Blaney et al v. Charlotte-Mecklenburg Hospital Authority
Filing
67
ORDER denying 29 Motion to Certify Class; denying as moot 36 Motion to Strike Class Allegations. Signed by Senior Judge Graham Mullen on 9/16/11. (gpb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:10-CV-592-FDW-DSC
BETH ANN BLANEY, et al.
Plaintiffs,
vs.
CHARLOTTE-MECKLENBURG
HOSPITAL AUTHORITY d/b/a
Carolinas Healthcare System,
Defendant.
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ORDER
THIS MATTER is before the Court on Plaintiffs’ Motion for Conditional Certification of
Collective Action (“Certification Motion”) (Doc. No. 29) and Defendant’s Motion to Strike Class
Allegations Contained in Plaintiffs’ and Opt-In Plaintiffs’ Declarations and Affidavits submitted in
support of their Certification Motion (“Motion to Strike”) (Doc. No. 36). Having considered the
parties’ briefs and arguments, as well as the record and applicable law, and for the reasons set forth
in this Order, Plaintiffs’ Certification Motion is DENIED and Defendant’s Motion to Strike is
DENIED as moot.
I. BACKGROUND
Plaintiffs, a group of non-exempt nurses and nurse assistants (“NAs”) employed by
Defendant Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas Healthcare System
(“Defendant” or “CHS”), filed suit on November 18, 2010, alleging violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., on behalf of themselves and all similarly situated
employees. CHS is comprised of 13 medical-care facilities, including nine primary hospital
facilities, three nursing homes, and the James G. Cannon Research Center.1 Within these facilities,
approximately 11,000 nurses and NAs are spread over 450 units (i.e., departments), each typically
supervised by an exempt Nurse Manager, as well as hourly non-exempt Assistant Nurse Managers
(“ANMs”) and Charge Nurses.
As part of their principal claim, Plaintiffs allege that Defendant had a policy in place since
December 1, 2007, which required that Plaintiffs carry pagers, “ASCOM” phones, or other
electronic signaling devices while on their respective lunch breaks. Plaintiffs were required to
answer any pages or calls they received during their lunch breaks and return to work as needed for
the purposes of attending to patients. This “on-call” requirement meant that Plaintiffs regularly had
their lunch periods interrupted, were unable to leave their assigned units during their lunch period,
or failed to take a lunch break at all. Plaintiffs were disciplined for failing to carry their signaling
devices or for failing to answer pages when called during their lunch breaks. During this same
period, Plaintiffs allege that Defendant had in place a policy which automatically deducted a thirty
(30) minute meal break from each six-hour shift worked, regardless of whether a full thirty minute
break was taken, and despite knowing that Plaintiffs were required to be “on-call” and were
regularly unable to take a full thirty-minute break, if at all. Plaintiffs thus allege that Defendant has
failed to pay its employees the applicable regular hourly rate for unpaid lunches.
Additionally, Plaintiffs allege that Defendant has failed to pay overtime compensation in the
amount of one and one-half (1.5) times the regular rate for hours worked in excess of forty (40)
hours per week as related to the unpaid lunch periods, in violation of 29 U.S.C. § 207(a). Finally,
1
The hospital facilities include Carolinas Medical Center (“CMC”), Levine Children’s Hospital,
located on CMC’s campus, CMC-Mercy, CMC-Pineville, CMC-NorthEast, CMC-University, CMC-Lincoln,
CMC-Randolph, and Carolinas Rehabilitation. The three nursing facilities include Huntersville Oaks,
Huntersville Oaks-Brookwood, and Sardis Oaks.
2
Plaintiffs allege that Defendant has failed to keep and preserve accurate personnel records and time
sheets in violation of 29 U.S.C. § 211(c). Plaintiffs seek liquidated damages in the amount of unpaid
wages for lunch and/or overtime wages owed by Defendant, as well as an injunction against
continued violations of FLSA.
Plaintiffs, who include named Plaintiffs Beth Ann Blaney, Jamie Boles, Janet Brice, Deloris
Ashcraft, Catherine Cheathem, Rosa Lee Harris, Patricia Madonia, Tara McGee, Micah Robinson,
and Carolina Uribe as well as seven “opt-in” Plaintiffs, now seek conditional certification as a
collective action pursuant to 29 U.S.C. § 216(b). The named and opt-in Plaintiffs have combined
to work in nine of the 450 CHS units. In addition to conditional certification, Plaintiffs also move
for the Court to order Defendant to provide Plaintiffs’ counsel with the names, last known addresses,
email addresses, and telephone numbers of all putative class members for the purpose of issuing
notice. Finally, Plaintiffs request that the Court approve the proposed notice and direct that notice
of this action, outlining instructions on how to opt-in, be sent to “all others similarly situated to
Plaintiffs.” (Doc. No. 29). The contours of the putative class, as originally proposed by Plaintiffs
in their Certification Motion is not altogether clear, although it appeared Plaintiffs sought
certification to facilitate notice to all non-exempt nurses and NAs employed by CHS at all facilities.
