Myers et al v. Marietta Memorial Hospital

Filing 211

ORDER denying without prejudice 132 Defendants' Motion to Decertify; granting 152 Motion to Stay or Deny Decertification. Signed by Judge Algenon L. Marbley on 2/23/2018. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LYNNETT MYERS, et al.,
Plaintiffs,
v.
MARIETTA MEMORIAL
HOSPITAL, et al.,
Defendants.

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Case No. 2:15-CV-2956
JUDGE ALGENON L. MARBLEY
Magistrate Judge Vascura

OPINION & ORDER
This matter is before the Court on Defendants’ Motion to Decertify the Conditional Class
(ECF No. 132) (“Motion to Decertify”) and Plaintiffs’ Motion to Stay or Deny without Prejudice
as Premature Defendants’ Motion for Decertification (ECF No. 152) (“Motion to Stay or Deny
Decertification”).

For the reasons set forth below, Plaintiffs’ Motion to Stay or Deny

Decertification is GRANTED and Defendants’ Motion to Decertify is DISMISSED
WITHOUT PREJUDICE.
I. BACKGROUND
A. Factual Background
Plaintiffs Lynnett Myers, Carol Butler, and Arva Lowther are former nurses at Defendant
Marietta Memorial Hospital, which is operated by Memorial Health System.

(ECF No.

146). Memorial Health System also operates Defendants Selby General Hospital and Marietta
Health Care, Inc., and all of these entities function as joint employers of Memorial Health
System’s employees and operate as a single integrated system. (See id. ¶¶ 13–15). Plaintiffs
allege that Defendants’ policy of automatically deducting thirty minutes for a meal break for
nurses and patient care technicians violates the Fair Labor Standards Act (“FLSA”) and Ohio
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wage laws because employees are routinely prohibited from either taking an uninterrupted meal
break or canceling the automatic deduction.

B. Procedural History
Plaintiffs commenced this collective and class action against Defendants Marietta
Memorial Hospital, Marietta Health Care, Inc., and Selby General Hospital in October 2015.
(ECF No. 1). They bring causes of action under the FLSA and related Ohio laws. (See ECF No.
146).
In August 2016, this Court certified conditionally the following class under the FLSA:
All of Defendants’ current and former hourly employees who were responsible
for direct patient care and were subject to Defendants’ automatic meal deduction
policy at any time during the three years prior to the granting of [the motion for
conditional certification] to the present.
(ECF No. 42 at 20). After this case was conditionally certified as a collective action, Plaintiffs
filed a motion for a temporary restraining order, alleging that Defendants “coerced, intimidated
and harassed” absent class members and created an “atmosphere of fear” such that class
members were afraid to opt in to the lawsuit. (ECF No. 97 at 2). The Court granted Plaintiffs’
motion, and granted in part their subsequent motion for a preliminary injunction. (ECF Nos.
101, 112, 136). In granting Plaintiffs’ motion for a preliminary injunction, the Court re-opened
the opt-in period for the class of nearly 2,000 individuals through May 1, 2017, and permitted
Plaintiffs to reissue the previously approved notice to the entire class. (See ECF No. 136 at 14).
In November of 2016, Plaintiffs moved to certify under Federal Rule of Civil Procedure
23 a subclass of the class previously conditionally certified by the Court. (ECF No. 74).
Defendants filed their opposition to the motion to certify a Rule 23 class on April 18, 2017.
(ECF No. 130).

On the same day, Defendants filed the instant motion to decertify the

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conditional class. (ECF No. 132). In May of 2017, in lieu of responding to Defendants’ motion
on the merits, Plaintiffs filed the instant motion to stay or deny without prejudice Defendants’
motion to decertify the class. (ECF No. 152). Both sides have since filed motions for summary
judgment. (ECF Nos. 164, 176). On September 11, 2017, this Court granted Plaintiffs’ motion
to certify a class under Rule 23, and certified the following class:
All of Defendant[s’] current and former Nurses and Patient Care Technicians who were
hourly employees and subject to Defendant[s’] automatic meal deduction policy during
the three years before this Complaint was filed up to the present.
(ECF No. 171 at 1-2).
On September 27, 2017, Plaintiffs filed a motion to amend the definition of the Rule 23
class, which is currently pending before this Court. (ECF No. 180). In December of 2017, the
Court stayed discovery pending the resolution of the motion to amend the class definition. (ECF
No. 195). In January of 2018, the Court set oral argument on the pending motions for summary
judgment (ECF No. 205). Defendants requested a continuance, arguing that because they have
had no opportunity to conduct merits discovery on the current class members, they are unable to
develop fully their arguments in opposition to Plaintiffs’ summary judgment motion. (ECF No.
206). Defendants further asked the Court to defer any ruling on their own motion for summary
judgment until the record is complete and class members are finalized. (Id.). This Court granted
Defendants’ motion to continue oral argument and dismissed Defendants’ motion for summary
judgment without prejudice. (ECF No. 210).
II. LEGAL STANDARD
The FLSA provides that a court may certify a collective action brought “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). When a plaintiff brings an action under FLSA, “[s]imilarly

