Richardson et al v. Vizion One Inc et al
Filing
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OPINION AND ORDER granting in part and denying in part 9 Motion to Certify Class. Defendants are further ORDERED to produce to Plaintiffs within 14 days of this Order a list, in electronic and importable format, of all potential members of each o f the conditionally certified subclasses, including their names, positions of employment, last-known mailing addresses, email addresses, work locations, and dates of employment. The parties are further ORDERED to meet and confer regarding the content and method of delivery of the notice to be sent to potential class members. Signed by Magistrate Judge Chelsey M. Vascura on 8/16/2018. (daf)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TEMECA RICHARDSON, et al.,
Plaintiffs,
Case No. 2:17-cv-838
v.
Magistrate Judge Chelsey M. Vascura
VIZION ONE INC, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court upon Plaintiffs’ Motion for Conditional Certification and
Court-Supervised Notice to Potential Opt-In Plaintiffs pursuant to 29 U.S.C. § 216(b) of the Fair
Labor Standards Act (“FLSA”) (ECF No. 9). The motion is fully briefed and ripe for
disposition. For the following reasons, Plaintiffs’ Motion is GRANTED IN PART and
DENIED IN PART.
I.
BACKGROUND
Plaintiffs, Temeca Richardson, Stacey Sutherland, Stephanie Ayers, Angela Camara, and
Lois Johnson, allege that they were jointly employed by Defendants, Vizion One, Inc. (which
Plaintiffs also refer to as “Vizion One – Ohio”); Vizion One Inc. (which Plaintiffs also refer to as
“Vizion One – D.C.”); and their co-founders and co-owners, Addallah and Venesia Kitwara
(Defendants collectively referred to as “Vizion One”). (Compl., ECF No. 1.) Sutherland, Ayers,
and Camara were (or are) employed by Vizion One as home health aides, Richardson was
employed by Vizion One as an office clerk, and Johnson was employed by Vizion One as both a
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human resources clerk and a home health aide. (Id.) Plaintiffs were employed for various
periods beginning May 2016 through the present. (Id.) All Plaintiffs allege that they regularly
worked more than 40 hours per week, but were not paid one and one-half times their regular
rates for hours they worked over 40 in any workweek. (Compl. at 9–10, ECF No. 1.)
Plaintiffs seek to represent two subclasses (“home health” employees and other “hourly”
employees) in claims against Vizion One for unpaid overtime premiums in violation of the
FLSA, Ohio’s Minimum Fair Wage Standards Act, Ohio Rev. Code § 4111.01, et seq. (the
“Ohio Wage Act”), and the Ohio Prompt Payment Act, Ohio Rev. Code § 4113.15 (“OPPA”), as
well as recordkeeping violations of the Ohio Wage Act. (Compl. at 16–20, ECF No. 1). Plaintiff
Ayers also alleges that Vizion One discriminated against her because of her inquiries with the
Wage and Hour division of the U.S. Department of Labor concerning her entitlement to overtime
wages in violation of the FLSA and the Ohio Wage Act. (Id. at 20–24).
On March 27, 2018, Plaintiffs moved for conditional certification of their proposed FLSA
subclasses. (Mot. at 2, ECF No. 9.) Plaintiffs further seek an order (1) requiring Vizion One to
provide a list of all potential opt-in plaintiffs and (2) directing that Court-approved notice of
Plaintiffs’ FLSA claims be sent via U.S. mail and e-mail to the proposed subclasses. (Id.). It is
this motion that is presently before the Court.
II.
STANDARD
Plaintiffs move for conditional certification under 29 U.S.C. § 216(b), which provides:
Any employer who violates the [minimum wage or overtime provisions of this title]
shall be liable to the employee or employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation, as the case may be, and
in an additional equal amount as liquidated damages . . . . An action to recover
[this] liability . . . may be maintained against any employer (including a public
agency) in any Federal or State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and other employees similarly
situated.
