Creely v. HCR ManorCare, Inc. et al
Memorandum Opinion and Order. Certification here would hinder, not promote, judicial economy. Accordingly, Plaintiffs' Motion to Certify 223 is denied, and Defendants' Motion to Decertify 215 is granted. The claims of all opt-in Plaintiffs are dismissed without prejudice. Judge Jack Zouhary on 1/31/13. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Robert N. Creely, et al.,
Case No. 3:09 CV 2879
-vsHCR ManorCare, Inc., et al.,
JUDGE JACK ZOUHARY
Before this Court are Plaintiffs’ Motion for Final Certification (Doc. 223) of a class
conditionally certified under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and
affiliated Defendants’ Motion to Decertify the Conditionally Certified Class (Doc. 215). The Motions
have been fully briefed (see Docs. 216, 224, 227 & 228). At issue is whether Plaintiffs are similarly
situated with respect to Defendant HCR’s (Defendant) implementation of a timekeeping policy that
automatically deducted thirty minutes from timecards of hourly employees who worked more than
a set number of hours (the “auto-deduct policy”). If Plaintiffs are similarly situated, this case may
proceed as a collective action under the FLSA; if not, this Court must decertify the class.
This Court discussed the factual background of this case extensively in its Memorandum
Opinion and Order granting conditional certification (Doc. 100). Creely v. HCR ManorCare Inc., 789
F. Supp. 2d 819 (N.D. Ohio 2011). For purposes of this decision, the following abbreviated
Defendant is a nationwide provider of short- and long-term medical and rehabilitation care
with more than three hundred facilities under several trade names, employing roughly 44,000 nonexempt hourly employees (meaning FLSA overtime requirements apply to them) (Doc. 78 at 5).
Defendant’s facilities are generally organized into two divisions -- assisted living and skilled nursing
(id.). The residents served and staffing needs at each facility vary as to contractual and legal
requirements (id. at 6). However, Defendant develops company-wide policies, including those
relating to compensation and training, at its headquarters in Toledo, Ohio. Each facility has a local
management team and human resources support personnel responsible for implementing and
complying with corporate policies (id.).
One of these company-wide policies is a requirement that hourly employees take daily,
uncompensated meal breaks. Defendant uses a computerized timekeeping systems, Kronos, to
automatically deduct a thirty-minute meal period from hourly employee timecards when an employee
works a shift of more than five or six hours (Doc. 35 at 12). Under this system, employees clock in
at the beginning of a shift and clock out at the end of a shift; they do not clock in and out for a meal
break. Until the spring of 2010, if an employee was unable to take an uninterrupted thirty-minute
meal break, the employee was required to fill out a form (“missed punch form”) and submit it to a
manager, who would then sign it and submit it to payroll personnel. Payroll personnel would then
adjust the timecard to reverse the automatically deducted thirty minutes so the employee would be
properly paid for all time actually worked (id. at 13).
Plaintiffs, non-exempt hourly workers at HCR facilities across the country, allege they were
denied overtime wages in violation of the FLSA’s minimum wage requirements due to Defendant’s
implementation of the auto-deduct policy (Doc. 17 at 13). Plaintiffs do not argue the auto-deduct
policy is illegal, nor do they argue Defendant had an unofficial “policy to violate” its lawful policy.
Rather, Plaintiffs allege employees subject to Defendant’s uniform auto-deduct policy either missed
or worked through meal breaks and were not paid for many of those breaks because (1) Defendant
illegally shifted the burden of monitoring “compensable work time” to individual employees by (a)
requiring employees to cancel the automatically deducted thirty minutes when they did not receive
an “uninterrupted meal break” and (b) by not defining the term “uninterrupted meal break;” (2)
Defendant took no affirmative measures to monitor whether Plaintiffs actually received their meal
breaks; (3) Defendant failed to train or inform employees or management what to do if a meal break
was missed or interrupted; and (4) Plaintiffs did not report missed or interrupted meal breaks because
Defendant did not train them or discouraged them from doing so (Doc. 224 at 9).
