Rowe v. Hospital Housekeeping Systems, LLC

Filing 24

ORDER AND REASONS denying without prejudice 19 Motion to Certify Class. Signed by Judge Lance M Africk on 2/6/2018. (blg)

Case 2:17-cv-09376-LMA-JVM Document 24 Filed 02/06/18 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ZABIAN ROWE

CIVIL ACTION

VERSUS

No. 17-9376

HOSPITAL HOUSEKEEPING SYSTEMS, LLC

SECTION I

ORDER & REASONS
Before the Court is plaintiff Zabian Rowe’s (“Rowe”) motion1 to conditionally
certify a collective action under the Fair Labor Standards Act (“FLSA”).2 For the
following reasons, the motion is denied.
I.
The

FLSA

provides

that

an

action

to

recover

“unpaid

overtime

compensation . . . may be maintained against any employer . . . by any one or more
employees for and [on] behalf of himself or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). But the FLSA does not define “similarly situated” or
otherwise explain how the certification of such collective actions should proceed.
There are two main lines of authority that prescribe different methods of
determining whether a case may proceed as a collective action pursuant to § 216(b).

R. Doc. No. 19.
In his reply, Rowe notes that the response in opposition to his motion was untimely
filed and argues it should be stricken. The response was untimely. See Local Rule
7.5. Nevertheless, the Court refuses to strike it. Rowe was clearly not prejudiced by
the delayed filing, as his counsel had sufficient time to draft a thorough reply
responding to the arguments raised in the opposition. Therefore, the Court considers
the opposition and Rowe’s reply in disposing of the instant motion.
1
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See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir. 1995). The first is
known as “two-stage class certification,” which was developed in a line of cases
starting with Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), and the second is
referred to as “spurious” class certification, as typified by Shushan v. University of
Colorado, 132 F.R.D. 263 (D. Colo. 1990). Because the two-stage class certification
procedure is routinely used by all sections of this Court, the Court finds that the
Lusardi procedure is appropriate in this case. See Wellman v. Grand Isle Shipyard,
Inc., No. 14-831, 2014 WL 5810529, at *1-3 (E.D. La. 2014) (Africk, J.).
The Fifth Circuit has explained the typical Lusardi procedure:
Under Lusardi, the trial court approaches the ‘similarly
situated’ inquiry via a two-step analysis. 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.
Because the court has minimal evidence, this
determination is made using a fairly lenient standard, and
typically results in ‘conditional certification’ of a
representative class. If the district court ‘conditionally
certifies’ the class, putative class members are given notice
and the opportunity to ‘opt-in.’ The action proceeds as a
representative action through discovery.
Mooney, 54 F.3d at 1213-14 (footnote omitted); see also Acevedo v. Allsup’s
Convenience Stores, Inc., 600 F.3d 516, 518-19 (5th Cir. 2010).
The second stage of the Lusardi procedure “is typically precipitated by a
motion for ‘decertification’ by the defendant usually filed after discovery is largely

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complete and the matter is ready for trial.” Mooney, 54 F.3d at 1214. Only the
threshold “notice stage” is implicated by the instant motion.
The notice stage requires “nothing more than substantial allegations that the
putative class members were together the victims of a single decision, policy, or plan.”
Id. at 1214 n.8 (quoting Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407
(D.N.J. 1988)). However, “[w]hile the standard at this stage is not particularly
stringent, it is by no means automatic.” Lima v. Int’l Catastrophe Solutions, Inc., 493
F. Supp. 2d 793, 798 (E.D. La. 2007) (internal quotation marks omitted).
“At the notice stage, the plaintiff bears the burden of making a preliminary
factual showing that at least a few similarly situated individuals exist.” Id. In doing
so, “[a] plaintiff need only demonstrate a reasonable basis for the allegation that a
class of similarly situated persons may exist.” Id. “However, at least some evidence
beyond unsupported factual assertions of a single decision, policy, or plan should be
presented.” Id.
“[A]n FLSA class determination is appropriate when there is a demonstrated
similarity among the individual situations . . . [and] some factual nexus which binds
the named plaintiffs and the potential class members together as victims of a
particular alleged [policy or practice].” Xavier v. Belfor USA Grp., Inc., 585 F. Supp.
2d 873, 877-78 (E.D. La. 2008). That determination is usually made based on “the
pleadings and any affidavits which have been submitted.” Mooney, 54 F.3d at 1214.
In making its determination, the Court must remain “mindful that it, like
practicing attorneys, has a responsibility to refrain from stirring up unwarranted

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litigation.” Lima, 493 F. Supp. 2d at 799 (quoting Lentz v. Spanky’s Restaurant II,
Inc., 491 F. Supp. 2d 663 (N.D. Tex. 2007)). “Further, employers should not be unduly
burdened by a frivolous fishing expedition conducted by the plaintiff at the employer's
expenses.” Id.
II.
A.
Rowe asserts that defendant Hospital Housekeeping Systems, LLC (“HHS”)
“underpays wages and overtime by reducing hours from employee time records, and
encourages and pressures individual supervisors to do the same.”3

He further

contends that “HHS also applies a half-hour automatic lunch deduction from its
employee’s time records, even though [p]laintiff often worked through his meal
break.”4
Specifically, Rowe alleges that, upon noticing hours missing from his paycheck
in November 2014, he confronted a supervisor, and the hours were added back. 5 A
similar scenario unfolded in February 2015, and Rowe was again “paid belatedly” for
the unpaid hours.6 At that time, Rowe purportedly inquired as to why his hours were
being reduced, and he was told that HHS “places it supervisors on strict labor budgets
and that he would be eligible for a bonus if he kept labor costs down.” 7 Finally, in
August 2015, Rowe claims he noticed more hours missing from his paycheck, so he

