Harris v. Pathways Community Behavioral Healthcare, Inc
Filing
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ORDER granting 28 plaintiff's motion for conditional certification of class claims under Section 216(b) of the FLSA. The Court hereby conditionally certifies plaintiff's collective action of all current and former Community Support Speci alists that were classified as exempt employees who worked at defendants Missouri facilities from May 25, 2009, to May 25, 2012. ORDER that plaintiff Henry Harris is authorized to act as class representative and that Jason Brown of Brown & Associat es, and Amy Maloney of Holman Schiavone, LLC, are authorized to act as class counsel. ORDER that within thirty (30) days of the date of this Order, defendant shall provide plaintiff's attorneys with a list of all current and former employees wh o may be potential class members, along with their last known residential addresses, home and cellular phone numbers, emails, and dates of employment. ORDER that plaintiff shall amend his proposed Notice, with the modifications as detailed above, an d submit such notice to the Court for final approval by no later than June 4, 2012. ORDER that within thirty (30) days of the date of this Order, the parties shall submit a joint proposed scheduling order setting forth the second stage of discovery. Signed on 05/25/12 by District Judge Scott O. Wright. (Duer, Tina)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
HENRY HARRIS, on Behalf of Himself
and Others Similarly Situated,
Plaintiff,
v.
PATHWAYS COMMUNITY
BEHAVIORAL HEALTHCARE, INC.,
Defendant.
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Case No.: 10-0789-CV-W-SOW
ORDER
Before the Court is plaintiff’s Motion for Conditional Certification of Class Claims Under
Section 216(b) of the FLSA (Doc. #28). For the following reasons, the motion is hereby granted.
I. Background
Plaintiff Henry Harris filed this collective action claim under the Fair Labor Standards Act,
29 U.S.C. § 201 et seq. (the “FLSA”), on behalf of himself and other Community Support
Specialists working for defendant Pathways Community Behavioral Healthcare, Inc. The issue
before the Court is whether, under a lenient standard, plaintiff has set forth substantial allegations
that he and the putative members are similarly situated to other exempt classified Community
Support Specialists working for defendant in that all were subject to defendant’s policy of failing
to pay overtime compensation for all time worked in excess of forty hours per work week.
Plaintiff filed an Amended Complaint on October 11, 2010 in which he alleged, among other
things, violations of the FLSA. Plaintiff’s Amended Complaint alleges that defendant “employed
a decision, policy or plan, wherein defendant failed to properly compensate its employees for all
time worked in violation of the FLSA.” Specifically, plaintiff alleges defendant violated the FLSA
by “improperly classifying [Community Support Specialists] employees as exempt and not entitled
to overtime compensation.” On November 28, 2011, plaintiff filed the present motion for
conditional class certification under § 216(b) of the FLSA.
Defendant is a Missouri corporation. According to plaintiff, defendant provides
comprehensive mental health and substance abuse treatment and prevention services to preadolescent children through older adult populations. Plaintiff regularly worked in excess of forty
hours, and he was not compensated for working beyond forty hours. Plaintiff’s work included, but
was not limited to: assisting clients with acquiring and/or increasing living skills; running errands;
making appointments for clients and attending appointments with clients; assisting with obtaining
Medicare/Medicaid and/or Social Security Benefits; and paperwork. Plaintiff alleges that such work
is an integral and indispensable part of the principle activities of his job and required little if any
discretion.
II. Standard
Section 216(b) of the FLSA provides that an employee may bring suit on his own behalf and
on behalf of “other employees similarly situated.” 29 U.S.C. § 216(b). “A collective action under
the FLSA differs significantly from a Fed. R. Civ. P. 23 class action in that a similarly situated
employee does not become a plaintiff . . . in a case proceeding under § 216(b) unless he gives his
consent in writing to become such a party and files a consent in the court where the action is
pending. In other words, a party needs to ‘opt-in’ to a collective action under the FLSA, whereas
a party would need to ‘opt-out’ of a class action proceeding under Rule 23.” Davis v. NovaStar
Mortg., Inc., 408 F. Supp. 2d 811, 814-15 (W.D. Mo. 2005) (quotations and citation omitted).
