Reece v. United Home Care of North Atlanta, Inc. et al
Filing
44
ORDER granting Plaintiff's 21 Motion for Conditional Collective-Action Certification and DIRECTS Plaintiff to revise the Proposed Notice to Class [21-19] and Proposed Opt-In Consent Form [21-20] to comply with Part II.D of this Order. Defendants are ORDERED to provide Plaintiff with names, addresses, and last four digits of social security numbers for all putative class members within twenty days of the date of this Order. Signed by Judge Richard W. Story on 3/7/13. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CATHY REECE, on behalf of
herself and all those similarly
situated,
Plaintiff,
v.
UNITED HOME CARE OF
NORTH ATLANTA, INC.,
UNITED HOME CARE, INC., and
UHS-PRUITT CORPORATION
a/k/a PRUITT CORPORATION,
Defendants.
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CIVIL ACTION NO.
1:12-CV-2070-RWS
ORDER
This case is before the Court on Plaintiff’s Motion for Conditional
Collective-Action Certification and Notice to the Class [21]. After reviewing
the record, the Court enters the following Order.
Background
Plaintiff Cathy Reece worked for Defendants as a licensed practical nurse
(“LPN”) from about January 2011 to October 2011. (Complaint, Dkt. [1] ¶ 52.)
Plaintiff alleges that she worked more than 40 hours per week throughout her
employment as an LPN, but did not receive overtime compensation. (Id. ¶¶ 75-
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77.) The Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., requires
employers to pay time-and-a-half for hours worked by a non-exempt employee
in excess of 40 hours per week. 29 U.S.C. § 207(a)(1). Plaintiff alleges that
she and other LPNs were paid by Defendants pursuant to a per visit/hourly basis
hybrid compensation plan which combines fee payments for some work and
hourly compensation for other work. Complaint, Dkt. [1] ¶ 60.) That hybrid
compensation plan, according to Plaintiff, abrogates any executive, professional
or administrative exemption that might have otherwise applied to such
employees. (Id. ¶ 61.) Therefore, Plaintiff alleges, she and other LPNs were
improperly classified as exempt employees not entitled to overtime wages. (Id.
¶ 53.)
Plaintiff brings this action under the FLSA on behalf of herself and others
similarly situated for unpaid overtime compensation, liquidated damages,
prejudgment and postjudgment interest, reasonable expenses of litigation and
attorneys fees. (Id., Nature of the Claim.) The class Plaintiff seeks to represent
is composed of:
All home health care licensed practical nurses
employed by Defendants United Home Care of North
Atlanta, Inc., United Home Care, Inc. or UHS-Pruitt
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Corporation at any location, during the period of three
years prior to the date of commencement of this action
through the date of judgment in this action, who were
not paid proper overtime compensation required by
federal law.
(Id. ¶ 11.) To date, two opt-ins have filed consents to join this action. (Notice
of Filing Consent to Join Collective Action, Dkt. [3].) Plaintiff seeks to have
the class conditionally certified and notice sent to putative class members.
Discussion
I.
Legal Standard for Conditional Collective-Action Certification
The FLSA authorizes collective actions, stating:
An action ... may be maintained against any employer
... by any one or more employees for and in behalf of
himself or themselves and other employees similarly
situated. 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 with the
court in which such action is brought.
29 U.S.C. § 216(b). This Court, in its discretion, may authorize the sending of
notice to potential class members in a collective action. Hoffman-La Roche,
Inc. v. Sperling, 493 U.S. 165, 169-170 (1989); Hipp v. Liberty Nat’l Life Ins.
Co., 252 F.3d 1208, 1219 (11th Cir. 2001); Haynes v. Singer Co., 696 F.2d 884,
886-87 (11th Cir. 1983).
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The Eleventh Circuit suggests a two-tiered approach to class certification
in FLSA cases. “The first determination is made at the so-called ‘notice stage.’
