Cowell v. Utopia Home Care, Inc.
Filing
57
ORDER denying 49 Motion to Certify FLSA Collective Action. For the reasons set forth in the attached Memorandum and Order, Plaintiff's motion to conditionally certify this action as an FLSA collective action pursuant to 29 U.S.C. § 216(b ) is denied. Discovery will proceed on Plaintiffs claims asserted on behalf of herself on an expedited basis. See attached Memorandum and Order for relevant dates and deadlines. A pretrial conference has been scheduled for December 28, 2016 at 10:00 a.m. in courtroom 820 of the Central Islip courthouse. Ordered by Magistrate Judge Steven I. Locke on 8/8/2016. (Walsh, Kenneth)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SHENITHIA COWELL, individually and on
behalf of all similarly situated individuals,
MEMORANDUM AND
ORDER
14-CV-736 (LDW)(SIL)
Plaintiff,
-againstUTOPIA HOME CARE, INC.,
Defendant.
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LOCKE, Magistrate Judge:
Plaintiff Shenithia Cowell (“Plaintiff” or “Cowell”) commenced this action
against Defendant Utopia Home Care, Inc. (“Defendant” or “Utopia”), on behalf of
herself and all other similarly situated individuals, seeking to recover unpaid
minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab.
Law § 190, et seq. See Docket Entry (“DE”) [1]. Presently before the Court, on referral
from the Honorable Leonard D. Wexler, is Plaintiff’s motion for an Order:
(i)
conditionally certifying this action as an FLSA collective action pursuant to 29 U.S.C.
§ 216(b); (ii) compelling Defendant to provide the names and relevant contact
information for potential opt-in plaintiffs; (iii) authorizing dissemination of a
proposed Notice and Consent to Sue form (the “Notice and Consent Form”) to
potential opt-in plaintiffs; and (iv) appointing Johnson Becker PLLC and Sommers
Schwartz, P.C. as counsel for the putative class. See DE [49]. Defendant opposes
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conditional certification and certain aspects of the Notice and Consent Form. See DE
[50]. For the reasons set forth herein, Plaintiff’s motion is denied.
I.
BACKGROUND
Unless otherwise noted, the following facts are taken from Plaintiff’s Third
Amended Complaint.
A. Relevant Facts
Defendant is a New York corporation that provides “in-home personal care,
management and/or treatment of a variety of conditions by nurses, therapists, social
workers, home health aides, personal care aides, live-in aides and homemakers.” See
Third Amended Class Action and Collective Action Complaint (“TAC”), DE [41], ¶ 12
(internal quotation omitted). Utopia employs between 1,001 and 5,000 individuals,
and provides “24 hours a day, 7 days a week care services” in its twenty-two locations
across six states. Id. at ¶¶ 2, 12. Relevant for purposes of this action, Utopia employs,
among other positions, Home Health Aides (“HHAs”) and Personal Care Aides
(“PCAs”) to provide personal care and related services. Id. at ¶ 15. Although “PCAs
receive somewhat less training than HHAs and are not qualified to do all of the tasks
performed by an HHA,” Defendant concedes that, “[f]or purposes of this motion, there
is no meaningful distinction between the two.” See Defendant’s Memorandum of Law
in Opposition to Plaintiffs’ Motion for Conditional Certification and Court Authorized
Notice (“Def.’s Opp’n”), DE [50], at 1 n.1.
Plaintiff worked as an HHA at Utopia from 2003 until January 2013, during
which time she was paid an hourly rate between $9.00 and $13.12 per hour. See TAC
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¶¶ 10, 23. Plaintiff alleges that, in her role as an HHA, she provided domestic
services, including but not limited to:
meal preparation and service; shopping for groceries and other items;
washing clothes; errands outside of the home; shopping for supplies;
medical and other appointments; personal hygiene care, dressing, and
cleaning; and performing general household cleaning including
mopping, vacuuming, and sweeping floors throughout the house;
vacuuming the stairs and upstairs bathrooms, hallways, and common
areas including those not utilized by Defendant’s client; making beds;
washing dishes; dusting the whole house; cleaning the kitchen,
refrigerator, and oven; cleaning all bathrooms; cleaning the whole
house; sorting and removing of trash; shoveling snow and helping with
lawn care and gardens.
