Chapman v. LHC Group, Inc
Filing
81
ORDER denying 55 Motion for Certificate of Appealability; granting in part and denying in part 55 Motion for Reconsideration. FURTHER ORDERED that the parties meet with the Magistrate Judge assigned to this case on September 2, 2015 to discuss the form and content of the Proposed Notice. The parties are to submit a joint Proposed Notice within 14 days of that conference. Signed by Judge Nannette Jolivette Brown. (jrc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CORINNE CHAPMAN
CIVIL ACTION
VERSUS
CASE NO. 13-6384
LHC GROUP, INC.
SECTION: “G”(3)
ORDER
Before the Court is Defendant LHC Group, Inc.’s (“LHC”) “Motion for Reconsideration of
Order Conditionally Certifying Collective Action, or in the Alternative to Certify Interlocutory
Appeal.”1 Having considered the motion, the memoranda in support and in opposition, the
statements made at oral argument, the record, and the applicable law, the Court will grant the
motion in part and deny it in part.
I. Background
A.
Factual Background
Plaintiff Corrine Chapman (“Chapman”) worked for 15 years as an office manager for
Ochsner Home Health Corp. (“Ochsner”) in Covington, Louisiana, which was acquired by LHC in
2009.2 According to Chapman, she was a nonexempt employee paid hourly, with responsibilities
including scheduling, recording, and reporting the work hours of LHC’s hourly employees.3
Chapman alleges that LHC never instructed or trained its payroll employees how to properly record
hours worked by hourly employees, or with respect to the record-keeping requirements of the Fair
1
Rec. Doc. 55.
2
Rec. Doc. 19-1 at p. 2.
3
Id.
1
Labor Standards Act (the “FLSA”).4
For several years, according to Chapman, LHC has been reducing its employment costs,
including reducing its work force and implementing record keeping and compensation policies
prohibiting the payment of overtime wages.5 Despite the reductions in force, LHC allegedly
instructed its hourly employees not to record any overtime hours on their time sheets, even if the
employees worked hours in excess of the 40 hour work week.6 Chapman alleges that LHC
supervisors, under “direct orders” from LHC’s senior management, instructed her to allow and
accept inaccurate time records from employees who actually worked in excess of 40 hours per week,
but recorded only 40 hours per week on his or her time sheet.7 Chapman additionally alleges that
she was instructed to modify time sheets of any employees who reported working in excess of 40
hours per week so that the time sheets would show only 40 hours worked.8
Chapman alleges that she was regularly scheduled to work exactly eight hours daily and 40
hours weekly, and that she was scheduled to take a 30 minute unpaid lunch break every day.9 Still,
she alleges, she regularly worked in excess of eight hours per day, but was prohibited from reporting
this overtime on her time sheet and consequently was not compensated for that time.10 According
4
Id.
5
Id.
6
Id.
7
Id. at p. 4.
8
Id.
9
Id.
10
Id. at p. 5.
2
to Chapman, prior to June 2013, she reported to supervisors with the title “Director of Nursing.”11
After June 2013, Chapman was supervised by Cheryl Chellette, Director of Ochsner Home Health
of Covington and Ochsner Home Health of Kenner.12 Chapman attests that “[u]pon information and
belief, Defendant’s record–keeping and compensation policies were dictated and issued by
Defendant’s senior management and issued to all of defendants’s [sic] locations throughout
Louisiana and the United States.”13
B.
Procedural Background
The complaint in this matter was filed on November 8, 2013.14 On April 4, 2014, Chapman
filed a “Motion to Conditionally Certify a Collective Action and Issue Notice,”15 which the Court
granted on November 13, 2014.16 The Court’s November 13, 2014 Order granted Plaintiff’s request
to conditionally certify a nationwide class of office managers, administrative personnel, and
clinical technicians based on the allegations of Chapman and three other employees that they were
prohibited from recording more than 40 hours on their time sheets.
LHC filed the pending motion for reconsideration on November 24, 2014.17 Chapman filed
a memorandum in opposition of December 2, 2014,18 and LHC filed a memorandum in further
11
Id.
12
Id.
13
Id. at p. 7.
14
Rec. Doc. 1.
15
Rec. Doc. 19.
16
Rec. Doc. 52.
