Birdie v. Brandi's Hope Community Services, LLC et al

Filing 20

ORDER granting 11 Motion for Conditional Certification, for Approval and Distribution of Notice and for Disclosure of Contact Information. A collective class consisting of all Direct Support Professionals, or Direct Care Professionals, employed by Defendants Brandi's Hope Community Services, LLC, and Danny Cowart who stayed with a client overnight at any time since February 24, 2014, is conditionally certified. Signed by Honorable David C. Bramlette, III on 6/14/2017 (EB)

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
RENZA BIRDIE, on behalf of herself
and those similarly situated
v.

PLAINTIFF

CIVIL ACTION NO. 5:17-cv-21-DCB-MTP

BRANDI’S HOPE COMMUNITY SERVICES, LLC,
and DANNY COWART

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the plaintiff’s Motion for
Conditional

Certification,

for

Approval

and

Distribution

of

Notice, and for Disclosure of Contact Information (docket entry
11).

Having

carefully

reviewed

the

motion,

memoranda,

and

applicable statutory and case law, and being otherwise fully
informed in the premises, the Court finds and orders as follows:
I. Facts and Procedural History
Plaintiff Renza Birdie (“Birdie”), on behalf of herself and
others similarly situated, commenced this Fair Labor Standards Act
(“FLSA”)

collective

Community

Services,

action
LLC

against

(“Brandi’s

defendants
Hope”)

(“Cowart”) (collectively, “Defendants”)
Brandi’s

Hope

is

a

Mississippi

limited

and

Brandi’s
Danny

Hope

Cowart

on February 24, 2017.
liability

corporation

operating residential care facilities for disabled adults. Cowart
is the company’s owner and chief executive officer.
Birdie was employed by Brandi’s Hope from November of 2014 to
May of 2015 as a Direct Support Professional (“DSP”).
1

Within that

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 2 of 13

role, Birdie was responsible for providing assistance and care to
disabled adults living in group homes operated by Brandi’s Hope.
Because these group homes were staffed at all times, Direct Support
Professionals were often required to stay with their residents
overnight.

Birdie claims that she frequently worked the night

shift, which ran seventeen hours from 3:00 p.m. to 8:00 a.m.
During these shifts, Birdie alleges that she was required to “clock
out” between 10:00 p.m. and 6:00 a.m. but remain at the facility
throughout the night.

Through the company’s “sleep time” policy,

Birdie claims that the defendants violated the FLSA by requiring
the

plaintiff

and

other

similarly

situated

Direct

Support

Professionals to work in excess of forty hours a week without
overtime compensation.1
Birdie now moves for conditional certification pursuant to 29
U.S.C. § 216(b), requesting that court-authorized notice of the
collective action be sent to “[a]ll Direct Support Professionals,
or Direct Care Professionals, employed by defendants Brandi’s Hope
Community

Services,

LLC,

and

Danny

Cowart

(hereinafter

collectively, “Defendant”) since February 24, 2014.” Doc. 11.
While the defendants do not oppose conditional certification, they

1 Brandi’s Hope currently employs approximately 350 individuals. Cowart
Dec., Doc. 18-1, ¶ 4. With turnover, an estimated 500 current and former
employees have worked at Brandi’s Hope since 2014. Id. Forty percent of those
employees are current or former night shift DSPs. Id. at ¶ 6.

2

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 3 of 13

do request that the scope of the proposed class and accompanying
disclosures be limited.
II. Discussion
A. Conditional Class Certification
The Fair Labor Standards Act requires covered employers to
compensate nonexempt employees who work more than forty hours per
week at overtime rates. See 29 U.S.C. § 207(a).

Under the FLSA,

an employee who is unlawfully denied overtime may bring suit “for
and

in

behalf

of

himself...and

other

employees

similarly

situated.” 29 U.S.C. § 216(b). To join in a collective action
brought by another similarly situated employee, each employee must
affirmatively “opt in” by filing written consent with the Court.
Id.

