GORDON v. MAXIM HEALTHCARE SERVICES, INC.
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 7/21/17. 7/21/17 ENTERED AND COPIES E-MAILED.(kw, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MAXIM HEALTHCARE SERVICES,
JULY 21 , 2017
Presently before the Court are Plaintiff’s Motion for Certification (ECF No. 73);
Defendant’s Motion to De-certify Conditionally Certified Collective Action Class (ECF No.
100); and Defendant’s Motion for Summary Judgment (ECF No. 104). For the following
reasons, Plaintiff’s Motion for Certification will be denied, Defendant’s Motion to De-certify
Conditionally Certified Collective Action will be granted, and Defendant’s Motion for Summary
Judgment will be granted.
This is a purported class action brought under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201, et seq., and the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43
Pa. Cons. Stat. Ann. § 260.1, et seq. Plaintiff Markisha Gordon brings claims on behalf of
herself and others similarly situated against her former employer, Defendant Maxim Healthcare
Services, Inc. Plaintiff alleges that Maxim failed to timely pay her and other home healthcare
aides for hours worked. In December 2014, Judge Harvey Bartle, III granted Plaintiff’s motion
to conditionally certify the collective class under Section 216 of the FLSA to include all home
healthcare aides employed by Maxim in Pennsylvania who were paid beyond scheduled pay
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dates that fell on or after April 10, 2011. The case was reassigned to this Court on July 15, 2015.
(ECF No. 74.) As set forth below, the conditional collective class will be decertified, Plaintiff’s
motion to certify a class under the WPCL will be denied, and Defendant’s motion for summary
judgment will be granted.
Plaintiff Gordon worked as a Home Health Aid for Maxim from October 2010 until July
2012. (Gordon Dep. 18, 36, Pl.’s Class Cert. Reply Ex. L.; Am. Compl ¶ 13; Gordon Decl. ¶ 4,
Pl.’s Class Cert Mot Ex. 1.) In this role, she cared for individuals at their homes and was paid an
hourly rate for her time. (Gordon Dep. 54, 60.) Plaintiff was based in the Northeast Philadelphia
Maxim branch, which is sometimes called the Trevose office. (Gordon Dep. 84.)
Defendant Maxim is a national staffing company that provides recruiting, staffing, and
healthcare services to a variety of clients and industries. (Smith Decl. ¶ 2, Def.’s Sum. J. Mot.
Ex. A.) The Homecare Division places nurses and other healthcare professionals in individual
client homecare settings. (Id. ¶ 3.) Maxim’s “external employees” provide care to clients
outside of the office setting and almost exclusively in the homes and facilities of the clients. (Id.
¶ 6.) Certain external employees provide trained medical care, such as licensed nurses, and other
external employees, such as Home Health Aids, provide nonmedical services. (Id.)
During the relevant class period, Maxim employed approximately 12,898 external
employees in Pennsylvania. (Id.) These employees reported to over 180 different supervisors in
fourteen separate Maxim Offices located throughout the state. (Id. ¶ 5.)
External employees keep track of their time worked by using “weekly notes” or “time sheets.”
(Smith Decl. ¶ 9.) The Employee Handbook states that employees must record all regular and
overtime hours worked, and that time sheets must be signed by the client or an authorized person
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at the client site. (Employee Handbook 19.) A weekly note or time sheet permits an external
employee to record the precise times that they begin and end working each day, and the exact
services that they provided to the client. (Smith Decl. ¶ 9; Def.’s Class Cert. Resp. Ex. 4.)
Sharon Smith, who served as Maxim’s Human Resources Business Partner for the Northeast
Region, stated that Maxim’s timesheets are the only way that the company knows when external
employees actually work, since those employees work remotely. (Smith Decl. ¶ 9.) Smith stated
that the timesheets also serve to ensure that external employees are providing the appropriate
services in accordance with the client’s plan of care. (Id.) The Handbook indicates that some
local offices have “implemented their own systems for recording the work hours of Maxim staff”
and that employees must adhere to the system set up by their local office. (Id.) The Handbook is
silent with respect to how external employees are supposed to report their time to their Maxim
office. (Id.; see also Smith Dep. 17 (noting that there is no policy for how Maxim employees
report time to their individual offices).) Gordon alleges that Maxim’s lack of any policy
regarding the reporting of time has caused her and other class plaintiffs to suffer damages.
Maxim’s Employee Handbook states that employees will be “paid weekly on Friday for
all hours worked during the preceding week.” (Employee Handbook, Pl.’s Class Cert. Mot. Ex.
13.) 1 The payroll week begins on any given Sunday at 7:00 AM and ends the following Sunday
at 6:59 AM. (Id.)
There is no uniform way by which external employees such as home health aides report
their time to their Maxim home office. Gordon claims she was only permitted to hand-deliver
her time sheet to the Trevose office, and she presumed that other offices maintained similar
requirements. The evidence reveals that each office employed different practices with respect to
From October 2010 until August 2011, Gordon’s payday was the first Wednesday after
the payroll period. After August 2011, her payday moved to the first Friday after the pay period.