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situated persons are permitted to opt in to the suit.” Hicks v. Ampacet Ohio, LLC, No. 2:16-CV182, 2017 WL 1215423, at *5 (S.D. Ohio Mar. 31, 2017) (internal citations omitted). The FLSA
does not define “similarly situated” and neither has the Sixth Circuit. O’Brien v. Ed Donnelly
Enterprises, Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds by CampbellEwald Co. v. Gomez, 136 S. Ct. 663 (2016). Factors considered in determining whether
plaintiffs are similarly situated include “the 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.
(internal citations omitted). Plaintiffs bear the burden of showing that class members are
similarly situated, and the burden is lower than the burden required for class certification under
Federal Rule of Civil Procedure 23. Id. at 584-85.
Courts use a two-phase inquiry to determine whether proposed opt-in plaintiffs are
similarly situated. See Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). The
initial phase occurs at the beginning of discovery, and courts apply a fairly lenient standard to
determine whether there are plausible grounds for plaintiffs’ claims. Fenley v. Wood Grp.
Mustang, Inc., 170 F. Supp. 3d 1063, 1069 (S.D. Ohio 2016). The second stage occurs following
discovery, and courts “examine more closely the question of whether particular members of the
case are, in fact, similarly situated.” Comer, 454 F.3d at 547. The second stage “warrants a
stricter standard than the conditional certification stage because it occurs near the end of
discovery.” Frye v. Baptist Mem’l Hosp., Inc., 495 F. App’x 669, 671 (6th Cir. 2012) (internal
citations omitted). At the second stage, “the defendant may move to decertify the conditionally
certified class if appropriate based on the individualized nature of the plaintiff’s claims.” Hicks,

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2017 WL 1215423, at *6 (internal citations omitted); see also Swigart v. Fifth Third Bank, 276
F.R.D. 210, 213 (S.D. Ohio 2011).
II. ANALYSIS
As stated above, defendants can file a motion to decertify at second stage of the similarly
situated analysis. This typically occurs after all opt-in forms have been received and discovery is
substantially complete. See Comer, 454 F.3d at 546 (“The second [stage] occurs after all of the
opt-in forms have been received and discovery has concluded.”) (internal citations omitted);
Hicks, 2017 WL 1215423, at *6 (“[A]t the second phase of the proceedings, after discovery is
completed and the opt-in forms have been submitted, the Court will more closely examine
whether the putative plaintiffs are similarly situated”) (internal citations omitted);
Monroe v. FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017) (“Once discovery has concluded,
the district court—with more information on which to base its decision and thus under a more
exacting standard—looks more closely at whether the members of the class are similarly
situated.”); see also Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007) (“[T]he
second stage . . . is typically precipitated by a motion for decertification . . . usually filed after
discovery is largely complete and the matter is ready for trial”). When a motion for
decertification is filed before discovery is complete, the “court has discretion to stay or deny the
motion without prejudice in order to allow discovery to proceed.” Davenport v. Charter
Communications, LLC, No. 4:12-cv-00007, 2015 WL 164001, at *4 (ED Mo. Jan. 13, 2015); see
also Bradford v. CVS Pharmacy, Inc., No. 1:12-cv-1159, 2013 WL 5587350, at *5 (N.D. Ga.
Oct. 10, 2013 (denying decertification motion as premature).
Given the procedural posture of this case, Defendants’ Motion to Decertify is premature.
It was filed before the opt-in period ended, and merits discovery is not yet complete. Indeed,

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Defendants themselves recently acknowledged that they “have had no opportunity whatsoever to
conduct merits discovery on the current class members.” (ECF No. 206 at 2). Additional
discovery will give the Court more information on which to base its decision under the exacting
standard required for the second stage analysis. See Monroe, 860 F.3d at 397. Therefore, the
Court GRANTS Plaintiffs’ Motion to Stay or Deny Decertification, and DENIES Defendants’
Motion to Decertify WITHOUT PREJUDICE. Defendants may refile such a motion upon
completion of merits discovery.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiffs’ Motion to Stay or Deny
Decertification (ECF No.152) and DENIES WIHOUT PREJUDICE Defendants’ Motion to
Decertify (ECF No. 132).
IT IS SO ORDERED.

/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE

DATED: February 23, 2018

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