BAGOUE v. Developmental Pathways, Inc. et al

Filing 111

ORDER by Chief Judge Philip A. Brimmer on 3/25/2019, re: 85 Plaintiff's Motion for Approval of Hoffman-LaRoche Notice is GRANTED IN PART and DENIED IN PART. (sphil, )

Case 1:16-cv-01804-PAB-NRN Document 111 Filed 03/25/19 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 16-cv-01804-PAB-NRN
FLAVIE BONDEH BAGOUE, and those similarly situated,
Plaintiff,
v.
DEVELOPMENTAL PATHWAYS, INC. and
CONTINUUM OF COLORADO, INC.,
Defendants.

ORDER

This matter is before the Court on Plaintiff’s Motion for Approval of HoffmanLaRoche Notice [Docket No. 85]. The Court has jurisdiction pursuant to 28 U.S.C.
§ 1331.
I.

BACKGROUND1
Defendants operate group homes focused on providing care for developmentally

disabled adults. Docket No. 33 at 2, ¶ 6-7. For approximately ten years, plaintiff was
employed by defendants as a “Life Skills Specialist.” Id. at 1-2, ¶¶ 5-6. By the end of
her employment, plaintiff’s work consisted almost entirely of 56-hour shifts at the
Nevada Group Home, one of several facilities operated by defendants. Id. at 2, ¶¶ 6-9.
While employed with defendant, plaintiff worked under the “Continuous Shift
Policy,” whereby an employee worked approximately fifty-six consecutive hours before

1

The facts below are taken from plaintiff’s amended complaint, Docket No. 33.

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being relieved by another employee. Id. at 3, ¶ 15. Plaintiff states that she was only
paid for forty of the fifty-six hours she worked for each shift. Id. at 5, ¶ 30.
Plaintiff alleges that defendants failed to adequately compensate plaintiff for
certain categories of time including time spent communicating with other workers at the
beginning and end of her shifts, id. at 5, ¶¶ 34-35; sleep time, which was regularly
interrupted such that plaintiff did not usually get five hours of continuous and
uninterrupted sleep, id. at 9, ¶ 59; and extra time worked as a result of the change to
daylight savings time. Id., ¶¶ 60-61. Plaintiff also alleges that the sleeping facilities
provided by defendants were inadequate because they were not private quarters,
separated from the residents of the group home. Id. at 10, ¶ 66-67. Plaintiff claims that
the staff room set aside for sleeping did not have amenities for recreation, offered little
privacy, was illuminated by hallway lights, and that the residents of the group home
would enter her sleeping quarters without permission. Id. at 10-12, ¶¶ 66-74. Plaintiff
states that she never entered into a formal agreement with defendants to deduct
sixteen hours of sleep time from her paychecks. Id. at 12, ¶ 76. Plaintiff alleges that,
“on several occasions [she] objected to Defendants’ failure to compensate her for the
nighttime hours during her Continuous Shifts.” Id. at 13, ¶ 81.
On July 14, 2016, plaintiff filed this action. Docket No. 1. Plaintiff seeks relief
under the Colorado Minimum Wage Act, Colo. Rev. Stat. §§ 8-4-101, et seq., and
Colorado Minimum Wage Order, 7 Colo. Code Regs. § 1103-1 (first claim for relief);
under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. (second claim for
relief); and equitable relief under Colorado law (third claim for relief). Docket No. 33 at

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18-21, ¶¶ 114-35. Plaintiff brings her FLSA claim as a collective action pursuant to 29
U.S.C. § 216(b), alleging that members of the potential collective all suffered from
defendants’ policies of (1) not paying for night duty work, (2) not paying for an extra
hour on the night of daylight savings, and (3) not paying for time at the beginning and
end of each shift where employees were required to pass along information to workers
on the next shift. Id. at 17-18, ¶¶ 110-13.
On August 22, 2018, plaintiff moved for conditional collective certification on the
FLSA claim. Docket No. 85. Plaintiff also requests that the Court approve her
proposed notice plan. Docket Nos. 85-2 and 85-3. Def endants oppose the motion.
Docket No. 93.
II.

ANALYSIS
A.