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time reporting, and many offices permitted reporting by various methods. For example, some
offices permitted employees to submit their time sheets using a 24-hour drop box. (See Moore
Dep. 46-47, Def.’s Class Cert Resp. Ex. 20; Cruz Dep. 88, Def.’s Class Cert Resp. Ex. 21;
Watson Dep. 105, Def.’s Class Cert Resp. Ex. 27.) Some offices allowed relatives or friends of
the external employee to drop off the time sheet to the employee’s home office. (See Moore
Dep. 36-37; Sall Dep. 120, Def.’s Class Cert Resp. Ex. 29; Reiter Decl. ¶¶ 5, 7, Def.’s Class Cert
Resp. Ex. 22.) Some Maxim offices permitted external employees to mail in their time sheets
using a prepaid envelope provided by Maxim. (See Moore Dep. 36; Cruz Dep. 88; Sall Dep. 66;
Watson Dep. 105; Arelt Dep. 62-63, Def.’s Class Cert Resp. Ex. 5.) Some external employees
were permitted to fax or e-mail their timesheets to the office. (See Moore Dep. 35, 40; Arelt
Dep. 62-63; Pompe Decl. ¶ 5, Def.’s Class Cert Resp. Ex. 31; Barach Decl. ¶ 5, Def.’s Class Cert
Resp. Ex. 31.) Some employees were permitted to report their time over the telephone or
through text message. (See Howell Decl. ¶¶ 7-8, Def.’s Class Cert Resp. Ex. 30; Soldavini Decl.
¶¶ 8, 10, Def.’s Class Cert Resp. Ex. 33; Reiter Decl. ¶¶ 6-7; Pompe Decl. ¶ 5; Barach Decl. ¶ 5.)
There was also no uniform way by which external employees were paid for the hours
worked after they reported their time. For example, some external employees, like Gordon, were
not paid until they turned in their signed timesheets. (Gordon Decl. ¶ 11.) Other external
employees who failed to turn in their timesheets by the payroll deadline were paid for the hours
they were tentatively scheduled to work. (See Collins Decl. ¶ 10; Holbrook Decl. ¶ 7; Sauder
Decl. ¶ 12, Def.’s Class Cert Resp. Ex. 17; Truman Decl. ¶ 4, Def.’s Class Cert Resp. Ex. 18.)
Once they turn in their timesheets, the employees are paid for any time they worked that was in
addition to their tentative or scheduled time. Some offices paid external employees according to
their reported time, but then paid for additional time during the following pay period. (See, e.g.,
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Tellefsen Decl. ¶ 14, Def.’s Class Cert. Resp. Ex. 8 (stating that there were occasions where she
“accidentally misreported the time [she] worked over the phone,” but that she would be paid for
additional hours in the following paycheck after she corrected her time).
Gordon was advised prior to starting at Maxim that she would be paid on a weekly basis.
(Gordon Dep. 54.) She was required to submit time sheets, which indicated the exact times—to
the minute—that she worked for Maxim’s clients. (Gordon Decl. ¶ 4.) In addition, the client for
which Gordon provided care, was required to sign the time sheet and attest to the time Gordon
worked. (Id.) In her declaration, Gordon stated that she was physically required to hand-deliver
the time-sheets to the Trevose Office, which was located fifteen miles away from her home, and
even further away from some of the job locations. (Id. ¶ 7.) She would drop off the time sheet
on Monday for the prior week. (Id. ¶ 8.) Gordon did not drive, but instead used public
transportation. In her declaration, she stated that taking the bus from her house to the Trevose
Office to drop off her time sheet would take at least one hour and fifteen minutes. (Id. ¶ 9.) On
weeks where she was unable to drop off her timesheet to the Trevose Office on Monday, she
would not be paid that week, but instead on the following payday. (Id. ¶ 11.) At her deposition,
Gordon testified that she was also permitted to leave the time sheet in the drop box outside of
Maxim’s office. (Gordon Dep. 61.) In fact, Gordon’s husband occasionally dropped off the
timesheet in the drop box. (Id. at 118-21.)
Gordon had completed certified nurse’s aide (“CNA”) training; however, she provided no
medical services to the clients during her employment at Maxim. (Gordon Dep. 18.) Gordon
stated at her deposition that she never provided medical services to clients, and instead provided
“companionship services” to Maxim clients. (Id.) In fact, she was advised during orientation to
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provide only companionship services to Maxim’s clients, not medical services. (Gordon Dep.
60-61.) Gordon provided services in accordance with the client’s plan of care. (Id. at 57.)
In support of her request for class certification, Gordon submits the expert report of
Colleen S. Vallen, who was retained to provide an opinion about the damages associated with the
purported plaintiff class. Vallen analyzed ADP earning statements for the time period April
2011 through September 2014, and created a “damages model” that purports to analyze the
damages associated with all late payments due to Maxim employees. (See Vallen Rept. 8-9, Pl.’s
Class Cert. Reply Ex. A.) Based on payroll records, Vallen compared the actual pay date to the
expected pay date of each weekly pay by each external employee, and assumed all employees
were paid weekly. If there was any variance, Vallen considered that variance as a “late”
payment which, under her damages model, triggered liquidated damages under the state and
federal wage laws. (Id. at 6-7.) Vallen indicates that the payroll records she received from the
parties were “incomplete.” (Id.) Generally, we find Vallen’s report and conclusions to be
unpersuasive and confusing, and based on multiple inconclusive “assumptions.” Gordon heavily
relies on the report to draw legal conclusions as to liability even though Vallen was retained only
to create a damages model.
On April 9, 2014, Gordon filed an Amended Class Action Complaint, asserting claims for
violations of the FLSA and WPCL. (Am. Compl., ECF No. 21.) 2 Gordon alleges that Defendant
In her original Complaint, which was filed on December 9, 2013, Gordon asserted a
different class action theory. Gordon alleged that Maxim failed to pay her and other class
members overtime wages under Pennsylvania, Michigan, Washington, and New York State law.
(ECF No. 1.) After Maxim provided evidence to Gordon demonstrating that she had always
been paid overtime wages, Gordon abandoned this claim, and filed the Amended Complaint,
wherein she alleged that she and other class members were paid certain wages after their
regularly scheduled payday.
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failed to pay its external employees, such as Gordon and the other proposed class members, on
its regularly-scheduled payday for work performed during the corresponding pay period, as
required by the FLSA and WPCL. (Id.)