17
Rec. Doc. 55.
18
Rec. Doc. 58.
3
support of its motion on December 10, 2014.19 The Court heard oral argument on the pending motion
on August 5, 2015.
II. Parties’ Arguments
A.
LHC’s Arguments in Support
LHC argues that reconsideration of the Court’s November 13, 2014 Order granting
conditional certification “is warranted to prevent the manifest injustice that would result to LHC if
a nationwide notice is authorized by this Court based on the wholly conclusory and otherwise
inadequate allegations submitted by Chapman in support of her motion.”20 LHC does not dispute the
Court’s articulation of the factors that it considered in evaluating Chapman’s motion for conditional
certification; rather, LHC asks the Court to reconsider the manner in which it applied those factors
to Chapman’s allegations, which LHC characterizes as “conclusory.”21 LHC avers that Chapman
has not come close to presenting “substantial allegations” that the putative class members were
together the victims of a single decision, policy, or plan infected by unlawful conduct, such that the
Court could find that the requirements for conditional certification have been met.22
First, LHC argues that Chapman has not demonstrated a reasonable basis for believing that
other aggrieved individuals exist because she failed to identify any written policy that could
arguably violate the FLSA.23 According to LHC, its written policies require that all hours worked
be recorded on employee timesheets, and “Chapman’s effort to identify the requisite single policy
19
Rec. Doc. 63.
20
Rec. Doc. 55-1 at p. 3.
21
Id. at p. 4.
22
Id.
23
Id. at p. 5.
4
– to the extent she makes any substantive effort at all – has to be based on her vague and conclusory
allegations that unidentified individual supervisors purportedly deviated from these written policies
through unspecified verbal instructions to unidentified employees at unidentified locations at
unidentified times.”24 LHC contends that Chapman failed to explain how employees were
supposedly prevented from recording overtime hours, and that she has failed to identify the specific
alleged pay practice at issue.25
Next, LHC argues that Chapman has not demonstrated the existence of any aggrieved
individuals who are similarly situated to her.26 According to LHC, the critical issue at the heart of
the “similarly situated” analysis is whether the ultimate issues can be tried on the basis of collective
or representative proof, or whether such resolution will require individualized proof as to the claims
of each plaintiff.27 LHC cites Johnson v. Big Lots Stores, Inc.28 and Carey v. 24 Hour Fitness USA,
Inc.29 to support its argument that courts are particularly reluctant to conditionally certify “off-theclock” cases such as this one because such cases are inherently not susceptible to resolution using
collective proof, and thus are not appropriate for collective action certification.30
LHC additionally contends that Chapman has not demonstrated that others desire to opt in
24
Id.
25
Id. at p. 6.
26
Id. at p. 7.
27
Id. at p. 8.
28
Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567 (E.D. La. 2008) (Vance, J.).
29
Carey v. 24 Hour Fitness USA, Inc., No.10-3009, 2012 WL 4857562 (S.D. Tex. Oct. 11, 2012) (Atlas, J.).
30
Id. at p. 9.
5
to this case.31 Despite Chapman’s request to certify a nationwide class, LHC argues, only three other
individuals have opted into the case, all of whom previously worked at the same facility as Chapman
and thus knew her personally.32 LHC contends that Chapman was unable in her discovery responses
to identify any other individuals who were allegedly improperly paid by LHC, much less anyone
else who is actually interested in participating in this case.33 LHC argues that only Chapman and
Marla Cerise provided affidavits, and that the other two opt-ins “did not submit any affidavits and
their conclusory statements in their opt-in notices that they worked unpaid overtime are boilerplate,
highly conclusory, not offered under oath, and say nothing about being prohibited from recording
overtime hours on their time sheets.”34 LHC urges this Court to view their failure to present sworn
testimony as an implicit indication that they have no supportive testimony to offer.35 LHC contends
that the pending case is similar to Crowley v. Paint & Body Experts of Slidell, Inc.,36 where,
according to LHC, this “Court found an equally meager showing of interest warranted the denial of
conditional certification.”37
LHC also argues that the scope of the proposed class which Chapman seeks to certify in this
case is unclear, and that Chapman appears to seek certification of a class of all hourly, non-exempt
31
Id. at p. 10.
