Adkins v. Phoenix Rising Behavioral Healthcare & Recovery, Inc. et al

Filing 54

Memorandum of Opinion and Order For the reasons set forth herein, the Court denies Defendants' 37 Motion for Summary Judgment in its entirety. Regarding whether Plaintiff was properly compensated for overtime work as an LPN, the Court enters judgment in favor of Plaintiff. The Court also grants Plaintiff's 39 Motion for Conditional Certification. Parties shall meet and confer to submit a proposed schedule for filing a proposed joint notice to the Court and notifying all potential collective members. The jointly proposed schedule shall be filed with the Court within seven days of this Order. Judge Benita Y. Pearson on 9/30/2016. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

NATALIE ADKINS,
Plaintiff,
v.
PHOENIX RISING BEHAVIORAL
HEALTHCARE & RECOVERY INC., et
al.,
Defendants.

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CASE NO. 5:15cv922

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 37 and 39]

Pending before the Court are Defendants’ Motion for Summary Judgment on the issue of
exemption (ECF No. 37) and Plaintiff’s Motion for Conditional Certification and CourtAuthorized Notice (ECF No. 39). The Court has been advised, having reviewed the record, the
parties’ briefs and the applicable law. For the reasons set forth below, the Court denies
Defendants’ Motion for Summary Judgment and grants Plaintiff’s Motion for Conditional
Certification.1

1

Plaintiffs argue that Defendants’ Motion for Summary Judgment is not timely and
should be stricken from the record. ECF No. 43 at PageID #: 2456. The Court finds that,
although the Court did not explicitly instruct Defendants to file a motion for summary judgment
on exemption in its Case Management Plan, ECF No. 13, given the parties’ discussion at the
Case Management Conference, ECF No. 14 (Transcript), it was reasonable for Defendants to
understand that the Court wanted to address the issue of Plaintiff’s exempt status through a
motion for summary judgment at this stage.

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I. Background
Plaintiff Natalie Adkins brings this putative class action, on behalf of herself and a
and all others similarly situated, against Defendant Phoenix Rising Behavioral Healthcare, Inc.
and Defendant Lisa Grubbs (“Defendants”).2 Plaintiff applied for a job at Phoenix Rising
Behavioral Healthcare and was hired on or around January 27, 2014. ECF No. 43-1 at PageID #:
2526. For all but one month of her employment, Plaintiff was employed as a case manager, or
Community Psychiatric Supportive Treatment (“CPST”). Id. at PageID #: 2526–37. From
January 5, 2015 through February 10, 2015, Plaintiff was employed as a Licensed Practical Nurse
(“LPN”). ECF No. 1 at PageID #: 3; ECF No. 43-18 at PageID #: 3183. Plaintiff alleges that
she was not paid overtime for work performed in either of these positions and that neither
position was exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq., the Ohio Minimum Fair Wage Standards Act, O.R.C. §§ 4111 et seq., or
the Ohio Prompt Pay Act, O.R.C. § 4113.15. ECF No. 1 at PageID #: 12–13 ¶ 66.
As a CPST, Plaintiff worked with mentally ill clients to help them gain independence by
assessing their needs, facilitating development of daily living skills, and monitoring their
symptoms. ECF No. 43-4 at PageID #: 2819; ECF No. 37 at PageID #: 1604. When a new client
presents to Phoenix Rising, she is first evaluated by a therapist who performs a diagnostic
assessment. ECF No. 43-2 at PageID #: 2734. If necessary, the client is evaluated by a

2

While it appears the Amended Complaint seeks class certification that includes LPNs,
Plaintiff’s motion for class certification does not. The ruling that follows on the issue of
overtime paid while an LPN pertains to Plaintiff individually.
2