The Eighth Circuit has not spoken regarding the standard to be used by district courts in
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determining whether potential opt-in plaintiffs are “similarly situated” for purposes of § 216(b). Id.
at 815. But other district courts in this Circuit have utilized a two-step process to approach the issue
of whether plaintiffs are similarly situated. See Dernovish v. AT&T Operations, Inc., No. 09-0015CV-W-ODS, 2010 WL 143692, at *1 (W.D. Mo. Jan. 12, 2010); Ahle v. Veracity Research Co., No.
09-00042 ADM/RLE, 2009 WL 3103852, at *3 (D. Minn. Sept. 23, 2009). Under this two-step
analysis, the “plaintiff [first] moves for conditional certification at an early stage in the litigation,
wherein a class is certified for notice purposes. Then, at the second step, defendants are allowed the
opportunity to move for de-certification at the close of discovery.” Davis, 408 F. Supp. 2d at 815.
“After completion of discovery, the court makes a factual determination as to whether the members
of the conditionally certified class are similarly situated.” Id.
Conditional certification at the first stage requires nothing more than “substantial
allegations” or “a colorable basis” for plaintiff’s claim that the putative class members were together
the “victims of a single decision, policy or plan.” Id.; Ahle, 2009 WL 3103852, at *3. “Because the
decision at this stage is made with limited information and is conditional in nature, the plaintiff’s
burden is not onerous. There is no need to show that the would-be members of the class are actually
similarly situated or that they are identical, but the plaintiff must present some evidence to
demonstrate the class members are similar in important respects and are subjected to similar policies
or circumstances.” Dernovish, 2010 WL 143692, at *1; see Littlefield v. Dealer Warranty Servs.,
LLC, 679 F. Supp. 2d 1014, 1017 (E.D. Mo. 2010) (“standard does not require all the plaintiffs to
actually be similarly situated”). Plaintiffs can meet their burden with “detailed allegations supported
by affidavits.” Greenwald v. Philips Home Furnishings Inc., No. 4:08CV1128 CDP, 2009 WL
259744, at *4 (E.D. Mo. Feb. 3, 2009). At this stage, the Court does not make any credibility
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determinations, make findings of fact regarding contrary evidence, or reach the merits of plaintiffs’
claims. Ahle, 2009 WL 3103852, at *3; Fast v. Applebee’s Int’l, Inc., 243 F.R.D. 360, 363 (W.D.
Mo. 2007). “[T]he Court may rely on signed declarations [to] provide appropriate support to
determine whether plaintiffs are similarly situated for purposes of preliminary certification.” Busler
v. Enersys Energy Prods., Inc., No. 09-11159-CV-W-FJG, 2009 WL 2998970, at *1 (W.D. Mo.
Sept. 16, 2009).
III. Discussion
A. Analysis
Plaintiff seeks conditional certification of all current and former Community Support
Specialists that were classified as exempt employees from September 27, 2007 to the present
working at defendant’s Missouri facilities. Plaintiff contends that he has made substantial
allegations that he and the other putative class members are similarly situated because they have
provided the modest factual showing that all Community Support Specialists were, and continue to
be, classified as exempt from overtime pay under defendant’s policy. Plaintiff also contends he has
provided evidence to support his allegations, which include five affidavits.
The Court agrees with plaintiff that he has met the burden of showing that he and the putative
class members were “similarly situated” and victims of a common policy of the defendant. Because
plaintiff has made a sufficient showing that the class members are similar in important respects and
subjected to similar policies and circumstances, the Court finds that certification is appropriate.
See Dernovish, 2010 WL 143692, at *1. Although defendant argues that it does not uniformly
classify all Community Support Specialists as exempt and that plaintiff has provided no evidence
that the job duties described herein are his primary duties, these arguments go towards the merits
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and the Court will not consider them at this initial stage. See Fast, 243 F.R.D. at 363. These
arguments would be better suited for the second stage, after completion of discovery. See Davis,
408 F. Supp. 2d at 815.
Having found that plaintiff has met his burden at this stage and that defendant’s arguments
against certification are unpersuasive, the Court will allow conditional certification. The Court
conditionally certifies a class of all current and former Community Support Specialists that were
classified as exempt employees who worked at defendant’s Missouri facilities for the three years
preceding the date of this Order.