This Court granted conditional certification to the class, finding Plaintiffs were similarly
situated with respect to their allegations that Defendant’s implementation of the auto-deduct policy
violated the law (Doc. 100 at 38–39). Because the total size of this class could be greater than 44,000
employees, this Court and the parties agreed to send notice to a sample class of 3,239 current and
former HCR employees from twenty-nine facilities located in twenty-eight states (see Doc. 119).
Eventually, 318 current or former employees opted into this action. These opt-ins held various nonexempt, hourly positions at HCR facilities, and include registered nurses, licensed practical nurses,
certified nursing assistants, and admissions coordinators.
Following the opt-in deadline, the parties conducted further discovery, which included the
depositions of seventy-eight opt-in Plaintiffs and HCR human resource directors from twenty-six
HCR locations across the country (Doc. 224 at 7). Discovery at this stage focused on whether
Defendant’s implementation of the auto-deduct policy was similar across all its facilities such that
Plaintiffs would be similarly situated with regard to a common FLSA-violating policy or practice.
At the close of discovery, Plaintiffs moved for final certification of the class, while Defendant moved
to decertify the class.
FLSA Collective Action Certification
The FLSA provides a private cause of action against an employer “by any one or more
employees for and in behalf of himself or themselves and other employees similarly situated.” 29
U.S.C. § 216(b). Collective actions brought by employees under the FLSA require putative class
members to opt into the action by giving their “consent in writing to become such a party,” and are
generally termed, the “class.” (Although a group of plaintiffs in a collective action under the FLSA
is not technically a “class” as defined under Federal Civil Rule 23, for simplicity this Opinion uses
the term “class” as a short-form reference to the putative group of opt-in plaintiffs in this proposed
collective action.) The statutory standard for bringing a collective action under the FLSA is that the
opt-in plaintiffs are “similarly situated,” which does not mean plaintiffs need to be identical, but does
require a showing that opt-in plaintiffs are similarly situated to the lead plaintiffs. O’Brien v. Ed
Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009).
Traditionally, courts in the Sixth Circuit follow a two-stage certification process to determine
whether a proposed group of plaintiffs is “similarly situated.” The first, or “notice” stage, takes place
at the beginning of discovery with a focus on determining whether there are plausible grounds for
plaintiffs’ claims. If so, plaintiffs are permitted to solicit opt-in notices, under court supervision, from
current and former employees. The second stage occurs after “all of the opt-in forms have been
received and discovery has concluded.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.
2006) (internal quotation and citation omitted).
True first stage review is “fairly lenient,” requiring only that plaintiffs show a colorable basis
for their claim that a class of similarly situated plaintiffs exists. White v. MPW Indus. Servs., Inc., 236
F.R.D. 363, 366–67 (E.D. Tenn. 2006) (internal citations omitted); Olivo v. GMAC Mortg. Corp., 374
F. Supp. 2d 545, 548 (E.D. Mich. 2004). However, first stage review may be more stringent
depending on the particular circumstances of a case. For example, where some discovery has taken
place, the court may require a proposed class of plaintiffs to make a “modest plus” factual showing
that they are similarly situated to the named plaintiffs. See Creely v. HCR ManorCare Inc., 789 F.
Supp. 2d 819, 826–27 (N.D. Ohio 2011); see also Pacheco v. Boar’s Head Provisions Co., 671 F.
Supp. 2d 957, 960 (W.D. Mich. 2009). Still, this enhanced first stage review is relatively lenient
because the “body of evidence is necessarily incomplete.” Creely, 789 F. Supp. 2d at 826.
Second stage review, however, is understandably more stringent as it occurs after discovery
has been completed and requires the district court to “examine more closely the question of whether
particular members of the class are, in fact, similarly situated.” Comer, 454 F.3d at 547. At this point,
the court considers all the evidence, in conjunction with the demographic data of the putative opt-in
plaintiffs, to determine whether the assembled class may continue as a collective action or whether
the putative class should be decertified, leaving plaintiffs free to pursue their claims individually.