In their reply brief in support of their Motion, Plaintiffs proposed narrowing the class to only those
nurses and NAs employed at “CHS in-patient facilities” which utilized time-keeping software that
employed an automatic meal break deduction. (Doc. No. 47 at 9).
Defendant opposes conditional certification and also moves to strike class allegations
contained in the supporting documents Plaintiffs submitted with their Certification Motion, arguing
that Plaintiffs’ deposition testimony reveals that the named and opt-in Plaintiffs lack personal
knowledge as to many of the statements averred to in their affidavits and declarations supporting
3
certification. (Doc. No. 37). Both Plaintiffs’ Certification Motion and Defendant’s Motion to Strike
have been fully briefed. The Court heard oral argument on both motions at a Certification Hearing
on September 12, 2011, where the Court denied both motions. This Order, further detailing the
Court’s reasoning, follows.
II. FLSA STANDARD
The FLSA allows employees to bring an action to recover unpaid minimum wages and
overtime pay on behalf of themselves “and other employees similarly situated.” 29 U.S.C. § 216(b).
Under the FLSA, a district court may exercise its discretion and, in appropriate cases, certify an
action as a “collective action” and facilitate notice of the suit to a putative class of potential
plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989); Quinteros v. Sparkle
Cleaning, Inc., 532 F. Supp. 2d 762, 771 (D. Md. 2008). Unlike in a class action certified pursuant
to Fed. R. Civ. P. 23, where plaintiffs are bound by the judgment unless they opt out of the action,
plaintiffs wishing to join an FLSA collective action are required to opt into the action by filing
written consent to join the action with the district court. § 216(b); Romero v. Mountaire Farms, Inc.,
___ F. Supp. 2d ___, 2011 WL 2358506 at *2 (E.D.N.C. June 9, 2011) (slip copy). Certification of
a collective action is appropriate where (1) there are similarly situated individuals and (2) those
individuals opt-in to the pending action. Romero, 2011 WL 2358506 at *2.
In order to be certified as a collective action, the members of the proposed class must be
“similarly situated,” meaning “plaintiffs must raise a similar legal issue as to coverage, exemption,
or nonpayment or minimum wages or overtime arising from at least a manageably similar factual
setting with respect to their job requirements and pay provisions . . . .” De Luna-Guerrero v. North
Carolina Grower’s Ass’n, Inc., 338 F. Supp. 2d 649, 654 (E.D.N.C. 2004) (citing Ellen C. Kearns,
The Fair Labor Standards Act, § 18.IV.D.3 (1999)). Class members need not be identically situated,
4
however, and “[d]ifferences as to time actually worked, wages actually due and hours involved are
. . . not significant to this determination.” Id.; see also Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d
1208, 1219 (11th Cir. 2001) (noting that the “similarly situated” requirement is not a difficult one
to meet).
Although the Fourth Circuit has not enunciated a test for conditional certification, courts
typically follow a two-step approach when deciding whether the named Plaintiffs are similarly
situated to potential plaintiffs for the purposes of certifying the collective action. See, e.g.,
Purdham v. Fairfax Cnty. Pub. Sch., 629 F. Supp. 2d 544, 547 (E.D. Va. 2009) (citations omitted).
At the first stage, commonly referred to as the “notice stage,” “if the court makes the preliminary
determination that notice should be given to potential class members, it ‘conditionally certifies’ the
class and potential class members can then ‘opt-in.’” Id. Once most of the discovery has occurred
“and the matter is ready for trial,” the defendant can trigger the second stage of the inquiry by
moving to “decertify” the class. Id. “At that point, the court makes a factual determination as to
whether the class is truly ‘similarly situated.’” Id.
Although the standard for conditional
certification at the notice stage is normally “fairly lenient,” McLaurin v. Prestage Foods, Inc., 271
F.R.D. 465, 469 (E.D.N.C. 2010), when there is sufficient evidence in the record at the first stage
to make clear that certification is not appropriate, the court “can collapse the two stages of the
analysis and deny certification outright.” Purdham, 629 F. Supp. 2d at 547 (citing Holt v. Rite Aid
Corp., 333 F. Supp. 2d 1265, 1273-74 (M.D. Ala. 2004)).
The Court’s discretion to facilitate notice is not unfettered and the Court should not certify
a collective action “unless the facts and the circumstances of the case illustrate that a class of
similarly situated aggrieved employees exists.” Id.; see also Heagney v. European Am. Bank, 122
F.R.D. 125, 127 (E.D.N.Y. 1988) (requiring “some identifiable factual nexus which binds the named
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plaintiffs and the potential class members together as victims of a particular alleged” policy).