Id. at ¶ 17.
According to Plaintiff, she spent approximately one-third of her time
performing general household cleaning duties. Id. More specifically, Cowell states
that she “regularly worked over fifty (50) hours per week while employed by [Utopia]
and performed general household work for more tha[n] 20 percent of her total weekly
hours worked.” Id. at ¶ 24. According to Plaintiff, Defendant improperly classified
all HHAs and PCAs as exempt employees under the domestic companionship service
employment exemption pursuant to 29 U.S.C. § 213(a)(15). Id. at ¶¶ 26-30. As a
result, she was paid “her straight hourly rate for all hours worked and withheld
wages at one-and-one-half times that hourly rate when she worked more than forty
hours per week.” Id. at ¶ 25.
Plaintiff further alleges that Utopia has an “established policy that all HHAs
and PCAs report to work at least ten (10) minutes prior to the start of their shift.”
Id. at ¶ 20. As required, Cowell reported to work ten minutes prior to the start of her
shift, but she claims that she was not compensated for that time. Id. at ¶ 21. Finally,
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Plaintiff asserts that her payroll records “are devoid of the pre-shift work [she] was
required to perform.” Id. at ¶ 22.
B. Procedural History
By way of Complaint dated February 3, 2014, Plaintiff commenced this action
on behalf of herself and all other similarly situated individuals, seeking to recover for
Defendant’s alleged violations of the FLSA and NYLL. See DE [1]. Cowell filed an
Amended Complaint and Second Amended Complaint on June 13, 2014 and August
19, 2014, respectively, in which she added claims for breach of contract and violation
of New York’s Payment of Wages Act. See DE [18], [22]. Plaintiff asserts her claims
arising under the FLSA as a putative collective action pursuant to 29 U.S.C. § 216(b)
on behalf of herself and “[a]ll current and former [HHAs] and [PCAs] employed by
Utopia Home Care, Inc. at any time during the last three years, who were required
to report to work ten (10) minutes early and/or were not paid an overtime premium
for hours worked over 40 in a workweek.” TAC ¶ 35. Cowell brings her claims arising
under the NYLL as a putative class action pursuant to Fed. R. Civ. P. 23(b)(3) and
(c)(4) on behalf of herself and “[a]ll current and former [HHAs] and [PCAs] employed
by Utopia Home Care, Inc. in New York at any time during the last six years, who
were required to arrive to work ten (10) minutes early and/or who worked over 40
hours per week and were not paid an overtime premium for hours worked over 40 in
a workweek.” Id. at ¶ 42.
Plaintiff now seeks conditional certification of this case as an FLSA collective
action pursuant to 29 U.S.C. § 216(b) and permission to circulate the proposed Notice
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and Consent Form “to all current and former Home Health Aides and Personal Care
Aides employed by Utopia.” See Plaintiffs’ Memorandum of Law in Support of Motion
for Conditional Certification and Court Authorized Notice (“Pl.’s Mem.”), DE [49-3],
at 1. According to Plaintiff, “the allegations in the [TAC]—coupled with the Namedand Opt-in Plaintiffs’ declarations—establish that Utopia HHAs share similar job
duties and responsibilities and were victims of the same policy, decision, and practice
to deny them premium overtime pay.” Id. at 8. Plaintiff further alleges that potential
opt-in plaintiffs are similarly situated because:
(a) they have been or are employed in the same or similar positions; (b)
they were or are subject to the same or similar unlawful practices, policy,
or plan . . .; (c) their claims are based upon the same factual and legal
theories; and (d) the employment relationship between Defendant and
every putative Class member is exactly the same and differs only by
name, location, and rate of pay.
TAC ¶ 37. Plaintiff estimates that the collective class, including both current and
former employees, will include several thousand members. Id. at ¶ 38.
In opposition, Defendant argues, among other things, that “Plaintiff has not
demonstrated . . . that all HHAs were ‘similarly situated’ because they were victims
of a common policy that violated the law.” See Def.’s Opp’n at 1 (emphasis in original).
