Brittmon v. Upreach LLC et al
Filing
24
OPINION AND ORDER granting in part and denying in part 4 Motion for Conditional Certification and Court-Supervised Notice, denying 6 Motion to Dismiss, denying 12 Motion for Leave to File Sur-Reply, and denying 14 Motion to Toll the Statute of Limitations. Defendants are ORDERED to produce a list of the names, addresses, and e-mail addresses of all potential opt-in plaintiffs within 14 days. Signed by Judge Michael H. Watson on 1/23/2018. (ew)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
nm JAN 23
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Case No. 2:17-cv-219
Judge Michael H. Watson
Magistrate Judge Vascura
Upreach, LLC, et al.,
Defendants.
OPINION AND ORDER
Plaintiff Latesha Brittmon ("Plaintiff'), individually and on behalf of all
similarly-situated individuals, brings claims under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 216(b), and various Ohio laws against Defendants
Upreach, LLC ("Upreach"), Melissa Gourley ("Gourley"), and Beth Hunter
("Hunter") (collectively, "Defendants") to recover unpaid overtime wages. Before
the Court is Plaintiffs Motion for Conditional Certification and Court-Supervised
Notice to Potential Opt-In Plaintiffs, ECF No. 4; Defendants' 12(b)(6) Motion to
Dismiss, ECF No. 6; Plaintiffs Motion for Leave to File a Sur-Reply Instanter,
ECF No. 12; and Plaintiffs Motion to Toll the Statute of Limitations for Potential
Opt-In Plaintiffs, ECF No. 14. The latter three motions have been fully briefed
and are ripe for review. For the reasons explained below, the Court DENIES
Defendants' Motion to Dismiss, DENIES Plaintiffs Motion for Leave to File a SurReply, and DENIES Plaintiff's Motion to Toll the Statute of Limitations.
I
I
I
•
Additionally, the Court GRANTS in part and DENIES in part Plaintiff's Motion
for Conditional Certification and Court-Supervised Notice. 1
I.
BACKGROUND
Upreach is a home care staffing agency that employs direct care workers
for the developmentally disabled in need of assistance. Gourley is Chief
Executive Officer, and Gourley and Hunter are co-owners, of Upreach.
Plaintiff was jointly employed by Defendants as a Support Specialist from
approximately February 2015 to approximately July 2016. As a Support
Specialist, Plaintiff provided companionship services, domestic services, home
care, and other in-home services for individuals with developmental disabilities.
Plaintiff alleges that she and similarly situated employees regularly worked more
than forty hours per workweek but that, from approximately January 1, 2015, to
October 13, 2015, they were not paid one and one-half times their regular rate for
each hour worked over forty.
Plaintiff seeks remuneration for unpaid overtime wages on behalf of the
following proposed class of FLSA opt-in plaintiffs and Rule 23 putative class
members:
All current and former employees of Defendants who have worked
as direct support professionals, support associates, caregivers,
home health aides, or other employees who provided
companionship services, domestic services, home care, and/or other
in-home services, and who worked over 40 hours in any workweek
1
As more fully explained below, Defendants assert, in a footnote to their Motion to
Dismiss, that they would not respond to Plaintiff's Motion for Conditional Certification
because it was untimely filed. Mot. Dismiss 2 n.1, ECF No. 6.
Case No. 2:17-cv-219
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beginning January 1, 2015 through October 13, 2015, and were not
paid time and a half for the hours they worked over 40.
Compl.1J1J 31, 37, ECF No. 1. Plaintiff alleges that the proposed class includes
upwards of around 250 similarly situated individuals who worked as, for example,
direct support professionals, support specialists, caregivers, home health aides,
and others who provided companionship services, domestic services, home care,
and other in-home services for Defendants during the relevant time period. Id. at
1f 32.
What spawned this action, and many others like it, is a change to
Department of Labor ("DOL") regulations defining the categories of employees
exempted from the FLSA's overtime protections. Subject to specific exceptions,
the FLSA generally requires covered employers to pay overtime compensation in
the amount of 150% of the employee's regular pay rate for all hours worked in
excess of forty hours per week. 29 U.S.C. §§ 206(a), 207(a). In 1974, the FLSA
was amended to exempt "domestic service" employees (that is, employees
"provid[ing] companionship services for individuals who (because of age or
infirmity) are unable to care for themselves") from the FLSA's overtime
requirement. 29 U.S.C. § 213(a)(15). The next year, the DOL adopted
implementing regulations that, in relevant part, included individuals employed by
third parties in its category of exempted employees. 29 C.F.R. § 552.109(a), (c)
(2014).
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In 2013, the DOL reversed course, adopting a new rule (the "Final Rule" or
"Rule") that brought domestic service employees of third-parties within the
protections of the FLSA. 29 C.F.R. § 552.6 (2016). The Final Rule was
scheduled to become effective on January 1, 2015. Id.; see also 80 Fed. Reg.