On July 15, 2014, a Memorandum and Order were entered granting in part and denying
in part Defendant’s Motion to Dismiss the Amended Complaint. (July 15, 2014 Mem., ECF No.
27.) 3 The Court dismissed Gordon’s claim under the WPCL as to any wages due and payable on
or before April 9, 2011, based on the statute of limitations. Maxim’s motion to dismiss was
denied in all other respects. (Id. at 12.)
On December 11, 2014, Plaintiff’s Motion for Conditional Certification with regard to
her claims under the FLSA was granted. (Dec. 11, 2014 Mem., ECF No. 47.) Judge Bartle
granted conditional class certification “only as to all home healthcare aides employed by Maxim
in Pennsylvania and who are paid beyond scheduled pay dates that fall on or after April 10,
2011.” (Id. at 9.) Gordon thereafter sent a proposed notice of collective action lawsuit to the
purported class under the FLSA. (ECF No. 53.) Sixteen individuals opted-in and became
Plaintiffs in the FLSA action. (ECF Nos. 55-72.) Eight of the opt-in Plaintiffs ultimately
refused to appear for a deposition. As a result, the parties jointly stipulated to the dismissal of
those eight opt-in Plaintiffs. (Stip., ECF No. 92.) Plaintiff also agreed to withdraw the affidavits
and declarations of these opt-in Plaintiffs, as well as the affidavit of Sandra Cataldi, a non-opt-in
Plaintiff who refused to appear for a deposition. (Id.) 4
The Memorandum and Order were authored by Judge Bartle.
The remaining opt-in plaintiffs are: (1) Mary Arelt; (2) Charlotte Brooks; (3) Dayerlyn
Cruz; (4) Maritza Lara; (5) Ebony Moore; (6) Mohamed Sall; (7) Robin Scott; and (8) Kirah
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Gordon filed the instant Motion for Class Certification on June 8, 2015. (Pl.’s Class Cert.
Mot., ECF No. 73.) Defendant filed a Response in Opposition and Motion to De-Certify
Conditionally Certified Collective Action Class on February 5, 2016. (Def.’s Class Cert. Resp.,
ECF No. 100.) Gordon filed a Reply. (Pl.’s Class Cert. Reply, ECF No. 107.) Defendant also
filed a Reply in support of its Motion to De-Certify. (Def.’s Class Cert Reply, ECF No. 115.)
Maxim then filed a Motion for Summary Judgment (Def.’s Sum. J. Mot., ECF No. 104), to
which Plaintiff filed a Response (Pl.’s Sum. J. Resp., ECF No. 108), and Defendant filed a Reply
(Def.’s Sum. J. Reply, ECF No. 114.)
Each Motion is governed by a different legal standard. Accordingly, we discuss them
separately. However, we initially note that Gordon’s theory of this class action has changed
dramatically over the course of the litigation. Originally, Gordon alleged that Maxim failed to
provide overtime pay to her and other putative class members. After Maxim presented evidence
that this was not the case, Gordon’s theory—as expressed in the Amended Complaint—changed.
In the Amended Complaint, Gordon argued that Maxim’s burdensome and unlawful policy of
requiring external employees to hand-deliver timesheets that were signed by clients caused late
payments of wages in violation of the FLSA and WPCL. Again, Maxim presented evidence that
this was not the case. Many supervisors permitted their external employees to report their time
in various other ways, such as by fax, via text message, and by sending in the time sheets.
Presented with this evidence, Gordon’s theory again changed. She now alleges that simply
because external employees were paid for certain hours in subsequent pay periods, Maxim has
violated the FLSA and WPCL. She fails to allege any overarching Maxim policy that creates
these violations. As discussed below, Plaintiff’s theory does not support class certification of
either her WPCL or FLSA claims.
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PLAINTIFF’S MOTION TO CERTIFY CLASS UNDER THE WPCL
Plaintiff seeks to certify the following class under Rule 23(b)(3) of the Federal Rules of
All persons who were employed by Maxim and who were not (i) paid timely
during their regular pay week more than twice in a calendar quarter year where
their amount owed was in excess of 5% of their amount owed for that pay or (ii)
whose wages remained unpaid for thirty (30) days beyond the regularly scheduled
payday, at any time from April 11, 2011 to the present.
(Pl.’s Mot. Class Cert., ECF No. 73.) Plaintiff states that the issue in this class action is whether
Maxim’s practice of paying Plaintiff and the proposed class their earned wages beyond their
regularly scheduled payday is a violation of the WPCL, which entitles the class to liquidated
A class action is “an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.” Comcast v. Behrend, 133 S. Ct. 1426, 1432 (2013)
(citation omitted). “Class certification is proper only if the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23 are met.” In re Hydrogen Peroxide Antitrust Litig.,
552 F.3d 305, 309 (3d Cir. 2008) (footnote and quotation marks omitted).
The Third Circuit has recently clarified how a district court should conduct its “rigorous
analysis.” See Reyes v. Netdeposit, LLC, 802 F.3d 469, 484 (3d Cir. 2015). The Court stated
that “[i]n conducting its inquiry, a district court must rigorously assess the available evidence
and the method or methods by which plaintiffs propose to use the evidence to prove impact at
trial.” Id. (citation and internal quotation marks omitted). This “may require the district court to
‘delve’ behind the pleadings” and “resolve all factual or legal disputes relevant to class
certification even if they overlap with the merits—including disputes touching on elements of the
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cause of action.” Id. The Third Circuit ultimately concluded that in analyzing class certification
under Rule 23, the district court must:
(1) conduct rigorous analysis, (2) review all avenues of inquiry in which it may
have doubts (even if it requires reviewing the merits) in order to (3) be satisfied
and (4) make a definitive determination on the requirements of Rule 23, or even
(5) require that a plaintiff demonstrate actual, not presumed conformance with
Rule 23 requirements.
