Tsitey et al v. Aspen Nursing Services, Inc.

Filing 79

MEMORANDUM OPINION AND ORDER/MINUTE ENTRY ORDER FOR ORAL ARGUMENT HEARING held on 10/11/2016 before Judge William O. Bertelsman: Parties present as noted. IT IS ORDERED: 1) Plfs' motion for final class certification 58 is GRANTED< /b>; 2) The parties shall confer and file proposed plan for further discovery and dispositive motion practice w/in 15 days of entry of this Order. (Court Reporter JOAN AVERDICK.) Signed by Judge William O. Bertelsman on 10/13/2016. (ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:14-cv-103 (WOB-CJS)
SAMUEL TSITEY, ET AL.
VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

ASPEN NURSING SERVICES, INC.

DEFENDANT

This is a putative collective action brought by Samuel Tsitey,
Bennard Oteng, and Ama Mills 1 on behalf of themselves and all others
similarly situated pursuant to the Fair Labor Standards Act of
1938 (“FLSA”), 29 U.S.C. § 216(b).

Plaintiffs allege that Aspen

Nursing Services, Inc. (“Aspen”) did not properly compensate its
employees working in the position of Personal Support Assistant
(“PSA”) for normal and overtime hours worked and also that Aspen
unilaterally altered its employees’ time sheets.
This matter is currently before the Court on plaintiffs’
motion for final certification (Doc. 58).
The Court heard oral argument on this motion on Tuesday,
October 11, 2016.

Edward Cooley, Michael Ryan Robey, and Nicole

Iuliano represented the plaintiffs.
defendant.

Kevin Morris represented the

Official court reporter Joan Averdick recorded the

proceedings.

1

In addition to these original three plaintiffs, sixty-eight
other individuals have filed consents to join this collective
action.

Having heard the parties, the Court now issues the following
Memorandum Opinion and Order.
Factual and Procedural Background
Defendant,

Aspen

Nursing

Services,

Inc.

(“Aspen”),

is

a

private, for-profit company that provides assisted-living homes
for individuals with developmental disabilities.
homes

in

Lexington,

Kentucky,
Frankfort,

including
Somerset

ones
and

in

Aspen operates

Florence,

Pikeville.

Louisville,

Each

assisted

living home has three bedrooms and two or three residents.
Plaintiffs were or are employed by Aspen as “Personal Support
Assistants” (“PSAs”).

PSAs work and sleep in the assisted living

homes and are responsible for the care of the residents, including
cooking,

feeding,

administering

medications,

supervising,

cleaning, and other general and health-related tasks.
PSAs work seven days a week and are scheduled to have the
hours of 8:00 a.m. to 4:00 p.m. off from Monday to Friday.

During

this time, the residents of the homes are usually taken to day
programs or activities by a charter service that picks up the
residents and brings them back at the end of the day.
The assisted living homes are divided into “awake homes” and
“sleep homes.”

“Awake homes” are those in which the residents

have more severe disabilities and require more attention and care
from the PSA, including during the night.

“Sleep homes” are those

in which the residents do not have special care instructions

requiring constant or scheduled night-time monitoring.

Plaintiffs

here all worked or work in “sleep homes.”
Plaintiffs filed this action on May 28, 2014, alleging that
Aspen failed to pay them the full amount of hourly and overtime
wages required to be paid under law.

Specifically, plaintiffs

allege that when residents do not attend their day activities due
to sickness, weather, or other reasons, the PSA who lives in the
resident’s home is forced to take care of the resident during their
“off” time and is not compensated for the work.
Aspen asserts that, in such situations, the PSA’s paid eight
hours

of

sleep

time

becomes

unpaid

time.

Plaintiffs

argue,

however, that does not remedy the situation because PSAs regularly
work during the night due to the needs of residents.
Third, plaintiffs allege that Aspen fails to compensate them
for time spent in employer-mandated training.
Finally, plaintiffs allege that Aspen routinely alters PSAs’
timesheets

to

reflect

fewer

hours

worked

than

the

employees

submitted.
On

May

6,

2015,

this

Court

conditionally

certified

the

“class,” 2 then consisting of forty-four (44) potential plaintiffs.
(Doc. 34).