65646 (Oct. 27, 2015).
Prior to its effective date, however, a group of trade associations
representing third-party employers of home care workers filed a lawsuit
challenging the regulation under the Administrative Procedure Act. In December
~.e
2014, the D.C. District Court vacatecff=inal Rule based on its finding that the Rule
was an unreasonable interpretation of federal law and was arbitrary and
capricious. Home Care Ass'n of Am. v. Weil, 76 F. Supp. 3d 138, 147-48
(D.D.C. 2014). The DOL appealed, and on August 21, 2015, the D.C. Circuit
Court reversed the district court's ruling and vacatur of the regulation. Home
Care Ass'n of Am. v. Weil, 799 F.3d 1084, 1097 (D.C. Cir. 2015). Thereafter, the
DOL issued guidance stating that it would not institute enforcement proceedings
for violations of the Final Rule until thirty days after the Court of Appeals issued
its mandate. 80 Fed. Reg. 55029 (Sept. 14, 2015). The Court of Appeals issued
its mandate on October 13, 2015, and the DOL issued another guidance
indicating it would not bring enforcement actions for violations of the Rule until
November 12, 2015. 80 Fed. Reg. 65646, 65647 (Oct. 27, 2015). The effect of
these court decisions on the Final Rule's effective date is at the heart of this
lawsuit.
Case No. 2:17-cv-219
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_....--
II.
DEFENDANTS' MOTION TO DISMISS
A. Standard of Review
A claim survives a motion to dismiss pursuant to Rule 12(b)(6) if it
"contain[s] sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The
plausibility standard is not akin to a 'probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted unlawfully." Id. A complaint's
"[f]actual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all of the complaint's allegations are
true." Bell At/. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal citations
omitted).
A court must "construe the complaint in the light most favorable to the
plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). In doing so,
however, plaintiff must provide "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do." Twombly,
550 U.S. at 555; see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice."); Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545,
548 (6th Cir. 2007). "[A] naked assertion ... gets the complaint close to stating a
claim, but without some further factual enhancement it stops short of the line
between possibility and plausibility .... " Twombly, 550 U.S. at 557.
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"[S]omething beyond the mere possibility of [relief] must be alleged .... " Id. at
557-58 (internal citations omitted).
B. Analysis
Defendants' Motion to Dismiss hinges on one crucial unsettled question of
law: the effective date of the DOL's Final Rule. Plaintiff alleges that Defendants
are liable to their domestic services employees for all unpaid overtime beginning
January 1, 2015, the Rule's scheduled date of effectiveness. See 29 C.F.R.
§ 552.6. Defendants, on the other hand, contend that the Final Rule was not
effective until at least October 13, 2015, the date of the D.C. Circuit Court's
mandate.
No circuit court has ruled on the Final Rule's effective date, and the district
courts to have done so have reached conflicting conclusions. The analysis
begins with the general principle that judicial decisions, as opposed to statutes
and regulations, apply retroactively. See Harper v. Va. Dep't of Taxation, 509
U.S. 86, 97 (1993). According to that principle, when a court "applies a rule of
federal law to the parties before it, that rule is the controlling interpretation of
federal law and must be given full retroactive effect in all cases still open on
direct review and as to all events, regardless of whether such events predate or
postdate [the court's] announcement of the rule." Id.
The Undersigned finds that a straightforward application of the Harper
retroactivity rule to this case compels the conclusion that the Final Rule became
effective as of January 1, 2015. "[W]hen the D.C. Circuit held that the third-party
Case No. 2:17-cv-219
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exemption was valid, this holding applied to all prospective defendants for any
period after the rule went into effect" on January 1, 2015. Green v. Humana at
Home, Inc., 2017 U.S. Dist. LEXIS 162961, at *6 (S.D.N.Y. Sept. 29, 2017).
Therefore, Plaintiff may recover any unpaid overtime wages from January 1,
2015, and on.
This holding is in accord with that of a majority of district-court cases that
have ruled on this issue. See Dillow v. Home Care Network, Inc., No. 1: 16-cv612, 2017 WL 749196 (S.D. Ohio Feb. 27, 2017) (Black, J.); Richert v. LaBelle
HomeHealth Care Serv. LLC, No. 2:16-cv-437, 2017 WL 4349084 (S.D. Ohio
Sept. 29, 2017) (Graham, J.); Kinkead v. Humana, Inc., 206 F. Supp. 3d 751 (0.
Conn. 2016); Lewis-Ramsey v. Evangelical Lutheran Good Samaritan Soc'y, 215
F. Supp. 3d 805 (S.D. Iowa 2016); Cummings v. Bost, Inc., 218 F. Supp. 3d 978
(W.D. Ark. 2016); Collins v. DKL Ventures, LLC, 215 F. Supp. 3d 1059 (D. Colo.
