Cope v. DaVita Healthcare Partners, Inc. et al

Filing 97

OPINION AND ORDER granting in part and denying in part 45 Motion to Grant Judicial Notice and Tolling of the Statute of Limitations, and granting 88 Motion for Leave to File Surreply, by Chief Judge Marcia S. Krieger on 2/4/19. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 17-cv-02741-MSK-NYW
MYRNA HARRIS, individually and on behalf of others similarly situated,
Plaintiff,
v.
DAVITA HEALTHCARE PARTNERS, INC., and
TOTAL RENAL CARE,
Defendants.
---------------------------------------and
---------------------------------------Civil Action No. 17-cv-02744-MSK-NYW
LILYBETH COPE, individually and on behalf of others similarly situated,
Plaintiff,
v.
DAVITA HEALTHCARE PARTNERS, INC., and
TOTAL RENAL CARE,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING IN PART MOTIONS FOR JUDICIAL NOTICE
AND TOLLING
______________________________________________________________________________

THESE MATTERS come before the Court pursuant to the Plaintiffs’ Motions to Grant
Judicial Notice and Tolling of the Statute of Limitations (# 44 in the -2141 case, # 45 in the 2744 case), and their associated responses and replies; and the Defendants’ (collectively,
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“DaVita”) Motions for Leave to File Surreplies (# 90 in the -2741 case, # 88 in the -2744 case) in
response to the substantive motions, and their corresponding responses and replies.
The Court assumes the reader’s familiarity not only with the proceedings to date in these
cases, but also the proceedings in several related cases including Oldershaw v. DaVita
Healthcare Partners, D.C. Colo. Case No. 15-cv-01964-MSK-NYW. The named Plaintiffs in
the cases herein, Ms. Harris and Ms. Cope,1 are employees of DaVita. Ms. Harris worked as an
administrative assistant in DaVita facilities in Colorado Springs, which is located in what DaVita
refers to as the “Apex Palmer” region, encompassing all DaVita facilities in Montana, Kansas,
Missouri, and parts of Wyoming, Utah, Colorado, Nebraska, Oklahoma, Iowa, Illinois, Arkansas,
and Texas. Ms. Cope worked as a registered nurse in DaVita facilities in San Diego, California,
which is located in the “Dream Team Palmer” region, encompassing Arizona, California, and
Nevada. Both allege that they worked more than 40 hours in a week for DaVita without being
paid overtime and assert (among others) claims for unpaid overtime under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207.
Both Plaintiffs seek to pursue their FLSA claims under the collective action procedures
of 29 U.S.C. § 216(b), which provides that such claims may be maintained “for and in behalf of
[the plaintiff employee] and other employees similarly situated.” However, the same statute also
provides that “[n]o employee shall be a party plaintiff to any such action unless he gives his

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Several additional DaVita employees have filed opt-in notices in both cases. Although
opt-in Plaintiffs enjoy a variety of benefits during the litigation, for purposes of the inquiry here,
they are largely irrelevant. The Court’s focus at this stage is on the similarity between the named
plaintiff(s) and the group of co-workers to whom Hoffman-LaRoche notices are requested to be
sent. Opt-in plaintiffs are not named plaintiffs, and do not become so unless and until they are
included in a properly-filed Amended Complaint. Put differently, if Ms. Harris is the only
named Plaintiff in her case, the scope of notice is limited to those who are similarly-situated to
her, regardless of their potential similarity to other co-workers who subsequently opted into Ms.
Harris’ case.
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consent in writing to become such a party and such consent is filed in the court in which such
action is brought.”
In implementing the FLSA’s collective action procedures, the 10th Circuit has endorsed a
two-stage process. In the first stage, the court makes a preliminary and deferential finding as to
the potential scope of those co-workers who could be described as “similarly-situated” to the
named plaintiffs. That preliminary designation of the collective allows the plaintiffs to send
Hoffman-LaRoche2 notices to the affected co-workers and invite them to file forms opting into
the litigation. After discovery and further proceedings, the court undertakes a second, more
searching inquiry into whether the plaintiffs opting into the litigation are indeed similarlysituated to the named plaintiffs. If they are not, the court has broad latitude as to how to dispose
of the claims of the opt-in plaintiffs. See generally Thiessen v. General Electric Capital Corp.,
267 F.3d 1095, 1102 (10th Cir. 2001).
These cases are at the first stage, seeking designation of appropriate collectives for the
issuance of Hoffman-LaRoche notices. The consequences of the Court’s determination at this
stage are limited to the issuance of notices. Genesis Healthcare Copr. v. Symczyk, 569 U.S. 66,
75 (2013). Thus, courts making such first-stage determinations generally apply a “lenient”
standard, requiring the plaintiffs to make “nothing more than substantial allegations that the
putative class members were together the victims of a single decision, policy, or plan.”3
Thiessen, 267 F.3d at 1102-03.

