Fengler et al v. Crouse Health Foundation, Inc. et al

Filing 285

MEMORANDUM-DECISION & ORDER granting in part and denying in part 263 Motion for Partial Summary Judgment; Tammy P. Aiken, Stephanie E. Anderson, Leilani Beardsley, Alicia R. Castrello, Donna T. Gallagher, SueCarol M. Gamble, Dianne M. Harris, Valer ie L. Kelly, Judith S. Mignacca, Alison A. Neuser, Joanne A. Rogers, Mary E. Vincent, Carol A. Walters, & Lucinda A. Redmond are DISMISSED as pltfs in this action; and Christopher G. Considine and Amy Lee Turner remain as pltfs in this action subject to a future motion by defts. Signed by Judge David N. Hurd on 3/26/2010. (see)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------MICHELE FENGLER, on behalf of herself and all other employees similarly situated, et al., Plaintiffs, -vCROUSE HEALTH SYSTEM, INC., et al., Defendants. -------------------------------APPEARANCES: DOLAN, THOMAS & SOLOMON LLP Attorneys for Plaintiffs 693 East Avenue Rochester, NY 14607 OF COUNSEL: PATRICK J. SOLOMON, ESQ. J. NELSON THOMAS, ESQ. JUSTIN M. CORDELLO, ESQ. MICHAEL J. LINGLE, ESQ. SARA E. ROOK, ESQ. JOHN GAAL, ESQ. JOSEPH C. DOLE, ESQ. LOUIS ORBACH, ESQ. 5:08-CV-1221

BOND, SCHOENECK & KING, PLLC Attorneys for Defendants One Lincoln Center Syracuse, NY 13202-1355 DAVID N. HURD United States District Judge

MEMORANDUM-DECISION and ORDER I. INTRODUCTION Defendants Crouse Health System, Inc. and related entities and individuals ("defendants" or "Crouse") moved for partial summary judgment dismissing certain opt-in plaintiffs ("disputed plaintiffs") from this action. Plaintiffs opposed and defendants replied. Oral argument was heard on March 24, 2010, in Utica, New York. Decision was reserved.

II. BACKGROUND1 Disputed plaintiffs opted-in to this class action pursuant to a Notice and Consent Form in form and substance as directed by Magistrate Judge David Peebles. (June 8, 2009, Order Doc. No. 211, appeal denied, Aug. 26, 2009, Order Doc. No. 242.) The class has been preliminarily certified as follows: All present and former hourly employees of Crouse Hospital, including but not limited to registered nurses, licensed practical nurses, and certified nurses' assistants, with direct patient care responsibilities who have been subject to automatic meal break deductions through use of the Kronos system, and who have or may have worked through or during unpaid meal breaks without compensation at any time during the past three years. (Jan. 26, 2009, Order Doc. No. 170.) Magistrate Judge Peebles set forth a procedure for review of improper opt-ins by the parties, concluding with defendants making a motion for partial summary judgment as to those allegedly improper opt-ins about which the parties could not agree. In sum, there were seventeen disputed plaintiffs about which the parties could not agree, the subjects of the current motion. Prior to the hearing on this motion disputed plaintiff Felicia Montanez was voluntarily dismissed from this action. All of the remaining disputed plaintiffs left defendants' employ more than three years prior to opting-in to this lawsuit.2

Additional background is set forth in Fengler v. Crouse Health Sys., Inc., 634 F. Supp. 2d 2 5 7 (N.D.N.Y. 2009). Crouse stated that it had no record of employing Lucinda A. Redmond. In response, she s u b m it t e d an affirmation that she did work for Crouse until June 1, 1995. Thus, even if it is true that R e d m o n d worked for defendants, her employment ended well more than three years prior to her opt-in. -22

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III. SUMMARY JUDGMENT STANDARD Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56. The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Id. Then the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. IV. DISCUSSION It is undisputed that each of the disputed plaintiffs did not work for Crouse during the last three years prior to opting in, as follows: Disputed Plaintiff Tammy P. Aiken Stephanie E. Anderson Leilani Beardsley Alicia R. Castrello Christopher G. Considine Donna T. Gallagher SueCarol M. Gamble Dianne M. Harris Valerie L. Kelly Judith S. Mignacca Alison A. Neuser Joanne A. Rogers Amy Lee Turner Mary E. Vincent Carol A. Walters Lucinda A. Redmond
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Termination Date 6/10/1991 9/3/1999 3/15/2003 10/20/20053 7/31/2006 7/30/1999 2/11/1995 5/1/1994 6/23/2000 9/14/1995 11/22/2005 8/15/1997 2/1/2006 9/10/2005 6/6/2002 6/1/1995