Ultimately, the question comes down to whether facilitating notice in order to group “ common
issues of law and fact arising from the same alleged . . . activity” into a single proceeding will
promote judicial economy. Hoffmann-LaRoche, 493 U.S. at 170. The Plaintiffs bear the burden
of demonstrating that certification is appropriate, and while the burden may not be onerous at the
notice stage, it is also “not invisible.” Parker v. Rowland Express, Inc., 492 F. Supp. 2d 1159, 1164
(D. Minn. 2007); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008)
(noting that, although the standard is “not particularly stringent,” a plaintiff bears the burden of
showing a “‘reasonable basis’ for his claim that there are other similarly situated employees”
(citations omitted)). “Mere allegations will not suffice; some factual evidence is necessary.”
Purdham, 629 F. Supp. 2d at 548 (citation omitted).
III. Discussion
A.
Motion for Conditional Certification
Plaintiff seeks conditional certification of this action as a collective action in order to
facilitate notice to a putative class of “nurses and nurse assistants at those CHS in-patient facilities
with Kronos time keeping systems beginning on the day of implementation, or three years from the
date Plaintiffs’ complaint was filed, whichever is later.” (Doc. No. 47 at 9). Defendant opposes
certification, arguing first that each CHS facility, and each unit within those facilities, employs their
own policies and practices with respect to breaks for lunches and meal periods, including how
discrepancies on time-sheets are reconciled, and whether nurses or NAs are required to carry
signaling devices; second, that these variance in policies between units and facilities requires an
individualized assessment as to whether each Plaintiff has suffered uncompensated work periods,
making this an inappropriate case for collective action; and third, that the policies complained of are
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not, by themselves, unlawful and any uncompensated time worked is actually the result of a
decentralized failure to apply CHS’s written policy. The Court will first address the appropriate
legal standard to be applied before turning to the merits of Plaintiffs’ Motion.
1.
Standard of Review
The parties disagree as to whether Plaintiffs need only make a “minimal” showing, based
on the pleadings, affidavits, and declarations, that the members of the putative class are similarly
situated for the purposes of certification, or if something more is required at this initial stage.
Defendant, for its part, argues that the Court should apply an “intermediate” approach, which
requires a more stringent showing in cases where some, but not all, discovery has been completed,
to determine whether Plaintiffs have demonstrated that they and the potential opt-ins are similarly
situated (Doc. No. 40 at 11). Plaintiffs counter that insufficient discovery has occurred to trigger
the intermediate approach, which courts normally apply only after “substantial” discovery has
occurred (Doc. No. 47 at 3).
Importantly, Plaintiffs argue that Bunyan v. Spectrum Brands, Inc., No. 07-CV-089-MJR,
2008 WL 2959932 (S.D. Ill. July 31, 2008), relied on by Defendant, is distinguishable from the case
at bar. In Bunyan, the court recognized that where “substantial, but not all discovery” has occurred
prior to plaintiff’s motion for certification, courts have applied an “intermediate” approach to the
traditional two-step inquiry which allows the court to consider the facts before it. “[W]here
plaintiffs successfully make a more stringent showing based on the available evidence, the class may
be conditionally certified, thereby giving defendants an opportunity to move for decertification upon
the completion of discovery.” Id. The court in Bunyan concluded this intermediate standard of
review was appropriate because the parties had engaged in more than eleven months of discovery
by the time the plaintiffs filed their conditional certification motion. Id.
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Plaintiffs urge the Court to disregard Bunyan because in that case the court used the typical
two-step certification analysis, whereas here, the Court rejected the parties request for a two-tiered
discovery schedule. Plaintiffs instead argue that because the Court ordered only a single period of
discovery, and discovery was far from complete at the time Plaintiffs filed the instant Motion, the
traditional lenient standard should be applied in consideration of this Motion. (Doc. No. 47 at 2-5).
However, Plaintiffs’ assertion is not correct. Although the Court did not explicitly bifurcate
discovery in the manner requested by the parties, the Court did anticipate that the two-step analysis
would be applied.
Specifically, the Court adopted the parties’ proposed deadline for the
Certification Motion, which necessarily anticipated that a truncated period of discovery would occur
prior to the Motion being due on May 13, 2011. (Compare Doc. No. 11 with Doc. No. 14).
Furthermore, the Court scheduled a hearing on the Certification Motion with ample time for the
Court to decide whether to conditionally certify the class or not, prior to the close of discovery. This
position was confirmed in email correspondence between counsel for the parties and a law clerk
to Judge Whitney, to whom this case is assigned, on or about May 11-12, 2011. (Doc. No. 51-1 at
7-13). In an initial email, Judge Whitney’s law clerk stated:
It has also come to our attention that . . . the case management order may need to be
amended to include a final certification of collective action after the close of “Merits
Discovery.” See Williams v. XE Servs., LLC, No. 2:09-cv-59-D, 2011 WL 52353
(E.D.N.C. Jan. 4, 2011). If there is any opposition to this, please let me know and
provide supporting case law.
(Doc. No. 51-1 at 13). Counsel for Defendant replied, suggesting that amendment of the case
management order may be necessary only in the event that the Court conditionally certified the case
for collective action. Judge Whitney agreed and adopted this position. (Id. at 8).