“[T]he question is simply whether the differences among the Plaintiffs outweigh the similarities of
the practices to which they were allegedly subjected.” Monroe v. FTS USA, LLC, 763 F. Supp. 2d
979, 994 (W.D. Tenn. 2011). The primary factors considered during second-stage analysis are: (1) the
disparate factual and employment settings of the individual opt-in plaintiffs; (2) the various defenses
available; and (3) fairness and procedural considerations. Frye v. Baptist Mem’l Hosp., Inc., 2012 WL
3570657, at *3 (6th Cir. 2012); O’Brien, 575 F.3d at 584; Olivo, 374 F. Supp. 2d at 548 n.2 (citing
Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). Although courts weigh these
factors during second stage review, they must be mindful not to apply the even stricter requirements
contained in Federal Civil Rule 23 that apply to class actions. See O’Brien, 575 F.3d at 584–85. For
example, applying the predominance standard of Rule 23 would “undermine the remedial purpose
of the collective action device.” Id. at 585–86.
Implementation of the Auto-Deduct Policy
Under the FLSA, an employer who “establishes a reasonable process for an employee to report
uncompensated work time” is “not liable for non-payment if the employee fails to follow the
established process.” White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012).
Employees who do not follow a legitimate, reasonable process for reporting their time “prevent the
employer from knowing its obligation to compensate the employee[s] and thwarts the employer’s
ability to comply with the FLSA.” Id.
That Plaintiffs were subject to an auto-deduct policy is undisputed. Similarly undisputed is
that such a policy, properly implemented, is lawful under the FLSA. Id. at 873; Frye, 2012 WL
3570657, at *3. Because this system requires employees to cancel a deduction if they work through
a meal break, shifting the burden of monitoring missed meal breaks to the employees themselves, the
auto-deduct policy standing alone “cannot form the basis of an alleged FLSA violation” under an
improper burden-shifting theory. Frye v. Baptist Mem’l Hosp., Inc., 2010 WL 3862591, at *7 (W.D.
Tenn 2010), aff’d 2012 WL 3570657 (6th Cir. 2012). And Plaintiffs here do not assert that Defendant
had a “policy to violate the policy.” Thus, the relevant inquiry at this final certification stage is
whether Defendant inadequately and unlawfully implemented its auto-deduct policy “across the
board” creating a class of similarly situated Plaintiffs.
Plaintiffs claim that Defendant failed to inform employees of the policy’s procedures, to
properly train employees or managers on the policy, and actively discouraged employees from
utilizing the remedial steps built into the policy. Plaintiffs also argue that any differences among them
in job titles, responsibilities, and managers are immaterial because Defendant, through its decisions
on how to implement the auto-deduct policy, ensured that employees and managers would not
understand the policy or their rights. Defendant counters that its policy was reasonably implemented,
that Plaintiffs generally were knowledgeable about and trained on the policy, and that Plaintiffs
nonetheless failed to utilize proper procedures.
Further, Defendant argues the policy was
implemented by individual managers across each of its facilities.
As such, any unlawful
implementation of the policy at one facility is isolated and would not apply to all employees at all
This Court’s role during second-stage review is not to assess the merits of Plaintiffs’ FLSA
contentions; rather, it is to determine whether the conditionally certified class remains similarly
situated under heightened scrutiny. Evidence tending to support FLSA violations at one facility will
not necessarily support maintaining the class unless there is some nexus between those apparent
violations and Defendant’s implementation of its policy as to all Plaintiffs. See O’Brien, 454 F.3d
at 585 (noting that plaintiffs can be similarly situated when their claims are unified by a common
theory of a defendant’s liability). As discussed above, this Court determines whether Plaintiffs remain
similarly situated by weighing the disparate factual and employment settings of the individual opt-in
Plaintiffs, the various defenses available to Defendant with respect to individual Plaintiffs,
and fairness and procedural considerations. This Court has reviewed the voluminous record submitted
with this round of briefing, but shall limit its record references below to illustrative examples, in lieu
of lengthy and repetitive string citations.
Varied Employment Settings Weigh Against Certification
Opt-in Plaintiffs are or were registered nurses, licensed practical nurses, certified nursing
assistants, and admissions coordinators employed by Defendant at facilities across the country.