Id. at 485.
Plaintiff, as the party seeking class-action certification, bears the burden of
“demonstrating by a preponderance of the evidence her compliance with the requirements of
Rule 23.” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015). Plaintiff’s burden is a heavy
one. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set forth a
mere pleading standard. A party seeking class certification must affirmatively demonstrate his
compliance with the Rule – that, he must be prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact, etc.” (emphasis omitted)).
Class certification under Rule 23 has two components. The party seeking class
certification must first establish the four requirements of Rule 23(a):
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
Fed. R. Civ. P. 23(a); see also In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 309 n.6.
“If all four requirements of Rule 23(a) are met, a class of one of three types (each with
additional requirements) may be certified” under Rule 23(b). In re Hydrogen Peroxide Antitrust
Litig., 552 F.3d at 309 n.6. Plaintiff seeks certification under Rule 23(b)(3), which states that
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“[a] class action may be maintained if Rule 23(a) is satisfied and if: (3) the court finds that the
questions of law or fact common to class members predominate over any questions affecting
only individual members, and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). These are known as the
predominance and superiority factors of Rule 23(b)(3).
Plaintiff and Defendant dispute each of the factors of Rule 23(a) and (b)(3). We will
address each factor below.
Rule 23(a) Requirements
Plaintiff must first demonstrate that “the class is so numerous that joinder of all members
is impracticable.” Fed. R. Civ. P. 23(a)(1). “No minimum number of plaintiffs is required to
maintain a suit as a class action, but generally if the named plaintiff demonstrates that the
potential number of plaintiffs exceeds 40,” the numerosity requirement “has been met.” Stewart
v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001).
Citing the Report of Colleen Vallen, Plaintiff states that the putative class consists of
3,157 Maxim employees who were not timely paid during the relevant class period. Defendant
does not dispute Plaintiff’s representation of the size of the putative class. Instead, Defendant
contends that Plaintiff has failed to demonstrate that joinder is impracticable by comparing the
proposed putative class in this WPCL class action to the class in the FLSA collective action.
After the FLSA class was conditionally certified, only sixteen out of 538 putative class members
opted in to the class. Defendant contends that this reveals a lack of interest on the part of
putative class members to participate in Plaintiff’s class action. Defendant’s argument ignores
the differences between the two putative classes. The conditionally certified class in the FLSA
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action is much narrower as it involves only home health care aides. The putative class size in the
WPCL action includes all Maxim employees. We are satisfied that Plaintiff has established the
Plaintiff must also demonstrate “questions of law or fact common to the class.” Fed. R.
Civ. P. 23(a)(2). 5 “Commonality does not require perfect identity of questions of law or fact
among all class members. Rather, ‘even a single common question will do.’” Reyes, 802 F.3d at
486 (quoting Wal-Mart Stores, Inc., 564 U.S. at 359) (quotation marks and alterations omitted).
This is generally not a high burden to meet. See id. (citing Rodriguez v. Nat’l City Bank, 726
F.3d 372, 382 (3d Cir. 2013)). However, the Supreme Court has warned that the language of the
rule is “easy to misread, since any competently crafted class complaint literally raises common
questions.” Wal-Mart, Inc., 564 U.S. at 349 (citation and internal quotation marks omitted).
Plaintiff, therefore, must “demonstrate that the class members have suffered the same injury,”
which does not necessarily “mean that they have all suffered a violation of the same provision of
law.” Id. at 349-50. “A court’s focus must be ‘on whether the defendant’s conduct is common
as to all of the class members.’” Id. (citing Sullivan v. DB Invs., Inc., 667 F.3d 273, 298 (3d Cir.
2011)). In other words, the class members’ “claims must depend upon a common contention . . .
Many courts discuss the commonality requirement together with the predominance
requirement of Rule 23(b)(3) since the two requirements are often described as “counterparts” to
each other. See Coleman v. Commw. Land Title Ins. Co., 318 F.R.D. 275, 283 (E.D. Pa. 2016);
see also Reyes, 802 F.3d at 486 (“It is often appropriate to discuss commonality and
predominance together because the commonality inquiry is subsumed into the predominance
inquiry.”); Sullivan v. DB Invs., Inc., 667 F.3d 273, 297 (3d Cir. 2011) (“Parallel with Rule
23(a)(2)’s commonality element, which provides that a proposed class must share a common
question of law or fact, Rule 23(b)(3)’s predominance requirement imposes a more rigorous
obligation upon a reviewing court to ensure that issues common to the class predominate over
those affecting only individual class members.”). For purposes of simplicity, we discuss the
requirements separately. However, we note that Plaintiff has failed to meet her burden in
demonstrating that either requirement has been satisfied.