Thus the record, taken as a whole, does not support Plaintiffs’ characterization that the Court
“rejected the two tiered approach.” (Doc. No. 47 at 3). Instead, although the Court did not adopt
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the parties’ vocabulary (i.e. “Notice Discovery” and “Merits Discovery”), the Court did adopt the
parties’ proposed time-frame for moving for conditional certification while also allowing for
discovery to proceed in an efficient manner while the conditional certification issue was being
considered.
The critical point is that the parties agreed and anticipated that some discovery was to occur
prior to the Certification Motion coming due, and the Court adopted this discovery time-frame.
Thus, while it may be that “significant” discovery has not yet occurred–or at least, did not occur at
the time Plaintiffs filed their Certification Motion–the Court cannot ignore the fact that the parties
requested, and engaged in, some discovery on the certification issue. In fact, the parties had more
than three months in which to engage in meaningful discovery prior to the Certification Motion
becoming due. (See Doc. No. 26). During that period, the parties exchanged interrogatories and
documents and took a number of Plaintiffs’ depositions in advance of the May 17, 2011 deadline,
with several more depositions being noticed to occur shortly after the Certification Motion was
filed.2 “The Court cannot close its eyes to the amount of discovery already performed in this action.
At the same time, the Court [should be] cognizant that Plaintiffs seek only conditional certification
at this point and that discovery is not complete.” Bunyan, 2008 WL 2959932 at * 4. Accordingly,
the Court will apply the “intermediate” approach which allows for the Court to determine “whether
a sound basis exists for proceeding as a collective action while also considering all evidence
available at the time.” Id.; see also Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp.
2
Although the Case Management Order initially set the Certification Motion deadline for May 13,
2011, the Court initially extended that deadline to May 16, 2011, and ultimately to May 17, 2011, after
Plaintiffs sought a longer extension, which was denied. (Doc. No. 26). Because CM/ECF automatically
generated a response deadline to Plaintiffs’ timely motion for extension of time after the Certification Motion
was due, and Defendant did not respond to Plaintiff’s motion for extension of time until May 11, 2011, the
Court concluded some additional time in which to file Plaintiffs’ Certification Motion was permissible. (Id.)
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2d 411, 415 (D. Del. 2007) (recognizing that “[d]istrict courts in other circuits have adopted an
intermediate approach to the ‘similarly situated’ inquiry when the parties voluntarily engage in
discovery prior to a decision on conditional certification” (emphasis added)); Thiessen v. Gen. Elec.
Capital Corp., 996 F. Supp. 1021, 1080-81 (D. Kan. 1998) (applying “intermediate” review where
a number of plaintiffs had already opted-in and the parties had engaged in three months of discovery
prior to the filing of the motion for conditional certification); Bouaphakeo v. Tyson Foods, Inc., 564
F. Supp. 2d 870, 895 (N.D. Iowa 2008) (applying a “common sense” application of the two-step
approach by determining “whether conditional certification of a collective action is appropriate by
evaluating all the facts that have thus far been placed” before the court (emphasis included in the
original)); Holt, 333 F. Supp. 2d at 1273-74 (considering evidence resulting from “extensive
discovery” in determining whether to certify a collective action).
The question before the Court remains whether this is an appropriate case for certification,
that is, whether “multiple claims can be adjudicated efficiently because they share common
underlying facts and do not require substantial individualized determinations for each class
member.” Purdham, 629 F. Supp. 2d at 549 (citation omitted). This determination is guided by the
amount of information available to the court. Buaphakeo, 564 F. Supp. 2d at 893. Thus, when there
is less information available to the court at the notice stage, “plaintiffs simply need to come forward
with a factual basis, a colorable basis, or substantial allegations” that the named plaintiffs and
putative class are similarly situated. Id. (citations omitted); see also Purdham, 629 F. Supp. 2d at
549 (“a court must have the benefit of some preliminary factual showing that a similarly situated
group of potential plaintiffs exists” (internal quotations omitted)). On the other hand, where the
court has the benefit of evidence uncovered during discovery prior to the notice stage, it may
consider that evidence without forcing plaintiffs to clear the high hurdle normally reserved for the
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second stage of the inquiry. See Bouaphakeo, 564 F. Supp. 2d at 893.
2.
Analysis
Based on the record before it, the Court concludes that this is not an appropriate case for
certification. Plaintiffs have failed to present sufficient evidence that the putative class is similarly
situated for the purposes of the FLSA. Plaintiffs and Defendant agree that, in order to be similarly
situated, Plaintiffs and the members of the putative class must be “victims of a common policy or
plan that violated the law.” (See id. at 6; Doc. No. 40 at 12). As Defendant correctly notes, a policy
which automatically deducts pay for meal periods is not, by itself, unlawful under the FLSA. See
Colozzi v. St. Joseph’s Hosp. Health Ctr., 595 F. Supp. 2d 200, 207 (N.D.N.Y. 2009) (rejecting the
application of Kronos’ automatic deductions as a common factual nexus sufficient to certify a
collective action “since something more is required to establish that the putative class members were
subject to the same unlawful practice”); see also Lindberg v. UHS of Lakeside, LLC, 761 F. Supp.