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Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 171-72 (1989).

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The Court rejects the Plaintiffs’ argument that it should instead adopt the even looser
standard articulated by Turner v. Chipotle Mexican Grill, Inc., 123 F.Supp.3d 1300, 1309
(D.Colo. 2015). Turner appears to suggest that the only constraint on the scope of the first stage
determination is whether the “workers [are] bringing the same statutory claim against the same
employer.” Although this Court agrees with several aspects of Judge Kane’s analysis in Turner,
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With these standards in mind, the Court turns to the record before it. Both named
Plaintiffs allege, in virtually identical declarations, that “the number of hours allocated per shift
and the work expected to be accomplished per shift are determined and set by corporate DaVita
for the entire [applicable] region.” The Plaintiffs go on to state that “the number of hours
allotted per shift were not enough to accomplish the work expected per shift and I was unable to
complete my job duties within the allotted time.” Thus, the Plaintiffs allege that they were
“often required to work off the clock and [were] not paid for all hours worked, including
overtime.” They acknowledge that they were instructed that they could obtain authorization
from their supervisor, but that they “were dissuaded from reporting overtime worked because of
the possibility of disciplinary action.” Based on these facts, the Plaintiffs request approval of
notice to be sent to all hourly employees in all DaVita clinics in their respective regions.
In a recent decision making a second-stage determination in the Oldershaw case, this
Court emphasized that one of the important considerations in defining the scope of similarlysituated employees is identifying “the locus of decisionmaking” – that is, identify the person or
persons who bear the most direct responsibility for the alleged overtime violation. The
Plaintiffs’ arguments here attempt to fix the locus of decisionmaking about overtime at a high
corporate level. They point to the deposition of Justin Searle, one of DaVita’s high-ranking
officials, who testified extensively about DaVita’s practices of fixing budgets for its facilities
(including labor budgets) and rewarding facilities that stay within those budgets. The Plaintiffs
posit that DaVita’s budgeting is too aggressive, leaving employees unable to complete all of their

it does not agree that the standard the Court should apply at the first stage is so ephemeral.
Thiessen makes clear that the existence of “a single decision, policy, or plan” is necessary to knit
together a collective, not simply the fact that all potential plaintiffs are employed by the same
employer.
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tasks in the amount of time that Mr. Searle sets, and requiring them to have to work off-theclock. But there is also substantial evidence in the record – submitted by the Plaintiffs
themselves – that also show that, at a corporate level, DaVita takes considerable steps to prohibit
employees from performing the very off-the-clock work that the Plaintiffs claim to have done.
DaVita’s employee handbook makes clear that workers “are prohibited from conducting any
DaVita business outside their normal work hours,” and that they may seek approval of their
supervisors to “work during normal off-duty hours.”
In a recent decision in Olderhsaw, this Court found evidence that, DaVita’s budgeting
notwithstanding, the actual locus of decisionmaking regarding whether employees were refused
overtime or encouraged to work off-the-clock was at the individual facility level with individual
facility administrators. Admittedly, the record before this Court in Oldershaw is not the same
record before it here, and the stricter standard being applied in that case is different than the
lenient standard this Court considers here. But Oldershaw suggests that this Court consider the
possibility that, on the instant record, the locus of decisionmaking is lower in the organizational
chart than the Plaintiffs contend. It is notable that both DaVita’s handbook and the Plaintiffs’
own affidavits posit that individual facility administrators have the discretion to approve
employee overtime. This would seem to suggest that it is an individual administrator’s
judgment, rather than an inflexible DaVita budget, that determines whether overtime is approved
or, conversely, whether an employee must work off-the-clock.
Looking more closely at the deposition testimony of each named Plaintiff, Ms. Cope’s
first supervisor at the College clinic was an individual named Tony Humphrey. Ms. Cope asked
Mr. Humphrey to make adjustments to some of her time records to reflect training time she
incurred while off-the-clock, and Mr. Humphrey did so. Ms. Cope testified that during the time