This

“opt

in”

format

differs

from

the

“opt

out”

format

governing Rule 23 class actions. Santinac v. Worldwide Labor
Support of Illinois, Inc., 107 F. Supp. 3d 610, 614 (S.D. Miss.
2015). “The sole consequence of conditional certification [under
the FLSA] is the sending of court-approved written notice to
employees, who in turn become parties to [the] collective action
only by filing written consent with the court.” Santinac, 107 F.
Supp. 3d at 614 (quoting Genesis Healthcare Corp. v. Symczyk, 133
S.Ct. 1523, 1530 (2013)). District courts have broad discretion to
certify a class and issue orders authorizing notice to potential
plaintiffs. Eberline v. Media Net, LLC, 2013 WL 11609929, at *1

3

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 4 of 13

(S.D. Miss. Oct. 23, 2013) (citing Hoffman-La Roche, Inc. v.
Sperling, 493 U.S. 165, 169 (1989)).
When considering whether to certify a collective action under
the FLSA, the two-step analysis set forth in Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987) is the “favored approach by
courts in the Fifth Circuit.” Harris v. Hinds Co., Miss., 2014 WL
457913, at *2 (S.D. Miss. Feb. 4, 2014); see also Eberline, 2013
WL 11609929 at *2; Brooks v. Illusions, Inc., 2016 WL 6781244, at
*1 (S.D. Miss. Nov. 16, 2016); Owens v. Southern Hens, Inc., 2008
WL 723923, at *2 (S.D. Miss. Mar. 17, 2008); Montgomery v. WalMart Stores, Inc., 2007 WL 2783348, at *1 (S.D. Miss. Sept. 24,
2007); Gallender v. Empire Fire & Marine Ins. Co., 2007 WL 325792,
at *1 (S.D. Miss. Jan 31, 2007).2 The Lusardi framework essentially
divides collective action certification into two phases: (1) the
notice stage, and (2) the “opt-in, merits, or decertification
stage.”

Brooks,

2016

WL

6781244

at

*1.

Birdie’s

motion

for

conditional certification falls within the initial notice stage of
the Lusardi analysis.

2 The Fifth Circuit “has never set a legal standard for collective-action
certification, but [it has] affirmed at least two approaches.” Portillo v.
Permanent Workers, LLC, 662 F. App’x 227, 280 (2016) (discussing the Lusardi
method); see also Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995),
overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
The second recognized approach is known as the “spurious class action” method,
which requires district courts to evaluate FLSA collective actions pursuant to
the numerosity, commonality, typicality, and adequacy requirements of Rule 23.
Mooney, 54 F.3d at 1214. Nonetheless, this Court joins the clear majority of
district courts in applying the Lusardi approach in this case.

4

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During the notice phase, the Court decides, based on the
pleadings and affidavits, whether notice of the action should be
given to potential class members. Harris, 2014 WL 457913 at *2
(citing Mooney, 54 F.3d at 1214). Because minimal evidence is
available at this early stage, the Court employs a “fairly lenient
standard,” which requires a “modest factual showing sufficient to
demonstrate that the plaintiff and potential plaintiffs together
were victims of a common policy or plan that violated the law.”
Id. at 3. To achieve notice, the plaintiff need only make a
“minimal showing that (1) there is a reasonable basis for crediting
the assertions that aggrieved individuals exist, (2) that those
aggrieved individuals are similarly situated to the plaintiff in
relevant respects given the claims, and (3) that those individuals
want to opt in to the lawsuit.” Brooks, 2016 WL 6781244 at *2
(quoting Prater v. Commerce Equities Mgmt. Co., Inc., 2007 WL
4146714, at *4 (S.D. Tex. Nov. 19, 2007)); Harris, 2014 WL 457913
at *2 (noting that the plaintiff need only show that his position
is similar to that of potential plaintiffs, not identical). If the
plaintiff makes such a showing, the Court may certify the class
and facilitate notice to potential class members.

Certification

at the notice stage is “conditional,” however, as the Court may
later choose to “decertify” the collective action upon finding
that the class is no longer made up of similarly situated persons
during the merits stage. Santinac, 107 F. Supp. 3d at 615 (“the
5

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 6 of 13

merits stage typically occurs after discovery is mostly complete
and upon motion by the defendant”).
Applying this “fairly lenient standard,” the Court finds that
conditional certification is appropriate at this stage.

Through

her pleadings and accompanying declaration, Birdie maintains that
the defendants required her and other Direct Support Professionals
working the night shift to clock out for eight hours, during which
time they were required to remain at the workplace. Doc. 11-7, ¶
9.

Birdie also contends that it was standard practice for Direct

Support Professionals to care for customers more than forty hours
each week without receiving overtime pay. Id. at ¶ 13. All Direct
Support Professionals were subject to the same pay structure,
received the same training, and performed the same duties in caring
for the defendants’ customers. Id. at ¶¶ 4-13. Birdie further
maintains that she has observed and spoken with other Direct
Support

Professionals

and

that,

based

on

her

experience

and

knowledge, discerns that others would be interested in joining in
her suit. Id. at ¶ 17.

Moreover, the defendants do not oppose

certification based on these facts. See Doc. 18, p. 18.