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psychiatrist. Id. After a patient has been formally evaluated, she is referred to a case
management supervisor, who in turn refers the client to a CPST. Id. Although parties dispute
CPSTs’ specific job duties, CPSTs generally work one-on-one with clients to develop individual
service plans (“ISPs”) designed to achieve the client’s goals, complete progress notes after they
meet with their clients, and “eyeball” clients to assess their mental health. ECF No. 43-4 at
PageID #: 1604–05. CPSTs are not qualified to make medical diagnoses or perform
psychotherapy, but if the client needs additional services, the CPST can refer the client for
evaluation. ECF No. 43-2 at PageID #: 2790.
Defendants require their CPSTs have a Bachelor’s Degree in a human service field or
equivalent years of experience and education. ECF No. 43-4 at PageID #: 2821. Two CPSTs did
not have college degrees at the time of hiring. ECF No. 43-16 at PageID #: 3166. CPSTs earn
salaries between $27,040 a year and $33,900 a year. Id. at PageID #: 3168–3170. Plaintiff’s
salary was $30,000 a year. Id.
LPNs work with psychiatrists, other LPNs and Registered Nurses (“RNs”), CPST
Supervisors, CPSTs, and other clinical staff to help clients reduce, stabilize, or eliminate their
psychiatric symptoms, provide nursing assessments, and give injections to clients. ECF No. 43-4
at PageID #: 2826. LPNs must have a current, valid license from the Ohio Board of Nursing and
preferably two years experience in psychiatric nursing setting, or a knowledge of mental health.
Id. at PageID #: 2826.
Defendants do not dispute that they have always classified all CPST employees as exempt
from overtime, a decision Defendants made based on Defendant Lisa Grubbs’ experience in the
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case management industry and her knowledge of other agencies’ practices. ECF No. 37 at
PageID #: 1602. Nor do the parties dispute that LPNs are non-exempt employees, and subject to
overtime laws. Id.
II. Standard of Review
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure of materials on file, and any affidavits show “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required
to file affidavits or other similar materials negating a claim on which its opponent bears the
burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 403 (6th Cir. 1992).
After the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of material facts in dispute. An opposing party may not
simply rely on its pleadings; rather, it must “produce evidence that results in a conflict of
material fact to be resolved by a jury.” Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir.
1995). A fact is “material” only if its resolution will affect the outcome of the lawsuit. In
determining whether a factual issue is “genuine,” the court must evaluate whether the evidence
could persuade a reasonable factfinder that the non-moving party is entitled to a verdict. Id.
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To defeat a motion for summary judgment, the non-moving party must “show that there is
doubt as to the material facts and that the record, taken as a whole, does not lead to a judgment
for the movant.” Guarino, 980 F.2d at 403. In reviewing a motion for summary judgment, the
court must view the evidence in the light most favorable to the non-moving party when deciding
whether a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587–88 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). The
existence of a mere scintilla of evidence in support of the non-moving party’s position ordinarily
is not sufficient to defeat a motion for summary judgment. Klepper v. First Am. Bank, 916 F.2d
337, 342 (6th Cir. 1990).
III. Defendants’ Motion for Summary Judgment (ECF No. 37)
Under the FLSA,3 all employers are required to pay employees one and one-half times
their regular rate of pay for work performed in excess of forty hours in a single week. 29 U.S.C.
§ 207(a)(1). An employer that violates the overtime provision can be held liable for unpaid
overtime compensation plus an equal amount as liquidated damages. 29 U.S.C. § 216(b). The
overtime requirement is subject to exceptions—certain employees are exempt from overtime pay.
29 U.S.C. § 213. Exemptions are “narrowly construed to further Congress’s goal of giving broad
federal employment protection.” Fazekas v. Cleveland Clinic Found. Healthcare Ventures, Inc.,
204 F.3d 673, 675 (6th Cir. 2000).