Rather, according to Defendant, a determination of whether HHAs were properly
classified as exempt “requires consideration of a fact-intensive analysis of factors”
that is “highly variable not only between different HHAs, or different patients, but
between different shifts even with the same HHA.” Id. at 2. Defendant also opposes
certain aspects of the proposed Notice and Consent Form. Id. at 23-25. On July 26,
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2016, the Court held a hearing on Plaintiff’s motion for conditional certification. See
DE [56].
II.
LEGAL STANDARD
The FLSA provides, in pertinent part:
Any employer who violates the provisions of section 206 or section 207
of this title shall be liable to the employee or employees affected . . . . An
action to recover the liability . . . 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. No employee
shall be a party plaintiff to any 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.
29 U.S.C. § 216(b).
“[D]istrict courts ‘have discretion, in appropriate cases, to
implement [section 216(b)] . . . by facilitating notice to potential plaintiffs’ of the
pendency of the action and of their opportunity to opt-in as represented plaintiffs.”
Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffman–LaRoche,
Inc. v. Sperling, 493 U.S. 165, 169, 110 S. Ct. 482, 486 (1989)).
Pursuant to Section 207 of the FLSA, employees must be compensated “at a
rate not less than one and one-half times the regular rate at which [they are]
employed” for every hour worked in excess of forty in a given work week. 29 U.S.C.
§ 207(a)(1). However, “[t]he FLSA contains several express statutory exemptions
from the overtime payment requirement.” Harper v. Gov’t Emps. Ins. Co., 754 F.
Supp. 2d 461, 463 (E.D.N.Y. 2010); see also 29 U.S.C. § 213(a) (establishing employees
exempt from minimum wage and maximum hour requirements). In order to be
exempt from the FLSA’s overtime pay requirements, “an employee’s ‘primary duty’
must be the performance of exempt work.” 29 C.F.R. § 541.700(a). Whether an
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employee is exempt “depends less on his title, and more on the actual duties
performed.” Harper, 754 F. Supp. 2d at 463.
Relevant for purposes of the instant motion, the FLSA’s overtime pay
provisions do not apply to “any employee employed in domestic service employment
to provide companionship services for individuals who (because of age of infirmity)
are unable to care for themselves . . . .” 29 U.S.C. § 213(a)(15). The FLSA’s executing
regulations (the “Regulations”) further provide that:
the term companionship services shall mean those services which
provide fellowship, care, and protection for a person who, because of
advanced age or physical or mental infirmity, cannot care for his or her
own needs. Such services may include household work related to the
care of the aged or infirm person such as meal preparation, bed making,
washing of clothes, and other similar services. They may also include
the performance of general household work: Provided, however, that
such work is incidental, i.e., does not exceed 20 percent of the total
weekly hours worked.
29 C.F.R. § 552.6.1
Accordingly, courts distinguish between household work
performed during the course of providing “fellowship, care, and, protection” for a
patient and “general household work” unrelated to the provision of care. See Severin
v. Project Ohr, Inc., No. 10 Civ. 9696, 2012 WL 2357410, at *5-6 (S.D.N.Y. June 20,
2012) (“[T]he applicability of the [companionship services] exemption to a particular
home attendant is an individualized, fact-specific determination of whether . . . the
home attendant performed general household work more than 20 percent of the time,
Effective January 1, 2015, the definition of “companionship services” was amended. See 29
C.F.R. § 552.6 (amended Jan. 1, 2015). The Court relies on the definition of companionship services
that was in effect for the duration of Plaintiff’s employment. See also Cowell v. Utopia Home Care,
Inc., 144 F. Supp. 3d 398, 402 (E.D.N.Y. 2015) (relying on definition of companionship services in effect
prior to the January 1, 2015 amendment).
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and of course any . . . household work that is related to the fellowship, care or
protection of their client wouldn’t negate the exemption.”); Torres v. Ridgewood
Bushwick Senior Citizens Homecare Council, Inc., No. 08-CV-3678, 2009 WL
1086935, at *3 (E.D.N.Y. Apr. 22, 2009) (observing that the Regulations expressly
differentiate between “general household work,” which is subject to the twenty
percent limitation, and “household work related to the care of the aged or infirm
person,” which is not). To that end, in a March 16, 1995 Opinion Letter (the “Opinion
Letter”), the United States Department of Labor (“DOL”) Wage and Hour Division
opined that “such activities as cleaning the patient’s bedroom, bathroom or kitchen,
picking up groceries, medicine, and dry cleaning would be related to personal care of
the patient and would be the type of household work that would be exempt work for
purposes of section 13(a)(15) of the FLSA.” See U.S. Dep’t of Labor, Opinion Letter,
Fair Labor Standards Act (FLSA), 1995 WL 1032475, at *1 (Mar. 16, 1995). In
contrast, the DOL opined that “activities involving heavy cleaning such as cleaning
refrigerators, ovens, trash or garbage removal and cleaning the rest of a ‘trashy’ house
would be general household work or nonexempt work that is subject to the 20 percent
time limitation.” Id.