The Court

is therefore satisfied that Birdie has shown “some factual nexus”
binding the plaintiff and potential class members “together as
victims of a particularly alleged policy or practice.” SalinasRodriguez v. Alpha Servs., LLC, 2005 WL 3557178, *3 (S.D. Miss.
Dec. 27, 2005).
6

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Having

determined

that

conditional

certification

is

warranted, the Court next turns to address the scope of the
prospective class.

Defendants request that the class be limited

to “all Direct Support Professionals or Direct Care Professionals
employed by [Brandi’s Hope] and [Cowart] since February 24, 2014,
who were required to stay on the employer’s premises overnight.”
Doc. 18, p. 2.

Acknowledging that only those Direct Support

Professionals staying with clients overnight were subject to the
defendants’ “sleep time” policy, Birdie has indicated that she is
amenable to modifying her proposed class definition. See Doc. 19.
Yet, she contends that the modified class definition should apply
to

all

Direct

Support

Professionals

who

stayed

with

clients

overnight, regardless of where the overnight care occurred. Id.
Though it is somewhat unclear as to whether any Direct Support
Professionals actually stayed overnight with clients in locations
other than the residential group homes, the pleadings support that
all

Direct

Support

Professionals

who

stayed

overnight

with

patients were subject to the same pay structure and policy. See
Doc. 11-7, ¶¶ 9-15.

Furthermore, Birdie’s declaration states that

the duties of a Direct Support Professional included “helping the
customer through all hours of the day and night, for whatever
reason, whenever and wherever the customer needed assistance.” Id.
at ¶ 5. Based on these allegations, it is conceivable that some
Direct Support Professionals provided overnight care away from the
7

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 8 of 13

group home facility, and there is no evidence at this stage to
suggest that Direct Support Professionals working overnight at
other locations were subject to a separate policy.

As Birdie has

satisfied her low burden at the notice stage, the Court finds that
conditional certification should be granted and notice shall issue
for the following class, as specifically requested by Birdie in
her reply brief:
All Direct Support Professionals, or Direct Care
Professionals, employed by Defendants Brandi’s Hope
Community Services, LLC, and Danny Cowart who stayed
with a client overnight at any time since February 24,
2014.
This

modified

class

definition

excludes

those

Direct

Support

Professionals working only day shifts and should alleviate the
defendants’ concerns about the inclusion of class members not
subject to the overnight policy.
B. Disclosure of Information of Potential Plaintiffs
To facilitate the dissemination of notice to the class, Birdie
has requested that the Court order the defendants to disclose the
names,

last

known

addresses,

email

addresses,

employee

identification numbers, dates of employment, dates of birth, and
last

four

digits

of

social

security

numbers

of

prospective

plaintiffs. “Discovery of this sort of information is a routine
component of court-facilitated notice in FLSA collective actions.”
Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d 511, 525-26. In
Hoffman-La Roche, Inc. v. Sperling, the Supreme Court affirmed
8

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 9 of 13

that discovery of the names and addresses of potential class
members is appropriate at the conditional certification stage. 493
U.S. 165, 170.

Following this decision, courts have consistently

approved the disclosure of the names and contact information of
prospective plaintiffs. See Jackson v. Superior Healthplan, Inc.
2016 WL 7971332, * 7 (N.D. Tex. Nov. 7, 2016) (approving disclosure
of names, addresses, phone numbers, and email addresses).
The defendants have not specified what, if any, information
should be excluded from Birdie’s request, but they have requested
that “only the names and contact information” of potential class
members be disclosed.

Doc. 18, p. 8.

Based on this request, the

Court surmises that the defendants object to the dissemination of
employee

identification

security

numbers

of

numbers,

prospective

dates

of

plaintiffs

birth,

and

insofar

social

as

such

information is not generally recognized as “contact information.”
Birdie argues that the disclosure of this additional information
will be helpful in locating those individuals whose notice is
returned undeliverable.