32
Id.
33
Id.
34
Id. at p. 11.
35
Id.
36
No. 14-0172, 2014 LEXIS 75472 (E.D. La. June 3, 2014).
37
Rec. Doc. 55-1 at p. 11.
6
employees, without any regard to their job duties.38 LHC contends that it would be impossible, based
on Chapman’s suggested class definition, to determine who would even be part of the putative
class.39 According to LHC, decertification of the nationwide class after discovery is not an adequate
remedy because it has the potential to create unwarranted litigation from former class members, who
then file individual actions.40
Based on the foregoing, LHC urges the Court to reconsider its November 13, 2014 Order and
deny conditional certification of the class. In the alternative, LHC requests that the Court certify
an order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) to allow the Fifth Circuit to
determine the correct procedural method for analyzing requests for class certification in FLSA
collective actions.41
B.
Chapman’s Arguments in Opposition to Reconsideration
In response, Chapman contends that LHC merely repeats the same arguments that it has
already asserted on multiple occasions, and that Crowley “did nothing to change the standard under
which the Court analyzed this ruling.”42 Chapman additionally argues that the plaintiffs in Crowley
failed to show that putative class members were together the victims of a single decision, policy or
plan because the plaintiffs complained of different pay policies.43 Here, Chapman contends, “all the
Plaintiffs complain that Defendant’s policy of forcing non-exempt employees to work off-the-clock
38
Id. at p. 12.
39
Id. at p. 13.
40
Id. at pp. 14–15.
41
Id. at p. 16.
42
Rec. Doc. 58 at pp. 1–2.
43
Id. at p. 2.
7
and not record those hours required them to work overtime hours for which they were not
compensated properly.”44 With respect the definition of the putative class, Chapman argues that the
class is “clearly and accurately” defined as “[a person who] (a) was employed by Defendant at any
point from April 4, 2011 to the present as an [sic] nonexempt [sic] employee; (b) was compensated
on an hourly wage basis; (c) worked more than forty hours in any given work week; and (d) was
prohibited or otherwise did not properly record their work hours over 40 hours in a work week.”45
Finally, Chapman states that certification for interlocutory appeal of the question of the correct
procedural method for similar cases is inappropriate because there is no question of law that will
advance the ultimate termination of this case.46
C.
LHC’s Arguments in Reply
In further support of its motion for reconsideration, LHC contends that:
[D]espite being afforded another opportunity to bolster her case, it remains clear that
Chapman’s sole basis for seeking conditional certification of a nationwide class of
every single hourly, non-exempt employee of LHC or any of its affiliates, is a
conclusory, boilerplate allegation from her and just one other opt-in that they were
somehow precluded in unidentified ways by unidentified persons from recording an
unknown number of overtime hours on unknown dates and times.47
LHC contends that Chapman fails to address its concerns over the scope of the putative class in this
case.48 LHC argues that, based on LHC census data, a class comprised only of office managers and
office assistants in the state of Louisiana would include approximately 310 individuals, and that a
44
Id.
45
Id.
46
Id. at p. 3.
47
Rec. Doc. 63 at pp. 1–2.
48
Id. at p. 2.
8
nationwide class of office managers and office assistants would include roughly 1,561 individuals.49
A putative class of every single hourly, non-exempt current and former LHC employee nationwide,
LHC contends, would include about 9,161 individuals.50 Finally, LHC argues that, because Chapman
opted not to conduct any discovery prior to moving for conditional certification, there is no factual
basis in the record from which the Court could conclude that such individuals are similarly situated
or were subjected to the same pay practices that Chapman and the three opt-in plaintiffs allege.51
III. Law and Analysis
A.
Standard on a Motion for Reconsideration
The Court has “considerable discretion” in deciding whether to grant a motion for
reconsideration, but must “strike the proper balance between two competing imperatives: (1) finality
and (2) the need to render just decisions on the basis of all the facts.”52 This Court’s discretion is
further bounded by the Fifth Circuit’s instruction that reconsideration is “an extraordinary remedy
that should be used sparingly,”53 with relief being warranted only when the basis for relief is “clearly
establish[ed].”54 Courts in the Eastern District of Louisiana have generally considered four factors
in deciding motions for reconsideration, which are typically decided under the Rule 59(e) standard:
(1)
the motion is necessary to correct a manifest error of law or fact upon which
the judgment is based;
49
Id. at p. 4.