According to Cowell, because HHAs “spent more than 20% of their time doing
non-exempt general household work, the ‘Companionship Services’ exemption does
not apply and Utopia is required to pay Plaintiffs overtime wages for all hours worked
over forty per week.” Pl.’s Mem. at 3. Although Defendant does not dispute that
Utopia classifies all HHAs as exempt employees pursuant to the companionship
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services exemption, in opposing the instant motion for conditional certification,
Defendant argues that Plaintiff “has no classwide proof to show that all HHAs—up
to 5,000 across six states—were similarly situated” to Plaintiff in that the gravamen
of their actual duties negated the application of the companionship services
exemption. See Def.’s Opp’n at 1-2.
III.
DISCUSSION
Applying the standards outlined above, and for the reasons set forth herein,
Plaintiff’s motion is denied. Courts in the Second Circuit apply a two-step analysis
in determining whether an action should be certified as an FLSA collective action.
See Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 384 (E.D.N.Y. 2010); see also Mata
v. Foodbridge LLC, No. 14 Civ. 8754, 2015 WL 3457293, at *2 (S.D.N.Y. June 1, 2015)
(“[The certification] process entails analysis of whether prospective plaintiffs are
‘similarly situated’ at two different stages: an early ‘notice stage’ and again after
discovery is fundamentally complete.”). First, the court determines whether the
proposed class members are “similarly situated.” See Laroque v. Domino’s Pizza,
LLC, 557 F. Supp. 2d 346, 352 (E.D.N.Y. 2008). If the court determines that the
proposed class members are similarly situated, they must consent in writing to be
bound by the result, or “opt in.” Id.; see also 29 U.S.C. § 216(b) (requiring that opt-in
plaintiffs consent in writing to become a party to a collective action). The second step
generally occurs following completion of discovery and requires examination of the
evidentiary record to determine whether the opt-in plaintiffs are, in fact, similarly
situated. Bifulco v. Mortg. Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009). The
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present motion concerns only the first step of the certification process—whether the
proposed class members are similarly situated such that conditional certification
should be granted.
At the conditional certification stage, “the evidentiary standard is lenient.”
Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 58 (E.D.N.Y. 2011); see also Lynch v.
United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007) (“The burden for
demonstrating that potential plaintiffs are ‘similarly situated’ is very low at the
notice stage.”). Plaintiffs seeking conditional certification “need only make a modest
factual showing sufficient to demonstrate that they and potential plaintiffs together
were victims of a common policy or plan that violated the law.” Doucoure v. Matlyn
Food, Inc., 554 F. Supp. 2d 369, 372 (E.D.N.Y. 2008) (internal quotation omitted).
However, “certification is not automatic.” Romero v. H.B. Auto. Grp., Inc., No. 11 Civ.
386, 2012 WL 1514810, at *10 (S.D.N.Y. May 1, 2012); see also Mata, 2015 WL
3457293, at *2 (“Plaintiff’s burden of proof is low, but ‘it is not non-existent.’”) (quoting
Sanchez v. JMP Ventures L.L.C., No. 13 Civ. 7264, 2014 WL 465542, at *10 (S.D.N.Y.
Jan. 27, 2014)). Rather, a plaintiff seeking conditional certification must offer “actual
evidence of a factual nexus” between himself and potential opt-in plaintiffs. Gu v.