2016); Guerrero v. Moral Home Services, Inc., 247 F. Supp. 3d 1288 (S.D. Fla.
2017); Hypolite v. Health Care Servs. of New York Inc., 256 F. Supp. 3d 485
(S.D.N.Y. 2017); Mayhew v. Loved Ones in Home Care, LLC, No. 2:17-cv-03844,
2017 WL 5983153 (S.D.W. Va. Dec. 1, 2017); Evans v. Caregivers, Inc., No.
3:17-cv-0402, 2017 WL 2212977 (M.D. Tenn. May 19, 2017); de Carrasco v. Life
Care Servs., Inc., No. 17-cv-5617 (KBF), 2017 WL 6403521 (S.D.N.Y. Dec. 15,
2017); Green v. Humana at Home, Inc., No. 16-cv-7586, 2017 U.S. Dist. LEXIS
162961 (S.D.N.Y. Sept. 29, 2017). But see Bangoy v. Total Homecare Sols.,
LLC, No. 1:15-cv-573, 2015 WL 12672727 (S.D. Ohio Dec. 21, 2015) (Beckwith,
Case No. 2:17-cv-219
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J.) (finding the Final Rule became effective on at least October 13, 2015, if not
November 12, 2015); Sanchez v. Caregivers Staffing Servs., Inc., No. 1:15-cv01579, 2017 WL 380912 (E.D. Va. Jan. 26, 2017) (Final Rule became effective
October 13, 2015); Lee v. Caregivers for lndep., LLC, No. 1:16-cv-946, 2017 WL
2666413 (S.D. Ohio June 21, 2017) (Barrett, J.), appeal dismissed, No. 17-3738,
2017 WL 4621715 (6th Cir. Sept. 12, 2017) (Final Rule became effective
November 12, 2015).
Defendants, however, in reliance on MCI Telecommunications Corp. v.
GTE Northwest, Inc., 41 F. Supp. 2d 1157 (D. Ore 1999) (Mag. J.), argue that
Harper does not apply here because the D.C. District Court vacated the Final
Rule prior to the date it went into effect. The MCI court was tasked with
determining the effective date of specific FCC regulations, which, like the Final
Rule here, had been temporarily vacated and subsequently reinstated through
successive judicial opinions ruling on the regulations' legality. Id. at 1161--62.
Specifically, the Eight Circuit Court of Appeals had ruled that the FCC regulations
at issue were invalid because the FCC lacked jurisdiction to promulgate them.
Id. at 1161. During the pendency of the case, the Eighth Circuit had also issued
a stay of the regulations' effective date. Id. at 1162. The Supreme Court
subsequently reversed the Eighth Circuit's decision on the merits and reinstated
the regulations. Id.
Later, in MC/, the District Court of Oregon had to determine whether the
reinstated FCC regulations applied to conduct occurring between the Eighth
Case No. 2:17-cv-219
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Circuit and Supreme Court decisions. The MCI court "perceive[d] a crucial
distinction between applying a new interpretation of a law that admittedly was in
effect during the relevant time period, versus applying a substantive regulation
that never was in effect to begin with." Id. at 1163. Ultimately, it determined that
the regulations were not effective until after the Supreme Court reinstated them;
a contrary finding, the court explained, would require treating the Eighth Circuit's
stay and vacatur as if they "had never occurred and the FCC regulations were
continuously in effect." Id.
In the opinion of the Undersigned, however, the distinction observed by the
MCI court between judicial decisions reversing a rule's vacatur and those
reversing course on a prior, contrary interpretation of a rule in fact makes no
difference to the applicability of the Harper retroactivity rule. Practically
speaking, adoption of the legal fiction that a former judicial decision was never
really the law in the first place is precisely what the Harper rule requires. For this
reason, several other courts have expressly rejected the MC/ rationale, finding
instead that a court decision that an agency had authority to promulgate a rule
means that the agency "always had such [authority] and that the ruleD appl[ies]
as of the effective date originally scheduled." GTE S., Inc. v. Morrison, 199 F.
3d 733, 740 (4th Cir.1999); see also U.S. West Commc'ns, Inc. v. Jennings, 304
F. 3d 950, 957(9th Cir. 2002) ("[W]ith respect to the previously vacated [FCC]
rules, the Supreme Court's determination that they are valid means that we
Case No. 2:17-cv-219
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should apply those rules to all interconnection agreements arbitrated under the
Act, including agreements arbitrated before the rules were reinstated.").
Therefore, "[t]his case presents nothing out of the ordinary when it comes
to the authority of a Court of Appeals to render null and void decisions of the
district court with which it disagrees." Lewis-Ramsey, 215 F. Supp. 3d at 810.