3

Although Plaintiff asserts claims under federal and state law, the Court need only
consider the federal claims, as the Ohio statute expressly incorporates the standards and
principles of the FLSA. Thomas, 506 F.3d at 501.
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The employer has the burden of proving that the employee meets each of the exemption’s
requirements by “clear and affirmative evidence.” Thomas v. Speedway SuperAmerica, LLC, 506
F.3d 496, 501 (6th Cir. 2007); ACS v. Detroit Edison Co., 444 F.3d 763, 767 (6th Cir. 2006).
This is not a heightened evidentiary burden. “[B]ecause establishing the applicability of an
FLSA exemption is an affirmative defense, [the defendant] has the burden to establish the . . .
elements by a preponderance of the evidence.” Thomas, 506 F.3d at 501–02 (quoting Renfro v.
Ind. Mich. Power Co., 497 F.3d 573, 576 (6th Cir. 2007)). The ultimate question of whether an
employee is exempt from overtime wage requirements is a question of law. Ale v. TVA, 269 F.3d
686, 691 (6th Cir. 2001).
The FLSA specifically exempts all employees working in a “bona fide . . . professional
capacity.” 29 U.S.C. § 231(a)(1). To qualify for the “learned professional” exemption, an
employee must meet two tests: (1) the salary-basis test and (2) the primary duties test. 29 C.F.R.
§ 541.301. The salary-basis test asks whether the employee is “compensated on a salary or fee
basis at a rate of not less than $455 per week.” Id. at § 541.600(a). There is no dispute that
Plaintiff, who was paid $30,000 a year, meets the salary-basis test. ECF No. 37 at PageID #:
1608; ECF No. 43 at PageID #: 2457 n.73. Therefore, the only remaining question is whether
her primary job duties fall within the exemption.
“To qualify for the learned professional exemption, an employee’s primary duty must be
the performance of work requiring advanced knowledge in a field of science or learning
customarily acquired by a prolonged course of specialized intellectual instruction.” 29 C.F.R. §
541.6301(a). The primary duty test has three elements: (1) the employee must perform work
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requiring advanced knowledge; (2) the advanced knowledge must be in a field of science or
learning; and (3) the advanced knowledge must be customarily acquired by a prolonged course of
specialized intellectual instruction. Id. Parties dispute all three elements of the test.
“Work requiring advanced knowledge” is work that is “predominantly intellectual in
character, and which includes work requiring the consistent exercise of discretion and judgment,
as distinguished from performance of routine mental, manual, mechanical or physical work.” Id.
at § 541.301(b). This type of knowledge cannot be attained at the high school level. Id. “The
phrase ‘field of science or learning’ includes the traditional professions of law, medicine,
theology, accounting, actuarial computation, engineering, architecture, teaching, various types of
physical, chemical and biological sciences, pharmacy and other similar occupations that have a
recognized professional status as distinguished from the mechanical arts or skilled trades where
in some instances the knowledge is of a fairly advanced type, but is not in a field of science or
learning.” Id. at § 501.301(c). Knowledge that is “customarily acquired by a prolonged course
of specialized intellectual instruction” “restricts the exemption to professions where specialized
academic training is a standard prerequisite for entrance into the profession. Id. at § 541.301(d).
The best prima facie evidence that an employee meets this requirement is possession of the
appropriate academic degree.” Id. The Federal Regulations explain that the although this type of
advanced knowledge can be acquired through a “combination of work experience and intellectual
instruction,” this is an exception to the rule intended for “the occasional lawyer who has not gone
to law school, or the occasional chemist who is not the possessor of a degree in chemistry.” Id.
“[O]ccupations that customarily may be performed with only the general knowledge acquired by
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an academic degree in any field, with knowledge acquired through an apprenticeship, or with
training in the performance of routine, mental, manual, mechanical, or physical processes” do not
fall within the exemption. Id. Nor does the exemption apply to “occupations in which most
employees have acquired their skill by experience rather than by advanced specialized
intellectual instruction.” Id.
The Federal Regulations offer examples of professions that are considered learned
professionals. Id. at § 541.301(e). For instance, registered nurses who have been registered by a