T.C. Chikurin, Inc., No. 13 Civ. 2322, 2014 WL 1515877, at *3 (E.D.N.Y. Apr. 17,
2014); see also Sexton v. Franklin First Fin., Ltd., No. 08-CV-4950, 2009 WL 1706535,
at *3 (E.D.N.Y. June 16, 2009) (“[N]othing more than substantial allegations that the
putative class members were together the victims of a single decision, policy or plan
is required.”) (internal quotation omitted); Hoffman v. Sbarro, Inc., 982 F. Supp. 249,
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261 (S.D.N.Y. 1997) (“[P]laintiffs can meet this burden by making a modest factual
showing sufficient to demonstrate that they and potential plaintiffs together were
victims of a common policy or plan that violated the law.”). To that end, “[c]ourts will
certify broad classes where there is some showing that all members of the putative
class performed the same duties, or that the employer had uniform company-wide
employment practices.” Vasquez v. Vitamin Shoppe Indus., Inc., No. 10 Civ. 8820,
2011 WL 2693712, at *3 (S.D.N.Y. July 11, 2011) (internal citations omitted); see also
Barbato v. Knightsbridge Props., No. 14-CV-7043, 2015 WL 5884134, at *5 (E.D.N.Y.
Oct. 8, 2015) (granting motion for conditional certification where all potential opt-in
plaintiffs “were classified as exempt despite the nature of their responsibilities,”
performed identical tasks as the named plaintiffs, and never received overtime
compensation).
The determination that potential opt-in plaintiffs are similarly situated is
typically based on the pleadings, affidavits, and declarations submitted by the
plaintiff. See Sharma v. Burberry Ltd., 52 F. Supp. 3d 443, 452 (E.D.N.Y. 2014)
(“[C]ourts in the Second Circuit routinely grant conditional certification for overtime
claims based on the statements of the named plaintiff(s) and other supporting
affidavits.”).
However, the required “modest factual showing” necessary for
conditional certification “cannot be satisfied simply by unsupported assertions.”
Myers, 624 F.3d at 555 (internal quotation omitted).
Here, Plaintiff has failed to satisfy her burden in demonstrating a “factual
nexus” between herself and the proposed class of potential opt-in plaintiffs. According
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to Cowell, Utopia HHAs are similarly situated: (i) with respect to their primary job
duties because they spend “more than 20% of their time completing general housing
duties,” including “cleaning the kitchen and ovens; sweeping, mopping, and cleaning
the floors; sorting and emptying trash; cleaning the entire house; dusting; etc.”; and
(ii) because “Utopia instituted and enforced a policy that all HHAs would be paid
straight time even if they spent more than 20% of their time completing general
household duties.” See Pl.’s Mem. at 8-9. To that end, in support of the instant
motion, Plaintiff submitted substantially similar declarations from herself and two
Florida-based HHAs. See Declaration of Shenithia Cowell (“Cowell Decl.”), DE [496]; see also Declaration of Jeri Aronowitz (“Aronowitz Decl.”), DE [49-5]; Declaration
of Tina Hall (“Hall Decl.”), DE [49-7]. Like Plaintiff, Jeri Aronowitz and Tina Hall
both claim that they “regularly worked more than forty (40) hours per week in the
homes of Utopia’s clients,” but that they were “not paid overtime compensation at a
rate of one-and-one-half times [their] hourly rate[s].” See Aronowitz Decl. ¶¶ 5, 7;
Hall Decl. ¶¶ 5, 7.
Moreover, Aronowitz and Hall claim that they “spent
approximately twenty-five (25) percent of [their] time performing general household
cleaning duties.” See Aronowitz Decl. ¶ 6; Hall Decl. ¶ 6. Plaintiff, Aronowitz, and
Hall each claim that, based on their “personal interactions with other home health
aides employed by Utopia, [they are] informed and believe that all home health aides,
regardless of location, performed the same primary job duties and were subject to the
same policies and procedures.” See Aronowitz Decl. ¶ 9; Cowell Decl. ¶ 9; Hall Decl.
¶ 9. Likewise, Plaintiff, Aronowitz, and Hall each claim that, based on their “personal
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experience of working for Utopia as a home health aide, [they are] informed and
believe that the pay plan in place at any given time applied equally to all home health
aides, regardless of their location, and that no home health aide received overtime
pay when they worked over 40 hours in a workweek.” Aronowitz Decl. ¶ 10; Cowell
Decl. ¶ 10; Hall Decl. ¶ 10. According to Cowell, “[t]he pleadings, affidavits, and
declarations in the instant litigation establish the similarity among the HHAs
employed by Utopia for purposes of first stage notice.” Pl.’s Mem. at 7.