But the Court finds nothing to suggest

that sending notice by mail and email will be inadequate, or that
the disclosure of such sensitive information is necessary.
interest

of

privacy,

the

Court

shall

only

require

In the

that

the

defendants provide the names, dates of employment, last known
addresses,

phone

numbers,

and

email

addresses

of

prospective

plaintiffs at this time. See Santinac, 107 F. Supp. 3d at 617
9

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(declining to order disclosure of social security numbers at
conditional certification stage); Brooks, 2016 WL 6781244, *2
(S.D. Miss. Nov. 16, 2016) (sustaining defendant’s objection to
the disclosure of social security numbers); Nguyen v. Versacom,
LLC, 2015 WL 1400564, *13 (N.D. Tex. Mar. 27, 2015) (finding that
the need for disclosure was outweighed by privacy interests where
“there [was] no apparent reason to conclude that sending a letter
to a person’s last known address [would] be inadequate”); Rosario
v. Valentine Ave. Discount Store, Co., Inc., 828 F. Supp. 2d 508,
522 (E.D.N.Y. 2011) (declining to order the production of dates of
birth and social security numbers). If notices are returned as
undeliverable and the plaintiff is unable to effectuate notice on
certain potential plaintiffs, then Birdie may renew her request
for additional information regarding those specific employees. See
Santinac, 107 F. Supp. 3d at 617.
C. Form, Content, and Distribution of Notice
Attached to Birdie’s motion for conditional certification are
proposed notice and consent forms.

Birdie requests that the Court

authorize Plaintiff’s counsel to (1) issue the proposed notice and
consent forms by mail and email to prospective plaintiffs, (2) remail notices that are returned undeliverable for those plaintiffs
for whom better addresses may be located, and (3) mail and email
reminder notices 30 days after the initial notice is mailed.
Birdie also asks the Court to approve a 90-day opt-in period for
10

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 11 of 13

potential plaintiffs. The defendants have not submitted a proposed
notice, nor do they object to the form, content, or method of
distribution of the notice proposed by Birdie.
The FLSA requires that notice to potential plaintiffs be
“accurate and timely,” giving potential class members the chance
to

make

informed

decisions

about

whether

to

participate.

Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp. 2d 1014,
1018 (E.D. Mo. 2010). District courts enjoy broad discretion in
determining the form and content of court-approved notice. Harris,
2014 WL 457913 at 7; Jackson, 2016 WL 7971332 at * 7 (noting that
courts have a duty to oversee the notice process to “ensure that
it is timely, accurate, and informative”). “[T]he general rule is
that absent reasonable objections to plaintiffs’ proposed class
notice, the plaintiffs should be allowed to use the language of
their choice in drafting the notice.” Vargas v. Richardson Trident
Co., 2010 WL 730155, *11 (S.D. Tex. Feb. 22, 2010); see Jackson,
2016 WL 7971332 at *7 (approving proposed notice and consent forms
and proposed manner of distribution absent any objection from
defendants); Littlefield, 679 F. Supp. 2d at 1018 (“the court
should

not

alter

plaintiff’s

proposed

notice,

unless

certain

changes are necessary”).
Having

reviewed

the

plaintiff’s

notice

and

finding

no

objection from the defendants, the Court concludes that Birdie’s
notice is sufficiently accurate and informative to advise the
11

Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 12 of 13

putative

class

litigation.

of

its

rights

with

respect

to

the

pending

The Court shall therefore approve the proposed notice

and consent forms, with the exception that the plaintiff shall
modify the forms to reflect the conditionally certified class set
forth above.
Accordingly,
IT IS HEREBY ORDERED that Birdie’s Motion for Conditional
Certification is GRANTED, and that a collective class consisting
of all Direct Support Professionals, or Direct Care Professionals,
employed by Defendants Brandi’s Hope Community Services, LLC, and
Danny Cowart who stayed with a client overnight at any time since
February 24, 2014, is conditionally certified;
IT

IS

FURTHER

ORDERED

that

Defendants

shall

provide

Plaintiff’s counsel with the names, last known addresses, email
addresses, phone numbers, and dates of employment of all potential
members

of

the

collective

class,

in

electronic

form,

within

fourteen (14) days of the date of entry of this Order;
IT IS FURTHER ORDERED that the Plaintiff submit to the Court,
no later than fourteen (14) days from the date of entry of this
Order, a proposed notice to potential class members, revised in
accordance with the class conditionally certified in this Order;
IT IS FURTHER ORDERED that within fourteen (14) days of Court
approval of the Notice, the Plaintiff shall send a copy of the
approved Notice and Consent forms to potential class members;
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Case 5:17-cv-00021-DCB-MTP Document 20 Filed 06/14/17 Page 13 of 13

IT IS FURTHER ORDERED that potential class members shall
submit their consent forms opting-in to this lawsuit no later than
ninety (90) days from the date Notice is mailed;
IT IS FURTHER ORDERED that Plaintiff’s counsel is authorized
to send a reminder postcard by mail and email to those potential
class members who have not responded thirty (30) days after the
initial notice is mailed;
SO ORDERED, this the 14th day of June, 2017.

/s/ David Bramlette ________
UNITED STATES DISTRICT JUDGE

13