Schumann et al v. Collier Anesthesia, P.A. et al
Filing
323
OPINION AND ORDER denying 176 Motion for Decertification of Collective Action. Signed by Judge John E. Steele on 4/14/2017. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BILLY
SCHUMANN,
DUSTIN
ABRAHAM,
on
behalf
of
themselves
and
others
similarly situated, LAUREN
TIDWELL, JEANIE HAKENEWERT,
STEPHANIE
ALANA
MARIE
BENJAMIN,
CHRISTOPHER
M.
BOURN, DEREK WHITE, LAHOMA
J.
NACHTRAB,
RICHARDO
ROSADO,
LANNETTE
GIBSON,
DANIEL
PENTON,
DENISE
ARMINIO,
OFELIA
BIAGAN,
SHEILA
SMITH,
CELINE
VIDAURRI, CHRISTINA VINAS,
RICARDO ROSADO, PATRICK C.
HARRELL,
RACHEL
GOODE,
JAMIESON
WISHMAN,
PAUL
CALOIAN, STEVEN TODD LITTLE,
JESSICA
LINCOLN,
and
CHRISTOPHER JALACKI,
Plaintiffs,
v.
Case No: 2:12-cv-347-FtM-29CM
COLLIER ANESTHESIA, P.A., a
Florida corporation, WOLFORD
COLLEGE,
LLC,
a
Florida
limited liability company,
THOMAS
L.
COOK,
an
individual, and LYNDA M.
WATERHOUSE, an individual,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendants' Motion for
Decertification of Collective Action (Doc. #176) filed on February
28, 2014.
2014.
Plaintiffs’ Response (Doc. #197) was filed on March 28,
The Court heard oral argument on April 6, 2017.
I.
Plaintiffs are a group of former student registered nurse
anesthetists (SRNAs) who enrolled in Defendant Wolford College,
LLC’s (Wolford) 28-month nurse anesthesia master’s program seeking
to become Certified Registered Nurse Anesthetists (CRNAs).
They
now seek to recover unpaid minimum wage and overtime compensation
under the Fair Labor Standards Act (FLSA) on the ground that they
functioned as “employees” while interning at certain clinical
sites.
On February 21, 2013 the Court entered an Order (Doc. #91)
conditionally certifying a collective action, and, in due course,
twenty-three
additional
plaintiffs
joined
the
two
original
plaintiffs.
Defendants moved to decertify the action, but the
Court granted summary judgment in Defendants’ favor prior to ruling
on the motion.
The Eleventh Circuit subsequently vacated the
summary judgment and remanded the case.
Schumann v. Collier
Anesthesia, P.A., 803 F.3d 1199 (11th Cir. 2015).
summary judgment relief has been denied.
As
before,
Defendants
seek
Supplemental
(Doc. #269.)
decertification
of
this
FLSA
collective action on the ground that the claims of the twenty-five
plaintiffs are not substantially similar, as would justify class
treatment; that Defendants have different “defenses” as to each,
including witness credibility and statute of limitations; and that
procedural and fairness concerns are not present here, where the
class is not particularly large.
Defendants would instead have
the Court conduct one trial with the two named plaintiffs, and
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then twenty-three separate trials for the opt-ins, in order to
determine whether each individual’s story compels a finding that
he or she was an “employee” during some or all of the SRNA
internship program.
Plaintiffs respond that the student/employee
inquiry before the Court focuses on the internship program as a
whole, not on each individual’s experience, and that Plaintiffs’
experiences
treatment.
are
sufficiently
For
similar
the
stated
reasons
to
justify
below,
the
collective
Court
finds
decertification of this collective action unwarranted.
II.
The
FLSA
authorizes
“similarly
situated”
employees
to
maintain a collective action against one or more employers accused
of violating the statute’s wage provisions.
29 U.S.C. § 216(b).
Certification of an FLSA collective action is typically a twostage process.
Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1260 (11th Cir. 2008) (“[W]e have sanctioned a two-stage
procedure
for
district
courts
to
effectively
manage
FLSA
collective actions in the pretrial phase.”); see also Hipp v.
Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001).
The focus at each stage is on whether the proposed group of
plaintiffs
contains
individuals
who
are
“similarly
situated.”
While the Eleventh Circuit has “refused to draw bright lines in
defining
similarly,”
significant
it
differences
has
observed
appear
amongst
that
the
“as
more
opt-ins,
legally
the
less
likely it is that the group of employees is similarly situated.”
- 3 -
Morgan, 551 F.3d at 1261 (citing Anderson v. Cagle's, 488 F.3d
945, 953 (11th Cir. 2007)).
“The first step of whether a collective action should be
certified is the notice stage,” id. at 1260, also known as the
“conditional certification” stage.
Id. at 1261.
The purpose of
this stage is to determine whether there exists a group of other
similarly situated employees who should be notified of the action
and provided the opportunity to join.
showing
of
“similarity”
at
this
Id. at 1260.
stage
is
“not
The required
particularly
stringent,” id. at 1261, and “is based primarily on pleadings and
affidavits.”
Anderson, 488 F.3d at 953.
Once the case is
conditionally certified, notice is provided to the proposed group
of employees, who must affirmatively opt-in to join the suit.
Morgan, 551 F.3d at 1259; Anderson, 488 F.3d at 950.
“The second stage is triggered by an employer’s motion for
decertification.”
F.3d at 953).
Morgan, 551 F.3d at 1261 (citing Anderson, 488
When an employer moves to decertify a collective
action, the Court must “make[] a factual determination” as to
whether the other class members are, in fact, similarly situated.
Hipp, 252 F.3d at 1218.
At this point – usually near or after the
close of discovery - “the district court has a much thicker record
than it had at the notice stage, and can therefore make a more
informed factual determination of similarity.
[As such,] [t]his
second stage is less lenient, and the plaintiff bears a heavier
burden.”
Morgan, 551 F.3d at 1261.
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In determining whether the named plaintiffs and the opt-ins
are indeed similarly situated, the Court assesses various factors,
including: “(1) disparate factual and employment settings of the
individual
plaintiffs;
(2)
the
various
defenses
available
to
defendant[s] [that] appear to be individual to each plaintiff;
[and] (3) fairness and procedural considerations[.]”
F.3d at 1261.
Morgan, 551
Moreover, while the class members need not “‘hold
identical positions, the similarities necessary to maintain a
collective action under § 216(b) must extend beyond the mere facts
of job duties and pay provisions’ and encompass the defenses to
some extent.”
Id. at 1261-62 (quoting Anderson, 488 F.3d at 953).
Ultimately whether to decertify a collective action “rests largely
within the district court’s discretion.”
Id. at 1261 (quoting
Anderson, 488 F.3d at 953).
III.
At
the
April
6
hearing,
counsel
for
defendant
Collier
Anesthesia rested the argument for decertification largely on the
novelty of this “student case” 1; unlike other key FLSA cases in
which decertification has been at issue, Plaintiffs’ case involves
the threshold question of whether the FLSA even applies, i.e.,
whether Plaintiffs were Defendants’ “employees.”
further
that
students’
it
is
not
internships,
possible
since
to
their
1
Counsel argued
collectively
experiences
analyze
the
were
not
The Court focuses on counsels’ arguments at the hearing, as the briefing
was submitted more than three years ago - well before the Eleventh
Circuit issued the Schumann decision.
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“substantially similar”: they were members of different classes;
some graduated and others did not; they complained about and
enjoyed
different
aspects
of
the
program;
they
interned
at
different facilities; they handled a different number of cases
over a different number of total hours, etc.
Indeed, the only
“commonality” all plaintiffs have – according to Defendants - is
that they enrolled in Wolford College’s SRNA master’s program and
were not paid while students.
The case law does not support Defendants’ positions.
To the
contrary, Morgan leaves clear that the fact of distinct “workplace”
experiences neither prevents a class-wide determination on whether
the FLSA’s wage requirements apply nor compels decertification.
