQ 165, granted as modified: Judgment will be
entered for Hodges, Walters, and Riley. Stipulation on the related reasonable
attorney's fee and costs, or a motion for them, due by 14 March 2014. (The
Court encourages the parties to work hard to sort this out themselves. If you
need more time to do so, ask for it.) Motion for summary judgment on
Crow' s claims, NQ 158, granted in part and denied in part. Motion for
conditional certification, NQ 140, granted in part and denied in part. Joint

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report and proposed notice due by 28 February 2014. Usable electronic lists
due to Plaintiffs' counsel by 7 March 2014.

No partial Social Security

numbers, employee ID numbers, or telephone numbers need to be provided.
No posting or paycheck notice required. The opt-in period will close 16 May
2014. Motion to sever, NQ 183, denied, but the Court will hold two trials. An
Amended Final Scheduling Order will issue.
So Ordered.
(/

D.P. Marshall Jr.
United States District Judge

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