50
Id.
51
Id. at p. 5.
52
Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).
53
Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).
54
Schiller v. Phyisicans Resource Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003).
9
(2)
the movant presents newly discovered or previously unavailable evidence;
(3)
the motion is necessary in order to prevent manifest injustice; or
(4)
the motion is justified by an intervening change in controlling law.55
A motion for reconsideration, “‘[is] not the proper vehicle for rehashing evidence, legal
theories, or arguments. . . .’”56 Instead, such motions “serve the narrow purpose of allowing a party
to correct manifest errors of law or fact or to present newly discovered evidence.”57 “It is well
settled that motions for reconsideration should not be used . . . to re-urge matters that have already
been advanced by a party.”58 Reconsideration, therefore, is not to be lightly granted, as
“[r]econsideration of a judgment after its entry is an extraordinary remedy that should be used
sparingly”59 and the motion must “clearly establish” that reconsideration is warranted.60 When there
exists no independent reason for reconsideration other than mere disagreement with a prior order,
reconsideration is a waste of judicial time and resources and should not be granted.61
B.
Standard for Conditional Certification of a FLSA Class
FLSA sets forth requirements for minimum wage, overtime pay, and record keeping for
certain employees who are not exempt because they hold executive, administrative, or professional
55
See, e.g., Castrillo, 2010 WL 1424398, at *4 (citations omitted).
56
Id. (quoting Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004)).
57
See Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989).
58
Helena Labs., 483 F. Supp. 2d at 539 (citing Browning v. Navarro, 894 F.2d 99, 100 (5th Cir. 1990)).
59
Templet, 367 F.3d at 478-79 (citation omitted).
60
Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 567 (5th Cir. 2003).
61
Livingston Downs Racing Ass’n v. Jefferson Downs Corp., 259 F.Supp. 2d 471, 481 (M.D. La. 2002). See
also Mata v. Schoch, 337 BR 138, 145 (S.D. Tex. 2005) (refusing reconsideration where no new evidence was
presented). See also FDIC v. Cage, 810 F.Supp. 745, 747 (S.D. Miss. 1993) (refusing reconsideration where the motion
merely disagreed with the court and did not demonstrate clear error of law or manifest injustice).
10
positions.62 FLSA also creates a private right of action for employees when these rights are
violated.63 Under § 216(b) of FLSA, one or more employees can pursue a collective action in a
representative capacity on behalf of similarly situated employees.64 There are two requirements to
proceed as a representative action: (1) all plaintiffs must be “similarly situated,” and (2) a plaintiff
must consent in writing to take part in the suit. This latter requirement means that a representative
action follows an “opt-in” rather than an “opt-out” procedure.65
FLSA does not define the requirements for employees to be deemed “similarly situated.”
Instead, a two-step method is routinely utilized, which was originally articulated in Lusardi v. Xerox
Corporation66 and described in detail by the Fifth Circuit in Mooney v. Aramco Services, Co.67
Under this approach, a court first determines at the “notice stage” whether notice should be given
to potential members of the collective action, and this determination is usually made on the basis
of “only . . . the pleadings and any affidavits.”68 Because the court typically has little evidence at
this stage, the determination of conditional certification “is made using a fairly lenient standard, and
62
29 U.S.C. §§ 206(a)(1), 207(a)(1), 213(a)(1). The employer bears the burden of proving the applicability
of an exemption. Corning Glass Works v. Brennan, 417 U.S. 188, 197 (1974).
63
29 U.S.C. § 216(b).
64
“An action to recover the liability . . . may be maintained against any employer (including a public agency)
in any Federal or State court of competent jurisdiction by any one or more employees for and on behalf of himself or
themselves and other employees similarly situated.” Id.
65
See Mooney v. Aramco Services Co., 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
66
118 F.R.D. 351 (D.N.J. 1987).
67
54 F.3d at 1213–14.
68
See id.