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[which] is capable of classwide resolution.” Id. at 338. This “means that determination of its
truth or falsity will resolve an issue that is central to the validity of each one of the claims in one
Plaintiff contends that commonality is met because she and the proposed class share a
common question of fact and a common question of law—namely whether they were timely paid
their wages on the scheduled payday, and whether they are entitled to liquidated damages as a
result. (Pl.’s Class Cert. Reply 26-27.) In support of this, Plaintiff points to the report of her
expert, Colleen Vallen. Vallen analyzed the ADP earning statements for the time period April
2011 through September 2014, and created a “damages model” that purports to analyze the
damages associated with all late payments due to Maxim employees. Plaintiff argues that
because certain external employees received some or all of their payment beyond their regularly
scheduled pay date, Maxim is in violation of the WPCL. Plaintiff contends that the common
inquiry is simply whether purported class action plaintiffs are entitled to liquidated damages for
Plaintiff’s argument ignores the evidence in the record. As set forth in more detail below,
see Infra at Section II.B.2.a, there were many lawful reasons why external employees were paid
for some hours in subsequent weeks. For example, external employees at times had standing
agreements with Maxim to be paid biweekly instead of weekly, or to be paid in subsequent pay
periods. Other external employees received wages for their scheduled time, but then also
received wages for any additional hours they reported on their timesheet in subsequent pay
periods. Despite these agreements, or understandings between employee and employer, these
employee payments are deemed “late” and are encompassed in the “damages model” created by
Vallen. The “damages model” is the only common proof submitted by Plaintiff to support her
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theory. However, the model does not take into consideration that certain “late” payments were
justified, and at times, requested by the putative plaintiffs. Determining whether each “late”
payment was justified would require individual inquiries into each payment and each putative
plaintiff. This is fatal to establishing commonality. See Jarosz v. St. Mary Med. Ctr., No. 103330, 2014 U.S. Dist. LEXIS 133218, at *26-27 (E.D. Pa. Sept. 22, 2014) (finding that lead
plaintiff failed to establish commonality element because individual inquiries would have been
required to establish liability).
To satisfy the third requirement of Rule 23(a), Plaintiff must show that her claims and
defenses are “typical of the claims and defenses of the class.” Fed. R. Civ. P. 23(a)(3). A
district court should determine “whether the named plaintiffs’ claims are typical, in commonsense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned with
those of the class.” Beck v. Maximus, Inc., 457 F.3d 291, 295-96 (3d Cir. 2006); see also
Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985) (“[T]ypicality entails an inquiry whether
the named plaintiff’s individual circumstances are markedly different or . . . the legal theory
upon which the claims are based differs from that upon which the claims of other class members
will perforce be based.” (citation and internal quotation marks omitted)). In addition, “[f]actual
differences will not render a claim atypical if the claim arises from the same event or practice or
course of conduct that gives rise to the claims of the class members, and if it is based on the
same legal theory.” Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) (citation omitted).
Plaintiff contends that typicality is met because Gordon’s claims and the claims of the
purported class “arise from the same practices and course of events.” (Pl.’s Class Cert. Mot. 17.)
Plaintiff also contends that the claims are typical because they all focus on the legal question of
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whether class plaintiffs are entitled to liquidated damages. Plaintiff’s theory that the ultimate
question of liability satisfies the typicality requirement is overly broad and unworkable. In any
event, as the evidence shows, the class plaintiffs’ claims did not “arise from the same practices
and course of events.” Defendant had a variety of means of accepting time sheets for purposes
of payroll. Some putative class members like Plaintiff were not paid until they handed in their
time-sheet. Other class members were paid on their regularly scheduled payday according to
their scheduled hours; however, they were paid additional amounts in later paychecks if their
time sheets reflected additional time worked than what was scheduled. Plaintiff has failed to
meet her burden in establishing that the typicality requirement is met.
To meet the fourth requirement of Rule 23(a), Plaintiff must show that she “will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement
concerns both: (1) the “experience and performance of class counsel”; and (2) the “interests and
incentives of the representative plaintiff.” Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d
170, 181 (3d Cir. 2012) (citation omitted). Here, Defendant does not challenge the experience
and performance of class counsel. Defendant does, however, contend that Plaintiff is not an
adequate class representative. The second prong of the adequacy inquiry seeks to assure “that
the named plaintiff’s claims are not antagonistic to the class.” Beck, 457 F.3d at 296.
Defendant contends that Plaintiff is uninterested in serving in the roll as the class
representative because she testified during her deposition that she seeks her own private
damages. Defendant also argues that Plaintiff lacks credibility because she stated in her affidavit
that she was required to personally hand-deliver her time sheet to the Maxim office; however,
she stated in her deposition that she or her husband would sometimes place time sheets in a drop
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box outside of the Maxim Trevose office. We are not persuaded that Plaintiff’s inconsistent
statements and interest in recovering damages precludes her from serving as a class
representative. Plaintiff has satisfied the adequacy requirement of Rule 23(a)(4). However,
having not met the typicality and commonality factors, Plaintiff’s request for class certification
must fail. We will nevertheless examine the factors under Rule 23(b)(3).
Rule 23(b)(3) Requirements
In addition to establishing the four factors under Rule 23(a), a plaintiff seeking class
certification must also show (1) that “questions of fact common to class members predominate
over any questions affecting only individual members,” (the “Predominance Factor”) and (2)
“that a class action is superior to other available methods for fairly and efficiently adjudicating
the controversy” (the “Superiority Factor”). Fed. R. Civ. P. 23(b)(3).
To comply with Rule 23(b)(3), Plaintiff must establish that “questions of law or fact
common to class members predominate over any questions affecting only individual members.”
Fed. R. Civ. P. 23(b)(3). The predominance inquiry assesses “whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.” Amchem Prod., Inc. v. Windsor,
521 U.S. 591, 623 (1997). The same “rigorous analysis” standard that applies to class
certification under Rule 23(a) applies to the predominance requirement under Rule 23(b)(3).
Behrend, 133 S. Ct. at 1432. “If anything, Rule 23(b)’s predominance criterion is even more
demanding than Rule 23(a).” Id.
We must begin the predominance inquiry by looking at the elements of Plaintiff’s
underlying WPCL claim. See Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809
(2011) (“Considering whether questions of law or fact common to class members predominate
Case 2:13-cv-07175-RBS Document 118 Filed 07/21/17 Page 17 of 38
begins, of course, with the elements of the underlying cause of action.” (internal quotation marks
omitted)); In re Modafinil Antitrust Litig., 837 F.3d 238, 260 (3d Cir. 2016) (stating that the
predominance inquiry “is especially dependent upon the merits of a plaintiff’s claim, since the
nature of the evidence that will suffice to resolve a question determines whether the question is
common or individual.”). In this regard, Plaintiff “must demonstrate that the element of the
[claim] is capable of proof at trial through evidence that is common to the class rather than
individual to its members.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 600 (3d Cir. 2012).