State examining board are considered learned professionals, but licensed practical nurses are
excluded from the exemption because “possession of a specialized advanced academic degree is
not a standard prerequisite for entry into such occupations.” Id. at § 541.301(e)(2). Although not
an explicit rule, many of the Federal Regulations’ examples of learned professions require a
specific, standardized course of professional study and possibly a certification or accreditation
process. See id. at §§ 541.301(e)(1)-(9).
In a case addressing the learned professionals exemption generally, the Sixth Circuit held
that a funeral director and embalmer who had to complete a year of mortuary science school and
two years of college, take national board tests, practice as an apprentice for one year, and pass a
state exam was a learned professional under 29 C.F.R § 541.301. Rutlin v. Prime Succession,
220 F.3d 737, 742 (6th Cir. 2000). Although the plaintiff was not required to have a bachelor’s
degree, the Sixth Circuit held that the combination of educational requirements was sufficient to
fulfill the FLSA’s requirement that he possess “advanced, specialized knowledge” in order to
perform his duties. Id.
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The Sixth Circuit has not yet had an occasion to rule on whether case managers are
exempt as learned professionals, but other circuits have evaluated whether similar professions
fall under the learned profession exemption. In Solis v. Washington, 656 F.3d 1079 (9th Cir.
2011), the Ninth Circuit held that social workers did not qualify for the exemption because they
were only required to have a degree in “one of several diverse academic disciplines or sufficient
coursework in any of those disciplines,” ranging from anthropology, to sociology, to criminal
justice. Id. at 1082, 1087. The Solis Court explained that “positions that do not require a
particular course of intellectual instruction directly related to the employee’s professional duties
do not come within the ‘learned professional’ exemption, even if they also require substantial
practical experience[,]” but that the exemption would apply in “situations in which applicants are
required to complete a particular course of instruction directly related to a position, even if they
do not have a specific degree[.]” Id. at 1084–85.
In comparison, a field medical case manager in Williams v. Genex Services, LLC, 809
F.3d 103 (4th Cir. 2015) who oversaw medical record reviews, interviewed clients, and
collaborated with a treatment team to analyze data and project current and long-term medical
needs was found to fall within the professional exemption. Id. at 110. Because Williams was
required to be a registered nurse as a prerequisite to her employment, and because she used her
nursing skills to perform her job duties, the Fourth Circuit found that Williams’ job met the third
prong of the primary duties test. Id. at 110–11.
A. Plaintiff’s CPST Overtime Claim
Parties have significant disagreements over the type of work Plaintiff performed as a
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CPST, the extent to which it was intellectual and discretionary, and whether it involved a field of
science or learning. Regardless of whether or not Plaintiff’s work satisfied the first two prongs
of the primary duties test, there are genuine issues of material fact as to whether Plaintiff’s
primary duties meet the third element of the test.
In this case, even assuming that Plaintiff’s work required advanced knowledge in a field
of science or learning, the educational backgrounds of Defendants’ other employees call into
question Defendants’ assertion that Plaintiff’s job required her to have the type of “advanced
knowledge customarily acquired by a prolonged course of specialized intellectual instruction.”
29 C.F.R. § 541.301. Although some employees had degrees in Social Work, Human and Social
Services, Counseling, and other relevant fields, Defendants’ employees also had degrees in
Business Administration, Marketing, Criminal Justice, and Sports Management, and two
employees did not have college degrees when hired. ECF No. 43-16 at PageID #: 3170–71.
Defendants contend that the employees had significant experience and that “[t]he least amount of
experience for a non-degreed person was five years.” ECF No. 37 at PageID #: 1614.
Employees’ experience includes a range of backgrounds, including work with children in
schools, in residential care programs, Child Protective Service work, and work as a corrections
officer. Id. at PageID #: 1614–15.
Defendants reads the Federal Regulations as broadly exempting any position for which
the employer has required an advanced degree, comparing their employees to those in Reich v.
State of Wyoming, 993 F.2d 739 (10th Cir. 1993). In Reich, the Tenth Circuit held that game