11
typically results in ‘conditional certification’ of a representative class.”69 Generally, courts do not
require more than “substantial allegations that the putative class members were together the victims
of a single decision, policy, or plan” and only a modest factual basis is required.70 Although this is
a lenient standard, “general allegations that the employer violated FLSA are insufficient.”71
At the notice stage, the burden is on the plaintiff to demonstrate that “(1) there is a
reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved
individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses
asserted; and (3) those individuals want to opt in to the lawsuit.”72 The burden to show that plaintiffs
are similarly situated rests on the plaintiff,73 but “[a] plaintiff need only demonstrate a reasonable
basis for the allegation that a class of similarly situated persons may exist.”74 Plaintiffs need not be
identically situated,75 and even plaintiffs who operate in different geographical locations and under
different managers and supervisors may be deemed similarly situated in some circumstances, such
as when they share similar job titles and responsibilities.76 “Whether at the notice stage or on later
69
Id. at 1214.
70
Id. at 1214 n.8 (quoting Sperling v. Hoffman-LaRoche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)).
71
Melson v. Directech Southwest, Inc., No. 07-1087, 2008 WL 258988, at *4 (E.D. La. June 25, 2008)
(Feldman, J.).
72
Lang v. DirecTV, Inc., No. CIV.A. 10 1085 G (1), 2011 WL 6934607, at *4 (E.D. La. Dec. 30, 2011)
(Brown, J.); see also Morales v. Thang Hung Corp., 4:08-2795, 2009 WL 2524601, at *2 (S.D. Tex., Aug. 14, 2009).
Hickson v. U.S. Postal Service, No. 5:09-CV-83, 2010 U.S. Dist. LEXIS 104112, at * 18 (E.D. Tex., July 22, 2010).
73
England v. New Century Fin. Corp., 370 F. Supp. 2d 504, 507 (M.D. La. 2005).
74
Lima, 493 F.Supp.2d at 798 (emphasis added).
75
Crain v. Helmerich & Payne Int’l Drilling Co., No. 92–0043, 1992 WL 91946 (E.D. La., Apr. 16, 1992).
76
Kuperman v. ICF Int’l, No. 08-565, 2008 U.S. Dist. LEXIS 88605, at *21-22 (E.D. La., Oct. 31, 2008)
(Barbier, J.).
12
review, collective action certification is not precluded by the fact that the putative plaintiffs
performed various jobs in differing departments and locations.”77 A plaintiff must do more than
show the mere existence of other similarly situated persons, because “there is no guarantee that those
persons will actually seek to join the lawsuit.”78 Only those employees who affirmatively “opt-in”
to the suit are bound by a collective action under FLSA.79
If conditional certification is granted, the case then proceeds through discovery as a class
action to the “merits stage,” at which time the defendants may move for decertification.80 At that
time, a more stringent approach governs and Lusardi applies a three-factor test, considering: (1) the
extent to which employment settings are similar or disparate; (2) the extent to which any of the
employer’s defenses are common or individuated; and (3) fairness and procedural concerns.81 The
court then makes “a factual determination on the similarly situated question,”82 either allowing the
representative action “to proceed to trial” or decertifying the class and dismissing without prejudice
77
Donohue v. Francis Serv., Inc., No. 04-170, 2004 WL 1161366, at * 2 (E.D. La., May 24, 2004) (citations
omitted) (granting conditional certification where plaintiffs alleged a common policy of employer denying employees
payment and finding affidavits and other documentary evidence sufficient to support the allegations). “The Court rejects
defendants’ argument that such a class is problematic because it includes individuals from various positions, locations,
etc.; the law is plain that that does not undermine the ‘similarly situated’ requirement.” Id. at *3.
78
Tolentino v. C & J Spec-Rent Servs., Inc., 716 F. Supp. 2d 642, 647 (S.D. Tex. 2010) (citing Ali v. Sugarland
Petroleum, No. 4:09–cv–0170, 2009 WL 5173508, at *2 (S.D. Tex., Dec. 22, 2009). See also, H & R Block, Ltd. v.
Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (“[A]lthough the standard for satisfying the first step is lenient, . . . the
court still requires at least substantial allegations that the putative class members were together victims of a single
decision, policy or plan. . . .”) (internal quotation omitted)).
79
29 U.S.C. § 216(b) (“[N]o 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.”).
80
Mooney, 54 F.3d at 1214.