At the notice stage, the district court makes a decision – usually based only on
the pleadings and any affidavits which have been submitted – whether notice of
the action should be given to potential class members.” Hipp, 252 F. 3d at
1218. “The second determination is typically precipitated by a motion for
‘decertification’ by the defendant usually filed after discovery is largely
complete and the matter is ready for trial.” Id.
This case is before the Court for the first determination of class
certification. At this stage, the “determination is made using a fairly lenient
standard, and typically results in ‘conditional certification’ of a representative
class.” Id. “[P]laintiffs need show only that their positions are similar, not
identical, to the positions held by the putative class members.” Id. (quoting
Grayson v. K-Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)). Before
granting conditional certification, courts should determine: (1) whether
employees sought to be included in the putative class are similarly situated with
respect to their job requirements and pay provisions; and (2) whether there are
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other employees who wish to opt-in to the action. Dybach v. State of Fla. Dept.
of Corr.s, 942 F.2d 1562, 1567-68 (11th Cir. 1991).
II.
Analysis
A.
Similarity of employment positions of putative class members
Plaintiff bears the burden of establishing that she is similarly situated
with the group of employees she wishes to represent. Grayson, 39 F.3d at 1096.
The burden on Plaintiff, however, is not a heavy one. As noted above, the
standard is fairly lenient and Plaintiff is not required to prove that she and the
putative class members held identical positions, but only similar positions. See
Hipp, 252 F.3d at 1217; Grayson, 79 F.3d at 1095-96 (holding that “the
‘similarly situated’ requirement of § 216(b) is more elastic and less stringent
than the requirements” for joinder and severance). “[V]ariations in specific
duties, job locations, working hours, or the availability of various defenses are
examples of factual issues that are not considered at this stage.” Scott v.
Heartland Home Fin., Inc., No. 1:05-CV-2812-TWT, 2006 WL 1209813, at *3
(N.D. Ga. May 3, 2006).
Plaintiff asserts that she and the opt-in plaintiffs are similarly situated to
each other and the putative class because they are all United Home Care
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(“UHC”) LPNs with the same job duties. (Plaintiff’s Brief in Support of
Motion for Conditional Certification and Notice to the Class (“Pl.’s Br.”), Dkt.
[21-1] at 14.) They all visited patients in their homes or at assisted living
facilities on a daily basis, performed office clerical work, and attended office
meetings. (Complaint, Dkt. [1] ¶¶ 54-55.)1 As LPNs, their primary duties did
not involve professional, administrative or managerial duties. (Id. ¶ 56.)
Furthermore, they were all classified as exempt, fee-per-visit workers and, as a
result, did not receive compensation for the overtime hours they worked in
excess of 40 hours per week. (Pl.’s Br., Dkt. [21-2] at 14.) They were all paid
pursuant to a per visit/hourly basis hybrid compensation plan, which combines
fee payments for some work and hourly compensation for other work.
(Complaint, Dkt. [1] ¶ 60.)2
Defendants disagree that Plaintiff and the putative class are similarly
situated. First, they argue that the Court may not rely on the declarations of
third-party witnesses Kimberly Sparrow [21-3] and Mary Howard [21-2] to
1
See also Declarations of Cathy Reece (Plaintiff) [21-4], Lawrence J. Russell
(Opt-in) [21-5], and Teresita Small (Opt-in) [21-6] (describing job functions as
licensed practical nurses similar to those described in the Complaint).
2
See also Declaration of Rita Southworth, Dkt. [34-1] at ¶ 6 (describing
company-wide job duties of LPNs and company’s hybrid method of paying LPNs).
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show similarity because those witnesses repudiated their initial testimony when
they later testified that they “did not know” or “could not recall” various details
about their prior statements regarding LPN job functions and Defendants’ pay
policies. (Defendants’ Response to Plaintiff’s Motion for Conditional
Certification and Notice to the Class (“Def.s’ Resp.”), Dkt. [34] at 10-12.)