Indeed, the rationale behind the rule is to "prohibit the erection of selective
temporal barriers to the application of federal law" that could otherwise "permit
the substantive law to shift and spring according to the particular equities of
individual parties' claims of actual reliance on an old rule and of harm from a
retroactive application of the new rule." Harper, 509 U.S. at 97 (internal
quotation marks and citations omitted). To prevent the selective application of
federal law, the Supreme Court has expressly rejected the reliance rationale that
underlies the MCI court's decision. See id.; see also Reynoldsville Casket Co. v.
Hyde, 514 U.S. 749, 758-59 (1995) (reiterating that a party's reliance on a
former rule is not sufficient justification for the non-retroactive application of a
judicial decision); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 536
(1991) (plurality opinion) (acknowledging that retroactive application of judicial
decisions "has been attacked for its failure to take account of reliance on cases
subsequently abandoned"). Similarly, here, Defendants' protestations that
retroactive application of the D.C. Circuit Court's ruling in Weil "could greatly
impact the economic stability of employers nationwide," Reply 8, ECF No. 11,
does not-and must not-change the Court's determination as to Weif s
Case No. 2:17-cv-219
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retroactive effect. See also Kinkead, 206 F. Supp. 3d at 755 ("Although
defendants might have hoped that the district court's decision would spare them
from having to pay overtime, they were doubtlessly aware of a likelihood that the
D.C. Circuit would do just what appellate courts often do-reverse the decision of
a district court."); see also Collins, 215 F. Supp. 3d at 1065 (stating the Supreme
Court precedent "makes it unambiguously clear that this Court cannot deem the
D.C. Circuit's decision in Weil to operate retroactively in some respects," i.e. in its
conclusion that the Final Rule was a valid exercise of the DOL's power, "yet treat
that decision as affecting [certain third-party employers] only prospectively," i.e.
only those third-party employers employing domestic services employees after
October 13, 2015).
Still, Defendants contend that the DOL's decision not to enforce the Final
Rule until November 12, 2015, thirty days after the D.C. Court of Appeals'
mandate, is evidence that demonstrates the Final Rule's effective date is at least
October 13, 2015, if not November 12, 2015. But Defendants read too much into
the DOL's non-enforcement policy. At bottom, the DOL's policy not to enforce
the Rule did nothing to modify the Rule itself or its effective date. If evidence
were needed to support this position, it would come from the DOL's own prior
guidance on the effective date of the Final Rule. In October 2014, the DOL
issued guidance explaining that it would defer enforcement of the Final Rule until
July 1, 2015, even though its effective date would remain January 1, 2015. 79
Fed. Reg. 60974 (Oct. 9, 2014). Then, after July 1, 2015, and until December
Case No. 2:17-cv-219
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31, 2015, the DOL stated it would exercise prosecutorial discretion and
determine on a case-by-case basis whether an employer's violation of the Final
Rule warranted enforcement action by the DOL. Id. This guidance thus
demonstrates that the DOL's non-enforcement decisions have no bearing on the
effectiveness of the Final Rule. Indeed, to hold that the DOL's Final Rule
became effective on any other date than that set by the DOL would be to usurp
the rule-making authority of the DOL-one of the very concerns the Harper
retroactivity rule was designed to address. See Harper, 509 U.S. at 95 ("[T]he
nature of judicial review strips [the court] of the quintessentially legislative
prerogative to make rules of law retroactive or prospective as [it] see[s] fit."
(quoting Griffith v. Kentucky, 479 U.S. 314, 713 (1993) (internal quotation marks
omitted)); see a/so Kinkead, 206 F. Supp. 3d at 752 (denying the third-party
employer's motion for "dismissal on a theory that would negate the agency's
choice of an effective date and preclude retroactive application of the D.C.
Circuit's decision"). Instead, the retroactivity rule requires that all third-party
employers be subject to the Final Rule beginning not just after October 13, 2015,
or November 12, 2015 (depending on the date deemed equitable by a court), but
on January 1, 2015-the effective date of the Final Rule that has always
(according to Weil) been validly in force.
For these reasons, the Court finds that the Final Rule's effective date is
January 1, 2015. Accordingly, Defendants' Motion to Dismiss is DENIED.
Case No. 2:17-cv-219
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Ill.
PLAINTIFF'S MOTION FOR LEAVE TO FILE A SUR-REPLY
Plaintiff also moved for leave to file a sur-reply to Defendants' Reply in
Support of its Motion to Dismiss Plaintiff's Complaint in order to respond to
arguments that Plaintiff contends Defendants made for the first time in their
Reply. Mot. Sur-Reply, ECF No. 12. Because the Court denies Defendants'
Motion to Dismiss, it DENIES Plaintiff's Motion for Leave to File a Sur-Reply as
moot.
IV.
PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION AND
COURT-SUPERVISED NOTICE TO POTENTIAL OPT-IN PLAINTIFFS
A. Legal Standard
The FLSA authorizes employees to bring collective actions against
employers to recover unpaid overtime wages provided two conditions are met:
(1) the employees are "similarly situated" and (2) all plaintiffs provide written
consent to become a party and such consent is filed with the court. 29
U.S.C. § 216(b). Courts within the Sixth Circuit generally apply a two-step
procedure for determining whether an FLSA case should proceed as a collective
action. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th Cir. 2006).
The first step, commonly referred to as "conditional certification," takes
place prior to the completion of discovery and requires the plaintiff to make an
initial showing that the employees in the proposed class are "similarly situated."
Id. at 546 (quoting 29 U.S.C. § 216(b)). At this first stage, "conditional
certification may be given along with judicial authorization to notify similarly
Case No. 2:17-cv-219
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situated employees of the action," which allows plaintiffs to opt-in to the lawsuit.
Monroe v. FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017) (citing Comer, 454
F.3d at 546).
At the conditional certification stage, a "plaintiff must only 'make a modest
factual showing' that [the plaintiff] is similarly situated to the other employees he
is seeking to notify." Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 764 (N.D.
Ohio 2015) (quoting Comer, 454 F.3d at 546-47); see also Myers
v. Marietta
Mem. Hosp., 201 F. Supp. 3d 884, 890 (S.D. Ohio 2016). The standard
11
employed during this initial stage of the litigation is fairly lenient ... and typically
results in 'conditional certification' of a representative class." Myers, 201 F.
Supp. 3d at 890 (quoting Comer, 454 F.3d at 547). Whether plaintiffs are
similarly situated depends on a number of factors, including 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." O'Brien v.
Ed Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir. 2009) (citation omitted),
abrogated on other grounds by Campbell-Ewald Co.
v. Gomez, 136 S. Ct. 663,
669 (2016). A plaintiff need not show a single FLSA-violating policy but rather
can demonstrate that the claims of the named plaintiffs and the putative class are
unified by "common theories of defendants' statutory violations, even if the proofs
of these theories are inevitably individualized and distinct." Id. Plaintiffs are only
required to show that their position is "similar, not identical, to the positions held
Case No. 2:17-cv-219
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by the putative class members." Lewis, 789 F. Supp. 2d at 867 (quoting
Pritchard, 210 F.R.D. at 595).
During the conditional certification phase, "a court 'does not generally
consider the merits of the claims, resolve factual disputes, or evaluate
credibility."' Myers, 201 F. Supp. 3d at 890 (quoting Waggoner, 110 F. Supp. 3d
at 765). Courts have instead considered "whether potential plaintiffs were
identified; whether affidavits of potential plaintiffs were submitted; whether
evidence of a widespread discriminatory plan was submitted, and whether as a
matter of sound class management, a manageable class exists." Fairfax v.
Hogan Transp. Equip., Inc., No. 2:16-cv-680, 2017 WL 4349035, at *2 (S.D. Ohio
Sep. 29, 2017) (quoting Lewis v. Huntington Nat'/ Bank, 789 F. Supp. 2d 863,
868 (S.D. Ohio 2011 )). Still, conditional certification is "by no means final."
Comer, 454 F.3d at 546 (quoting Pritchard v. Dent Wizard Int'/, 210 F.R.D. 591,
595 (S.D. Ohio 2002)).
If the Court determines that the potential plaintiffs are similarly situated,
"[t]he Court must then determine that the proposed notice is "timely, accurate,
and informative" as to properly notify the proposed class. Green v. Platinum
Restaurants Mid-america, LLC, No. 3:14-cv-439-GNS, 2015 WL 6454856, at *2
(W.D. Ky. Oct. 26, 2015) (quoting Hoffmann-La Roche, Inc. v. Sperling, 493 U.S.
165, 166 (1989)).
The second step of an FLSA collective action follows discovery and receipt
of all opt-in forms from putative plaintiffs. Comer, 454 F.3d at 547. At this time,
Case No. 2:17-cv-219
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the Court will examine the factual basis of Plaintiffs' proposed class more closely
and will apply a stricter standard in evaluating whether Plaintiffs are "similarly
situated." Id. (quoting Morisky v. Public Serv. Elec. & Gas Co., 111 F. Supp. 2d
493, 497 (D.N.J. 2000)). If the Court determines at this second phase that the
Plaintiffs are not similarly situated, it will de-certify the class, dismiss the opt-in
plaintiffs without prejudice, and proceed with the lawsuit on the named plaintiffs'
individual claims. Smith v. Lowe's Home Ctrs., 236 F.R.D. 354, 357 (S.D. Ohio
2006).
B. Analysis
1. Conditional Certification
This matter is before the Court on the first step-conditional certification.