81
Kuperman, 2008 WL 4809167 at *5 (quoting Johnson v. Big Lots Stores, Inc., 561 F.Supp.2d 567, 573 (E.D.
La. 2008) (conditional certification the majority approach)).
82
Mooney, 54 F.3d at 1214.
13
the claims of opt-in plaintiffs.83 Generally, the matter is less appropriate for certification when
plaintiffs’ job experiences are more dissimilar and when the employer’s defenses are more
individuated. Although the Fifth Circuit has not specifically endorsed decertification in this
manner,84 the Fifth Circuit has affirmed a district court’s decertification decision based on the use
of the Lusardi approach.85 This approach “is consistent with the Fifth Circuit’s statements that there
is a fundamental, irreconcilable difference between the class action described by Rule 23, Fed. R.
Civ. P., and the collective action provided by the FLSA.”86
C.
Analysis
LHC argues that reconsideration of the Court’s November 13, 2014 Order is necessary to
correct a manifest error of law. According to LHC, the Court erred in finding that Chapman carried
her burden to demonstrate that (1) there is a reasonable basis for crediting the assertion that
aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in
relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to
the lawsuit.
First, LHC contends that there is not a reasonable basis for crediting the assertion that
aggrieved individuals exist. In support of this argument, LHC cites Carey v. 24 Hour Fitness USA,
83
Id.
84
Id. at 1216 (“In so holding we specifically do not endorse the methodology employed by the district court,
and do not sanction any particular methodology. We simply need not decide the appropriate methodology under these
facts, and therefore leave that inquiry for another day.”).
85
Id. at 1215-16.
86
Smith v. Servicemaster Holding Corp., No. 10-444, 2011 WL 4591088 (M.D. La., Sept. 30, 2011) (noting
the important difference between opt-in and opt-out class actions) (citing Sandoz v. Cingular Wireless LLC, 553 F.3d
913, 916 (5th Cir. 2008)). See also, LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975).
14
Inc, a case from the Southern District of Texas.87 In Carey, the plaintiff worked as a “membership
counselor” at a health club that was operated as part of a nationwide chain. The plaintiff asserted that
the club violated the FLSA by failing to pay him overtime wages, and, after completing discovery,
sought conditional certification of a FLSA class. Specifically, the plaintiff argued that the club
imposed sales goals on membership counselors that they could not meet without working overtime,
and that the club managers did not want the membership counselors to record overtime hours
because they wanted to reduce labor costs. The district court found, however, that whether a
membership counselor could meet the sales goals without working overtime would depend on the
goals set for each individual, and that “[t]he evidence indicates that the sales goals are not uniformly
distributed among the Membership Counselors.”88 Determining each individual’s ability to meet
those goals, according to the district court, “would require an individual assessment of each
individual’s sales ability, commitment, availability, and the amount of traffic in the club during that
Membership Counselor’s working hours.”89 Additionally, the district court found that the plaintiff
“has identified no Membership Counselors who have demonstrated an interest in joining this
lawsuit,” even though the case had been pending for approximately two years and plaintiff’s counsel
had maintained a website providing “extensive information” about the lawsuit. Accordingly, the
district court denied the plaintiff’s motion for conditional certification of a FLSA class.
Despite LHC’s arguments to the contrary, the Court finds that Carey is neither binding nor
persuasive authority on this Court. Unlike in Carey, the parties here have not conducted discovery
87
Carey v. 24 Hour Fitness USA, Inc., No.10-3009, 2012 WL 4857562, at *1 (S.D. Tex. Oct. 11, 2012) (Atlas,
88
Id. at *2.
89
Id.
J.).
15
on the conditional certification issue. The Court notes, also, that discovery is not required at this
stage. Moreover, the Carey court found that the existence of similarly situated individuals was a
“highly individualized analysis” because each membership counselor’s ability to meet sales goals
without working overtime depended on individualized factors including the person’s unique sales
goals and sales abilities, the amount of customer traffic in each club location, the age of each club,
and the time of year. Here, in contrast, there is no argument that the hours or work schedules of the
putative class members are dependent on individualized goals, abilities, or any of the other factors
identified as relevant by the Carey court. Finally, unlike the plaintiff in Carey, Chapman has
identified three other individuals who wish to opt in to the lawsuit. Accordingly, the Court does not
find Carey to be persuasive.