Second, they assert that “[o]ver 75% of the currently employed members of the
putative class (as defined by Plaintiff), and approximately 50% of all members
of the putative class, have voluntarily agreed to resolve any employment-related
disputes with Defendants through arbitration and have voluntarily waived their
right to participate in a class or collective action.” (Id. at 1.) They argue that
the agreement between these putative class members and Defendants prevent
those individuals from participating in this collective action. Therefore,
Defendants claim, “Plaintiff is not similarly situated to those who must resolve
their claims through arbitration and who have waived their right to participate
in a collective action.” (Id. at 2.)
Plaintiff responds that Howard and Sparrow did not recant their prior
testimony because a present lack of recollection or knowledge does not amount
to recantation. (Plaintiff’s Reply in Support of Conditional Certification (“Pl.’s
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Reply”), Dkt. [40] at 3-10.) Furthermore, she argues, Defendants’ own
evidence – the Declaration of Rita Southworth, Vice-President for Home Care
at UHS-Pruitt Corporation [34-1] – shows that Plaintiff is similarly situated to
the putative class. (Id. at 11-12.) Finally, Plaintiff counters that Defendants’
new dispute resolution policy (“DRP”) is not a contract under Georgia law and
therefore not enforceable under the Federal Arbitration Act. (Plaintiff’s Reply
in Support of Conditional Certification (“Pl.’s Reply”), Dkt. [40] at 12.)
Consequently, Plaintiff argues, all current LPNs remain putative class members.
(Id.)
The Court finds that it need not decide the DRP dispute between the
parties at this stage. At the notice stage, the Court considers whether Plaintiff is
similarly situated to the putative class in terms of job position and pay policies.
Consideration of evidence beyond the pleadings and affidavits, and other
factual matters are reserved for later in the process.
To show that she is similarly situated to the putative class in terms of
duties and pay, Plaintiff points to her Complaint and declaration, and
declarations filed by the opt-ins, third-party witnesses Sparrow and Howard,
and Rita Southworth. The declarations of Plaintiff, the opt-ins, and Southworth
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describe similar job functions for LPNs working for Defendants and the same
pay policies for LPNs. Defendants challenge the veracity of the initial
declarations made by Sparrow and Howard in light of subsequent statements by
each of them that they “do not know” or “do not recall” information about LPN
job duties or pay policies. (See generally, Second Declarations of Mary
Howard [34-5] and Kimberly Sparrow [21-3].)
The Court is disinclined to deny conditional certification based on
Defendants’ questionable claim that Sparrow and Howard “recanted” their
initial testimony. Indeed, “[a]t the notice stage, . . . the Court need not engage
in credibility determinations; instead the Court must determine only whether
Plaintiff has presented sufficient – not factually correct – evidence that the
putative class members and Plaintiff are ‘similarly situated.’” Bennett v.
Advanced Cable Contractors, Inc., No. 1:12-CV-1115-RWS, 2012 WL
1600443, at *14 (N.D. Ga. May 7, 2012). Furthermore, the Court finds that
even without the declarations of Sparrow and Howard, Plaintiff has put forth
sufficient evidence of similarity between her, the opt-ins and the putative class
to satisfy the lenient standard for conditional certification.
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B.
Sufficiency of Interest by other Employees in the Lawsuit
In addition to showing that she is similarly situated to the putative class,
Plaintiff must also demonstrate that other employees wish to opt-in to the action
before this Court may grant conditional certification. Dybach, 942 F.2d at
1567-68. “Notice to a potential class is not appropriate to determine whether
there are others who desire to join the lawsuit.” Delano v. Mastec, Inc., No.
8:10-CV-320-T-27MAP, 2011 WL 2173864, at *4 (M.D. Fla. June 2, 2011)
(emphasis in original). So far, two opt-in plaintiffs have joined this suit,
Lawrence J. Russell [3-1] and Teresita Small [3-2].