2d 752, 759-61 (W.D. Tenn. 2011) (conditionally certifying a collective action based on an
automatic time deduction policy “that placed the burden of correction on hourly employees,
[defendants] were aware of, permitted, and/or demanded that employees continue to work during
unpaid meal periods, and [defendants] routinely ignored or discouraged the use of time adjustment
forms to reverse the automatic deduction”). Nor does requiring nurses to be “on call” during a meal
break, where there is no actual interruption, require compensation or constitute a FLSA violation.
See Reimer v. Champion Healthcare Corp., 258 F.3d 720, 725 (8th Cir. 2001) (holding that under
the predominate benefit test, also applied in the Fourth Circuit, simply being on-call is not
compensable work for the purposes of the FLSA); Roy v. Cnty. of Lexington, South Carolina, 141
F.3d 533, 545 (4th Cir. 1998) (affirming a lower court ruling that emergency response employees
were not entitled to compensation during meal periods where they “had no official responsibilities
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during this period of time other than to respond to an emergency if called upon”). Thus, critical to
Plaintiffs’ claims is Defendant’s policy requiring nurses and NAs be “on-call” during their lunch
breaks combined with the automatic deduction policy, which resulted in Plaintiffs and the putative
class members failing to receive regular or overtime compensation for hours actually worked.
(Compl. ¶¶ 8-12; Ashcraft Aff. ¶¶ 1-2; Blaney Aff. ¶¶ 1-2; Boles Aff. ¶¶ 1-2; Bradshaw Aff. ¶¶ 1-2;
Brice Aff. ¶¶ 1-2; Britt Aff. ¶¶ 1-2; Cassie Aff. ¶¶ 1-2; Cheatham Aff. ¶¶ 1-2; Coveney Aff. ¶¶ 1-2;
Harris Aff. ¶¶ 1-2; Harrison Aff. ¶¶ 1-2; Madonia Aff. ¶¶ 1-2; McGee Aff. ¶¶ 1-2; Robinson Aff.
¶¶ 1-2; Uribe Aff. ¶¶ 1-2). Indeed, Plaintiffs agree and maintain they “do not rely on the mere fact
that Defendant maintained a policy of automatically deducting thirty minutes of time from each full
shift worked by the Plaintiffs as being unlawful.” (Doc. No. 47 at 6). Instead, Plaintiffs “rely on
the fact that those thirty minutes of time were automatically deducted from each full shift
worked–purportedly for a meal period–and during those thirty minutes Plaintiffs were regularly
interrupted and/or required to work and/or the meal period was missed completely.” (Id.)3
As defined in this manner, however, this policy was not applicable to all members of the
putative class. The record here establishes that there was no common, CHS-wide policy which
required all non-exempt nurses and NAs employed in in-patient facilities to carry signaling devices
to lunch, or which required nurses and NAs to be “on-call”during their lunch breaks. Defendant
submits 26 declarations of nurses and NAs working at in-patient facilities in the CHS system, many
3
The unlawful “common policy”which allegedly binds named Plaintiffs, opt-ins, and class members
together has been a moving target during the course of litigation. Plaintiffs initially alleged that Defendant
required nurses and NAs at all CHS facilities, regardless of unit, to carry electronic signaling devices during
their breaks and automatically-deducted a meal break from each putative class member. (Compl. ¶¶ 8-14).
At the September 12, 2011 hearing, however, it appeared that Plaintiffs revised the unlawful policy to be one
of a failure to communicate to Plaintiffs’ their ability to receive full compensation for interrupted mealbreaks. (See Certification Hr’g Tr. 7:20-8:24). That the course of discovery has compelled Plaintiffs to
revise the policy complained of in such a drastic fashion alone counsels against certification.
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of whom were not required to carry pagers, ASCOM phones, or other signaling devices during their
lunch breaks. (See, e.g., Aldridge Decl. ¶ 14; Nicholls Decl. ¶ 15; ). Furthermore, some of the
named Plaintiffs admitted in deposition testimony that some units do not require nurses or NAs to
carry signaling devices during meal breaks. Plaintiff Blaney, for example, stated that in her current
unit, the intensive care unit at CMC-NorthEast, she does not carry an ASCOM phone or any
equivalent. (Blaney Dep. 89:1-11). Thus, without some evidence of a common policy which
required nurses and NAs to be “on call” during their meal breaks, Plaintiffs are left with only a
lawful policy of automatic deductions. Cf. Lindberg, 761 F. Supp. 2d at 761 (finding certification
appropriate where plaintiffs made a “modest factual showing” of an automatic deduction policy
combined with a general policy of unenforcement of time adjustment procedures and expectations
that frequently prevented plaintiffs from taking meal breaks).
In fact, Defendant has established that many of the alleged common policies that Plaintiffs
complain of are actually left to the decentralized discretion of the individual units and their exempt
and non-exempt management staff. Each unit within a CHS facility has its own managerial staff
comprised of an exempt Nurse Manager and non-exempt ANMs and Charge Nurses. (Phillips Decl.