LHC additionally urges the Court to consider the “lesson” of another section of this district
court’s “experience” in Johnson v. Big Lots Stores, Inc.90 In that case, two assistant store managers
(“ASMs”) sued Big Lots, asserting that it misclassified ASMs as executive employees and thereby
unlawfully denied them overtime pay in violation of the FLSA. Utilizing the two-stage Lusardi
approach, the district court conditionally certified the matter as collective action. As a result, a
nationwide class of 936 current and former Big Lots ASMs was formed. After roughly two years
of discovery, Big Lots moved three times to decertify the class. Based on the evidence before it at
the time, and in light of the plaintiffs’ claim that Big Lots maintained a de facto policy and practice
of misclassifying the ASM job position, the district court denied each motion for decertification.91
However, after conducting a seven day bench trial and reviewing the evidence and expert testimony
90
Rec. Doc. 55-1 at p. 9 (citing Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567 (E.D. La. 2008) (Vance,
91
Big Lots, 561 F. Supp. 2d at 571.
J.)).
16
put forth by both parties, the district court decertified the action because the opt-in plaintiffs’ selfreported job responsibilities were so dissimilar that they could not establish “that Big Lots
maintained a uniform corporate policy and practice of misclassifying the ASM job position.”92 The
district court expressly noted that “the same scope of evidence about plaintiffs’ job experiences was
not before it at the initial decertification stage, and plaintiffs’ earlier showing entitled them to
proceed with their theory of the case.”93
LHC urges the Court to consider the “lesson of the [c]ourt’s experience in Big Lots . . . that,
in order to avoid unnecessary expenditure of court and litigant resources, it is incumbent upon a
district court to determine at the earliest possible stage when a case is not suitable for collective
action certification.”94 The Court notes, first, that Big Lots is not binding authority on this Court.
Moreover, unlike in Big Lots, in the instant case there has been no discovery, testimony, class
certification, motions for class decertification, or trial. Instead, the instant case is merely at the
conditional certification stage. Accordingly, the Court does not find Big Lots to be persuasive with
respect to the issue of conditional certification.
LHC also contends that this Court denied a motion for conditional certification of a FLSA
class in Crowley v. Paint & Body Experts of Sidell, Inc., and that the same result is appropriate
here.95 In Crowley, two plaintiffs, Crowley and Brown, alleged that they were not paid overtime
while employed by an auto body shop. The Court denied their motion for conditional certification
92
Id. at 578 (emphasis in original).
93
Id. at 587.
94
Rec. Doc. 55-1 at p. 9.
95
Id. at p. 11 (citing Crowley v. Paint & Body Experts of Slidell, Inc., No. 14-0172, 2014 WL 2506519 (E.D.
La. June 3, 2014) (Brown, J.)).
17
of a FLSA class, concluding as follows:
While both Plaintiffs describe potential violations of FLSA, they appear to have
worked very different hours (Brown worked substantially more than Crowley), been
paid at dissimilar rates (up to 40 hours, Brown made about 32% less than Crowley),
and received overtime pay in different manners (Crowley was paid at $20.00 per
hour while Brown received a lump sum of $200.00). Further, their allegations cover
different time periods. Finally, Crowley and Brown have offered only conclusory
assertions that other employees were subject to unlawful overtime policies and would
desire to opt-in to this action.96
In the instant case, unlike in Crowley, there is no indication that Chapman and the named opt-in
plaintiffs were subject to different wage and overtime schemes, or that their allegations cover
different time periods. Moreover, as this Court noted in its November 13, 2014 Order, three
individuals in addition to Chapman have demonstrated that they wish to opt in to this lawsuit.
Accordingly, the Court finds that the instant case is easily distinguishable from Crowley.
Finally, LHC argues that a nationwide class comprised of office managers, administrative
personnel, and clinical technicians is overly broad and would include approximately 9,161
individuals.97 During the August 5, 2015 oral argument on the pending motion, the parties agreed
to narrow the scope of the putative class to include only office managers and administrative
personnel, thereby excluding clinical technicians. As a result of this agreement, the putative class
would be comprised of approximately 1,200–1,500 individuals nationwide,98 including 310
individuals in Louisiana.