wardens who were only required to have a bachelor’s degree in wildlife management, biology, or
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a closely related field were learned professionals. Id. at 742–43. Unlike in this case, however,
the Reich defendants demonstrated that the skills the employees learned in school were necessary
to accomplish their wildlife-management tasks. Id. at 743. It seems unlikely that the someone
with a Business Administration or Sports Management degree would have the specific
knowledge of Wyoming’s various species and habitats necessary to perform the game wardens’
job duties in Reich, but as evidenced by Defendants’ own employees, workers with these
backgrounds can successfully perform CPST job duties. Moreover, Defendants present no
evidence that there is a particular course of study necessary to be a CPST, or that the course work
is somehow connected to Plaintiff’s job requirements. Defendants do not highlight specific
commonalities among their employees’ varied studies that would prepare them for the job.
Although Plaintiff took numerous medical and scientific courses as part of her Interdisciplinary
Studies degree, there is no indication that Plaintiff needed to have taken these courses to properly
do her job, or that Defendants even inquired into the courses she took when she applied for the
job. ECF No. 43-1 at PageID #: 2495–2521. Additionally, CPSTs are not required to take a
certifying examination or be licensed.
Furthermore, Defendants’ assertion that employees’ experience can make up for a lack of
degree is unconvincing. Although Defendants cite Rutlin for the proposition that the FLSA does
not require that learned professionals hold a bachelor’s degree, Defendants’ employees fall far
short of the funeral director and embalmer in Rutlin, whom underwent specific training for
mortuary sciences, took specific classes like chemistry and psychology, and passed national and
state level examinations. Rutlin, 220 F.3d at 742. In fact, Defendants’ emphasis on the fact that
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its employees’ lack of formal education was supplemented by extensive experience indicates that
position is closer to the types of “occupations in which most employees have acquired their skill
by experience rather than by advanced specialized intellectual instruction” that the Federal
Regulations exclude from the exemption. 29 C.F.R. § 541.301(d).
Therefore, because there are genuine issue of material fact as to whether Plaintiff’s job
requires the type “prolonged course of specialized intellectual instruction and study” described in
the Federal Regulations, the Court denies Defendants’ Motion for Summary Judgment on the
issue of the case manager or CPST exemption.
B. Plaintiff’s LPN Overtime Claim
There is no dispute that LPNs are classified as non-exempt and paid on an hourly basis.
Parties also agree that Plaintiff claimed one week of overtime in one pay period while she was
employed as an LPN and that she was not paid for this time. ECF No. 43-3 at PageID #: 270001. Defendants argue that Plaintiff was not paid because her overtime was not preauthorized and
she had her time sheet signed by the wrong supervisor. ECF No. 45 at PageID #: 3204.
The FLSA requires all employers to pay employees one and one-half times their regular
rate of pay for work performed in excess of forty hours in a single week. 29 U.S.C. § 207(a)(1).
To assert a claim for overtime compensation, an employee must show that she worked
uncompensated overtime hours and that her employer knew or should have known about the
overtime work, but failed to compensate her anyway. 29 U.S.C. § 207. Grosswiler v.
Frudenberg-Nok Sealing Technologies, 642 F. App’x 596, 598 (6th Cir. 2016) (citing Wood v.
Mid-Am. Mgmt. Corp., 192 F. App’x. 378, 381 (6th Cir. 2006); see also White v. Baptist Mem’l
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Heath Care Corp., 699 F.3d 869, 876 (6th Cir. 2012). The Act is applied on a workweek basis,
meaning that each week is analyzed separately for overtime violations. 29 U.S.C. § 207(a)(1).
“Work not requested but suffered or permitted is work time.” 29 C.F.R. § 785.11. “ In all such
cases it is the duty of the management to exercise its control and see that the work is not
performed if it does not want it to be performed. It cannot sit back and accept the benefits
without compensating for them.” Id. at § 785.13. Although employers are permitted to have
overtime authorization policies, they cannot discipline employees for policy violations by
withholding pay. See Craig v. Briedges Bros. Trucking LLC, 823 F.3d 382, 388 (6th Cir. 2016)
(citing Reich v. Stewart, 121 F.3d 400, 407 (8th Cir. 1997). In other words, employees must be