Plaintiff seeks to conditionally certify all current and former domestic service
employees of Defendants who worked over forty hours in any workweek from
January 1, 2015, through October 13, 2015, and were not paid at a rate of 150%
their normal hourly rate for the hours they worked over forty in a workweek. Mot.
1-2, ECF No. 4.
As previously noted, Defendants declined to respond to Plaintiff's motion,
asserting that it was filed prior to the parties' Rule 26(f) conference in violation of
the Southern District of Ohio Civil Rule 23.3. Mot. Dismiss 2 n.1, ECF No. 6.
Defendants misread that Rule. Rule 23.3 states that "[i]n all cases with class
action allegations, ... [n]o motion to certify a class shall be filed before the Rule
26(f) conference except by agreement of the parties or order of the Court." S.D.
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Ohio Civ. R. 23.3 (emphasis added). Plaintiff's motion for conditional certification
pertains only to her collective action allegations and not her Rule 23 class claims.
The Rule's provision against filing motions for class certification does not apply to
Plaintiff's motion for conditional certification of a collective action.
While the Court would prefer to rule on the motion only after fully
considering any of Defendant's potential objections to it, the Court nevertheless
proceeds to rule on it now for several reasons. First, conditional certification
triggers the issuance of notices to potential opt-in plaintiffs, on whose claims the
statute of limitations continues to run until opting in. Ruling on the motion now,
without allowing time for additional briefing, thus prevents prejudicing potential
opt-in plaintiffs who have yet to receive notice of this action. Second, conditional
certification is routinely granted before any discovery takes place. Finally,
Defendants may move to decertify the class at the close of discovery.
The Court finds that Plaintiff has carried her burden of setting forth a
"modest factual showing that [she] is similarly situated to the other employees
[she] is seeking to notify." Waggoner, 110 F. Supp. 3d at 764 (internal quotation
marks omitted). Specifically, Plaintiff alleges in her Complaint that Defendants
permitted their domestic service employees to work more than forty hours per
workweek but did not compensate them at a rate of one and one-half times their
normal rate of pay for all hours worked in excess of forty in one week, Compl.
1f 27, ECF No. 1.
Plaintiff also submits an affidavit in which she states that she
typically worked around sixty-five to one hundred hours per week, that her
Case No. 2:17-cv-219
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regular pay rate was around $10.50 to $11.50 per hour, and that she was not
paid overtime compensation for hours worked in excess of forty in a workweek.
Brittmon Aff.1J1J 3-5, ECF No. 41-1. Additionally, Plaintiff asserts that her
experiences as a Support Specialist are similar to Defendants' other employees
who work as "support professionals, support associates, caregivers, home health
aides, or other employees who provided companionship services, home care,
and/or other in-home services .... " ld.1f 2. These allegations demonstrate
sufficient similarity between the domestic services employees included in
Plaintiff's proposed class to meet the "fairly lenient standard" for conditional
certification. Green, 2015 WL 6454856, at *3 (stating that classes may be
certified "under situations where a uniform corporate policy applied to similar, but
not identical, types of employees").
2. Plaintiff's Proposed Notice to Potential Opt-In Plaintiffs
The Court has reviewed Plaintiff's proposed notice to potential opt-in
plaintiffs and concludes that it is "timely, accurate, and informative." Hoffman-La
Roche Inc. v. Sperling, 493 U.S. 165, 172 (1989).
Plaintiff seeks to transmit notice to potential opt-in plaintiffs via regular
mail, email, and mobile phone text message. "Courts generally approve only a
single method for notification unless there is a reason to believe that method is
ineffective." Wolfram v. PHH Corp., No. 1:12-cv-599, 2012 WL 6676778, at *4
(S.D. Ohio Dec. 21, 2012). "Nevertheless, a growing number of courts have
authorized dual notification as to former employees only, recognizing that
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employers may not have current residential addresses for them." Williams v.
King Bee Delivery, LLC, No. 5:15-cv-306-JMH, 2017 WL 987452, at *7 (E.D. Ky.
Mar. 14, 2017). Allowing dual notice "advances the remedial purpose of the
FLSA, because service of the notice by two separate methods increases the
likelihood that all potential opt-in plaintiffs will receive notice of the lawsuit, and of
their opportunity to participate." Id.; see also Atkinson v. Tele Tech Holdings,
Inc., No. 3:14-cv-253, 2015 WL 853234, at *4 (S.D. Ohio Feb. 26, 2015) ('Within
the Southern District of Ohio, several judges have found notification by U.S. mail
to be sufficient for all current employees in FLSA collective actions, but ordered
additional email notification for former employees in order to better ensure
delivery.").