“An individual question is one where members of a proposed class will need to present evidence
that varies from member to member, while a common question is one where the same evidence
will suffice for each member to make a prima facie showing or the issue is susceptible to classwide proof.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (citation and
internal quotation marks omitted). Plaintiff must not only show that the claims of all class
plaintiffs are “capable of proof at trial through common evidence” but she must also show that
the “damages are measurable on a classwide basis.” Reyes, 802 F.3d at 481 n.12 (citing
Behrend, 133 S. Ct. at 1430, 1432-33).
In her Amended Complaint, Plaintiff alleges that Defendant violated 43 P.S. § 260.3,
which requires employers to pay their employees on regular paydays. The statute states that:
Every employer shall pay all wages, other than fringe benefits and wage
supplements, due to his employes on regular paydays designated in advance by
the employer. Overtime wages may be considered as wages earned and payable
in the next succeeding pay period. All wages, other than fringe benefits and wage
supplements, earned in any pay period shall be due and payable within the
number of days after the expiration of said pay period as provided in a written
contract of employment or, if not so specified, within the standard time lapse
customary in the trade or within 15 days from the end of such pay period.
43 P.S. § 260.3. The WPCL also provides that certain violations of this provision entitle the
employee to liquidated damages. Specifically, 43 P.S. § 260.10 states:
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Where wages remain unpaid for thirty days beyond the regularly scheduled
payday, or, in the case where no regularly scheduled payday is applicable, for
sixty days beyond the filing by the employe of a proper claim or for sixty days
beyond the date of the agreement, award or other act making wages payable, or
where shortages in the wage payments made exceed five percent (5%) of the
gross wages payable on any two regularly scheduled paydays in the same calendar
quarter, and no good faith contest or dispute of any wage claim including the
good faith assertion of a right of set-off or counter-claim exists accounting for
such non-payment, the employe shall be entitled to claim, in addition, as
liquidated damages an amount equal to twenty-five percent (25%) of the total
amount of wages due, or five hundred dollars ($ 500), whichever is greater.
43 P.S. § 260.10 (emphasis added). To recover liquidated damages under the WPCL, Plaintiff
must offer evidence supporting one of the three conditions separated by the conjunction “or,” as
well as evidence showing that the employer did not act in good faith. See Andrews v. Cross Atl.
Capital Partners, Inc., 2017 Pa. Super. LEXIS 184, 24-25 (Pa. Super. Ct. Mar. 21, 2017) (noting
that the “liquidated damages provision is available to only a subset of those prevailing plaintiffs
who can also prove that they are entitled to damages as a result of an employer having no good
faith defense to wages remaining unpaid for a set amount of time under the statute”).
Plaintiff seeks to certify a class using the first and third provisions separated by the
conjunction “or” of Section 260.10. Specifically, Plaintiff’s purported class consists of “all
persons who were employed by Maxim and who were not paid timely during their regular pay
week more than twice in a calendar quarter year where their amount owed was in excess of 5%
of their amount owed for that pay or (ii) whose wages remained unpaid for thirty (30) calendar
days beyond the regularly scheduled payday, at any time from April 11, 2011 to the present.”
(Pl.’s Class Cert. Mot. 1.) Generally, Plaintiff alleges that many Maxim employees were not
receiving all or a portion of their earned pay on their regularly scheduled payday, in violation of
Section 260.3 of the WPCL.
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Defendant argues that the predominance element is not met because: (1) individual
determinations about whether each putative class member had an employment contract with
Defendant predominates over common issues; (2) individual determinations concerning why
certain employees were paid beyond the next regularly scheduled payday predominate over any
claimed common issues; and (3) individual determinations as to whether Maxim had knowledge
about the actual hours worked by each external employee predominate over common issues.
With respect to the first argument, Defendant contends that Plaintiff has failed to show
common evidence establishing that Maxim external employees had employee contracts with
Maxim. To maintain a class action, Plaintiff must present common evidence showing a
contractual right to receive wages as an element of her underlying WPCL claim. Braun v. WalMart Stores, Inc., 24 A.3d 875, 954 (Pa. Super. Ct. 2011) (stating that to recover damages, “the
employee must aver a contractual entitlement to compensation from wages and a failure to pay
that compensation” (citation and internal quotation marks omitted)). This is because the WPCL
“does not create an employee’s substantive right to compensation; rather, it only establishes an
employee’s right to enforce payment of wages and compensation to which an employee is
otherwise entitled by the terms of an agreement.” Banks Eng’g Co. v. Polons, 697 A.2d 1020,
1024 (Pa. Super. Ct. 1997); Oberneder v. Link Computer Corp., 696 A.2d 148, 150 (Pa. 1997);
see also Hartman v. Baker, 766 A.2d 347, 352 (Pa. Super. Ct. 2000) (“The underlying purpose of
the WPCL is to remove some of the obstacles employees face in litigation by providing them
with a statutory remedy when an employer breaches its contractual obligation to pay wages.”
(citation omitted)); Hartman, 766 A.2d at 352; Braun, 24 A.3d at 954; Weldon v. Kraft, Inc., 896
F.2d 793, 801 (3d Cir. 1990); Senti v. NCR Comten, Inc., 619 F. Supp. 1577, 1579 (E.D. Pa.