paid for all time worked, regardless of whether it was done in violation of company policy.
Defendants misunderstand Plaintiff’s argument as alleging that Defendants classified
LPNs as exempt. ECF No. 37 at PageID #: 1602; ECF No. 45 at PageID #: 3205. Plaintiff
agrees that Defendants properly considered LPNs to be non-exempt employees, but Plaintiff
argues that Defendants chose to not pay her overtime, in violation of FLSA. ECF No. 43 at
PageID #: 2465. Plaintiff has submitted time sheets from her work as an LPN showing that she
worked overtime on two occasions: the weeks of January 25, 2014 when she worked one hour of
overtime, and February 1, 2014 when she worked five hours of overtime. ECF No. 43-19 at
PageID #: 3185. Additionally, Defendants deny knowing about the overtime, but concede the
time sheet was submitted to the Human Resources department to be processed for payroll,
regardless of which supervisor signed it. ECF No. 43-2 at PageID #: 2700.
Because Plaintiff has demonstrated that she worked overtime, that Defendants knew or
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should have known about the overtime, and that she was not paid for the work, the Court denies
Defendants’ motion for summary judgment on this issue and enters judgment in favor of Plaintiff
on the issue of whether she is owed overtime for the period during her service as an LPN for
which she worked in excess of forty hours, presented her time sheet, and was not paid. Celotex
Corp. v. Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts are widely acknowledged to
possess the power to enter summary judgments sua sponte, so long as the losing party was on
notice that she had to come forward with all of her evidence.”); United Rentals (North America),
Inc. v. Keizer, 355 F.3d 399, 411 (6th Cir. 2004) (permitting sua sponte grant of summary
judgment when the losing party could not demonstrate prejudice); Sommer v. Davis, 317 F.3d
686, 695–96 (6th Cir. 2003) (considering “whether [the losing party] had a facially meritorious
defense to the judgment” when determining whether a court’s sua sponte grant of summary
judgment was proper). As indicated earlier, this ruling is in favor of Plaintiff individually.
C. Summary
Finding that there remain genuine issues of material fact as to whether Defendants
properly classified case managers or CPSTs as exempt, the Court denies Defendants’ Motion for
Summary Judgment on this issue. Regarding whether Plaintiff was properly compensated for
overtime work as a LPN, the Court denies Defendants’ Motion for Summary Judgment and
enters judgment in favor of Plaintiff.
IV. Plaintiff’s Motion for Conditional Certification (ECF No. 39)
Plaintiff moves, on behalf of herself and all other similarly situated CPSTs (“the Putative
Class”) to conditionally certify the proposed collective pursuant to 29 U.S.C. § 216(b). ECF No.
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39. Plaintiff proposes a class of “[a]ll current and former Case Managers, employed at Phoenix
Rising Behavioral Healthcare & Recovery, Inc. from three (3) years preceding the filing date of
this action through the date of final disposition, who worked in excess of forty (40) hours per
week and were not compensated for overtime worked at a rate of no less than one and one half
times their regular rates.” ECF No. 1 at PageID #: 20. Plaintiff alleges that “Defendants have a
common, company-wide policy of classifying CPSTs, including Plaintiff and the Putative Class,
as exempt, and compensating them by salary regardless of the hours worked per week.” ECF No.
39 at PageID #: 1628.
Under the FLSA, an employee may bring an action “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); Comer v. Wal-Mart
Stores, Inc., 454 F.3d 544, 546–47 (6th Cir. 2006). “Similarly situated persons are permitted to
‘opt into’ the suit. This type of suit is called ‘collective action.’ It is distinguished from the
opt-out approach utilized in class actions under Fed. R. Civ. P. 23.” Comer, 454 F.3d at 547.
The Court of Appeals for the Sixth Circuit has “implicitly upheld a two-step procedure
for determining whether a FLSA case should proceed as a collective action.” Waggoner v. U.S.
Bancorp, 110 F.Supp.3d 759, 765 (N.D. Ohio 2015) (Lioi, J.); Heibel v. U.S. Bank Nat’l Ass’n,
No. 2:11-CV-00593, 2012 WL 4463771, at *2 (S.D. Ohio Sept. 27, 2012) (citing In re HCR
ManorCare, Inc., No. 113866, 2011 WL 7461073, at *1 (6th Cir. Sept. 28, 2011)) (further
citation omitted); see also Cox v. Entertainment U.S.A. of Cleveland, Inc., No. 1:13CV2656,
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2014 WL 4302535, at *1 (N.D. Ohio Aug. 29, 2014) (Nugent, J.). “The first [phase] takes place
at the beginning of discovery. The second occurs after all of the opt-in forms have been received
and discovery has concluded.” Comer, 454 F.3d at 546 (6th Cir. 2006).