Defendant’s auto-deduct policy applied to all of them, and they all testified that, at some point, they
worked through their meal breaks and were not compensated for that work. Many testified, with
varying levels of specificity, that they were not properly trained or instructed on the auto-deduct
policy or the term “uninterrupted meal break.” For example, Plaintiffs point to an extensive collection
of opt-in testimony stating they received minimal training on the policy or that any training was
limited to a discussion during orientation (Doc. 224 at 11–12 & nn.3–4; Doc. 228 at 20–22). In
addition, even some opt-in Plaintiffs with supervisory responsibilities (e.g., Brooks) testified they
were not trained to ensure employees either received their breaks or were compensated for missing
them (Doc. 224 at 13). Beyond this asserted lack of training, Plaintiffs cite the testimony of several
opt-in Plaintiffs stating their managers discouraged or prohibited them from submitting a missed
punch form when they worked through a meal break (id. at 15–17).
Plaintiffs further allege the inadequate training was not limited to Plaintiffs; rather, they argue
the managers, whose job it was to implement the policy, also received inadequate training (Doc. 224
at 18–21). They point to testimony from some HCR facility supervisors and human resources
managers indicating confusion on what “uninterrupted” meant with regard to meal breaks, as well as
testimony that HCR did not have a policy requiring managers to monitor employees’ meal breaks
(id.). Much of this testimony was expected, given the testimony of HCR’s corporate designee during
the conditional certification stage that HCR did not define the term “uninterrupted meal break” for
its employees. See Creely, 789 F. Supp. 2d at 834. Further, some managers testified they did not
actively monitor whether Plaintiffs worked through any meal breaks (id.). Plaintiffs assert that HCR’s
lack of vigilance and involvement in the implementation of its auto-deduct policy at the local level
is the common theory of a FLSA violation that binds all Plaintiffs.
In response, Defendants allege Plaintiffs overstate the record, and point to distinctions among
Plaintiffs’ testimony and inconsistencies within individual Plaintiffs’ testimony. At the heart of many
of these distinctions is the localized nature of Defendant’s implementation of the auto-deduct policy.
Most of the deposed Plaintiffs indicated they received some training on the auto-deduct policy and,
specifically, what to do if they worked through a break; were informed of the policy during
orientation; and signed forms acknowledging their receipt and understanding of the policy (see Doc.
216 at 12–13; Docs. 217-2 & 217-4; Doc. 227 at 8 n.19). Many also testified they understood the
policy, knew they were entitled to a thirty-minute uninterrupted break, and knew they were supposed
to submit a missed punch form if they worked through all or part of their meal break (Doc. 227 at
6–9). Indeed, many witnesses who testified they received inadequate training on the policy also
testified, for example, that they received additional training from their managers on the auto-deduct
policy and the use of a missed punch form (e.g., Mason, D’Angelo), and that they were aware their
thirty-minute break was to be uninterrupted (e.g., Bustos, Colston).
Defendant also relies on testimony indicating that Plaintiffs’ ability to take uninterrupted
breaks depended on their particular facility, unit, shift, patient population served, job duties, and
individual habits (Doc. 216 at 27–32). In some facilities and in some units, for example, meal breaks
were pre-scheduled depending on an employee’s job duties (Doc. 227 at 24 n.64). Given these
variables, Defendant argues the class cannot be similarly situated because Plaintiffs’ ability to take
breaks, and Defendant’s knowledge (if any) of Plaintiffs’ missed breaks depended on individual
circumstances not representative of the class.
In addition, testimony regarding managers either discouraging or preventing Plaintiffs from
submitting missed punch forms does not appear universal across all managers and all HCR facilities.
While many Plaintiffs testified they felt discouraged from submitting the forms, many others testified
they were never discouraged from doing so and in some cases were encouraged to fill out the missed
punch forms (Doc. 227 at 24–25 nn.65–71). In addition, several of the managers alleged to have
discouraged Plaintiffs from submitting the forms dispute those accounts in their own depositions or
declarations (see Doc. 216 at 35, 48–50), so it is not clear from the record whether these Plaintiffs in
fact were discouraged from submitting missed punch forms. Defendant argues this diverging
testimony will require individual credibility determinations not suitable for a collective action.
