Palmer v. Priority Healthcare, Inc.
Filing
26
Memorandum Opinion and Order denying 19 MOTION for Temporary Restraining Order , as set out herein. Signed by District Judge Tom S. Lee on 10/24/13 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
CHELYRIA PALMER, ON BEHALF
OF HERSELF AND THOSE
SIMILARLY SITUATED
VS.
PLAINTIFF
CIVIL ACTION NO. 3:13CV480TSL-JMR
PRIORITY HEALTHCARE, INC., A
MISSISSIPPI FOR PROFIT CORPORATION
AND TIFFANY JOHNSON
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of plaintiff
Chelyria Palmer for temporary restraining order and preliminary
injunction pursuant to 29 U.S.C. § 216(b) and Rule 65 of the
Federal Rules of Civil Procedure.
The court, having considered
the motion, concludes that it is not well taken and must be
denied.1
1
The court notes that when the motion was filed,
plaintiff’s counsel contacted the undersigned’s office to request
a hearing date. The court’s staff attempted to contact
plaintiff’s counsel on October 1, 2013 and left a message on his
voice mail requesting a return call. Plaintiff’s counsel has not
called or otherwise attempted to contact the court regarding a
hearing. However, it is clear to the court that no evidentiary
hearing is needed as plaintiff’s request for injunctive relief
fails as a matter of law. See Schwing v. New Iberia Bancorp, 95
F.3d 45 (5th Cir. 1996) (no need for evidentiary hearing on
preliminary injunction where there was no material disputed fact
to resolve).
Plaintiff is a licensed practical nurse (LPN) who, according
to the complaint, has worked for defendant Priority Healthcare,
Inc. (Priority) since April 2011.2
She filed the present action
on August 5, 2013 for unpaid overtime compensation, liquidated
damages, declaratory relief and other relief under the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 216(b), alleging that Priority,
which is subject to the requirements of the FLSA, has
misclassified her and other LPN employees as independent
contractors rather than employees, and has failed to pay these
employees time-and-a-half for overtime work, as required by the
FLSA.
Palmer has since filed two amended complaints.
The first
added Tiffany Johnson, owner and operator of Priority, as a
defendant.
The second added a claim for FLSA retaliation under 29
U.S.C. § 216(a)(3), based on allegations that “[s]ince filing the
instant action, Plaintiff and other similarly situated employees
have been subjected to harassment and increased scrutiny”; that
“Defendants have removed Plaintiff and other similarly situated
employees from their routine work schedules and refused to
re-schedule them for other work, constituting constructive
2
In both her original complaint and amended complaint,
filed August 5, 2013 and August 15, respectively, plaintiff
alleged that she worked for defendant as an LPN “from April of
2011 to the present time.” However, in her motion for temporary
restraining order and preliminary injunction, Palmer states that
she worked for defendant “from approximately April of 2011 until
June 19, 2013.” It is thus unclear whether or not she continues
to work for defendant.
2
discharge”; and that “Plaintiff, and other similarly situated
employees, has also been the target of frivolous litigation in
state court related to her former employment.”
On September 27, 2013, Palmer filed the present motion for
temporary restraining order and preliminary injunction,
purportedly on her own behalf and on behalf of those similarly
situated, asserting that defendant Johnson has retaliated against
plaintiff and against “opt-in plaintiffs” Decia McInnis and
Victoria Potts for their involvement in this litigation and
seeking relief from such alleged and prospective retaliation.
Specifically, Palmer alleges that Johnson, after cautioning LPNs
McInnis and Potts against getting involved with this lawsuit,
terminated their employment “upon learning that [they] had joined
the case.”
She asserts that Priority also “maliciously filed a
state law action against Plaintiff, a former employee, requesting
injunctive relief to restrain Plaintiff from allegedly having
contact with Priority’s clients....”
“Plaintiffs” seek a tro or
preliminary injunction ordering defendants to reinstate McInnis
and Potts; to provide “Plaintiffs” with the names and contact
information for persons that defendants have purported to classify
as independent contractors and the names of persons that
defendants have attempted to discourage from becoming involved in
this litigation; to notify all such persons of the existence of
this lawsuit and their right to join this lawsuit without fear of
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reprisal; and to refrain from further acts of retaliation,
including any and all efforts to prevent “plaintiffs” or
prospective plaintiffs from securing other employment in their
health care industry as LPNs on the basis of their participation
in this matter.3
“Plaintiffs” also request that “[i]n order to
3
More specifically, plaintiffs request that defendants be
ordered to:
1) reinstate the employment of opt-in Plaintiffs Decia
McInnis and Victoria Potts;
2) notify all individuals who have been employed as ...