¶ 7). These localized managers “supervise the unit staff on a daily basis and are charged with
implementing [CHS’s] policies, as well as creating unit-specific policies and practices related to the
administering of policies governing scheduling needs, staffing, and meal break periods in order to
address the patient needs that can vary within each unit.” (Id.) Not only is there wide variance,
depending on which unit a nurse or NA is assigned to, in the use of signaling devices and “on-call”
requirements, but there is also wide variety in the way meal breaks are scheduled, and where meal
breaks are taken. For example, in the Pre-Operative Holding Unit of CMC Main, there has been no
pre-set time in which nurses leave for lunch since October 2010; instead, nurses and NAs leave for
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lunch as they are relieved by their colleagues in the unit. (Byrum Decl. ¶ 15). In other units,
however, meal breaks are pre-determined by the Charge Nurse.
(See Banks Decl. ¶ 7).
Additionally, some units require that nurses take their breaks on the unit floor, while other units had
no restrictions on how far nurses and NAs may go for lunch. (Compare Waddell Decl. ¶ 12 with
Giordano Decl. ¶ 13).
Defendant also presented evidence that the only CHS-wide policy that was in place during
the relevant period required full compensation for all hours worked. (Def. Hr’g Ex. 1 at 17; Def.
Hr’g Ex. 2; see also Doc. No. 31-1, filed under seal). Additionally, Defendant specifically instructed
management staff, including exempt Nurse Managers and their superiors (Smith Dep. 151:19-25),
in January 2008 that:
Rest periods of short duration, usually 20 minutes or less, are customarily paid as
worked time. Break and meal periods, typically thirty minutes or longer, are
generally not compensable unless the employee is interrupted during this time to
perform work related activities. If this is the case, the entire break or meal period
should be recorded as hours worked.
(Def. Hr’g Ex. 1 at 18 (emphasis added)). In those facilities that utilized Kronos software,
employees that had a meal break interrupted were able to have the automatic deduction reversed so
that they would be credited for the full time worked. (Rhodes Decl. ¶ 13; Pl. Hr’g Ex. 1 at 35). In
addition to the policies regarding the scheduling of meal breaks and the manner in which meal
breaks are taken varying between units, each unit also implemented different methods for entering
corrections into nurses and NAs’ time-sheets in order to account for missed or interrupted meal
breaks. Some units required forms to be filed with the unit’s management (see Aldridge Decl. ¶ 6),
whereas other units solicit reversal requests verbally. (Carlton Decl. ¶ 9). The responsibility for
training employees regarding meal-breaks and how to account for their time when interrupted
ultimately fell to unit-level management. (Brice Dep. 75-77:14-1; Graham Decl. ¶¶ 5-6). The result
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is that Defendant’s policy requiring compensation for interrupted meal breaks was entirely
dependent on decentralized management practices to ensure its enforcement; in essence, a policy
against having a formal policy. Cf. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2554 (2011)
(noting that a “‘policy’ of allowing discretion by local supervisors over employment matters” is
insufficient to establish the commonality requirement of a class action certification pursuant to Rule
23). “When alleged FLSA violations stem from the enforcement decisions of individual supervisors,
without a company-wide policy or plan directing those enforcement decisions, collective treatment
is not appropriate.” MacGregor v. Farmers Ins. Exch., No. 2:10-CV-03088, 2011 WL 2981466 at
*3 (D.S.C. July 22, 2011) (internal quotations and citations omitted).
Plaintiffs’ attempts to circumvent this lack of common policy are unavailing. At the
Certification Hearing, Plaintiffs’ counsel argued that the CHS’s compensation policy, as explained
to Plaintiffs, distinguished between a “missed lunch” and an “interrupted lunch.” (Certification Hr’g
Tr. 7:21-25). The policy materials disseminated to nurses and NAs during the relevant period stated,
for example, that “[e]mployees that do not receive a meal break should use the Request for Edit form
to notify their manager so appropriate edits can be made to the timecard.” (Pl. Hr’g Ex. 1 at 35; see
also Pl. Hr’g Ex. 2). Plaintiffs argue that the critical language, “[did] not receive a meal break,”
implies that, in order to be compensated for an interrupted meal break, the entire break would have
to have been foregone such that no meal was taken. (Certification Hr’g Tr. 8:1-8). Thus, according
to Plaintiffs, the policy, as it existed for the purposes of this suit (i.e., as it was articulated to CHS
employees), violated the FLSA because it did not authorize compensation for a meal break in which
only a few minutes were interrupted by work activity. Plaintiffs further argue that only top-level
management knew that interruptions in meal breaks were to be compensated fully, but that line
nurses and NAs were kept unaware that they could seek compensation for merely interrupted breaks.
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(Certification Hr’g Tr. 13:11-18).