The Court certified the class for only a two-year “look

back” period, but noted that plaintiffs could proffer evidence at
the final certification stage that would support use of the three-

2 Of

course, plaintiffs are not a “class” in the Rule 23 sense.

year limitations period applicable to willful violations of the
FLSA.
Following

notice

to

potential

class

members,

additional

plaintiffs opted in, and the class currently consists of seventyone (71) individuals.
The parties conducted discovery, and plaintiffs now seek
final certification of a collective action on the following claims
for a three-year period: 3
Count 1:

Violation of Federal Wage and Overtime Payment Laws

Count 3:

Violation of Proper Payment during EmployerDesignated Sleep Time

Count 6:

Violation of Proper Payment for Employer-Mandated
Training

Count 7:

Willful Violation of Court Order and Wage Laws 4

Count 8:

Fraud (regarding altered time sheets)

Count 9:

Promissory Estoppel

Plaintiffs’ motion for final certification is now ripe for
resolution.

3Plaintiffs

are not pursuing Counts 4 and 5 of their complaint.
Plaintiffs previously conceded that they cannot maintain Count 2
of the complaint. (Doc. 34 at 10).
4Plaintiffs’

seventh cause of action alleges that Aspen has
willfully violated an order of the Western District of Kentucky in
No. 3:10-cv-654, Solis v. Aspen Nursing Services, Inc. That court
permanently enjoined Aspen from further violations of the FLSA,
including (1) paying its employees less than the federal minimum
hourly rate, (2) paying its employees less than time-and-a-half
wages for each hour over forty hours worked in a week, and
(3) failing to keep accurate employment records.

Analysis
A.

Legal Framework

“Congress passed the FLSA with broad remedial intent to
address unfair method[s] of competition in commerce that cause
labor conditions detrimental to the maintenance of the minimum
standard of living necessary for health, efficiency, and general
well-being of workers.”

Monroe v. FTS USA, LLC, 815 F.3d 1000,

1008 (6th Cir. 2016) (internal quotations and citations omitted).
Thus, the “provisions of the statute are remedial and humanitarian
in purpose, and must not be interpreted or applied in a narrow,
grudging manner.”
The

FLSA

Id.

provides

a

private

cause

of

action

against

an

employer “by any one or more employees for and in behalf of himself
or themselves and other employees similarly situated.”
§ 216(b).

29 U.S.C.

Two requirements must be met for a collective FLSA

action: 1) the plaintiffs must actually be “similarly situated,”
and 2) all plaintiffs must signal in writing their affirmative
consent to participate in the action.

Id.

Courts generally follow a two-step process for certification.
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).
The first step is conditional certification at the beginning of
discovery, which requires only a modest factual showing that the
opt-in plaintiffs hold positions similar to the named plaintiffs.
Id. at 546-47.

Following discovery, “trial courts examine more closely the
question of whether particular members of the class are, in fact,
similarly situated.”

Id. at 547.

“The lead plaintiffs bear the

burden of showing that the opt-in plaintiffs are similarly situated
to the lead plaintiffs.”

O’Brien v. Ed Donnelly Enter., Inc., 575

F.3d 567, 584 (6th Cir. 2009) (citation omitted), abrogated on
other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663
(2016).
In O’Brien, the Sixth Circuit adopted a three-factor test to
determine
purposes.

whether

employees

are

similarly

situated

for

FLSA

The court considers: 1) the factual and employment

settings of the individual plaintiffs; 2) the different defenses
to which the plaintiffs may be subject on an individual basis; and
3) the degree of fairness and procedural impact of certifying the
action as a collective action.

Id.

The O’Brien court stated that showing a “unified policy” of
violations is not required.

Id.

Rather, employees who “suffer

from a single, FLSA-violating policy” or whose “claims [are]
unified by common theories of defendants’ statutory violations,
even if the proofs of these theories are inevitably individualized
and distinct,” are similarly situated.

Id. at 584-85.

Two additional principles apply to this analysis.