Even accepting as true that all Utopia HHAs perform substantially similar
tasks, Plaintiff has failed to establish that, given the specific needs of the individual
patient or patients to whom the HHAs are assigned, their duties constituted “general
household work” such that they would “negate the [companionship services]
exemption” as opposed to work “related to the fellowship, care or protection of their
client.” Severin, 2012 WL 2357410, at *3. According to Utopia, and Plaintiff submits
no evidence to the contrary, because the care that its HHAs provide “is tailored to
each patient’s unique and individual needs,” the determination of “whether Plaintiff
was exempt requires consideration of a fact-intensive analysis of factors such as what
tasks she performed, for how long, and how it related, or did not relate, to the
individual and unique medical needs of her patient.” Def.’s Opp’n at 2-3. To that
end, Defendant prepares a unique “Plan of Care” for each client describing “the
client’s condition and any significant health issues and details the level of care the
HHA must provide to ensure that the patient receives essential personal care and is
provided a clean, safe, and healthy living environment.” Id. at 4. According to Utopia,
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“[e]very item on the Plaintiff’s (and, for that matter, any other patient’s) Plan of Care,
by definition, is directly related to the care of the assigned patient,” and that “[s]ince
no two clients are the exactly [sic] same, no two client plans of care are exactly the
same.” Id. (emphasis in original). Moreover, Utopia argues that, “HHAs are never
instructed or permitted by Utopia to perform tasks not included in the patient’s Plan
of Care, such as ‘heavy cleaning’ of the residence or services unrelated to the care of
the patient.” Id. at 5 (emphasis in original). Based on the foregoing, Defendant
claims that “it is self-evident this is not an ‘appropriate case’ for certification because
it will require a highly-individualized inquiry into the tasks performed each week by
each HHA.” Id. at 19 (emphasis in original).
The Court considers Judge Cote’s reasoning in Severin to be instructive.2 See
2012 WL 2357410, at *3. Similar to the Plans of Care created for Utopia’s patients,
in Severin, each patient of the home health care provider had a personally tailored
“Client Care Plain,” which provided “guidance for home attendants assisting the
client, including setting forth the tasks the home attendants are expected to perform
for the client.” Id. at *1. In denying the plaintiffs’ motion for conditional certification,
Judge Cote observed that “[t]he kinds of jobs that the companions hold are
individualized” and that “[t]hey each have separate patients or clients; they have to
tailor their duties indeed their hours—everything to the needs of the individual client
The Severin Opinion and Order denied the plaintiffs’ motion for class certification pursuant
to Fed. R. Civ. P. 23, and not conditional certification of a collective action pursuant to 29 U.S.C. §
216(b). 2012 WL 2357410, at *1. However, Judge Cote had previously denied the plaintiffs’ motion
for conditional certification in an unpublished oral opinion, and the relevant language is quoted in the
Opinion and Order cited herein. Id.; see also Transcript of Oral Argument at 6:1-7:2, Severin v. Project
Ohr, Inc., No 10 Civ. 9696 (S.D.N.Y. filed Jan. 11, 2012) (No. 55) (transcript of oral opinion denying
motion for conditional certification).
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. . . .” Id. at *3. Similarly, here, Utopia’s HHAs’ duties are specifically defined by,
and limited to, the care items identified in each individual patient’s Plan of Care,
which depend on “many factors, including, among other things: (i) the patient’s
condition and needs; (ii) the number of authorized hours; (iii) the size, characteristics
and condition of the patient’s residence; and (iv) whether the patient lives with family
members or others.” See Def.’s Opp’n at 3-4. Therefore, consistent with Judge Cote’s
reasoning in Severin, the Court concludes that the unique and individualized Plans
of Care that are prepared for Utopia patients, and which Utopia HHAs are required
to follow, result in “very fact-specific inquiries” that are not “susceptible . . . to a
similarly-situated person analysis that would support the issuance of a collective
action notice.” 2012 WL 2357410, at *3; see also Terwilliger v. Home of Home, Inc.,
42 F. Supp. 2d 1231, 1254 (N.D. Okla. 1999) (holding that a task that is necessary for
the care of the client cannot be “general household” work unrelated to the client, and
therefore does not count toward the twenty percent exception).