B. Notice of Claims
Defendant argues that if the Court grants conditional certification, plaintiff should be
required to modify the proposed Notice of Claims to be sent to potential plaintiffs. The Court has
the power and duty to ensure that the notice is fair and accurate, but should only alter a plaintiff’s
proposed Notice when such an alteration is necessary. See Creten-Miller v. Westlake Hardware,
Inc., No. 08-2351, 2009 WL 2058734, at *2 (D. Kan. July 15, 2009).
First, defendant contends that the three-year notice period begins three years preceding the
Court’s Order certifying the class and not on the dates plaintiff proposes. See Fast, 243 F.R.D. at
364. Plaintiff has no opposition. Therefore, plaintiff’s proposed Notice should reflect these
changes. Defendant’s objection is sustained.
Second, defendant contends the opt-in period should be 45 days. Although plaintiff’s
proposed Notice does not include how many days the class members should have to opt-in,
plaintiff’s motion argues that 60-90 days is appropriate, provided that the period begins to run when
plaintiff receives the contact information from defendant. This suit has been on file for a number
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of months, and plaintiff has already published multiple advertisements seeking individuals to join
this suit. Therefore, the Court concludes that 50 days is reasonable. The 50-day period will begin
to run the date plaintiff receives the contact information from defendant. Defendant’s objection is
sustained in part.
Third, defendant contends that the introductory page of the proposed Notice should be
deleted. Defendant argues the proposed Notice uses bold and extremely large typeface, along with
verbiage, intended to scare putative class members about losing rights. Defendant requests that the
entire first page be removed (except the first sentence). Defendant would like the introductory
language to state:
The purpose of this notice is (1) to inform you of the existence of a lawsuit; (2) to
advise you of how your rights may be affected by this lawsuit; and (3) to instruct
you on the procedure for joining this lawsuit, should you choose to do so.
Plaintiff has no objection to making these proposed changes. However, plaintiff believes he should
be permitted to refer to himself as “plaintiff Henry Harris.” The Court accepts defendant’s
modifications, and finds that “plaintiff Henry Harris” is appropriate instead of “Henry Harris.”
Defendant’s objections are sustained in part.
Fourth, defendant contends that Section 2 of plaintiff’s proposed Notice is unnecessary and
gratuitously repeats the claims made by plaintiff. Defendant seeks to remove Section 2. Plaintiff
has no opposition to said change. Therefore, Section 2 shall be removed from plaintiff’s proposed
Notice. Defendant’s objection is sustained.
Fifth, defendant argues that the plaintiff should be identified more clearly, and his role
clarified. Defendant states that class members have a right to know the identity of the individual
they are designating to make decisions on their behalf. Further, defendant argues the Notice should
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state that the putative class members, if they join the suit, are designating “Henry Harris” to act as
their representative. Plaintiff has no opposition to these changes. Therefore, plaintiff shall clearly
identify Henry Harris and his role in this litigation. Defendant’s objection is sustained.
Sixth, defendant states that the Notice should also disclose that the claims “may be subject
to later dismissal if the Court ultimately finds that the claims lack merit, that they cannot be litigated
on a class-wide basis, or for other reasons.” Plaintiff has no opposition to these changes. Therefore,
plaintiff shall implement said changes on the proposed Notice. Defendant’s objection is sustained.
Seventh, defendant argues that in Section 6 the plaintiff fails to alert the putative class
members that they could be responsible for costs if Pathways prevails. Defendant states that this
failure is misleading and that the Notice should include a statement that, “If you do not prevail on
your claim, court costs and expenses may possibly be assessed against you.” Plaintiff argues in
reply that modification of Section 6 should include language that putative class members may be
responsible for costs only if language is included that indicates they will not be responsible for
paying defendant’s attorneys’ fees.
“An award of costs to a prevailing defendant in an FLSA case is clearly possible and is not
merely theoretical.” Creten-Miller, 2009 WL 2058734, at *4 (citing cases that have allowed costs
to prevailing defendants in FLSA cases ). Therefore, the Court finds that the Notice should inform
prospective class members about the possibility that they may be responsible for some costs.