At the first step, the plaintiff bears the burden of showing that the employees in the
collective are “similarly situated.” Id. at 546. To satisfy this burden at this initial notice stage,
the plaintiff must only “make a modest factual showing” that she is similarly situated to the other
employees she is seeking to notify. Id. at 547. The standard at the first step is “fairly lenient”
and is less stringent than Rule 23(b)(3)’s requirements. Id. at 547 (quoting Morisky v. Public
Serv. Elec. & Gas Co., 111 F. Supp.2d 493, 497 (D.N.J. 2000)); O’Brien v. Ed Donnelly
Enterprises, Inc., 575 F.3d 567, 585 (6th Cir. 2009) (citing Grayson v. K Mart Corp., 79 F.3d
1086, 1106 (11th Cir. 1996), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136
S. Ct. 663 (2016).
Plaintiffs are considered similarly situated when “they suffer from a single, FLSAviolating policy, and when proof of that policy or of conduct in conformity with that policy
proves a violation as to all the plaintiffs[,]” or when “their claims [are] unified by common
theories of defendants’ statutory violations, even if the proofs of these theories are inevitably
individualized and distinct.” O’Brien, 575 F.3d at 585. To determine whether plaintiffs are
similarly situated, district courts have looked at various factors, such as “factual and employment
settings of the individual[ ] plaintiffs, the different defenses to which the plaintiffs may be
subject on an individual basis, [and] the degree of fairness and procedural impact of certifying
the action as a collective action.” Id. at 584 (alterations in original).
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If a collective is conditionally certified, potential plaintiffs receive notice of their right to
opt-in, and parties conduct discovery on the issue of conditional certification. See, e.g., Comer,
454 F.3d at 548. After all the opt-in forms have been received and discovery has concluded, the
Court enters second phase of certification and more closely scrutinizes the class members to
determine whether the collective is, in fact, similarly situated. Id. at 548.
When, as is the case here, parties have already conducted discovery on the issue of
conditional certification, some courts apply a “modest plus” standard, requiring a showing
beyond the lenient step-one standard, but not as stringent as the showing required at step two.
Creely v. HCR ManorCare Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011) (Zouhary, J.); see,
e.g., also Cox v. Entertainment U.S.A. of Cleveland, Inc., No. 1:13CV2656, 2014 WL 4302535,
at *1 (N.D. Ohio Aug. 29, 2014) (Nugent, J) (parties conducted three months of discovery prior
to motion for conditional certification); Jungkunz v. Schaeffer’s Inv. Research, Inc., No. 1:11CV-00691, 2014 WL 1302553 at *7 (S.D. Ohio Mar. 31, 2014) (parties had conducted discovery,
and Plaintiff knew the identity of all or nearly all of the potential collective members); Hurt v.
Commerce Energy, Inc., 1:12-CV-758, 2013 WL 4427255 at *7 (Gwin, J.) (parties conducted
some discovery on the certification issue). Like under step one, the court’s analysis “is confined
to evaluating whether the proposed collective is “similarly situated,” and does not touch upon the
merits of the plaintiffs’ claims. Jungkunz, 2014 WL 1302553 at *7 (citing Creely, 789 F. Supp.
2d at 823–24). Unlike step one, the court considers parties’ evidence, as well as several factors
typically reserved for the stage two analysis, such as “(1) the disparate factual and employment
settings of the individual opt-in plaintiffs; (2) the various defenses available to defendants with
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respect to individual plaintiffs; and (3) fairness and procedural considerations.” Id. (citing Creely,
789 F. Supp. 2d at 823, 826). Ultimately, the court determines whether the plaintiff has “made
sufficient showing beyond their original allegations that would tend to make it more likely that a
class of similarly situated employees exists.” Creely, 789 F. Supp. 2d at 827.
Even under this heightened standard, Plaintiff has made a sufficient showing in this case
that she and other employees suffered “from a single, FLSA-violating policy[.]” O’Brien, 575
F.3d at 585. Plaintiffs allege that Defendants erroneously classified all CPST workers as exempt
under the learned professionals exemption. 29 U.S.C. § 231(a)(1). Given that, as discussed
above, many employees perform the role of CPST either without a relevant college degree or
without a degree at all, and that Defendants have been unable to show a connection between
employees’ specific course of study and their ability to perform their job duties, there is a
genuine issue of material fact as to whether these employees are exempt under 29 C.F.R. §