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29 U.S.C. § 216(b). The United States Court of Appeals for the Sixth Circuit has interpreted this
provision as establishing two requirements for a representative action under the FLSA: Plaintiffs
must (1) “actually be ‘similarly situated;’” and (2) “. . . must signal in writing their affirmative
consent to participate in the action.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th
Cir. 2006) (quoting 29 U.S.C. § 216(b)). “The [FLSA] does not define ‘similarly situated,’ and
neither has [the Sixth Circuit].” O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th
Cir. 2009) abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669
(2016), as revised (Feb. 9, 2016).
“For FLSA collective actions, class certification typically occurs in two stages:
conditional and final certification.” Frye v. Baptist Mem’l Hosp., Inc., 495 F. App’x 669, 671
(6th Cir. 2012). Conditional certification occurs at the beginning of the discovery process.
Comer, 454 F.3d at 546. This “notice stage” focuses on whether there are plausible grounds for
plaintiffs’ claims. Cornell v. World Wide Bus. Servs. Corp., No. 2:14-CV-27, 2015 WL
6662919, at *1 (S.D. Ohio Nov. 2, 2015) (Deavers, M.J.). A plaintiff need only show that “his
position is similar, not identical, to the positions held by the putative class members.” Comer,
454 F.3d at 546–47 (citing Pritchard v. Dent Wizard Int’l, 210 F.R.D. 591, 595 (S.D. Ohio 2002)
(Sargus, J.)).
Although courts are split as to what exactly a plaintiff must show at this stage, this Court
has previously held that courts should not grant conditional certification “unless the plaintiff
presents some evidence to support her allegations that others are similarly situated.” Harrison v.
McDonald’s Corp., 411 F. Supp. 2d 862, 868 (S.D. Ohio 2005) (Holschuh, J.). “The Court
should consider ‘whether potential plaintiffs were identified; whether affidavits of potential
plaintiffs were submitted; whether evidence of a widespread discriminatory plan was submitted,
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and whether as a matter of sound class management, a manageable class exists.’” Lewis v.
Huntington Nat’l Bank, 789 F. Supp. 2d 863, 868 (S.D. Ohio 2011) (Marbley, J.) (quoting Heaps
v. Safelite Solutions, LLC, No. 10-CV-729, 2011 WL 1325207, at *2 (S.D. Ohio Dec. 22, 2011)
(Frost, J.)). “District courts use a ‘fairly lenient standard’ that ‘typically results in conditional
certification of a representative class’ when determining whether plaintiffs are similarly situated
during the first stage of the class certification process.” White v. Baptist Mem’l Health Care
Corp., 699 F.3d 869, 877 (6th Cir. 2012) (quoting Comer, 454 F.3d at 547). Certification at this
stage “is conditional and by no means final.” Comer, 454 F.3d at 546.
If plausible grounds exist and conditional certification is granted, “plaintiffs are permitted
to solicit opt-in notices, under court supervision, from current and former employees.” Cornell,
2015 WL 6662919, at *1. Final certification occurs after all class plaintiffs have opted in and
discovery has concluded. Comer, 454 F.3d at 546. “At this stage, ‘trial courts examine more
closely the question of whether particular members of the class are, in fact, similarly situated.’”
Rutledge v. Claypool Elec., Inc., No. 2:12-CV-159, 2012 WL 6593936, at *3 (S.D. Ohio Dec.
17, 2012) (King, M.J.) (quoting Comer, 454 F.3d at 547) (report and recommendation adopted
by No. 2:12-CV-159, 2013 WL 435058 (S.D. Ohio Feb. 5, 2013)). At this second stage, courts
employ a stricter standard to determine if class plaintiffs are “similarly situated” because courts
have access to much more information on which they can rely than they did at the conditional
certification stage. Comer, 454 F.3d at 547 (citing Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.
Supp. 2d 493, 497 (D.N.J. 2000)). “Plaintiffs generally must produce ‘more than just allegations
and affidavits’ demonstrating similarity in order to achieve final certification.” Frye, 495 F.
App’x at 671 (6th Cir. 2012) (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,
1261 (11th Cir. 2008). Finally, a defendant “may file a motion to decertify the class [at this
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stage] if appropriate to do so based on the individualized nature of the plaintiff’s claims.”