First, the

“similarly situated” FLSA requirement is less stringent than Rule
23(b)(3)’s requirement that common questions predominate for a
class to be certified.

Id. (noting that “[w]hile Congress could

have imported the more stringent criteria for class certification
under Fed. R. Civ. P. 23, it has not done so in the FLSA”).
Second, in resolving the certification issue, the court does
not consider the merits of the plaintiffs’ FLSA claims.

Frye v.

Baptist Mem. Hosp., Inc., 495 F. App’x 669, 674 (6th Cir. 2012).
1. Factual and Employment Settings
This first factor, the factual and employment settings of the
individual plaintiffs, “considers, to the extent they are relevant
to the case, the plaintiffs’ job duties, geographic locations,
employer supervision, and compensation.”

Monroe v. FTS USA, LLC,

815 F.3d 1000, 1011 (6th Cir. 2016) (internal quotations and
citations omitted).
Here, plaintiffs all held the same position — PSA — and they
worked in the same setting, the assisted living homes occupied by
two to three special needs residents.

Plaintiffs also all worked

in “sleep” homes, and they were subject to the same company
policies regarding compensation.

Further, they all worked or work

in Kentucky, a region overseen by Jenni Rolfes, Aspen’s Executive
Director.
Moreover, plaintiffs’ claims are premised on the same three
allegedly unlawful company-wide practices: (1) requiring PSAs to
work during their “off” hours of 8 to 4, but not paying them for
that time; (2) then, in such situations, designating their sleep
time as unpaid, even though PSAs routinely have to get up during

the night to assist residents; and (3) failing to pay PSAs for
time spent attending training sessions.
Aspen contends that plaintiffs are not similarly situated due
to the individualized needs of the residents of the homes where
plaintiffs worked, arguing that an separate analysis would be
required to determine whether each plaintiff suffered an FLSA
violation.

The Sixth Circuit, however, has rejected this type of

argument.
For example, in Monroe, the Sixth Circuit held that plaintiffs
— technicians for a cable television contractor — were similarly
situated for FLSA purposes, notwithstanding that they worked in
five different states under different managers and had different
types and amounts of uncompensated time. Monroe, 815 F.3d at 101112.

The Court noted that the FLSA “similarly situated” analysis

“does not descend to such a level of granularity,” and that the
technicians claims “are unified by common theories: that FTS
executives implemented a single, company-wide-time-shaving policy
to force all technicians — either through direct orders or pressure
and regardless of location or supervisor — to underreport overtime
hours worked on their time sheets.”

Id. at 1013.

In so holding, the Monroe court relied on O’Brien v. Ed
Donnelly Enter., Inc., 575 F.3d 567 (6th Cir. 2009), abrogated on
other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663
(2016).

There, an FLSA collective action was brought by former

employees of two McDonald’s franchises who alleged that they were

required to work “off the clock” and that defendants altered their
time records.

Following discovery, the district court decertified

the class, reasoning that an extensive individualized analysis
would

be

required

occurred.

to

determine

whether

FLSA

violations

had

The opt-in plaintiffs appealed.

The Sixth Circuit held that the district court had applied an
unduly

restrictive

requirement,

view

implicitly

of
and

the

FLSA’s

improperly

similarly

using

a

situated

Rule

23-type

analysis:
We do not purport to create comprehensive criteria for
informing the similarly-situated analysis. But in this
case, the plaintiffs were similarly situated, because
their claims were unified by common theories of
defendants’ statutory violations, even if the proofs of
these theories are inevitably individualized and
distinct.
The claims were unified so, because
plaintiffs articulated two common means by which they
were allegedly cheated: forcing employees to work off
the clock and improperly editing time-sheets. We do not
mean to require that all collective actions under §
216(b) be unified by common theories of defendants’
statutory violations; however, this is one situation
where a group of employees is similarly situated.
Id. at 585. 5
Under both Monroe and O’Brien, plaintiffs have clearly
shown

that

their

employment

settings

were

sufficiently

similarly so as to weigh in favor of final certification.
Two cases cited by Aspen are factually distinguishable.
In Frye v. Baptist Mem. Hosp., 495 F. App’x 669 (6th Cir.