R. Doc. No. 19-2, at 2.
Id.
5 Id. at 3.
6 Id.
7 Id.
3
4

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requested an audit report from HHS.8 An HHS vice president allegedly attempted to
dissuade Rowe from moving forward with the audit, but Rowe insisted.9 The audit
was provided to Rowe, and he was fired the same day.10 Rowe has attached the audit
report to his affidavit.
Rowe further claims “[o]ther HHS employees or former employees have also
told [him] that they were not paid for all hours worked.” 11 Though, “unlike [him],
they did not complain because they were afraid that HHS would punish them.”12
Additionally, Rowe states his belief that “there was a common policy and practice at
HHS of reducing hours from employee timesheets to make labor budgets.”13
Rowe has also provided an affidavit from another HHS employee that has
joined in this suit.14 St. Raymond Cooper alleges that he believes he was not paid for
all hours worked at HHS; that he complained to his supervisor about “being shorted”
on his wages and was transferred to a different hospital; and that he has requested a
time audit report from HHS, but they have refused to provide it.15 Like Rowe, Cooper
also states that he “believe[s] there was a common policy and practice at HHS of
reducing hours from employee timesheets to make labor budgets.”16

Id.
Id.
10 Id. HHS maintains that Rowe’s firing had nothing to do with Rowe’s request for a
time audit, but was rather due to the fact that Rowe violated HHS and hospital policy
by filming an incident with a security officer. R. Doc. No. 20, at 2.
11 R. Doc. 19-3, at 2.
12 Id.
13 Id.
14 R. Doc. No. 19-4.
15 Id.
16 Id.
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B.
Although the standard for conditional certification is lenient, it is not
automatic, and it is not toothless. To meet his burden at the notice stage, Rowe must
offer substantial allegations of an unlawful decision, policy, or plan by HHS.
“Unsupported assertions of widespread violations are not sufficient to meet [his]
burden.” Xavier, 585 F. Supp. 2d at 877. Yet Rowe has offered little more than
“conclusory assertions that other employees were subject to unlawful overtime
policies and would desire to opt-in to this action.” Crowley v. Paint & Body Experts
of Slidell, Inc., No. 14-172, 2014 WL 2506519, at *8 (E.D. La. June 3, 2014) (Brown,
J.).
To be sure, Rowe’s complaint and his subsequent affidavit provide facts that,
if taken as true, may be suggestive of an FLSA violation with respect to Rowe.
Specifically, Rowe contends that, by reducing recorded hours from his timesheets,
HHS failed to pay him earned overtime. Moreover, Rowe has bolstered his claim by
providing an audit report of his timesheets which, according to him, shows that eleven
hours were deducted from one of his paychecks.
Beyond that, however, Rowe offers little from which the Court can infer “some
factual nexus which binds [him] and the potential class members together as victims
of a particular alleged [policy or practice].” Xavier, 585 F. Supp. 2d at 877–78. For
example, Rowe’s affidavit, void of detail, states that other HHS employees told him
that they were not paid for all hours worked. Yet, Rowe has not furnished the names
of any such individuals, much less affidavits from them. Indeed, Rowe even failed to

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provide an affidavit from Gwendolyn Morris, who has joined this very case as a
plaintiff.

Moreover, Rowe offers no details as to why these other employees

determined that they had not been paid for all hours worked or how they were harmed
by the same decision, policy, or plan of which Rowe claims to be a victim.
The one relevant affidavit17 that Rowe has provided—other than this own—is
Cooper’s. All Cooper’s affidavit states is that he worked for HHS, that he inquired as
to why his wages were being “shorted,” that he was transferred, that he believes he
was not paid for all of the hours he worked, that he requested a time report audit that
HHS has refused to give him, and that he believes there was a common policy and
practice at HHS of reducing hours from employee timesheets to make labor budgets.
Cooper offers no facts that explain how his wages were shorted, why he believes he
was not paid for the full amount of time he worked, or how he came to the conclusion
that HHS reduced the hours of its employees to lower costs. Ultimately, Cooper’s
affidavit may suggest the presence of an employer-employee dispute as to hours
worked. However, it offers no facts or evidence to support the allegation that HHS

By way of an affidavit from his counsel, Rowe offers a memorandum sent to HHS
employees reminding them to work their assigned shifts and to respect the time limits
of said shifts. According to the memorandum, “[t]his means clocking in at the
designated time and clocking out at the designated time, unless specified by a
manager.” The memorandum also states that if an employee “cannot complete [his
or her] task in time and have all equipment cleaned and put away this will result in
disciplinary action and if not corrected may result in termination.” The memorandum
concludes by noting: “We appreciate each of you, however we must be mindful of
company time and money.” The Court does not see how this is relevant to defining a
potential class that would warrant conditional certification. As HHS points out,
“there is nothing wrongful about a company being mindful of budgets and resources.”
17

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supervisors retroactively modified employee timesheets to reduce employees’ hours
in an effort to keep costs under control.
Consequently, Rowe’s current showing fails to establish a “reasonable basis for
the allegation that a class of similarly situated persons may exist.” Lima, 493 F.
Supp. 2d at 798. On this record, the Court cannot conclude that this case should
proceed as a collective action.
Accordingly,
IT IS ORDERED that the motion for conditional certification is DENIED
WITHOUT PREJUDICE.

New Orleans, Louisiana, February 6, 2018.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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