The essence of Plaintiffs’ argument is that Defendant had in place an “unwritten” policy of
only compensating Plaintiffs for a missed “meal break” as opposed to any interruption in the meal
break, which superseded Defendant’s written policy of full compensation. (See id.) A similar
argument was recently rejected by the court in MacGregor. In that case, plaintiffs brought a FLSA
action on behalf of themselves and a group of similarly situated “property claims representatives”
against a defendant insurance provider for failure to pay overtime compensation. 2011 WL 2981466
at *1. The court rejected the plaintiffs’ assertion that the defendant’s alleged failure to pay was an
unlawful common policy, instead finding it “a result, which plaintiffs claim is caused by a
conglomeration of defendant’s policies and practices,” dependent on the individual actions of each
supervisor in order to establish a violation of the law. Id. at *3. Noting that the plaintiffs conceded
that the defendant’s official policy required full compensation but maintained that an “unwritten”
policy was in place that allowed supervisors to ignore requests for overtime pay, the court
recognized that:
[c]ourts have found the potential for an “unwritten policy” which could violate the
FLSA sufficient to make plaintiffs “similarly situated” when numerosity and
geographic diversity of presented affidavits demonstrate that the supervisors
“overtime violations [were] . . . not the product of happenstance or ourtlier instances
of rogue behavior by errant supervisors but were themselves policies (albeit
unwritten ones) implemented consistently in a manner . . . on an ongoing basis.”
Id. at *4 (alterations in the original) (quoting Longcrier v. HL-A Co., Inc., 595 F. Supp. 2d 1218,
1239-40 (S.D. Ala. 2008)). The court, however, rejected the “unwritten policy” argument after
concluding that “in the light most favorable to plaintiffs, the facts evince isolated supervisor
conduct.” Id. “If plaintiffs had provided even ‘modest factual support’ of any unwritten policy
contradictory to [the defendant’s] stated policy to pay employees for overtime, collective treatment
16
might be appropriate, however, no such evidence is before the court.” Id.
Likewise, here, Plaintiffs have presented no evidence of any unwritten policy which
discouraged full compensation for even interrupted breaks, nor have Plaintiffs presented evidence
of any requests for reversals of the auto-deduction that were denied.4 Instead, in support of this
argument, Plaintiffs note that Defendant changed its policy following the filing of this suit to require
that nurses clock in and out for lunch, so that no interrupted meal breaks would be over-looked, and
“made their policy crystal clear to the employees that if they do not receive a full uninterrupted
30-minute break” they have one of two options: either “you get to start your lunch break all over
again to get your full 30 minutes of uninterrupted time, or, two, you can get paid for it.”
(Certification Hr’g Tr. 11-12:19-1; see also Pl. Hr'g Ex. 6). Not only does this argument run afoul
of Fed. R. Evid. 407's exclusion of evidence of subsequent remedial measures to prove liability, but
it is also clear that the “changes” Plaintiffs rely upon are efforts to clarify and amplify an already
existent policy, as noted above. At the end, instead of a common policy that violated the law,
Plaintiffs have only alleged a situation in which they were too uninformed to take care of their own
business.
Even assuming that Plaintiffs and the putative class were victims of a common policy that
violated the law, certification would still not be appropriate. Defendant has presented significant
evidence that in order to resolve the claims of each plaintiff, individualized determinations as to
whether the FLSA requirements were violated will be necessary. Purdham v. Fairfax County Public
4
Without evidence of denied requests for auto-deduction reversals, Plaintiffs have a similar situation
to the one described by the MacGregor court where there was no uniform practice among the defendant’s
supervisors, “but rather decentralized and independent action by supervisors that is contrary to the company’s
established policies, [and] individual factual inquiries are likely to predominate and judicial economy will
be hindered rather than promoted by certification of a collective action.” 2011 WL 2981466 at * 4.
17
Schools, 629 F. Supp. 2d 544 (E.D. Va. 2009) is illustrative. In Purdham, the court denied
certification of a collective action brought under FLSA for reimbursement of volunteers that
provided athletic coaching and other services for the Fairfax County, Virginia public schools. 629
F. Supp. 2d at 546. The court concluded that certification was not appropriate in large part because
the defendant had submitted evidence that the individual schools themselves had discretion to set
the amount of compensation for the services rendered by the plaintiff volunteers. Id. at 549.
Additionally, the volunteer coaches themselves determined how many hours they would work.
Because it appeared that “each individual’s case will require the [c]ourt to consisder different
background facts, different testimony, and different legal issues,” the court denied the plaintiffs’
certification motion. Id. at 552.