Conditional Certification

Plaintiff asks the Court to conditionally certify this case as a collective action
pursuant to § 216(b) of the FLSA, which provides in pertinent part:
Any employer who violates the provisions of . . . section 207 of this title shall
be liable to the employee or employees affected in the amount of . . . their
unpaid overtime compensation, . . . and in an additional equal amount as
liquidated damages. . . . An action to recover the liability prescribed in [section
207] may be maintained against any employer . . . in any Federal . . . court of
competent jurisdiction by any one or more employees for and in behalf of
himself or themselves and other employees similarly situated.
29 U.S.C. § 216(b) (emphasis added). There is a two-step approach for determining
whether plaintiffs are “similarly situated” for purposes of FLSA collective action
certification. Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). 2 A
2

Thiessen involved a collective action under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Because the ADEA adopts the
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court’s initial certification comes at the notice stage, where courts determine whether
plaintiffs are similarly situated for purposes of sending notice to putative class
members. Id. at 1102. Plaintiff is required to provide “nothing more than substantial
allegations that the putative class members were together the victims of a single
decision, policy or plan.” Id.; see also Stransky v. HealthONE of Denver, Inc., No. 11cv-02888-WJM-MJW, 2012 WL 6548108, at *4 (D. Colo. Dec. 14, 2012). T his is a
“lenient” standard, Baldozier v. Am. Family Mut. Ins. Co., 375 F. Supp. 2d 1089, 1092
(D. Colo. 2005), “which typically results in conditional certification of a representative
class.” Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 432 (D. Kan. 2007).
The second stage, which comes at the conclusion of discovery, applies a stricter
standard of “similarly situated,” including application of at least four factors, to
determine whether the case can proceed as a collective action. Thiessen, 267 F.3d at
1102-03.
Plaintiff seeks to represent a class consisting of “[a]ll current and former
employees who worked for either [d]efendant under the Continuous Shift Policy at any
time from July 14, 2013 to present.” Docket No. 85 at 5. Plaintif f claims that, under the
Continuous Shift Policy, defendants failed to pay her and other employees working
under the Continuous Shift Policy for sixteen of the fifty-six hours worked on each shift.
Docket No. 33 at 5, ¶ 30. Plaintiff further alleges that the other members of the class
are similarly situated because they were subject to the same policy. Id. at 18, ¶ 113.
collective action mechanism set forth in FLSA § 216(b), courts apply Thiessen to FLSA
collective actions. See Kaiser v. At The Beach, Inc., 2010 WL 5114729, at *4 n.9 (N.D.
Okla. Dec. 9, 2010); see also Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 679
(D. Kan. 2004).
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The Court finds that plaintiff has provided substantial allegations that the putative
collective members were subject to a single decision, policy, or plan. See Thiessen,
267 F.3d at 1102-03. Defendants admit that “Life Skills Specialists” like plaintiff were
required to be present at the group home for fifty-six hours and were paid for only forty
of those hours under the Continuous Shift Policy. See Docket No. 85-1 at 6.
Defendants further admit that approximately forty-nine employees were subject to this
policy. See id. At the initial stage, these allegations are enough to authorize notice to
putative class members.
Defendants make several objections. First, defendants object that plaintiff has
not provided sufficient evidence to meet her burden. However, plaintiff offers
defendants’ own answers to interrogatories to support her allegations. See Docket No.
85-1. While plaintiff, in her deposition, stated that she believed that some employees at
some group homes subject to the Continuous Shift Policy were actually compensated
for all hours worked, plaintiff’s speculation does not defeat defendants’ responses to
interrogatories establishing that forty-nine employees were covered by the same
Continuous Shift Policy. It is a question for the second stage of collective action
certification whether all employees subject to the policy were, in fact, similarly situated.
Second, defendants contend that plaintiff’s allegations are rooted in the “specific
arrangements and individualized needs of the residents at Nevada House,” rendering
her dissimilar to other potential plaintiffs subject to the Continuous Shift Policy. See
Docket No. 93 at 9. As plaintiff points out, however, this too is a question for the
second stage of certification, after the parties can identify and conduct discovery related

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to the opt-in plaintiffs.3 See Thiessen, 267 F.3d at 1103. Ultimately, if the opt-in
plaintiffs are not found to be similarly situated, then the collective will not be certified.
Plaintiff has presented substantial allegations that members of the putative
collective were subject to a single policy – the Continuous Shift Policy – that violated
the FLSA. Those allegations satisfy the “lenient” standard for the first stage of
collective action certification. See Baldozier, 375 F. Supp. 2d at 1092. Thus, the Court
conditionally certifies a collective action consisting of all current and former employees
who worked for either defendant under the Continuous Shift Policy at any time from
July 14, 2013 to the present. 4
B. Notice to Conditional Class
Once the Court concludes that conditional certification of an FLSA collective
action is appropriate, the Court may authorize plaintiff to disseminate a proper notice
and opt-in consent form to putative class members. Hoffmann-LaRoche Inc. v.
Sperling, 493 U.S. 165, 169-70 (1989); see also 29 U.S.C. § 216(b) (“No employee
shall be a party plaintiff to any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in which such action is
brought.”). The Court has broad discretion regarding the details of the notice sent to
potential opt-in plaintiffs. Hoffmann-LaRoche, 493 U.S. at 171. “The overarching
3

Of note, a review of the Court’s docket indicates that at least three individuals
have already opted in as plaintiffs. See Docket Nos. 83, 87.
4