Morgan involved a group of 1,424 Family Dollar store managers
seeking to recover unpaid overtime wages, but all of whom Family
Dollar
claimed
fell
within
the
FLSA’s
“executive
excluding them from the statute’s wage protections.
exemption,”
Not only did
the Eleventh Circuit affirm the district court’s denial of Family
Dollar’s motion to decertify the class for lack of substantial
similarity, 551 F.3d at 1265, it also affirmed the jury’s verdict
that the class of managers was not subject to the exemption, over
Family Dollar’s “argument that the executive exemption defense is
so individualized that the testifying Plaintiffs did not fairly
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represent the non-testifying Plaintiffs.” 2
Id. at 1280.
Morgan
thus stands for the proposition that a collective action may be
appropriate even where the fact-finder has to determine whether
the
FLSA
applies
individuals. 3
to
a
large
group
of
similarly-situated
See id. at 1263.
What is more, any lingering doubt as to whether the threshold
question of a student intern’s employment status under the FLSA
forecloses
collective
treatment
was
dispelled
by
the
amended
version of Glatt, in which the Second Circuit stated that “a court
may elect in certain cases, including cases that can proceed as
collective
actions,
to
consider
evidence
about
an
internship
program as a whole rather than the experience of a specific
intern.”
Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528,
537 (2d Cir. 2016) (emphasis added). 4
already
held
that
Plaintiffs’
case
Indeed, the undersigned has
is
one
in
which
it
is
appropriate to do so, in light of “the systemic nature of the
allegations.”
(Doc. #269, p. 23 n.18 (emphasis added).)
2
Whether the FLSA’s executive exemption defense applied was a classwide decision made based on the “representative testimony” of seven
plaintiffs and “a volume of good old-fashioned direct evidence,”
including corporate manuals, 39 other witnesses, charts summarizing
wages and hours, and emails. Morgan, 551 F.3d at 1277.
3
“We reject Family Dollar's argument that the executive exemption
defense is so individualized that the testifying Plaintiffs did not
fairly represent the non-testifying Plaintiffs. For the same reasons
that the court did not err in determining that the Plaintiffs were
similarly situated enough to maintain a collective action, it did not
err in determining that the Plaintiffs were similarly situated enough
to testify as representatives of one another.” Id. at 1280.
4
Among other revisions, the amended version of Glatt replaces several
references to “the intern” with the words “the internship.”
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Not only is decertification not compelled by the novelty of
this case, it is not warranted on the facts.
While true that
Plaintiffs have their differences, they are not, on the whole,
“legally significant differences.”
Morgan, 551 F.3d at 1261.
To
the contrary, they are relatively de minimis matters when compared
to the key factual threads that weave consistently through the
stories of those plaintiffs who were deposed, and which speak to
the Glatt factors. 5
Plaintiffs claim they often worked fifty or
more hours per week (“grossly excessive hours”), and they contend
they
were
accurately
told
that
record
the
the
purpose
cases
of
worked
Medtrax/Empower
to
ensure
was
to
graduation
requirements were met, not to accurately track every hour worked. 6
All
plaintiffs
experienced
being
scheduled
holidays (“days school was not in session”).
on
weekends
and
Each perceived
crucial deficiencies in their clinical training, resulting from –
in their view - Defendants’ desire to save money on paid employees:
5
For example, the Court fails to see how the fact that three of the optin plaintiffs did not complete the program impacts the analysis of
whether, while interns, Plaintiffs were “employees” or “students.”
6
At the hearing, counsel for Defendants argued that each plaintiff needs
to be questioned on the accuracy of his or her time entries, since
someone who believes he correctly entered his time cannot testify for
someone who does not. As the Court has already discussed in its Order
denying Plaintiffs’ Motion for Representative Testimony, the number of
plaintiffs who take the stand and the subject of their testimony is a
sufficiency-of-the-evidence issue for the jury, assuming the case
survives a Rule 50 motion - “not a matter for the Court’s concern.”
(Doc. #314, p. 2.) So too is witness credibility an issue for the jury,
and not one that supports decertification of this action.