In consideration of the remedial purpose of the FLSA and the likelihood
that the addresses of former employees in Defendants' database are outdated,
the Court permits Plaintiff's proposed notice to be sent via postal mail for all
current employees and via both postal and electronic mail for all former
employees. Plaintiff may not, however, notify any potential opt-in plaintiff of the
lawsuit by text message unless Plaintiff can show that notice by postal and
electronic mail is insufficient as to any given potential opt-in plaintiff-in other
words, that postal and electronic notices to a particular individual were returned
as undeliverable. See Wolfram v. PHH Corp., No. 1:12-cv-599, 2012 WL
6676778, at *4 (S.D. Ohio Dec. 21, 2012); see also Brandenburg v. Cousin
Vinny's Pizza, LLC, No. 3:16-cv-516, 2017 WL 3500411, at **4-5 (S.D. Ohio
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Aug. 15, 2017) (approving notice by postal and electronic mail but not by text
message unless the plaintiffs could "show that notice via postal and electronic
mail [was] insufficient as to a given potential member'').
The Court likewise denies Plaintiff's request to send postal mail, email, and
text message reminder notices forty-five days after the first notice is sent.
Plaintiff's only argument in support of issuing reminder notices is that "[c]ourts
regularly authorize reminder notices to increase the chance that workers will be
informed of their rights." Mot. 20, ECF No. 4 (citing cases outside the Sixth
Circuit). This Court, however, has regularly denied such requests, particularly
when it approves dual notice to former employees in the first instance. See, e.g.,
Ganci v. MBF Inspection Services, Inc., No. 2:15-cv-2959, 2016 WL 5104891, at
*2 (S.D. Ohio Sept. 20, 2016) (Frost, J.) (citing cases). Plaintiff's request to send
reminder notices in this case is likewise denied.
Finally, the Court grants Plaintiff's request that the opt-in period last ninety
days. See id. ("There is no hard and fast rule controlling the length of FLSA
notice periods. Courts in this district have frequently used their discretion to
grant ninety-day opt-in periods." (citing cases)).
V.
PLAINTIFF'S MOTION TO TOLL THE STATUTE OF LIMITATIONS
Finally, Plaintiff moves to toll the statute of limitations for all potential opt-in
plaintiffs.
FLSA claims for unpaid compensation must generally be filed within two
years after the cause of action accrues. 29 U.S.C. § 225(a). If the violation of
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the FLSA was willful, however, the statute of limitations extends to three years
beyond the date the action accrues. Id. "When a plaintiff alleges a violation of
the FLSA based on a failure to pay overtime wages, each paycheck that fails to
include wages for overtime constitutes a separate violation. Thus, a new cause of
action accrues with the receipt of each paycheck." Viciedo v. New Horizons
Computer Learning Ctr. of Columbus, Ltd., 246 F. Supp. 2d 886, 902 (S.D. Ohio
2003) (citing Archer v. Sullivan Cty., 129 F.3d 1263, 1997 WL 720406, at *2 (6th
Cir.1997)).
Unlike Rule 23 class actions, the filing of an FLSA complaint does not toll
the statute of limitations. Instead, the statute of limitations continues to run on
each plaintiff's claim until the plaintiff files his or her consent to opt in to the
action. 29 U.S.C. § 256. The FLSA therefore allows "some time [to] lapse
between the commencement of collective actions and the date that each opt-in
plaintiff files his or her consent form." Fenley v. Wood Grp. Mustang, Inc., 170 F.
Supp. 3d 1063, 1076 (S.D. Ohio 2016) (citation omitted).
Notwithstanding the delay contemplated by statute, the doctrine of
equitable tolling, which is read into every statute, allows "a court to extend the
statute of limitations on a case-by-case basis to prevent inequity." Id. (citation
omitted). Whether to invoke equitable tolling in a particular case is within the
sound discretion of the trial court. Id.
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The Sixth Circuit has identified five factors to guide the court's
determination of the appropriateness of equitable tolling. Truitt v. Cty. of Wayne,
148 F.3d 644, 648 (6th Cir. 1998). Those factors are:
1) lack of notice of the filing requirement; 2) lack of constructive
knowledge of the filing requirement; 3) diligence in pursuing one's
rights; 4) absence of prejudice to the defendant; and 5) the plaintiff's
reasonableness in remaining ignorant of the particular legal
requirement.
Id. (citation omitted). "The propriety of equitable tolling must necessarily be
determined on a case-by-case basis." Id. (citation omitted). Equitable tolling
"should be granted only sparingly" and typically when an opposing party has
"engaged in ... misrepresentations or other wrongdoing .... " Amini v. Oberlin
College, 259 F. 3d 493, 500 (6th Cir. 2001) (citations omitted).
Most District Judges in this circuit have concluded that it is improper to
equitably toll the claims of potential opt-in plaintiffs who are not yet before the
court. See Heibel
v. U.S. Bank Nat. Ass'n, No. 2:11-cv-00593, 2012 WL
4463771, at *7 (S.D. Ohio Sept. 27, 2012) (finding a decision on equitable tolling
prior to issuing notice to potential opt-in plaintiffs to be "premature"); Atkinson
v.