The variations in scheduling of meal breaks and methods in accounting for missed meal
periods among the putative class, noted above, are relevant to the certification question because,
ultimately, the substantive question of whether each Plaintiff or putative class member may recover
under the FLSA is an individualized, fact-intensive inquiry. The question for each nurse or NA
employed at a CHS in-patient facility will ultimately be whether they were compensated for periods
actually worked at either the normal rate or overtime rate, which will require the court, and
eventually a jury, to determine whether each individual plaintiff actually took lunch breaks, their
frequency and duration, whether each plaintiff’s supervisor advised the employee how to report
worked lunch breaks, whether the employee did in fact report worked lunch breaks, how many
breaks were interrupted, if any, and how many of the missed or interrupted breaks were, in fact
compensated. MacGregor, 2011 WL 2981466 at *6. This question in turn hinges on whether the
individual’s meal was compensable, which is itself a fact-intensive inquiry. See 29 C.F.R. § 785.15;
Perez v. Mountainaire Farms, Inc., ___ F.3d ___, 2011 WL 2207110 at *11 (4th Cir. 2011) (slip
18
copy) (applying the “‘predominant benefit’ factual analysis” to determine whether the time spent
donning and doffing protective clothing prior to meal breaks is compensable).
Although the actual time worked and wages due may not normally be relevant for the
purposes of a conditional certification motion, see De Luna-Guerrero, 338 F. Supp. 2d at 654, the
Court cannot ignore this consideration where there is evidence demonstrating the unique position
each potential class member would find themself in while prosecuting their FLSA claims against
Defendant. The purpose behind collective actions is to allow for a streamlined and efficient
adjudication of the claims of similarly situated plaintiffs. See Hoffmann-LaRoche Inc., 493 U.S.
at 170-171. Where the record before the court demonstrates that there is no common policy or
scheme and instead individualized questions of fact predominate, the action is not an appropriate
one for certification. Furthermore, the Court need not certify the action and facilitate notice where,
based on the same record available to it presently, it would inevitably decertify the action in a
month’s time. Purdham, 629 F. Supp. 2d at 547; see also Rawls v. Augustine Home Health Care,
Inc., 244 F.R.D. 298, 300 (D. Md. 2007) (“In considering a motion to decertify alleging dissimilarity
of the plaintiff class, courts have considered three factors: (1) the disparate factual and employment
settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to
be individual to each plaintiff; and (3) fairness and procedural considerations” (internal quotations
omitted)).
Plaintiff argues that Defendant’s arguments in opposition to certification were considered
and rejected in Hintergerger v. Catholic Health System, No. 08-CV-380S, 2009 WL 3464134
(W.D.N.Y. Oct. 21, 2009), a case on point. Specifically, the defendant in that case argued against
conditional certification because:
(1) [p]laintiffs have not demonstrated the existence of a policy or practice that
19
extends beyond their individual circumstances; (2) potential class members are not
similarly situated by virtue of their membership in different bargaining units or no
bargaining units at all; and (3) final adjudication of [p]laintiffs’ claims necessarily
requires individualized inquiry.
Id. at *8. The court rejected the defendant’s arguments, determining it would not be appropriate to
“weigh evidentiary submissions and render credibility determinations” at the preliminary stage of
the litigation at which the plaintiffs had submitted their certification motion. Id. Importantly,
however, the Hintergerger plaintiffs filed their certification motion the day after filing their
complaint. Id. at *3. No discovery had occurred and that case was on a very different procedural
footing than in the case at bar; the court had nothing to rely upon except the plaintiffs’ allegations,
affidavits, and declarations. Furthermore, the Hintergerger court recognized that where courtsupervised, limited discovery occurs prior to the filing of a certification motion, it would be
appropriate to “‘scrutinize the merits based on the record developed to date.’” Id. at *8 (quoting
Amendola v. Bristol-Myers Squibb Co., 558 F. Supp. 2d 459, 467 n.9 (S.D.N.Y. 2008)).
Accordingly, because Plaintiffs have not presented sufficient evidence that Plaintiffs and the
members of the putative class were victims of a common policy that violated the law, and because
Defendant has presented evidence, based on the record available, that Plaintiffs and the putative
class are not, in fact, similarly situated, conditional certification of collective action is inappropriate.
Plaintiffs’ Certification Motion is therefore DENIED.
B.
Defendant’s Motion to Strike
Defendant moves to strike certain class allegations contained in the affidavits and
declarations filed in support of Plaintiffs’ Certification Motion. Specifically, Defendant argues that
the allegations should be stricken because they are not based on the affiants’ personal knowledge,
as required by Fed. R. Evid. 602, and because the statements contained in the affidavits and
20
declarations are directly contradicted by subsequent deposition testimony. (Doc. No. 37). However,
because the Court denies Plaintiffs’ Certification Motion, Defendant’s Motion to Strike–which
ultimately sought as relief dismissal of Plaintiffs’ Certification Motion–is DENIED as moot.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs Motion for Conditional Certification (Doc.
No. 29). Defendant’s Motion to Strike Class Allegations Contained in Plaintiffs’ and Opt-In
Plaintiffs’ Declarations and Affidavits Submitted with Their Motion for Conditional Certification
(Doc. No. 36) is DENIED as moot. Consistent with this ruling, the opt-in Plaintiffs are no longer
parties to this action; should Defendant move to dismiss, the Court will dismiss the opt-in Plaintiffs
without prejudice, and with leave to intervene pursuant to Fed. R. Civ. P. 20.
IT IS SO ORDERED.
Signed: September 16, 2011
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