Swigart v. Fifth Third Bank, 276 F.R.D. 210, 213 (S.D. Ohio 2011) (Dlott, J.).
III.
DISCUSSION
Plaintiffs have moved for conditional certification of the following FLSA collectives:
(1) All Ohio current and former hourly, non-exempt home health employees of
Defendants, including home health aides, providing companionship
services, domestic services, home care, and other in-home services who
worked over 40 hours in any workweek but were not properly paid time and
a half for the hours they worked over 40, from January 1, 2015 through the
date of final disposition of this case (the “216(b) Home Health Subclass”).
(2) All Ohio current and former hourly, non-exempt employees of Defendants
that did not provide companionship services, domestic services, home care,
and other in-home services who worked over 40 hours in any workweek but
were not properly paid time and a half for the hours they worked over 40
for the three years preceding the filing of this case through its date of final
disposition (the “216(b) Hourly Employee Subclass”).
(Mot. at 2, ECF No. 9.) In support of their assertion that they and other Vizion One employees
are similarly situated, each Plaintiff submitted a declaration containing the following identical
statements:
“My experiences and pay as a home health aide1 are similar to Vizion One Inc’s other nonexempt hourly employees, including but not limited to other employees of Vizion One Inc
working as home health aides, support professionals, support associates, caregivers, or
other employees who provided companionship services, domestic services, home care,
and/or other in-home services (collectively ‘Home Health Employees’).”
“Throughout my employment, Vizion One Inc had a common company-wide policy of not
paying me and Vizion One Inc’s other hourly, non-exempt employees, including Home
Health Employees, overtime compensation of at least one and one-half times our regular
rates for hours worked in excess of 40 in a workweek. Instead, Vizion One Inc paid only
our straight hourly rate for such hours.”2
1
Johnson’s declaration states that “My experiences and pay as a human resources clerk and home health aide are
similar . . .” but is otherwise identical. (Johnson Decl. at 1, ECF No. 9-3) (emphasis added). Similarly, Richardson’s
declaration states that “My experiences and pay as an office clerk are similar . . . .” but is otherwise identical.
(Richardson Decl. at 1, ECF No. 9-5) (emphasis added).
2
Richardson’s declaration adds to the last sentence of this paragraph, “if anything at all.” (Richardson Decl. at 2,
ECF No. 9-5).
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(ECF Nos. 9-1 through 9-5.)
Additionally, the declarations of Ayers, Camara, and Sutherland contained the following
statement regarding their personal knowledge of Vizion One’s alleged company-wide policy of
not paying overtime wages:
“I have personal knowledge of this company-wide policy because I asked why I was not
paid overtime compensation of at least one and one-half times my regular rate for hours
worked in excess of 40 in a workweek shortly after I began working for Vizion One Inc
and was told the company does not pay overtime wages to me or the other hourly, nonexempt employees, including Home Health Employees, for hours worked in excess of 40
in a workweek.”
Richardson states that her personal knowledge of Vizion One’s overtime policy was gleaned
when she
observed the pay of other hourly non-exempt employees, including Home Health
Employees, in my office duties for Vizion One Inc and saw that all Vizion One
Inc’s hourly, non-exempt employees were not paid overtime compensation of at
least one and one-half times our regular rates for hours worked in excess of 40 in a
workweek but were paid their straight, regular hourly rate of pay for such hours.
Vizion One Inc’s owners, Addallah Kitwara and Venesia Kitwara, also
acknowledged this company-wide policy when questioned about overtime pay and
stated the company did not have to pay overtime wages to hourly, non-exempt
employees, including me and the other Home Health Employees, for hours worked
in excess of 40 in a workweek because Vizion One Inc is a home healthcare
company.
(Richardson Decl. at 2, ECF No. 9-5.)