Plaintiff, Mr. Russell and Ms. Small worked as LPNs at United Home
Care of Cobb in Austell, Georgia (“UHC-Cobb”). Defendants argue that two
opt-ins from the UHC-Cobb facility does not show sufficient interest in the
lawsuit to warrant a class certification covering individuals from thirteen UHC
facilities in Georgia and North Carolina. (Def.s’ Resp., Dkt. [34] at 18-19.)
Defendants emphasize that Plaintiff has had 14 months since she and the opt-in
employees signed their consents, and she has not identified anyone outside of
the UHC-Cobb facility who desires to opt-in to the case. (Id. at 18.) However,
the Court finds that Defendants place too much emphasis on the lack of
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geographic diversity between Plaintiff and the opt-ins. Demonstrating interest
from individuals in several facilities, states, or regions is not a requirement for
conditional class certification. Plaintiff must show that others desire to opt-in.
In Riddle v. Suntrust Bank, No. 1:08-CV-1411-RWS, 2009 WL 3148768,
at *3 (N.D. Ga. Sept. 29, 2008), this Court found that the named plaintiff and
three opt-ins (collectively representing three facilities in Georgia, Tennessee,
and Florida) demonstrated a sufficient showing of interest to conditionally
certify a class covering 1700 SunTrust bank locations across the entire
Southeast region. Like Defendants here, the defendants in Riddle argued that
three opt-ins were not sufficient “given the length of time since Plaintiff filed
[the] suit, the existence of a previous action against Defendant concerning
similar employees, and Plaintiff’s efforts to publicize the existence of the suit.”
We disagreed with the defendants in Riddle, stating: “Since actual notice has
not been sent to putative class members who may be spread over a wide
geographic area, the Court is satisfied that three opt-in plaintiffs at this point
sufficiently demonstrates an interest by other employees to opt-in to the suit.”
Id. In other words, the fact that the putative class may be spread over a wide
geographic area lent to the conclusion that the interest shown was sufficient.
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Here, Plaintiff seeks to represent a putative class covering thirteen
locations, not 1700. Furthermore, the declaration of Rita Southworth, an
executive with UHS-Pruitt Corporation who is not affiliated with any particular
state or facility within Defendants’ area of operation, suggests that LPN job
functions and pay policies are consistent across UHC locations. (See
Declaration of Rita Southworth, Dkt. [34-1] ¶ 6 (describing “job duties of a
UHC home health LPN” and how “home health LPNs” are paid) (emphasis
added).) Her statement indicates that the LPNs at UHC-Cobb are indeed
similarly situated to LPNs at a dozen or so other facilities operated by
Defendants. Thus, the importance of geographic diversity among the opt-ins is
diminished even further.
Again, based on the lenient standard at the notice stage, the Court is
satisfied that Plaintiff has demonstrated sufficient interest by others to join the
litigation.
C.
Defendants as Joint Employers
Plaintiff argues that she and the putative class are similarly situated as to
UHS-Pruitt and UHC as joint employers. (Pl.’s Br., Dkt. [21-1] at 23.)
However, as Plaintiff notes, determining whether a defendant is a joint
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employer for purposes of FLSA liability is not appropriate at the notice stage
for conditional certification. See Johnson v. VCG Holding Corp., 802 F. Supp.
2d 227, 239 (D. Me. July 25, 2011) (issues relating to liability as a joint
employer “are properly reserved for dispositive motions or for the second stage
of the class certification process”). Defendants have not challenged conditional
certification on the grounds that they are not joint employers. Therefore, the
Court need not take up this issue for purposes of the motion before it.
D.
Proposed Notice
Defendants challenge Plaintiff’s Proposed Notice to Class [21-19] and
Proposed Opt-in Consent Form [21-20] (together, the “Notice”) on grounds that
the Notice would include individuals whose claims are barred by the relevant
statute of limitations. (Def.s’ Resp., Dkt. [34] at 22-24.) Plaintiff’s proposed
Notice includes all LPN employees at any UHC location who worked for UHC
“at any time from June 15, 2009 to the date of this Court’s conditional
certification Order.” (Notice, Dkt. [21-19] at 3 & Dkt. [21-20] at 1.)