“LPNs at Priority ... in the last three years that the
termination of such individuals was retaliatory and
unlawful;
3) notify ... all individuals who have been employed as
[LPNs] at Priority ... in the last three (3) years of
the existence of this lawsuit and of their right to join
this lawsuit free from any kind of retaliation by
Defendants, with such notice to include information
about what constitutes retaliation as well as a
statement that retaliation is unlawful and that anyone
retaliated against has a legal claim for injunctive and
monetary relief;
4) notify all individuals who were required to sign
agreements purporting to classify them as independent
contractors and that such agreements have no impact on
such individuals’ rights to assert claims in this
lawsuit;
5) refrain from any effort to prevent Plaintiffs from
securing employment in the home health care industry as
LPNs on the basis of their participation in this matter;
6) provide Plaintiffs with a list of any and all
individuals to whom they have communicated with about
this matter in an effort to prevent Plaintiffs and/or
opt-in plaintiffs from securing future employment or in
an effort to discourage such individuals from joining
this lawsuit or otherwise asserting claims against
Defendants;
7) cease and desist communicating, now and in the
future, directly with Plaintiffs or members of the
putative collective about this case, except for
communications informing such individuals that they are
free to participate in this matter without fear of
4
make up for the chilling effects of Defendants’ retaliatory
conduct,” the court enter an order tolling the running of the
statute of limitations for potential plaintiffs “until such time
as Plaintiff files its Motion for Conditional Collective Action
the Court rules on Plaintiff’s Motion for Conditional Collective
Action Certification or at least until Defendants are able to
prove to the Court’s satisfaction that all chilling effects of
their retaliatory conduct have been remedied.”
Given the present
posture of the case, the relief Palmer requests is not available.
In her motion, Palmer describes McInnis and Potts as “opt in
plaintiffs”.
However, the only plaintiff in the case at this time
is Palmer herself.
The original, first amended and second amended
complaints identify Palmer as the sole plaintiff; and there has
been no motion to amend the complaint to add McInnis and Potts as
plaintiffs.
Moreover, while Palmer represents that she intends to
file a Motion for Conditional Collective Action, no such motion
retaliation or reprisal of any kind or other
communications ordered or approved in advance by the
Court;
8) provide Plaintiffs with the names and contact
information for any and all individuals who have signed
any documentation purporting to classify them as
independent contractors;
9) file any proposed communications with Plaintiffs or
members of the putative collective with the Court prior
to providing same to such individuals; and
10) file sufficient documentation with the Court to
demonstrate compliance with the Court’s order.
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has been filed.
29 U.S.C. § 216(b) of the FLSA provides, in part,
that
[a]n action to recover ... liability [for an FLSA
violation] 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 in behalf of himself or themselves and
other employees similarly situated. No employee shall
be a party plaintiff to 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.
In contrast to Rule 23 class actions in which plaintiffs become
class members unless they opt out, “prospective plaintiffs under
the FLSA must expressly consent to join the class, via ‘consent in
writing to become such a party and such consent is filed in the
court in which such action is brought.’”
Alfonso v. Straight Line
Installations, LLC, No. 6:08–cv–1842–Orl–35DAB, 2010 WL 519851, 1
(M.D. Fla. Feb. 10, 2010) (quoting § 216(b)).
A plaintiff may
opt-in to an FLSA action prior to certification of a collective
action.
Collective-action certification is not necessary for
multiple plaintiffs to jointly maintain an FLSA action.
The purpose of FLSA collective-action certification is
to determine whether the court should allow the
plaintiff to send notice to potential opt-in plaintiffs.
See Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d
Cir. 2010) (“Indeed, while courts speak of ‘certifying’
a FLSA collective action, it is important to stress that
the ‘certification’ we refer to here is only the
district court's exercise of the discretionary power,
upheld in Hoffmann—La Roche,[Inc. v. Sperling, 493 U.S.
165, 110 S. Ct. 482, 107 L. Ed. 2d 480 (1989),] to
facilitate the sending of notice to potential class
members.”); Alfonso v. Straight Line Installations, LLC,
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No. 6:08–cv–1842–Orl–35DAB, 2010 WL 519851, at *1 (M.D.