5

The Court ultimately affirmed the decertification, however,
because the only remaining pot-in plaintiff had not alleged
violations based on the above two common theories. Id. at 586.

2012), the Sixth Circuit held that the district court did not
abuse its discretion in decertifying a collective FLSA action
brought by employees of a hospital.

There, however, there

was no common theory of an FLSA violation, and the plaintiffs
held different jobs, worked in different departments, and
were subject to different compensation reporting procedures.
Id. at 673.
Similarly, in Creely v. HCR Manorcare, 920 F. Supp.2d
846 (N.D. Ohio 2013), the Court denied the plaintiffs’ motion
for final certification in an FLSA action brought by employees
of

a

company

facilities.

that

operated

short

and

long-term

care

However, the opt-in plaintiffs occupied various

positions including registered nurses, licensed practical
nurses,

certified

nursing

assistants,

and

admissions

coordinators at different facilities across the country.
at 850.

Id.

Further, discovery revealed that the allegedly

unlawful policy was implemented in a decentralized manner.
Id. at 853-54.
Given the different factual showing plaintiffs have made
here, neither Frye nor Creely supports Aspen’s opposition to
final certification.
1. Individualized Defenses
Aspen devotes almost none of its opposition to this factor of
the O’Brien test. It does assert that each plaintiff’s credibility
as to the amount of sleep interruptions they experienced would be

at issue, and that this dictates against the case proceeding as a
collective action.
The Sixth Circuit rejected an almost identical argument in
Monroe.

The employer there argued that “they must be allowed to

raise separate defenses by examining each individual plaintiff on
the number of unrecorded hours they worked, but that they were
denied that right by the allowance of representative testimony and
an estimated-average approach.”

Monroe, 815 F.3d at 1013.

The

Sixth Circuit stated: “Several circuits, including our own, hold
that individualized defenses alone do not warrant decertification
where sufficient common issues or job traits otherwise permit
collective litigation.”

Id.

That is exactly the case here, where all plaintiffs held the
same

position,

compensation

were

subject

policies,

and

to

the

assert

same

common

timekeeping
theories

of

and
FLSA

violations.
Moreover, Aspen asserts in its brief that all plaintiffs would
be

subject

to

a

defense

under

29

C.F.R.

§

785.22,

an

FLSA

regulation that permits an employer, upon express or implied
agreement, to exclude 8 hours of sleep time from employees “on
duty” for employees “on duty” for 24 hours or more.

Aspen’s

employee handbook incorporates this principle, and Aspen states
that

it

intends

to

invoke

this

defense

when

plaintiffs’ claims are considered by the Court.

the

merits

of

Thus,

contrary

to

any

individualized

defenses,

a

key

component of Aspen’s defense — 29 C.F.R. § 785.22 — will be
applicable to every member of the proposed collective class.
Therefore, this second factor also supports the propriety of
final certification.
2. Fairness and Procedural Impact
This third factor also supports final certification.

As the

Sixth Circuit stated in Monroe:
This case satisfies the policy behind FLSA collective
actions and Congress’s remedial intent by consolidating
many small, related claims of employees for which
proceeding individually would be too costly to be
practical.
. . .
Because all [employees] allege a common FLSA-violating
policy, [t]he judicial system benefits by efficient
resolution in one proceeding of common issues of law and
fact.
Monroe, 815 F.3d at 1014 (citation and internal quotations
omitted).
The

same

rationale

applies

here,

where

seventy-one

employees allege common theories of FLSA violations, and it
is unlikely that they would have the resources to proceed
individually were certification denied.
Therefore, the Court concludes that final certification
of this matter as a collective action is appropriate.

Thus, having reviewed this matter, and the Court being
sufficiently advised,

IT IS ORDERED that:
(1)

Plaintiffs’ motion for final class certification (Doc.
58) be, and is hereby, GRANTED; and

(2)

The parties shall confer and file and proposed discovery
and dispositive motion plan within fifteen (15) days of
entry of this Order.

This 13th day of October, 2016.

TIC: 33 min.