Johnson’s declaration does not contain any statement establishing personal knowledge of
her otherwise conclusory assertion that Vizion One had a company-wide policy of not paying
overtime wages. (ECF No. 9-3.) That is, Johnson does not provide any basis for the Court to
conclude that other employees are similarly situated to her. This Court has previously
characterized such statements as “speculative” and emphasized that “[t]he mere fact that these
statements were made in a declaration does not make them non-speculative.” Flexter v. Action
Temp. Servs., Inc., No. 2:15-CV-754, 2016 WL 7852351, at *4 (S.D. Ohio Mar. 25, 2016)
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(Smith, J.) (finding the statement “Plaintiff and other members of the FLSA Collective . . .
frequently worked forty or more hours per workweek and would have received overtime
compensation, or additional compensation, if these unpaid hours had been properly included in
their paid time” to be speculative without further evidentiary support). And “speculative
statements offered in connection with a Section 216(b) motion may not form the basis of
conditional certification.” Rutledge, 2012 WL 6593936 at *6 (citing cases). Accordingly, the
Court will disregard Johnson’s averment that Vizion One has a company-wide policy of not
paying overtime compensation.
The remaining declarations, however, provide a sufficient basis for the Court to conclude
that other home health and hourly employees are similarly situated. Ayers, Camara, Sutherland,
and Richardson were all told that it was company policy not to pay overtime premiums on hours
worked over 40 per week, even to hourly, non-exempt employees. On its face, this policy would
violate the FLSA, and “it is clear that plaintiffs are similarly situated when they suffer from a
single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with
that policy proves a violation as to all the plaintiffs.” O’Brien, 575 F.3d at 585 (6th Cir. 2009).
Vizion One advances several arguments as to why, in its view, conditional certification
should nevertheless be denied. All of these arguments lack merit.
First, Vizion One asserts that the “cookie-cutter” nature of the various declarations means
they “contain a degree of similarity as to not be credible.” (Resp. at 1, ECF No. 12.) However,
at the conditional certification stage, courts “typically do not consider the merits of the plaintiff’s
claims, resolve factual disputes, make credibility determinations, or decide substantive
issues.” Swigart, 276 F.R.D. at 214.
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Next, Vizion One argues that the declarations of Richardson and Johnson (the only two
Plaintiffs who worked as non-home-health employees) are insufficient to establish that the
Hourly Employee subclass is similarly situated. Vizion One asserts that these declarations refer
only to home health employees not being paid overtime. (Resp. at 2, ECF No. 12.) But this
argument ignores that Richardson observed in the course of her office duties that “all Vizion One
Inc’s hourly, non-exempt employees were not paid overtime compensation” and was told by
Vizion One representatives that the company “did not have to pay overtime wages to hourly,
non-exempt employees, including me and the other Home Health Employees . . . .” (Richardson
Decl. at 2, ECF No. 9-5 (emphasis added).) Although Johnson’s declaration has been
disregarded by the Court for lack of personal knowledge as to Vizion One’s policies,
Richardson’s declaration is sufficient to establish that the Hourly Employee subclass is similarly
situated.
Further regarding the Hourly Employees subclass, Vizion One suggests that the subclass
must be limited to office clerks and human resources clerks, as these are the only two non-homehealth hourly positions represented by the named Plaintiffs. Vizion One specifically argues that
“[n]on-exempt cannot constitute a class of employees, as that does not fall under the definition of
similarly situated.” (Resp. at 4, ECF No. 12.) But Vizion One has not provided any authority
for this proposition. Indeed, the Sixth Circuit has stated that a plaintiff need only show that “his
position is similar, not identical, to the positions held by the putative class members.” Comer,
454 F.3d at 546–47. Richardson and Johnson have met this standard by establishing that they
were non-home-health hourly employees who were subject to a company-wide policy of not
paying overtime compensation.
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As to the Home Health subclass, Vizion One contends that the subclass definition is too
vague, because it lists various types of employees that are included in the class, but does not
exclude any employees. As a result, according to Vizion One, “that class could include any
employees of Defendants.” (Resp. at 4, ECF No. 12.) But the Home Health subclass is limited
to “[a]ll Ohio current and former hourly, non-exempt home health employees of Defendants.”