Case 2:13-cv-07175-RBS Document 118 Filed 07/21/17 Page 20 of 38
There is no dispute that Plaintiff and other class members did not sign a written
employment contract with Maxim. However, this is not the end of the inquiry. Pennsylvania
courts and the Third Circuit permit WPCL claims to be based on implied oral contracts between
the employee and employer. Braun, 24 A.2d at 954 (“Absent a formal employment contract or
collective bargaining agreement, an employee raising a WPCL claim would have to establish at a
minimum, an implied oral contract between the employee and the employer.” (citing De Asencio
v. Tyson Foods, Inc., 32 F.3d 301, 309 (3d Cir. 2003))). Under Pennsylvania law, an implied
contract “has the same legal effect as any other contract” and “differs from an express contract
only in the manner of its formation.” Ingrassia Construction Co., Inc. v. Walsh, 486 A.2d 478,
483 n.7 (Pa. Super. Ct. 1984). An implied contract “arises when parties agree on the obligation
to be incurred, but their intention, instead of being expressed in words, is inferred from the
relationship between the parties and their conduct in light of the surrounding circumstances.”
Oxner v. Cliveden Nursing & Rehab. Ctr. PA, L.P., 132 F. Supp. 3d 645, 649 (E.D. Pa. 2015)
(citation omitted). In the employment context, “a promise to pay the reasonable value of the
service is implied where one performs for another, with the other’s knowledge, a useful service
of a character that is usually charged for, and the latter expresses no dissent or avails himself of
the service.” Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 669 (Pa. Super.
Ct. 2014) (quoting Martin v. Little, Brown and Co., 450 A.2d 984, 987 (Pa. Super. 1981)).
Plaintiff contends that the facts demonstrate the existence of a uniform implied contract
between Maxim and the Plaintiff class, under which external employees would perform their
scheduled services in exchange for weekly wages. Judge Bartle reached a similar conclusion in
rejecting Defendant’s motion to dismiss Plaintiff’s WPCL claim. Defendant had argued that
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Plaintiff failed to allege the existence of any employment contract under which WPCL-protected
wages are due. Judge Bartle concluded that:
Although Gordon did not work for Maxim according to the terms of any written
agreement, she has averred that she provided services as a home healthcare aide in
exchange for wages to be paid according to a week-long pay period, the payday
for which followed in the next week.
(July 15 Mem. 8.)
Plaintiff has presented common evidence that supports a finding that the Class plaintiffs
provided services in exchange for wages that were paid weekly on a designated payday. The
Employee Handbook also states that “[t]he payroll week begins on Sunday at 7:00 AM and ends
the following Sunday at 6:59 AM. Employees are paid weekly on Friday for all hours worked
during the preceding week. Certainly, an implied contract can be inferred from the relationship
between the external employees, who are paid on a weekly basis for hours worked the prior
week, and Maxim who received the benefit of those services. See Martin, 450 A.2d at 987
(“When a person requests another to perform services, it is ordinarily inferred that he intends to
pay for them, unless the circumstances indicated otherwise.”). Accordingly, Defendant’s first
argument—that Plaintiff has failed to show that the putative class members have a contractual
right to wages—is rejected.
Defendant’s second argument is that the predominance element is not met because
numerous individual determinations must be made regarding why certain employees were paid
beyond the next regularly scheduled payday. Defendant contends that there are many lawful
reasons why individual class members received payment beyond their scheduled payday—in
addition to, presumably, unlawful ones—and, as a result, liability can only be determined after
assessing each individual and each payment. For example, some employees requested pay days
that were later than the pay days of other employees in their office. In addition, some external
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employees were paid for the hours that they were scheduled to work, or that they reported on
their timesheet, but received supplemental payments in later pay periods when they reported
additional hours. Plaintiff responds that the reasons for the late payments do not foreclose a
WPCL claim. 6
The evidence reflects that there was no uniform method for the payment of wages to
Maxim employees. Each of the fourteen Maxim offices had the discretion to set up their own
payroll practices. Some offices allowed employees to report hours over the phone, and those
employees were paid in accordance with those reported hours, only to be paid additional monies
in subsequent paychecks for supplemental time reported on their actual timesheets. (See
Tellefsen Decl. ¶ 14.) Payroll managers in some Maxim offices testified that they paid external
employees according to their scheduled time, and then paid the employees for any additional
time worked once the employees turned in their actual time sheets. (See Sauder Decl. ¶ 16;
Collins Decl. ¶ 10 (stating that “if external employees do not report their time by the payroll run,
my office will pay them for all hours they are scheduled to work based on their client’s schedule
. . . . When external employees finally do turn in their timesheets, we will pay them in their next
paycheck for any additional hours reported that were not reflected in the schedule”).) Under
these circumstances, the additional time reported after payroll would be captured as late
payments in Plaintiff’s damages model.
The evidence also reflects that some external employees at Maxim actually requested to
be paid on alternate schedules. For example, certain employees have “long-term standing
agreements” with Maxim, under which they are paid on a different schedule. (Schafer Dep., 114,
Plaintiff’s original theory of the case was that external Maxim employees were often
paid late because they were required to hand-deliver their time-sheets within difficult-to-meet
time constraints. The evidence in the record refutes this theory, and reflects that there was no
uniform method by which Maxim Employees reported their time.
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Pl.’s Class Cert. Reply Ex. C.) One external employee who works in the same office as Plaintiff
requested that she get paid for her hours in the following pay period so that she had more time to
submit her timesheet. (Aliu Decl. ¶ 6, Def.’s Class Cert. Resp. Ex. 2 (explaining that she
requested an alternative pay schedule and does not consider her paycheck to ever be “late”).)
Another external employee requested to be paid for her work hours from Monday to Thursday
afternoon on the next regularly scheduled payday, but be paid her hours from Thursday evening
through Sunday on the following payday. (See Bargerstock Decl. ¶¶ 8-9, Def.’s Class Cert.