541.301. Because all of Plaintiff’s fellow CPSTs were potentially improperly classified as
exempt, they are similarly situated to her. Therefore, at this first conditional certification stage,
Plaintiffs have sufficiently demonstrated that all employees were subject to a FLSA-violating
policy.
Although Defendants are correct that Plaintiff’s self-serving statements alone cannot
establish that she is similarly situated to other employees, Plaintiff has presented evidence
beyond her own testimony. In particular, Plaintiff has submitted Defendants’ answers to
interrogatories, which admit that not all CPSTs had degrees, and list all CPSTs’ education. ECF
No. 39-11 at PageID #: 2161. Additionally, Plaintiff has provided Defendant Lisa Grubb’s
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deposition, in which she discusses employees’ education and experience. ECF No. 39-3 at
PageID #: 1916–25.
Defendants argue that because Plaintiff is no longer an employee of Phoenix Rising, she
cannot adequately represent the interest of other employees. This argument mistakenly uses the
Rule 23 “adequate representation” standard, which is a stricter standard than the FLSA’s
“substantially similar” standard. Under the FLSA standard, courts commonly allow former
employees to represent current employees in collective actions. E.g. Comer, 454 F.3d at 545
(former assistant store managers filed collective action); Waggoner v. Bancorp, 110 F. Supp. 3d
759 (N.D. Ohio 2015) (conditionally certifying class of former bank employees). Defendants
also argue that because Plaintiff gives “no evidence of the actual duties of the other CPST” and
because she “did not perform the duties listed in the job description,” she cannot represent the
other employees. This argument, however, misconstrues the issue. The focus of an overtime
case is not about whether an employee performed her job poorly, as it might be with a wrongful
termination case. Instead, in a FLSA overtime case, any time worked must be compensated.
Therefore, the only relevant issue is whether CPSTs were exempt and whether they are owed
overtime.
Finally, Defendants contend that employee has not demonstrated that she routinely
worked over forty hours per week, contending that Plaintiff missed six and a half months of work
in her nearly two years of employment with Defendants. ECF No. 41 at PageID #: 2395.
Overtime is calculated on a workweek basis, and each week that Plaintiff was not paid overtime
is a separate violation, regardless of whether she was absent during other weeks. In response to
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Defendants’ argument that Plaintiff cannot show that she ever worked more than forty hours in a
week and is, therefore, unable to represent a collective of CPSTs, Plaintiff retorts that Defendants
only allowed CPSTs to document forty hours a week, or eight hours a day, on their time sheets,
but that Plaintiff frequently worked longer hours. ECF No. 39 at PageID #: 1636. As evidence,
Plaintiff references various time sheets showing that she worked longer than eight hours. ECF
No. 34 (exhibits with service logs documenting Plaintiff’s time). At this initial stage of the
proceedings, the incongruity between Plaintiff’s time sheets and her service logs is sufficient to
raise a question of the reliability of these time sheets, and therefore Defendants’ allegations are
not a reason to deny conditional certification.
A. Summary
For these reasons, the Court finds that Plaintiff has “made sufficient showing beyond
their original allegations that would tend to make it more likely that a class of similarly situated
employees exists.” Creely, 789 F. Supp. 2d at 827. Plaintiff’s Motion for Conditional
Certification and Court-Authorized Notice is granted. The Court certifies this action as a
collective action made up all current and former CPSTs employed at Phoenix Rising Behavioral
Healthcare & Recovery, Inc. from three years preceding the filing date of this action through the
date of final disposition who elect to opt-in.
V. Conclusion
For the foregoing reasons, the Court denies Defendants’ Motion for Summary Judgment
in its entirety. Regarding whether Plaintiff was properly compensated for overtime work as a
LPN, the Court enters judgment in favor of Plaintiff. The Court also grants Plaintiff’s Motion
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for Conditional Certification. Parties shall meet and confer to submit a proposed schedule for
filing a proposed joint notice to the Court and notifying all potential collective members. The
jointly proposed schedule shall be filed with the Court within seven days of this Order.

IT IS SO ORDERED.

September 30, 2016
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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