TeleTech Holdings, Inc., No. 3:14-cv-253, 2015 WL 853234, at *8 (S.D. Ohio
Feb. 26, 2015) ("[T]he named plaintiffs have no authority to move to equitably toll
the claims of the potential opt-in plaintiffs."); Feustel v. CareerStaff Unlimited,
Inc., No. 1:14-cv-264,2015 WL 13022173, at *2 (S.D. Ohio Mar. 26, 2015)
(Barrett, J.) (concluding that a decision whether equitable tolling applied was
premature when "opt-in plaintiffs [had] not yet been identified" and it was "unclear
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whether tolling [would] impact the claims of any opt-in plaintiff'); Fenley v. Wood
Grp. Mustang, Inc., 170 F. Supp. 3d 1063, 1077-78 (S.D. Ohio 2016) (Smith, J.)
(holding that, until potential plaintiffs opt in to an FLSA action, a decision as to
the equitable tolling of their claims is inappropriate, because "they are not
properly before the Court"); Lemmon v. Harry & David Operations, Inc., No. 2:15cv-779, 2016 WL 234854, at *8 (S.D. Ohio Jan. 20, 2016) (Smith, J.) ("[T]he
doctrine of equitable tolling is an individualized inquiry, inappropriate for group
consideration in the context of an FLSA collective action." (citation omitted));
Richert v. LaBelle HomeHealth Care Serv. LLC, No. 2:16-cv-437, 2017 WL
4349084, at **6-7 (S.D. Ohio Sept. 29, 2017) (Graham, J.) (finding that it would
be "premature to grant blanket equitable tolling for plaintiffs who are currently
hypothetical and have not yet come before this court" (quoting In re
Amazon.com, Inc., Fulfillment Ctr. Fair Labor Standards Act (FLSA) & Wage &
Hour Litig., No. 14-MD-02504, 2014 WL 3695750, at *3 (W.D. Ky. July 24,
2014)). But see Baden-Winterwood, 484 F. Supp. 2d at 826; Struck v. PNC
Bank N.A., 931 F. Supp. 2d 842, 846-48 (S.D. Ohio 2013); Engel v. Burlington
Coat Factory Direct Corp., No. 1:11-cv-759, 2013 WL 5177184, at *2 (S.D. Ohio
Sept.12, 2013) (applying equitable tolling prior to conditional certification on the
reasoning that the potential opt-in plaintiffs had no actual or constructive notice of
the filing requirement).
The Undersigned agrees with the vast majority of cases in this circuit that
have declined to apply equitable tolling at this stage of the litigation. Applying
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equitable tolling to the claims of unknown plaintiffs not yet before this Court
contravenes the fact-specific, case-by-case determination that specific
circumstances justify the tolling of an individual plaintiff's claims. That is, without
having information about the potential plaintiffs whose claims the Court is being
asked to toll, the Court is unable to determine whether those potential plaintiffs
lacked actual or constructive notice of the filing requirement, diligently pursued
their rights, or were reasonably ignorant of the legal requirements of their claims.
As Atkinson put it, "[a]pplication of the[ Truitt] five factors to a group of potential
opt-in plaintiffs, who have not yet received notice of the collective action and are
not yet parties to the lawsuit, (would be] convoluted at best." Atkinson, 2015 WL
853234, at *9.
Accordingly, Plaintiff's premature Motion to Toll the Statute of Limitations is
DENIED without prejudice.
VI.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants' Motion to
Dismiss, ECF No. 6, DENIES Plaintiff's Motion for Leave to File a Sur-Reply,
ECF No. 12, DENIES Plaintiff's Motion to Toll the Statute of Limitations, ECF No.
14, and GRANTS in part and DENIES in part Plaintiff's Motion for Conditional
Certification and Court-Supervised Notice, ECF No. 4.
The Court conditionally certifies the following class of opt-in plaintiffs:
All current and former employees of Defendants who have worked
as direct support professionals, support associates, caregivers,
home health aides, or other employees who provided
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companionship services, domestic services, home care, and/or other
in-home services, and who worked over 40 hours in any workweek
beginning January 1, 2015 through October 13, 2015, and were not
paid time and a half for the hours they worked over 40.
Additionally, the Court ORDERS Defendants to produce, within 14 days
from the date of this Opinion and Order, a list in electronic and importable format
of the names, addresses, and e-mail addresses of all potential opt-in plaintiffs
who worked for Defendants at any time from January 1, 2015, until and including
October 13, 2015. All potential opt-in plaintiffs shall be provided ninety (90) days
from the date of mailing the notice and opt-in consent forms to opt in to this
lawsuit.
IT IS SO ORDERED.
~-WJiM
MfCHAELH:WATSON, JUDGE
UNITED STATES DISTRICT COURT
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