Defendants argue that the proper date to be used is three years prior to the date
the Notice is actually issued, not three years prior to the filing of the Complaint.
(Def.s’ Resp. Br., Dkt. [34] at 24.) The Court agrees with Defendants.
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The statute of limitations for actions brought under the FLSA is two
years, or three years for willful violations. 29 U.S.C. § 255. The FLSA
provides that a collective action “shall be considered to be commenced in the
case of any individual claimant–
(a) on the date when the complaint is filed, if he is specifically
named as a party plaintiff in the complaint and his written consent
to become a party plaintiff is filed on such date in the court in
which the action is brought; or
(b) if such written consent was not so filed or if his name did not
so appear–on the subsequent date on which such written consent is
filed in the court in which the action was commenced.”
29 U.S.C. § 256. Under the plain language of this provision, “opt-in plaintiffs
are deemed to commence their civil action only when they file their written
consent to opt into the class action.” Grayson v. K Mart Corp., 79 F.3d 1086,
1106 (11th Cir. 1996). Thus, an opt-in plaintiff “must file his written consent to
opt into the class action prior to the expiration of the statute of limitations on his
[FLSA] claim.” Id. at 1107.
Under the plain language of § 256 of the FLSA, the statute of limitations
is tolled as to the claims of a putative opt-in plaintiff only when the plaintiff has
opted-in to the suit by filing a written notice of consent. Indeed, the Eleventh
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Circuit has explained that the FLSA statute of limitations evinces Congress’s
“concern that an opt-in plaintiff should not be able to escape the statute of
limitations bearing on his cause of action by claiming that the limitations period
was tolled by the filing of the original complaint.” Grayson, 79 F.3d at 1107
(citation omitted). See also Ramos-Barrientos v. Bland, No. 606CV089, 2009
WL 3851624, at *3 (S.D. Ga. Nov. 17, 2009) (“Plaintiffs contend that the
statute of limitations was tolled for all ‘similarly situated’ [putative plaintiffs]
once the five named plaintiffs filed this suit. This contention is simply
incorrect. Under § 216(b), only written consent to opt-in will toll the statute of
limitations of an opt-in plaintiff’s cause of action.”) (internal quotation marks
and citations omitted).
Based on the foregoing, the Court agrees that Notice should be limited to
LPNs employed by UHC at any UHC facility from [3 years prior to the Notice
mailing date] to [the Notice mailing date]. See, Simpkins v. Pulte Home Corp.,
No. 6:08-CV-130-Orl-19DAB, 2008 WL 3927275, at * 9 n.9 (M.D. Fla. Aug.
21, 2008) (authorizing notice to those employed within last three years from the
date of mailing of notice and explaining: “Because the statute of limitations
runs until the written opt-in notice is filed with the Court, 29 U.S.C. § 256, it is
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prudent to calculate the notice period from the latest possible date.”).
Defendants indicate that they will stipulate to this change in the Notice. (See
Def.s’ Resp., Dkt. [34] at 24.)
The Court DIRECTS Plaintiff to modify the Notice to reflect the
adjusted time frame. The Court further DIRECTS Plaintiff to modify the
Notice by adding a section:
8.
FURTHER INFORMATION
Further information about this lawsuit or this Notice can be obtained by
contacting Plaintiff’s counsel at the address or telephone number provided
above.
Conclusion
Based on the foregoing, the Court GRANTS Plaintiff’s Motion for
Conditional Collective-Action Certification [21] and DIRECTS Plaintiff to
revise the Proposed Notice to Class [21-19] and Proposed Opt-In Consent Form
[21-20] to comply with Part II.D of this Order.
Defendants are ORDERED to provide Plaintiff with the names,
addresses, and last four digits of social security numbers for all putative class
members within twenty days of the date of this Order.
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SO ORDERED, this 7th day of March, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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