Also, much of the documentary evidence supports Defendant’s contention that, from the
corporate level, the policy was implemented lawfully. For example, HCR’s policy was contained in
the Employee Handbook, which provides: “Occasionally, you will be unable to take a meal break or
will be interrupted for an emergency. When this happens, you must inform your supervisor that you
were unable to take the scheduled meal break” (Doc. 217-1). Likewise, the policy was fully explained
in HCR’s Human Resources Policy and Procedures Manual, although this was not widely distributed
among employees outside of human resources (Docs. 47–48). Defendant also provided employees
(though it is unclear how many) with documents entitled “Employee Guidelines for Time Record
Keeping” (Doc. 217-3), and a “Letter of Understanding” (Doc. 217-4). The Letter of Understanding,
which some employees signed, provides “I understand a 30-minute meal break will be deducted for
every shift I work over five hours. I will notify my supervisor and complete the proper paperwork
for any occasion where I do not receive my full meal break.” It remains unclear, though, how many
of the potential opt-in class received these documents. Looking only to the deposed opt-in Plaintiffs,
forty-six acknowledged receiving the Handbook, twenty-eight acknowledged receiving the Letter of
Understanding, and nine acknowledged receiving the Employee Guidelines (see Doc. 217-2
(summarizing meal break policy acknowledgments)). Still, these documents reflect a corporate-wide
position to implement and enforce the auto-deduct policy lawfully.
While there always will be individualized proofs in a collective action, and the mere existence
of individualized proofs is not sufficient reason for decertification, the varying accounts among these
witnesses and indeed within individual witness testimony weighs against final certification. Yes, all
Plaintiffs were subject to the auto-deduct policy, but the application of the policy varied based on
several factors, including job duties and individual managers at the various HCR facilities. Some
managers were more involved than others in implementing the policy. For example, while some
managers provided follow-up training to Plaintiffs, others are accused of actively discouraging
Plaintiffs from submitting missed punch forms. What is apparent from the record here is that
Plaintiffs’ knowledge of and training on the policy, and the application of the auto-deduct policy
itself, varied in large part depending on the individual managers at Defendant’s facilities.
Several courts have decertified classes that exhibited these types of factual distinctions among
a class of plaintiffs. For example, in Frye v. Baptist Mem’l Hosp., Inc., 2010 WL 3862591 (W.D.
Tenn 2010), aff’d 2012 WL 3570657 (6th Cir. 2012), the court decertified an auto-deduct class where
a defendant implemented its auto-deduct policy on a facility-by-facility basis where only three
facilities were involved. Id. at *3–4. The court noted that each facility “maintained its own finance
and human resources functions,” that tracking employee time was left to the employees themselves,
and that the defendant did not monitor its employees’ compliance with the meal break policy. Id. at
*8. Further, the court found that the plaintiffs’ job duties varied significantly among the two hundred
departments contained in the three facilities. Id. These factual distinctions all weighed against final
Similarly, in Camesi v. Univ. of Pittsburgh Med. Ctr., 2011 WL 6372873 (W.D. Penn. 2011),
the court decertified a class of employees who were subject to an auto-deduct policy. There, the
policy was implemented in a decentralized manner, and there were numerous differences among optin plaintiffs, including different job titles and responsibilities, and hundreds of different supervisors
to whom they reported. Id. at *7–8. The court there found that differences in job duties “[we]re
highly relevant to their claims that they worked during meal breaks without compensation because
their job duties dictated whether and why they experienced missed or interrupted meal breaks.” Id.
at *8 (citing White v. Baptist Mem’l Health Care Corp., 2011 WL 1883959, at *7 (W.D. Tenn. 2010),
aff’d 699 F.3d 869 (6th Cir. 2012)).
