IVANOVS et al v. BAYADA HOME HEALTH CARE, INC.

Filing 274

OPINION AND ORDER denying 251 Plaintiffs' motion in limine to exclude evidence of resumes and online profiles describing job duties. Signed by Judge Noel L. Hillman on 1/10/2023. (alb, ) Modified on 1/10/2023 (alb, ).

Case 1:17-cv-01742-NLH-AMD Document 274 Filed 01/10/23 Page 1 of 5 PageID: 4528

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SONYA IVANOVS and KATIE
HOFFMAN, ON BEHALF OF
THEMSELVES AND ALL OTHER
SIMILARLY SITUATED EMPLOYEES,

1:17-cv-01742-NLH-AMD
OPINION AND ORDER

Plaintiffs,
v.
BAYADA HOME HEALTH CARE,
INC.,
Defendant.

HILLMAN, District Judge
WHEREAS, Plaintiffs in this action allege on behalf of
themselves and similarly situated Client Services Managers
(“CSMs”) who have been or are employed by Defendant BAYADA Home
Health Care, Inc. (“Defendant”) that Defendant has unlawfully
classified CSMs as exempt from the minimum-wage and overtime
requirements of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201, et seq., despite CSMs primarily performing non-exempt
duties, (ECF 1 at ¶¶ 2-4, 11); and
WHEREAS, on December 12, 2022, Plaintiffs filed a motion in
limine seeking to preclude Defendant from offering Named and
Opt-In Plaintiffs’ resumes and online profiles as evidence of
their job duties, (ECF 251 at 4-5); and

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WHEREAS, on December 19, 2022, Defendant filed an
opposition asserting that Plaintiffs’ resumes and online
profiles are relevant to Plaintiffs’ FLSA misclassification
claims and Defendant’s related defenses, (ECF 254 at 3-4), and
that resumes and profiles ought to also be permitted for the
purpose of impeaching the credibility of Plaintiffs’ witnesses,
(id. at 5); and
WHEREAS, the FLSA provides minimum-wage and maximum-hour
requirements, 29 U.S.C. §§ 206, 207, subject to exemption for
employees “employed in a bona fide executive, administrative, or
professional capacity[,]” § 213(a)(1); and
WHEREAS, Defendant has maintained as an affirmative defense
that CSMs are exempt under both the executive and administrative
exemptions of the FLSA or some combination thereof, (ECF 11 AA
at ¶ 9; ECF 139-2 at 2-3); and
WHEREAS, whether an employee is employed in an executive or
administrative capacity depends, in part, on the employee’s
primary duties, 29 C.F.R. § 541.100(a)(2); § 541.200(a)(2); see
also Sander v. Light Action, Inc., 525 Fed. Appx. 147, 150 (3d
Cir. 2013) (citing 29 C.F.R. § 541.200(a)); and
WHEREAS, evidence is relevant if it “has any tendency to
make a fact more or less probable than it would be without the
evidence” and that fact “is of consequence in determining the
action,” Fed. R. Evid. 401, and absent the United States
2

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Constitution, federal statute, or rule stating otherwise,
relevant evidence is admissible, Fed. R. Evid. 402; see also
Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343-44 (3d Cir.
2002) (“[T]here is a strong presumption that relevant evidence
should be admitted, and thus for exclusion under Rule 403 to be
justified, the probative value of evidence must be
‘substantially outweighed’ by the problems in admitting it.”);
and
WHEREAS, the Federal Rules of Evidence further provide that
courts may permit on cross-examination inquiries as to specific
instances of conduct by a witness so long such instances are
probative of the witness’s character for truthfulness or
untruthfulness, see Fed. R. Evid 608(b)(1); see also United
States v. Wilson, No. 15-cr-94, 2016 WL 2996900, at *4 (D.N.J.
May 23, 2016) (“Federal Rule of Evidence 608(b)(1) gives the
trial court discretion to permit [cross-examination] of a
witness regarding specific instances of conduct concerning the
witness's character for truthfulness or untruthfulness”); and
WHEREAS, in the context of decertification of a FLSA
collective action, a court in this District has acknowledged
that defenses available to defendant employers include
“impeach[ing] the credibility of individual Opt–Ins by bringing
to light misrepresentations about duties that they may have made
on their resumes,” see Aquilino v. Home Depot, U.S.A., Inc., No.
3

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04–04100, 2011 WL 564039, at *9 (D.N.J. Feb. 15, 2011); and
WHEREAS, it has been recognized outside this District that
while “actual job duties are what determines FLSA
classification, evidence such as how plaintiffs described their
job duties on resumes . . . is some evidence of what the actual
job duties were,” see Lochridge v. Lindsey Mgmt. Co., Inc., No.
12-5047, 2014 WL 11975055, at *2 (W.D. Ark. Sept. 9, 2014)
(denying a motion to exclude plaintiffs’ resumes, plaintiffs’
subsequent job applications, and defendant’s “generalized job
descriptions”); and
WHEREAS, the Court agrees that Named and Opt-In Plaintiffs’
own descriptions of their job duties provide substantive
evidence as to what those job duties actually were; and
WHEREAS, the Court further finds that such resumes and
profiles do not constitute hearsay as they represent statements
of an opposing party, see Fed. R. Evid. 801(d)(2)(A); see also
United States v. Browne, 834 F.3d 403, 415 (3d Cir. 2016)
(finding that Facebook chats sent by the defendant were properly
admitted as admissions by a party opponent).
THEREFORE,
IT IS HEREBY on this 10th

day of

January

, 2023

ORDERED that Plaintiffs’ motion in limine to exclude
evidence of resumes and online profiles describing job duties,
(ECF 251), is denied and Defendants may present the resumes,
4

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online profiles, and similar records of Named and Opt-In
Plaintiffs provided that such records are not otherwise
violative of the Federal Rules of Evidence; and it is further
ORDERED that Plaintiffs shall be relieved of any Order
entered by the undersigned or Magistrate Judge Ann Marie Donio
that would prohibit them from calling as a witness any Named or
Opt-In Plaintiff whose resume, online profile, or similar record
is referenced by Defendant.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

5