(Mot. at 2, ECF No. 9 (emphasis added).) Vizion One has not suggested that the category of
“home health employees” itself is too vague to determine membership, and therefore the
subclass, which is limited to those employees, is not impermissibly vague.
Finally, Vizion One argues that the time periods of the subclasses should not be extended
back further than the employment start dates of the named Plaintiffs, because the declarations do
not establish any FLSA violations prior to those dates. (Resp. at 5, ECF No. 12.) Plaintiffs seek
conditional certification for the period of January 1, 2015, to present for the Home Health
subclass, because a Department of Labor regulation that eliminated the FLSA exemption for
home health employees became effective on January 1, 2015. See 29 U.S.C. §§213(a)(15),
(b)(21); 29 C.F.R. §§ 552.109(a), (c), 552.6; Dillow v. Home Care Network, Inc., No. 1:16-CV612, 2017 WL 749196, at *5 (S.D. Ohio Feb. 27, 2017) (Black, J.). Plaintiffs seek conditional
certification for the period of September 22, 2014, (three years prior to the filing of the
Complaint) to present for the Hourly Employee subclass to coincide with the three-year statute of
limitations for claims of willful violations of the FLSA. 29 U.S.C. § 255(a). The earliest dates
of Plaintiffs’ employment are August 2016 (Sutherland) for the Home Health subclass and May
2016 (Richardson) for the Hourly Employee subclass.
However, Vizion One does not provide any authority for limiting FLSA collective
actions in this way. Further, Plaintiffs’ common experience of being told that Vizion One does
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not pay overtime as a matter of policy plausibly suggests that the policy pre-dated Plaintiffs’
employment. The Court is not concerned with the merits of Plaintiffs’ claims at this stage, but
Vizion One will have the opportunity to demonstrate that it complied with the FLSA during the
relevant periods in due course.
In sum, Plaintiffs have sufficiently established that the Home Health subclass and the
Hourly Employee subclass are similarly situated for purposes of a collective action under 29
U.S.C. § 216(b). It is therefore appropriate for Vizion One to provide Plaintiffs with a list of
potential class members. Plaintiffs also seek approval of their proposed notice to potential opt-in
plaintiffs. However, Vizion One focused all of its briefing efforts on the merits of conditional
certification and did not address Plaintiffs’ proposed notice. The Court directs the parties to
meet and confer regarding the notice content and method of delivery and, if possible, to submit
an agreed-upon proposed notice for the Court’s approval.
IV.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion is GRANTED IN PART and DENIED IN
PART. The Court conditionally certifies the following subclasses:
(1) All Ohio current and former hourly, non-exempt home health employees
of Defendants, including home health aides, providing companionship
services, domestic services, home care, and other in-home services who
worked over 40 hours in any workweek but were not properly paid time and
a half for the hours they worked over 40, from January 1, 2015 through the
date of final disposition of this case (the “216(b) Home Health Subclass”).
(2) All Ohio current and former hourly, non-exempt employees of Defendants
that did not provide companionship services, domestic services, home care,
and other in-home services who worked over 40 hours in any workweek but
were not properly paid time and a half for the hours they worked over 40
for the three years preceding the filing of this case through its date of final
disposition (the “216(b) Hourly Employee Subclass”).
Defendants are further ORDERED to produce to Plaintiffs within 14 days of this Order
a list, in electronic and importable format, of all potential members of each of the conditionally10
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certified subclasses, including their names, positions of employment, last-known mailing
addresses, email addresses, work locations, and dates of employment.
The parties are further ORDERED to meet and confer regarding the content and method
of delivery of the notice to be sent to potential class members. Within 14 days of this Order, if
the parties are able to reach an agreement, the parties shall jointly submit a proposed notice to
potential class members for the Court’s approval. If the parties are unable to reach an agreement,
Defendants shall file within 14 days of this Order any objections to the proposed notice and
delivery methods already submitted by Plaintiffs (ECF Nos. 9-6, 9-7, and 9-8).
The Clerk shall remove ECF No. 9 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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