Another example is Kuznyetsov v. W. Penn Allegheny Health Sys., Inc., 2011 WL 6372852
(W.D. Penn. 2011), in which the court decertified a class of 806 plaintiffs that held many different job
titles, had varying duties, and worked for hundreds of different supervisors. Id. at *5–6. The court
noted that job duties were relevant to “how, why and whether the employees were compensated
properly for missed or interrupted meal breaks,” and that the application of the auto-deduct policy
“differed based on a number of factors, not the least of which was based on the nature of the jobs
performed by Plaintiffs, the departments in which Plaintiffs worked, the supervisors’ procedures, and
the shifts the Plaintiffs worked.” Id. The court noted that while job duties need not be identical,
“substantial diversity” among the plaintiffs weighed against certification. Id. In addition, the court
found that supervisors “would dictate how and when or if meal breaks were scheduled and the method
of reporting a missed meal break,” and would most likely know if any employee reported a missed
break. Id. The heavy involvement of supervisors in the implementation of the auto-deduct policy
“exponentially compound[ed] the differences and individualized experiences that go to whether there
was a violation of the law, rather than creating consistency.” Id.
Likewise, several other courts have decertified classes where company-wide policies were
implemented in a decentralized manner. See Blaney v. Charlotte-Mecklenburg Hosp. Auth., 2011 WL
4351631, at *7–8 (W.D.N.C. 2011) (decertifying a class where implementation of the common policy
was “actually left to the centralized discretion of individual units and . . . management staff” and
noting “[w]hen alleged FLSA violations stem from the enforcement of decisions of individual
supervisors, without a company-wide policy or plan directing those enforcement decisions, collective
treatment is not appropriate”); Reed v. Cnty. of Orange, 266 F.R.D. 446, 450 (C.D. Cal. 2010) (noting
“[d]ecertification is appropriate where plaintiffs are subject to varying work conditions in different
work locations or under different supervisors,” and holding “the disparity between plaintiffs’ factual
and employment settings as to . . . their meal breaks result[ed] in highly individualized questions of
fact that ma[de] proceeding as a collective action impractical and prejudicial to the parties”).
Plaintiffs argue other cases, including one from this District, compel certification. These cases
are not persuasive. In Berger v. Cleveland Clinic Found., 2007 WL 2902907 (N.D. Ohio 2007), the
court certified a class where opt-in plaintiffs, performing different job duties, were subject to the same
meal break policy. The major distinction between Berger and this case, however, is that all plaintiffs
in Berger worked at the same facility. Id. at *1–2. The court there found that “all members of each
position worked in the same department within the same building, had the same supervisor, and their
job duties overlapped significantly.” Id. at *21. Berger is thus unlike this case, which involves
thousands of employees at dozens of facilities and hundreds of individual managers.
Plaintiffs also direct this Court to two cases from the Northern District of New York that
granted final certification to large classes of plaintiffs who reported to large numbers of supervisors.
See Hamelin v. Faxton-St. Luke’s Healthcare, 274 F.R.D. 385, 395 (N.D.N.Y. 2011); Colozzi v. St.
Joseph’s Hosp. Health Ctr., 275 F.R.D. 75, 85 (N.D.N.Y. 2011). This Court disagrees with the
reasoning of those cases, in part because they appear to discount the importance of (1) disparate
factual employment settings of individual plaintiffs, and (2) how an auto-deduct policy’s
implementation may vary depending on the managers who implement them. In any event, they are
not controlling on this Court.
Previously, this Court appropriately took Plaintiffs’ statements at face value, when there were
fewer apparent and minor differences among Plaintiffs, and conditionally certified this class. Now,
however, Defendant has demonstrated inconsistencies among and within opt-in Plaintiffs’ testimony.
While the record is perhaps indicative of individual FLSA violations, the evidence as a whole does
not demonstrate “similarly situated plaintiffs experiencing a common FLSA injury.” See Frye, 2012
WL 3570657, at *5. The factual variations among individual Plaintiffs and among facilities weigh
heavily in favor of decertification.
The Defenses Available to Defendant Vary Based on Individual Plaintiffs
This Court next must assess the defenses available to Defendant and determine whether they
are individualized as to each Plaintiff or can be asserted more broadly against a class. Frye, 2010 WL
3862591, at *8–9; Kuznyetsov, 2011 WL 6372852, at *6. “Where plaintiffs’ factual and employment
settings are similar, these defenses do not necessarily render collective treatment unmanageable.”