In reaching this conclusion, the Court notes that granting Plaintiff’s motion
would fail to promote judicial efficiency, one of the underlying policies of the collective
action mechanism.
See Lynch, 491 F. Supp. 2d at 367 (“The collective action
procedure allows for efficient adjudication of similar claims, so ‘similarly situated’
employees, whose claims are often small and not likely to be brought on an individual
basis, may join together and pool their resources to prosecute their claims.”). A class
of up to five thousand HHAs and PCAs across six states, see Def.’s Mem. at 2, would
leave the Court having to conduct thousands of mini-trials to resolve the nature of
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each Plan of Care, the reason for each task assigned in each Plan of Care in order to
determine whether it counts for the purpose of the twenty percent calculation, how
much time was regularly spent on each task, and then the total amount of time spent
on all tasks in order to determine whether each class member is ultimately exempt.
Such an outcome is exactly what the collective action mechanism was designed to
avoid.
Relying on Harper v. Gov’t Emps. Ins. Co., No. 09-CV-2254, 2011 WL 10548148,
at *1 (E.D.N.Y. June 14, 2011) (Report and Recommendation), aff’d by 826 F. Supp.
2d 454 (E.D.N.Y. 2011), Plaintiff argues, among other things, that Utopia HHAs are
similarly situated because they “perform the same essential duties and are all
considered as exempt.”3 See Pl.’s Mem. at 10. However, unlike here, where Utopia
classified all HHAs as exempt pursuant to the companionship services exemption, in
Harper, the court analyzed the applicability of the administrative exemption
pursuant to 29 U.S.C. § 213(a)(1). See 2011 WL 10548148, at *2. Because of the “very
fact-specific inquiries” involved in determining the applicability of the companionship
services exemption, see Severin, 2012 WL 2357410, at *3, Harper does not support
the conclusion that Plaintiff is similarly situated to all Utopia HHAs such that
conditional certification would promote judicial efficiency.
See also Hoffman–
Plaintiff also argues that “Lawrence v. Maxim Healthcare Servs., Inc., No. 1:12-cv-2600, 2013
WL 5566668 (N.D. Ohio Oct. 9, 2013) is highly persuasive.” See Plaintiffs’ Reply Memorandum of Law
in Support of Motion for Conditional Certification and Court Authorized Notice, DE [49-19], at 5.
Although Lawrence addresses the companionship services exemption, it is neither binding on this
Court nor contemplates whether judicial efficiency is served in light of the defendant’s argument that
the “[p]laintiff and those similarly situated require highly individualized inquiry not suitable for a
collective action.” 2013 WL 5566668, at *1. Therefore, the Court declines to follow the reasoning in
Lawrence.
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LaRoche Inc., 493 U.S. at 170, 110 S. Ct. at 486 (observing that “[t]he judicial system
benefits by efficient resolution in one proceeding of common issues of law and fact”).
Based on the foregoing, Cowell has failed to satisfy her burden in
demonstrating a factual nexus between herself and other potential opt-in plaintiffs
such that conditional certification pursuant to 29 U.S.C. § 216(b) is appropriate.
Therefore, Plaintiff’s motion for conditional certification as a collective action is
denied.
IV.
CONCLUSION
For the reasons set forth herein, Plaintiff’s motion is denied. Discovery will
proceed on Plaintiff’s claims asserted on behalf of herself on an expedited basis as
follows:
Deadline to exchange Rule 26 disclosures and initial discovery
demands: August 22, 2016;
Deadline to respond to initial discovery demands: September 23, 2016;
Deadline to complete all depositions: November 23, 2016;
Deadline to complete discovery: December 7, 2016;
Deadline to commence summary judgment motion practice consistent
with Judge Wexler’s individual rules of practice: December 14, 2016.
Should the parties believe that expert discovery is necessary, they are instructed to
submit a letter to the Court explaining the need for such discovery. A final pretrial
conference has been set for December 28, 2016 at 10:00 a.m. in courtroom 820 of the
Central Islip courthouse.
A joint proposed pretrial order must be electronically
submitted prior to the pretrial conference.
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Dated: Central Islip, New York
August 8, 2016
SO ORDERED
s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
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