Defendants contend that the Court should decline to rule on this m otion
pending the resolution of the motions for summary judgment, Docket Nos. 98 and 99,
as ruling on this motion would expend “significant judicial resources.” Docket No. 93 at
13-14. The Court, however, considers it more efficient to rule on the collective
certification motion at this juncture.
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policies of the FLSA’s collective suit provisions require that the proposed notice provide
accurate and timely notice concerning the pendency of the collective action, so that
[potential plaintiffs] can make informed decisions about whether to participate.”
Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 450 (S.D.N.Y. 2011)
(internal citations and quotations omitted).
The proposed Notice contains the necessary information. Docket No. 85-3. The
Notice informs putative class members of the parties involved, the parties’ general
allegations, information about the collective action designation, how to opt in, and the
potential obligations or consequences for putative class members who choose to opt in
or not. See id. at 1-4. In addition, the Notice provides that opt-in plaintiffs must return
consent forms to plaintiff’s counsel by a certain date; though the Notice is currently
blank, plaintiff requests that the date for returning the consent form be set as sixty days
from the date of the Notice. Id. at 3, ¶ 11; Docket No. 85-2 at 2, ¶ 5.
Defendants raise two objections to the proposed Notice. First, def endants
contend that the Notice should be modified to remove references to a “class” action.
Docket No. 93 at 9-10. Plaintiff agrees to this suggestion. Docket No. 94 at 4.
Accordingly, the proposed Notice shall be modified to replace the word “class” with
“collective” throughout. Second, defendants argue that plaintiff’s proposed service
methods are excessive and should be curtailed. Plaintiff requests to send notice by
First Class U.S. Mail, text message, and email. Docket No. 85-2 at 2, ¶ 4. Plaintiff also
requests that defendants “post the notice at each of their group homes in a location
where postings are made to provide notice to employees,” and that plaintiffs be allowed
to send one reminder notice by U.S. Mail, email, or text message, whichever is most
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cost effective. Id., ¶¶ 4-5. Plaintiff argues that “[d]ue to the transience of the modern
workforce, notice by U.S. Mail alone creates a significant risk that notice will not be
received.” See Docket No. 94 at 6. The Court finds, as it has in previous cases, that
sending notice by all three methods is likely to “increase the probability of apprising
collective action members of their rights.” See Lindsay v. Cutters Wireline Serv., Inc.,
No. 17-cv-01445-PAB-KLM, 2018 WL 4075877 at *3 (D. Colo. Aug. 27, 2018).
However, the Court will not require defendants to post the Notice at the group homes,
because plaintiff has failed to show that posting “will reach a wider audience than
mailing.” See Nelson v. Firebirds of Overland Park, LLC, 2018 WL 3023195, at *7 (D.
Kan. June 18, 2018). And the Court will not authorize a reminder notice, as a reminder
notice may “improperly suggest the Court’s endorsement of [p]laintiff’s claims.” See
Fenley v. Wood Group Mustang, Inc., 170 F. Supp. 3d 1063, 1074-75 (S.D. Ohio 2016);
see also Whittington v. Taco Bell of America, Inc., No. 10-cv-01884-KMT-MEH, 2012
WL 1622457, at *2 (D. Colo. May 9, 2012) (noting that “even the mere appearance of
judicial endorsements of the merits of this action is improper” (internal quotations and
alterations omitted)). Plaintiff has not demonstrated that a reminder notice is necessary
in this case.
Because the Court finds that the proposed Notice would provide “accurate and
timely notice” to potential plaintiffs, the Court will approve the Notice and service plan
as modified by this order. See Whitehorn, 767 F. Supp. 2d at 450.
III.

CONCLUSION
For the foregoing reasons, it is

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ORDERED that Plaintiff’s Motion for Approval of Hoffman-LaRoche Notice
[Docket No. 85] is GRANTED IN PART and DENIED IN PART. It is further
ORDERED that:
1. This action shall be conditionally certified as a collective action pursuant to 29
U.S.C. § 216(b). The class is defined as follows:
All current and former employees who worked for either defendant under
the Continuous Shift Policy at any time from July 14, 2013 to the present.
2. The proposed Notice [Docket No. 85-4] is approved as modified by this order.
3. Within twenty-one days, defendants shall provide to plaintiff’s counsel a list of
all potential class members in a computer-readable format. The list shall include each
potential class member’s dates of employment, location worked, last known U.S. Mail
address(es), email address(es), and telephone numbers.
4. Within twenty-one days after receiving this list from defendants, plaintiff shall
send the Notice by First Class U.S. Mail, email, and text message to the last known
address, email address, and phone number of each of the individuals identified on the
above-referenced list.
5. Any individuals to whom notice is sent shall “opt in” by returning the
necessary documents to plaintiff’s counsel within sixty days from the date of the Notice.

DATED March 25, 2019.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge
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