Although they agree to exclude clinical technicians from the class definition, the parties
96
Id. at *8.
97
See Rec. Doc. 63 at pp. 4–5.
98
LHC states in its briefing that a nationwide class of office managers and administrative personnel would
include 1,561 individuals. See Rec. Doc. 63 at p. 4. At oral argument, the parties represented that this class would include
1,200 individuals.
18
continue to dispute the proper geographic scope of the putative class. At oral argument, Chapman
represented that a nationwide class is appropriate because LHC’s corporate headquarters is located
in Louisiana and, apparently, that this supports her argument that the policies at issue were
implemented nationally. LHC contends that each agency is run autonomously and independently,
and that the location of LHC’s headquarters does not justify a nationwide class.
The Court finds that reconsideration of the geographic scope of the putative class is
warranted in this case. Chapman cites no legal authority supporting her argument that the location
of company headquarters near the lead plaintiff is sufficient to support even the conditional
certification of a FLSA class. Moreover, Chapman has not alleged in her pleadings or the complaint
in this matter that she actually worked at LHC headquarters; rather, she alleges that she worked at
Ochsner Home Health Corp., which was acquired by LHC in 2009.99 Additionally, Chapman
provides no indication that any similarly-situated aggrieved individuals exist outside of Louisiana.
Chapman has not put forth any factual basis in support of her request for certification of a
nationwide class. Although the conditional certification standard is fairly lenient, “general
allegations that the employer violated FLSA are insufficient.”100 Accordingly, to the extent that
LHC requests that the Court reconsider the geographic scope of the putative class and to limit the
class to in-state LHC employees, the motion for reconsideration will be granted. The putative class
will be limited to office managers and administrative personnel in the state of Louisiana.
LHC also requests that the Court certify for interlocutory appeal the question of whether the
two-stage Lusardi approach is the correct framework to apply in FLSA class certification motions,
99
Rec. Doc. 19-1 at p. 2.
100
Melson v. Directech Southwest, Inc., No. 07-1087, 2008 WL 258988, at *4 (E.D. La. June 25, 2008)
(Feldman, J.).
19
and what standards of proof and levels of scrutiny district courts should apply. Considering that
neither party disputes the applicability of the Lusardi approach here, and since that approach is
routinely used by courts in this district,101 the Court will deny LHC’s alternate motion for
certification of these questions for interlocutory appeal.
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that LHC’s “Motion for Reconsideration of Order
Conditionally Certifying Collective Action, or in the Alternative to Certify Interlocutory Appeal”102
is GRANTED IN PART AND DENIED IN PART. To the extent that LHC requests
reconsideration of the scope of the putative class, reconsideration is granted. The putative class will
consist of office managers and administrative personnel in Louisiana. To the extent that LHC
requests reconsideration of any other aspect of the Court’s November 3, 2014 Order, reconsideration
is denied.
IT IS FURTHER ORDERED that the parties meet with the Magistrate Judge assigned to
this case on September 2, 2015 to discuss the form and content of the Proposed Notice. The parties
101
See Melson, 2008 WL 258988 (“[I]t is clear that the two-step ad hoc Lusardi approach is the preferred
method . . . .”); Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567, 569 (E.D. La. 2008) (Vance, J.) (describing the
Lusardi approach as the “prevailing method”); Basco v. Wal-Mart Stores, No. 00-3184, 2004 WL 1497709, at *4 (E.D.
La. July 2, 2004) (Duval, J.) (“Given the direction of the Tenth and Eleventh Circuits and the great weight of district
court authority, a consensus has been reach on how section 216(b) cases should be evaluated. It is clear that the two-step
ad hoc approach is the preferred method for making the similarly situated analysis . . . .”); see also 7B C. Wright & A.
Miller, Federal Practice & Procedure § 1807 (3 ed. 2002) (stating that “most courts in collective actions follow a twostage certification process”).
102
Rec. Doc. 55.
20
are ordered to submit a joint Proposed Notice within 14 days of that conference.
IT IS FURTHER ORDERED that LHC’s request that the Court certify an interlocutory
appeal is DENIED.
NEW ORLEANS, LOUISIANA, this ________ day of August, 2015.
27th
_________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
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