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Mr. Humphrey was her administrator, she got paid for all the time she worked. Later, David
Butera became Ms. Cope’s administrator, and Ms. Cope began working shifts that called upon
her to open and close the facility. The timing on these shifts was particularly tight, as she was
scheduled to start her shift at 4:30 a.m., but Mr. Butera also wanted patients to begin their
dialysis treatments by 4:30 a.m. Ms. Cope initially attempted to accommodate those conflicts by
clocking in early and performing her initial patient assessments before 4:30, but Mr. Butera
lectured her about doing so (citing to the need to comply with the labor budget). Ms, Cope
protested that it was impossible to both follow her shift schedule and accommodate Mr. Butera’s
instructions about patient timing, and Mr. Butera instructed her to do so anyway, presumably by
performing assessments while the patients were already beginning treatments. Citing to patient
safety concerns, Ms. Cope refused to do so and informed Mr. Butera that she would continue to
do patient assessments before 4:30 a.m., and Mr. Butera responded “do whatever you need to do
but clock in at 4:30.” (Ms. Cope describes a functionally similar problem with closing shifts and
working off-the-clock after clocking out at the end of her shift.) Mr. Butera did, however, adjust
Ms. Cope’s time records when she asked him to do so to accommodate training lessons she
undertook while off the clock and he would approve adjustments to her time records when she
forgot to clock back in after a meal period. Ms. Cope also had an administrator named Anne
Rupp. Like Mr. Butera, Ms. Rupp learned that Ms. Cope was arriving and beginning work at
4:15 a.m., but not clocking in until 4:30. Ms. Rupp instructed Ms. Cope “not to do that,” but Ms.
Cope testified that she continued to do it anyway.
From this testimony, certain aspects of Ms. Cope’s affidavit become sharpened. It is
somewhat misleading for Ms. Cope to state categorically that “I was unable to complete my job
duties within the allotted time.” The record reflects that when Mr. Humphrey was her

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administrator, she was either able to complete her work during her shifts or that Mr. Humphrey
allowed her to clock in and out beyond her scheduled shift times. This, in turn, suggests that
only some jobs – e.g. opening and closing shifts – were arguably underbudgeted by DaVita. Her
testimony also introduces some ambiguity into Ms. Cope’s statement that all employees were
“dissuaded from reporting overtime worked,” as there is evidence that some of her unreported
time was accepted when she notified her administrator of it.
Turning to Ms. Harris’ deposition, she was an administrative assistant in in several
facilities. She has several claims for unpaid overtime. As to her time at the Fountain clinic, she
testified that she was not paid for time she spent going to Safeway before her shifts to pick up
birthday cakes or balloons for patients a few times her week. She did not report this time to her
administrator, but did not particularly elaborate as to why not. (She also has some unique claims
relating to uncompensated time helping to pack up and move items when the Fountain clinic
closed and relocated.) At the Printers Place clinic, she worked unrecorded time when she was
called off of her lunch break “to stock supplies, take in the inventory, help with a patient, [or]
answer a phone call.” She did not clock in for these events because her administrator told her it
was “mandatory” that she take a half-hour off-the-clock lunch break. She acknowledged that she
did not ask her administrator to correct her time entries in these circumstances because the lunch
break was required. (Ms. Harris seemed to acknowledge that she could have complained to her
administrator’s superiors about the issue, but did not do so “for fear I would lose my job.”) She
also testified that if a delivery came late, she would work off-the-clock to put the supplies away,
and would not ask to have her time adjusted because her administrator would state, in weekly
meetings, that no overtime would be allowed (again, due to budget concerns). She
acknowledged that she did not specifically ask her administrator Andrew Gonzales, to adjust her