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some felt ill-prepared to handle certain cases upon graduating; 7
others recounted instances in which they were moved off specialty
rotations as upperclassmen SRNAs and reassigned to more routine
cases; and still others spoke of the negative impact excessive
clinical hours had on their academic performance.
(Doc. #269, pp.
21-24.)
The testimony was not just one-sided.
Similarities also
support Defendants’ contention that Plaintiffs were students, not
employees.
Plaintiffs consistently spoke of the valuable academic
components to their training, which led the Court to conclude that
“the
integration
of
academic
and
practical
components
made
Plaintiffs’ clinical and classroom experiences largely one and the
same.”
(Doc. #269, p. 18.)
Plaintiffs also acknowledged the
important role that the mundane “anesthesia tech” tasks they were
required to perform on a daily basis as SRNAs now plays in their
employment as CRNAs.
(Id. at 19.)
And “[i]t is undisputed that
Plaintiffs were never outside the presence of a licensed anesthesia
provider for the induction and emergence phases of anesthesia
administration, only during the maintenance phase, at which time
the surgeon was also usually in the room.”
7 Counsel
(Id. at 20.)
for Defendants observed at the hearing that while opt-in
plaintiff Rosado felt uncomfortable handling pediatric cases, named
plaintiff Abraham felt like he had greatly improved with those cases but
did feel ill-prepared to administer epidurals. Rather than highlight a
legally significant dissimilarity, however, this fact illustrates a
crucial similarity: the students collectively felt that their internship
experience was deficient in preparing them to handle the full spectrum
of cases and procedures that a CRNA encounters. (See Doc. #269, pp. 2122.)
- 9 -
The point is that while the twenty-five plaintiffs in this
action had internship experiences that admittedly differed in some
respects, few or none of those factual differences are “legally
significant”
to
the
question
of
whether
Defendants’
SRNA
internship program violated the FLSA; they matter – if at all only when determining who may recover and how much. 8
As to the issue of defenses, the Court “must consider whether
the defenses that apply to the opt-in plaintiffs’ claims are
similar to one another or whether they vary significantly” in
determining whether decertification is appropriate.
F.2d at 1262 (citation omitted).
Morgan, 551
Having reviewed the affirmative
defenses asserted in Defendants’ Amended Answers (Docs. ## 30,
31),
the
only
defense
that
may
affect
certain
plaintiffs
differently is the applicable statute of limitations. 9
fact does not support decertification.
But that
Whether a two-year or
three-year statute of limitations applies in this action depends
on whether the Defendants “willfully” violated the FLSA, which
determination
is
made
on
a
class-wide
individually as to each plaintiff.
basis,
rather
than
Morgan, 551 F.3d at 1280-81.
And as the Eleventh Circuit discussed in Morgan, this class-wide
8
That not all plaintiffs may be entitled to the same amount of damages,
or to any damages at all, does not compel decertification of a collective
action. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1049-50
(2016).
9
“The statute of limitations for a claim seeking unpaid overtime wages
under the FLSA is generally two years. But if the claim is one ‘arising
out of a willful violation,’ the statute of limitations is extended to
three years.” Morgan, 551 F.3d at 1280 (quoting 29 U.S.C. § 255(a)).
- 10 -
defense can be “readily and fairly managed” in a collective action
by, for example, providing the jury with “charts showing the amount
of back pay owed for each plaintiff for both a two-year and a
three-year time period” and having the jury select the correct
amount.
Id. at 1265 n.47.
That leaves the third decertification factor: fairness and
procedural considerations.
The Court finds nothing unfair about
collectively litigating the common question of whether the way in
which Defendants ran the SRNA clinical internship program at issue
turned Plaintiffs into “employees” under the FLSA - particularly
given the manageable class size and the fact that at least twelve
plaintiffs (nearly half the class) are expected to testify at
trial. 10
See Morgan, 551 F.3d at 1264.
Accordingly, it is hereby
ORDERED:
Defendants' Motion for Decertification of Collective Action
(Doc. #176) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 14th day of
April, 2017.
Copies: Counsel of Record
10
The Court also expects to hear testimony from at least another
seventeen witnesses. (Docs. ## 320, 321.)
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