Opt-in Date 11/18/2008 11/18/2008 11/19/2008 11/18/2008 9/8/2009 11/18/2008 11/18/2008 11/18/2008 11/18/2008 11/18/2008 12/11/2008 11/18/2008 7/24/2009 11/18/2008 11/19/2008 unknown

The affidavit filed by disputed plaintiff Alicia Castrello states that she worked for defendants f r o m 1975 to 1989 and October 2005 until October 2006. (Lingle Aff. Ex. I ¶ 2 Doc. No. 262-1.) However, plaintiff did not dispute defendants' proffered Statement of Undisputed Facts, which stated t h a t she had not worked for defendants during the three years prior to her opt-in, except to the extent t o argue for estoppel or tolling. (Pltfs.' Resp. Statement of Material Facts No. 4 Doc. No. 271-1.) Thus, it is an undisputed fact that Castrello did not work for Crouse in the three years before her opt-in o n November 18, 2008. -3-

The class was certified as direct patient care workers who "worked through or during unpaid meal breaks without compensation at any time during the past three years." (Jan. 26, 2009, Order Doc. No. 170 (emphasis added).) Thus, based upon the undisputed facts that none of the disputed plaintiffs worked for defendants during the past three years, except Christopher G. Considine ("Considine") and Amy Lee Turner ("Turner"), they necessarily fall outside the certified class and must be dismissed.4 Considine and Turner worked for defendants during the past three years from January 26, 2009, the date the class was certified. Thus, they fall within the description of the class. However, the motion for summary judgment will be denied without prejudice to renew upon close of discovery. IV. CONCLUSION None of the disputed plaintiffs except Considine and Turner meet the definition of the class and therefore must be dismissed. Defendants' motion as to Considine and Turner will be denied without prejudice. Accordingly, it is

It is noted that plaintiffs argue equitable estoppel and tolling. It is unnecessary to address t h e s e doctrines as the motion is resolved because the disputed plaintiffs fall outside the class. Furthermore, plaintiffs did not appeal the Order certifying the class to assert equitable estoppel and t o llin g . Rather, plaintiffs raised equitable estoppel and tolling in a later appeal of the Magistrate Judge's d e c is io n of June 8, 2009, restricting unsolicited communications with putative class members. (Pltfs.' 6 - 1 1 - 0 9 Mem. at 8-12 Doc No. 213.) W it h this argument plaintiff sought to toll the statute of lim it a t io n s from January 26, 2009, when the class was certified to the time when notice was actually is s u e d . Thus, it is only now after years of litigation that plaintiff essentially seeks to set aside the Fair L a b o r Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, statute of limitations. This is inapposite now that t h e class has been certified as those who worked during meal breaks without being paid at any time d u r in g the last three years. A g a in , at issue is whether the disputed plaintiffs qualify as class members. The statute of lim it a t io n s is a separate question. Disputed plaintiffs who do not qualify as class members in this c o lle c t iv e action may bring a separate FLSA action and argue that there is no statute of limitations bar d u e to equitable estoppel and/or tolling. -4-

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ORDERED that 1. Defendants' motion for partial summary judgment is GRANTED in part and DENIED; 2. TAMMY P. AIKEN, STEPHANIE E. ANDERSON, LEILANI BEARDSLEY, ALICIA R. CASTRELLO, DONNA T. GALLAGHER, SUECAROL M. GAMBLE, DIANNE M. HARRIS, VALERIE L. KELLY, JUDITH S. MIGNACCA, ALISON A. NEUSER, JOANNE A. ROGERS, MARY E. VINCENT, CAROL A. WALTERS, and LUCINDA A. REDMOND are DISMISSED as plaintiffs in this action; and 3. CHRISTOPHER G. CONSIDINE and AMY LEE TURNER remain as plaintiffs in this action subject to a future motion by defendants. IT IS SO ORDERED.

Dated: March 26, 2010 Utica, New York.

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