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time in these circumstances (she mentioned having done the work and he thanked her, but she
did not specifically ask him for a time adjustment), partly because another administrator, Geri
Steck, would repeatedly tell employees that no overtime would be permitted.
Ms. Harris’ testimony also colors the interpretation the Court should give to her affidavit.
None of the incidents that Ms. Harris discussed entailed her being unable to complete all of the
duties of her shift because the hours allocated to her by DaVita’s budgeting system “were not
enough to accomplish the work expected per shift.” Rather, the record reflects that her unpaid
overtime generally arose when exigencies called for her to perform work during her unpaid lunch
break and that no adjustments were made because lunch breaks were “mandatory.” Likewise,
the fact that late deliveries sometimes required her to stay past her shift end time does not
suggest that DaVita somehow mis-budgeted the time it took for her to complete her regular
duties. Nor did Ms. Harris testify that she, personally, was dissuaded from asking Mr. Gonzales
to adjust her time records when she worked overtime (although it appears that she never did).
She testified that she was dissuaded from asking Ms. Steck to adjust her time because Ms. Steck
frequently told employees that no overtime would be permitted.
Based on this record, the Court finds that the Plaintiffs have not come forward with
substantial evidence that places the locus of decisionmaking for their unpaid overtime anywhere
above the level of their individual facility administrators, and certainly not at a level that would
suggest that DaVita encouraged off-the-clock work on a regional basis. Although the record
supports a suggestion that DaVita provided administrators with a labor budget and incentives to
comply with it, the record reflects that it was the individual facility administrators’ decisions as
to how (or even if) to comply with those budgets that determined whether or not an employee
would be discouraged from claiming overtime or encouraged to work off-the-clock. Because, at

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best, the “single decision, policy, or plan” that predicted whether they would be deprived of
overtime is limited to the identity of the particular facility administrator in charge, the Court will
approve the issuance of Hoffman-LaRoche notices, but on a far more narrow geographic basis
than that requested by the Plaintiffs. Instead, the Court will approve notices given to the
following groups:
• In Ms. Harris’ case (-2471), the Court approves notice to be sent
to “all current and former hourly workers of DaVita who worked
under the supervision of Geri Steck or Andrew Gonzales from
August 6, 20154 to the present and who were not paid time and a
half for all hours worked in excess of 40 per week.”
• In Ms. Cope’s case (-2744), the Court approves notice to be sent
to “all current and former hourly workers of DaVita who worked
under the supervision of David Butera or April Rupp from August
6, 2015 and who were not paid time and a half for all hours worked
in excess of 40 per week.”
Except as may be necessary to modify them to comport with the definitions set forth above, the
Court approves the Notice and Consent Forms tendered by the Plaintiffs with their motions.
DaVita shall produce to the Plaintiffs a list of the names and last-known addresses of all
employees meeting the definitions above within 30 days of this Order, and the Plaintiffs shall

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In selecting this date, the Court grants in part the Plaintiffs’ request for a tolling of the
statute of limitation. The limitation period for a named plaintiff is tolled from the date the action
is filed, but the limitation period for an opt-in plaintiff is tolled only from the date the plaintiff
files their consent to join the action. 29 U.S.C. § 256; Grayson v. K Mart Corp., 79 F.3d 1086,
1106-07 (11th Cir. 1996). Moreover, because potential opt-in plaintiffs should not be
disadvantaged by the time it takes the court to decide a motion seeking the issuance of notice,
this court elects to equitably toll the limitation period from the date briefing on the Plaintiffs’
motion was complete; in essence, this Court will not penalize any timely opt-in plaintiff for any
amount of time that this motion was under consideration by the Court. Compare Betts v. Central
Ohio Gaming Ventures, LLC, ___ F.Supp.3d ___, 2019 WL 181215 (S.D.Oh. Jan. 11, 2019)
(equitably tolling the limitations period beginning six months after the motion for notice was
fully briefed, finding that it would be reasonable for the court to take that long to resolve the
motion). The period also reflects the full 3-year limitation period available for willful violations
of the FLSA, although the Court makes no determination at this time as to whether the Plaintiffs
can satisfy that predicate. 29 U.S.C. § 255(a).
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effectuate the mailing of such notices within 60 days of this Order. (The draft notices provide
for a 90-day opt-in period, which the Court also approves.)
For the foregoing reasons, the Plaintiffs’ Motions to Grant Judicial Notice and Tolling of
the Statute of Limitations (# 44 in the -2141 case, # 45 in the -2744 case) are GRANTED IN
PART as set forth herein, and DaVita’s Motions for Leave to File Surreplies (# 90 in the -2741
case, # 88 in the -2744 case) are GRANTED.
Dated this 4th day of February, 2019.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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