Fla. Feb. 10, 2010) (“[T]he benefit of a collective
action is providing putative class members accurate and
timely notice and the opportunity to opt-in.” (citing
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,
1259 (11th Cir. 2008)). Individuals who already know
about the suit and want to join as plaintiffs need not
wait until certification and notice to do so. See
Alfonso, 2010 WL 519851, at *1 (“A motion to proceed as
a collective action is not required for an opt-in
plaintiff to be considered a party plaintiff .... “
(citing Morgan, 551 F.3d at 1259)). Allowing additional
plaintiffs to join an FLSA action before or without
collective-action certification is consistent with the
statutory language. An FLSA action for overtime pay can
be maintained by “any one or more employees for and in
behalf of himself or themselves and other employees
similarly situated.” 29 U.S.C. § 216(b) (emphasis
added).
Granchelli v. P & A Interests, Ltd., Civil Action No. H–11–4514,
2013 WL 435942, 2 (S.D. Tex. Feb. 4, 2013).
Once opt-in
plaintiffs consent to join, they “‘have the same status in
relation to the claims of the lawsuit as do the named
plaintiffs.’”
Alphonso, 2010 WL 519851, at 1 (quoting Prickett v.
DeKalb County, 349 F.3d 1294, 1297 (11th Cir. 2003).
do so, however, they have no rights in the case.
Until they
See LaChapelle
v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975) (stating
that “[u]nder § 16(b) of FLSA, ... no person can become a party
plaintiff and no person will be bound by or may benefit from
judgment unless he has affirmatively ‘opted into’ the class; that
is, given his written, filed consent.”) (citation omitted).
Furthermore, the Fifth Circuit has consistently recognized
that “in FLSA actions, one employee may not represent another
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unless the represented employee has filed a written consent to
become a party plaintiff in the court in which the action is
brought.”
LaChapelle, 513 F.2d at 287 n.6 (5th Cir. 1975).
In the
case at bar, while Palmer has described McInnis and Potts as “optin plaintiffs,” neither McInnis nor Potts has filed a written
consent to become a party plaintiff herein.
Accordingly, they are
neither named plaintiffs nor opt-in plaintiffs, cf. Alfonso, 2010
WL 519851, at 1 (construing opt-in notice filed prior to motion
for conditional certification of collective action as motion to
amend to add putative opt-in plaintiffs as named plaintiffs and
granting same).
Moreover, Palmer is not their representative for
purposes of this litigation.
And it is otherwise clear that
Palmer, the only plaintiff, has no standing to seek any relief,
including reinstatement, on their behalf.4
Even if McInnis and Potts had opted in as plaintiffs by
filing written consents, or if Palmer were otherwise a proper
party to seek relief on their behalf, the motion for a tro or
preliminary injunction ordering reinstatement would fail for lack
of any allegation or proof of irreparable harm.
To prevail on a
motion for a temporary restraining order or preliminary
injunction, the party seeking such relief must demonstrate each of
4
Palmer additionally alleges in her motion for injunctive
relief that defendants have retaliated against her by filing a
state court lawsuit against her. However, she does not purport to
seek specific injunctive relief related to that lawsuit.
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four requisites:
(i) a substantial likelihood of success on the
merits; (ii) a substantial threat of immediate and irreparable
harm for which it has no adequate remedy at law; (iii) that
greater injury will result from denying the temporary restraining
order than from its being granted; and (iv) that a temporary
restraining order will not disserve the public interest.
Clark v.
Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Mississippi Power and
Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir.
1985); Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 572
(5th Cir. 1974) (en banc).
If the movant fails to meet any of the
four requirements, the court cannot grant the temporary
restraining order or preliminary injunction.
Citing United States v. Hayes International Corp., 415 F.2d
1038 (5th Cir. 1969), Palmer has argued that a showing of
irreparable harm is not required as irreparable harm is presumed
where movants who seek injunctive relief establish a likelihood of
success as to the statutory violation.
That is, she argues that
irreparable harm is presumed from the statutory violation.
See
Hayes, 415 F.2d at 1045 (holding that “[w]here ... the statutory
rights of employees are involved and an injunction is authorized
by statute and the statutory conditions are satisfied as in the
facts presented here, the usual prerequisite of irreparable injury
need not be established and the agency to whom the enforcement of
the right has been entrusted is not required to show irreparable
9
injury before obtaining an injunction.”); see also EEOC v.
Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir. 1987) (stating that
“[w]hen an injunction is expressly authorized by statute and the
statutory conditions are satisfied, the movant need not establish
specific irreparable injury to obtain a preliminary injunction.
However, Hayes in inapposite.