Section 6 shall included the statement that “If you do not prevail on your claim, court costs and
expenses may possibly be assessed against you.”
As far as attorneys’ fees are concerned, if such fees are not permissible in an FLSA action,
the parties shall confer about whether to include such information in the proposed Notice.
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Defendant’s objection is sustained.
Eighth, defendant argues that plaintiff’s proposed Consent should remove references to
actions post-decertification. Plaintiff does not object to these changes. Therefore, the proposed
Consent form shall remove any references to actions post-decertification. Defendant’s objection is
sustained.
Ninth, defendant argues that in Section 7, the section titled, “What if I do nothing,” should
be removed. Plaintiff has no objection. Therefore, the proposed Notice shall remove the section
entitled, “What if I do nothing.” Similarly, plaintiff shall remove the related phrase on Page 1 that
states, “Failure to join this lawsuit will bar you from any recovery from this lawsuit if a plaintiff’s
jury verdict or settlement is achieved.” Defendant’s objection is sustained.
Tenth, in Section 7 the proposed Notice states that, if a putative class member starts her own
lawsuit, she will have to “pay” her own lawyer. Defendant seeks to have the word “pay” replaced
with “retain.” Plaintiff has no objection. Therefore, plaintiff shall substitute the word “pay” for
“retain” in Section 7. Defendant’s objection is sustained.
Eleventh, defendant argues that Section 8 instills fear and promises damages, and thus, it
should be removed. Although defendant has no objection to the statement that Pathways will not
retaliate against anyone who joins the lawsuit, it seeks to exclude the phrasing of the topic, “I am
afraid.” Plaintiff has no objection to its removal. Therefore, Section 8 shall exclude the topic “I am
afraid.” Defendant’s objection is sustained.
Twelfth, defendant argues Section 9 of the proposed Notice “fails to advise putative class
members they may have discovery obligations, as it attempts to downplay any requirement the
putative class members might have – including it fails to note the obligation to provide documents,
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provide sworn written testimony via interrogatories, and to testify in Kansas City.” Plaintiff has no
objection to including such language. Therefore, Section 9 shall include the following language,
“If you choose to join this lawsuit you may be required to respond to written requests for
information and documents, and appear for depositions, hearings, and possibly even trial.”
See McKinzie v. Westlake Hardware, Inc., No. 09-0796-CV-W-FJG, 2010 WL 2426310, at *4
(W.D. Mo. June 11, 2010). Defendant’s objection is sustained.
Lastly, defendant states it has numerous other changes in order to render the proposed Notice
neutral. It states that Section 11 contains nonsensical wording, but doesn’t state the portion(s) of
Section 11 that it disagrees with. It also objects to portions of Section 12. Without suggesting other
alternatives, the Court will leave these Sections unchanged.
The Court will Order plaintiff to amend this proposed Notice as described herein and submit
such Notice to the Court for final approval by no later than June 4, 2012.
IV. Conclusion
Accordingly, based on the discussion above, it is hereby
ORDERED that plaintiff’s Motion for Conditional Certification of Class Claims Under
Section 216(b) of the FLSA (Doc. #28) is granted. The Court hereby conditionally certifies
plaintiff’s collective action of all current and former Community Support Specialists that were
classified as exempt employees who worked at defendant’s Missouri facilities from May 25, 2009,
to May 25, 2012. It is further
ORDERED that plaintiff Henry Harris is authorized to act as class representative and that
Jason Brown of Brown & Associates, and Amy Maloney of Holman Schiavone, LLC, are authorized
to act as class counsel. It is further
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ORDERED that within thirty (30) days of the date of this Order, defendant shall provide
plaintiff’s attorneys with a list of all current and former employees who may be potential class
members, along with their last known residential addresses, home and cellular phone numbers,
emails, and dates of employment. It is further
ORDERED that plaintiff shall amend his proposed Notice, with the modifications as detailed
above, and submit such notice to the Court for final approval by no later than June 4, 2012. It is
further
ORDERED that within thirty (30) days of the date of this Order, the parties shall submit a
joint proposed scheduling order setting forth the second stage of discovery.
/s/ Scott O. Wright
SCOTT O. WRIGHT
Senior United States District Judge
DATED: May 25, 2012
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