Frye, 2010 WL 3862591, at *9. However, where plaintiffs have disparate factual and employment
settings, as they do here, defenses likely will be individualized, rendering collective treatment
Defendant argues its defenses in this case are as disparate as each Plaintiff’s experience and
that this consideration weighs in its favor. For example, in defending this matter, Defendant claims
it will need to inquire into each Plaintiff’s knowledge of the meal break cancellation policy, whether
and how often each Plaintiff worked through or was interrupted during a meal break, whether each
Plaintiff submitted missed punch forms and, if so, whether they were compensated. Similar to
Kuznyetsov, the “knowledge and testimony of each individual manager will be highly relevant and
necessary” to the defenses Defendant may assert. Testimony from managers regarding, for example,
actual or constructive knowledge that a Plaintiff worked through a meal break without compensation,
and the actual training provided to a Plaintiff regarding the auto-deduct policy, will be especially
relevant because of the decentralized implementation of the auto-deduct policy. See Camesi, 2011
WL 6372837, at *9.
This Court finds individualized defenses would overwhelm any trial of this case as a collective
action, and accordingly finds this consideration too weighs against certification.
Collective Treatment of the Claims Would be Unfair and Unmanageable
The final consideration is whether continuing to proceed collectively is fair, procedurally
manageable, and in accord with the “broadly remedial and humanitarian” purposes of the FLSA.
Frye, 2010 WL 3862591, at *9. This Court must balance the reduced litigation costs to individual
Plaintiffs with the potential effects that final certification may have on the fairness of the adjudication
and the interests of manageability and judicial efficiency. Id. (citing Hoffman-La Roche, Inc. v.
Sperling, 493 U.S. 165, 170 (1989)). Because it is a remedial statute, the FLSA must not “‘be
interpreted or applied in a narrow, grudging manner.’” Id. (quoting Dunlop v. Carriage Carpet Co.,
548 F.2d 139, 144 (6th Cir. 1977)).
Although this Court is sympathetic to Plaintiffs’ argument regarding the desirability of pooling
resources to seek vindication of their FLSA rights and the remedial nature of the FLSA, this argument
does not outweigh the significant factual differences here. Despite the fact that Defendant’s autodeduct policy applied to all Plaintiffs, Plaintiffs’ right to compensation hinges on their individual
experiences. It is unclear how proceeding collectively and using representative testimony would be
fair or useful. For example, this Court does not find that representative testimony from licensed
practical nurses in one location would necessarily be representative of individuals who held even the
same position in another location. These individuals had different experiences and worked under
different managers who may have implemented Defendant’s policy in different ways.
Although courts look favorably upon partial as opposed to wholesale decertification, Plaintiffs
here fail to offer a meaningful way to partially decertify the class, so even though that may be a
favored result, it is not apparent how it would be done. See Camesi, 2011 WL 6372837, at *9. For
example, the primary difficulty in producing representative testimony here would not be resolved by
certifying sub-classes based on job descriptions because Defendant’s implementation of its policy was
done through individual managers on a decentralized basis, and was also dependent on the nature of
the resident population at the individual facilities. In any event, Plaintiffs have failed to suggest how
this could be accomplished in a just manner.
In sum, this Court finds Plaintiffs failed to present substantial evidence they are similarly
situated with respect to Defendant’s implementation of its auto-deduct policy. The record shows a
variety of factual and employment settings among the individual Plaintiffs and the actions of hundreds
of managers who actually implemented Defendant’s policy.
As a result, the defenses are
individualized, and it would be unfair and impractical, to both sides, to have representative testimony
presented for the proposed class when any one Plaintiff’s situation is potentially markedly different
from another’s. Representative evidence simply will not work under these facts. Certification here
would hinder, not promote, judicial economy. Accordingly, Plaintiffs’ Motion to Certify (Doc. 223)
is denied, and Defendants’ Motion to Decertify (Doc. 215) is granted. The claims of all opt-in
Plaintiffs are dismissed without prejudice.
IT IS SO ORDERED.
s/ Jack Zouhary
U. S. DISTRICT JUDGE
January 31, 2013
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