Similar to Palmer, the plaintiff in White v. Carlucci argued
that irreparable harm was not required to be established in order
to secure injunctive relief in a Title VII case.
1211 (5th Cir. 1989).
862 F.2d 1209,
The Fifth Circuit held that the cases on
which the plaintiff relied, Hayes and Cosmair, were inapposite, as
“[b]oth [Hayes] and [Cosmair] held only that irreparable harm need
not be proven if (1) the injunctive relief is sought pursuant to
statute by the appropriate government officer or agency and
(2) all of the statutory prerequisites are met. ... There is no
way to read these cases as eliminating generally the irreparable
harm requirement for all Title VII plaintiffs.”
862 F.2d at 1211.
See also Jones v. Dallas Cty., Civ. Action No. 3:11–CV–2153–D,
2013 WL 4045291, 2 (N.D. Tex. Aug. 9, 2013) (citing White, and
holding that plaintiffs who were not government officers or
agencies seeking injunctive relief pursuant to statute could not
rely on a “presumption” of irreparable harm to satisfy the second
preliminary injunction factor and instead “must satisfy this
requirement as would any other litigant”).
10
For her part, Palmer
also attempts to sustain her burden as to the second
tro/preliminary injunction requirement exclusively by reliance on
a presumption of irreparable harm, which does not exist.
Thus,
for this reason, and those set forth supra, Palmer’s request for
reinstatement on behalf of McInnis and Potts fails as a matter of
law.
In addition to seeking reinstatement of McInnis and Potts,
Palmer requests that the court order defendants to provide the
names and addresses of individuals who would be prospective
plaintiffs in a collective action; that the court order defendants
to notify such individuals that they are entitled to opt-in as
plaintiffs and will not be subject to reprisal should they elect
to do so; and that it order defendants to refrain from future acts
of retaliation against Palmer or would-be plaintiffs.
In the
court’s opinion, plaintiff’s request for this relief is not
properly brought as a request for tro/preliminary injunction but
rather as a motion for conditional certification of a collective
action; and such relief is not appropriate unless and until the
court determines that a collective action should be certified.
Indeed,
Before notice may issue to potential class members, the
court must conditionally certify the class as a
collective action. ... The only effect of a conditional
certification is that a court-approved written notice
may then be sent to similarly situated putative class
members, who then may choose to become parties to a
collective action by filing a written consent with the
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court. ... Courts have discretion in determining
whether to certify a collective action under the FLSA
and to authorize notice to similarly situated employees
advising them of their right to join such a collective
action.
Nieddu v. Lifetime Fitness, Inc., Civil Action No. H–12–2726, 2013
WL 5530809, 2-3
(S.D. Tex. Sept. 30, 2013) (citations omitted).
As the court explained in Nieddu, most courts apply the two-stage
certification process established in Lusardi v. Xerox Corp., 118
F.R.D. 351 (D.N.J. 1987), under 29 U.S.C. § 216(b):
(1) the “notice stage,” when the Court determines, based
on the pleadings and any accompanying affidavits and
before the parties have conducted substantive discovery,
whether to conditionally certify the class and issue
notice to potential class members; followed by (2) the
“decertification stage,” after the discovery has been
largely completed and the defendant has filed a motion
to decertify, when the court conducts a fact-intensive
review to determine if the claimants are similarly
situated. If the Court does not conditionally certify
the class or if it later grants decertification, it must
dismiss the opt-in employees and leave the named
plaintiff to pursue his individual claims.
At the notice stage the plaintiff “bears the burden
of making a preliminary factual showing that other
similarly situated individuals exist such that the court
should provide notice of the action to putative class
members.” Usually at the notice stage, because
discovery has not yet occurred, courts do not review the
underlying merits of the action in deciding whether to
conditionally certify the class. Generally courts
require only a minimal showing that (1) there is a
reasonable basis for the plaintiff's allegations, (2)
that the aggrieved putative class members are similarly
situated with regard to the claims and defenses
asserted, and (3) that these individuals desire to
opt-in to the suit.
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Id. (internal quotation marks and citations omitted).
Palmer’s
motion for motion for tro/preliminary injunction seeks to bypass
these requirements.
The court finds that it is appropriate to
await Palmer’s motion for conditional certification of a
collective action – which she asserts will be filed – to determine
whether to conditionally certify the class and issue notice to
potential class members.
Accordingly, her request for injunctive
relief will be denied.
Based on all of the foregoing, it is ordered that Palmer’s
motion for temporary restraining order and preliminary injunction
is denied.
SO ORDERED this 24th day of October, 2013.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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