Resp. Ex. 36.) In fact, numerous purported class plaintiffs had these standing agreements with
Maxim, under which they would be paid every week, but for time that was worked two weeks
earlier instead of time worked that immediately prior week. 7
Under Plaintiff’s damages model, these individuals are noted as receiving late payments
each week despite their standing agreement with Maxim. Plaintiff contends that any external
employee with a “standing agreement” to be paid on an alternate date is not, by definition, a
class member, and should therefore be excluded from the putative class. The problem with
Plaintiff’s argument is that there is no easy way to ascertain from the common evidence which
The record, which includes numerous declarations and deposition transcripts,
corroborates the different arrangements Maxim had with external employees on the timing of
their payments. (See Write Decl. ¶ 14, Def.’s Class Cert. Resp. Ex. 7; Saunder Decl. ¶ 20, Def.’s
Class Cert. Resp. Ex. 17 (stating that employee requested a Thursday-Friday pay schedule as
opposed to Sunday-Saturday schedule, resulting in some pay checks containing hours worked
during the prior pay period); Collins Decl. ¶ 14, Def.’s Class Cert. Resp. Ex. 6; Hensler Decl. ¶
15, Def.’s Class Cert. Resp. Ex. 13 (noting that one employee in Williamsport office requested to
be paid every other week); Ndukwe Decl. ¶ 16, Def.’s Class Cert Resp. Ex. 14 (noting that
external employees specifically request payment every other week).) In addition, multiple
external employees testified that although there was no standing agreement in place, they often
requested that they be paid for their hours worked in subsequent paychecks because they did not
want to report their hours by the payroll deadline. (See, e.g., Howell Decl. ¶ 8, Def.’s Class Cert.
Resp. Ex. 30; Soldavini Decl. ¶ 11, Def.’s Class Cert. Resp. Ex. 33; Moss Decl. ¶¶ 10-11, Def.’s
Class Cert. Ex. 37.)
Case 2:13-cv-07175-RBS Document 118 Filed 07/21/17 Page 24 of 38
external employees have standing agreements with Maxim. 8 There is also no easy way to
determine which payments were simply corrections from an earlier wage payment. 9 It would
require an individual assessment of each late payment to determine whether that employee had a
standing agreement with Maxim to be paid on an alternate schedule. Such individual
determinations are inconsistent with proceeding as a class action. See Newton v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 259 F.3d 154, 172 (3d Cir. 2001) (“If proof of the essential
elements of the cause of action requires individual treatment, then class certification is
unsuitable.” (citation omitted)); Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124,
137-138 (3d Cir. 2000) (affirming denial of class certification where “the issue of liability itself
requires an individualized inquiry into the equities of each claim”). In other words, there is no
class-wide mechanism to determine the reason any putative class member was paid late on any
given occasion. The reason could be that the putative class member agreed to an alternate
Plaintiff contends that any employees with standing agreements to be paid on
alternative schedules can easily be determined from the payroll journaling software, and
excluded from the putative class and from the damages model. However, Plaintiff did not
explain how these individuals could be easily ascertained from the common evidence provided.
In fact, a member of the payroll department testified that the only way to determine which
employees agreed to various payment arrangements is to look at each note that is written for each
external employee in the payroll software. (Schafer Dep. 116 (stating that she would “have to go
into the journaling software and read every entry and then figure out whether that entry
documents a specific arrangement either for a week of for the tenure of the employee’s
appointment with Maxim”).)
Plaintiff contends that one could simply look at payroll records and determine whether a
payment was a correction from a prior week, or rather a “late” payment in violation of the
WPCL. (See Pl.’s Class Cert. Reply 12.) Plaintiff fails to explain how one would accomplish
this task. Reviewing the payroll records provided by Plaintiff (see Pl.’s Class Cert. Reply Ex. I),
the Court is perplexed by Plaintiff’s suggestion. In any event, reviewing each payroll record and
each payment alleged as “late” to determine which should be excluded as a “correction” is
exactly the type of individualized inquiry that is incompatible with class certification. See Hayes
v. Wal-Mart Stores, Inc., 725 F.3d 349, 359 (3d Cir. 2013) (“[T]he predominance requirement
focuses on whether essential elements of the class’s claims can be proven at trial with common,
as opposed to individualized, evidence.” (citation omitted)).
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schedule, or that she reported additional time after payroll had completed. Plaintiff has presented
no common evidence or proof that can determine whether payments were late for reasons that
are in violation of the WPCL or for perfectly legal reasons.
Plaintiff argues that standing agreements by certain Maxim employees to be paid on
alternative schedules cannot serve as a viable defense to a WPCL class action because the statute
forbids the waiver of right to payment. (Pl.’s Class Cert. Reply 8.) Plaintiff relies on Section
260.7, which states that “[n]o provision of this act shall in any way be contravened or set aside
by a private agreement.” 43 P.S. § 260.7. Plaintiff contends that the WPCL requires that
“wages” be paid on a designated payday, see 43 P.S. § 260.3, and that this requirement cannot be
waived by a separate employee agreement. Plaintiff misconstrues the nature of the WPCL,
which does “not create a right to compensation.” Antol v. Esposto, 100 F.3d 1111, 1117 (3d Cir.
1996) (citation omitted). Rather, the WPCL “provides a statutory remedy when the employer
breaches a contractual obligation to pay earned wages.” Id. (citation omitted). The agreement
reached between the employer and the employee governs. Id. (citation omitted). Maxim reached
alternative payment schedule agreements with a number of external employees. These
Finally, Defendant argues that predominance is not met because individual
determinations must be made as to whether Maxim had knowledge of the actual hours worked by
external employees. The time periods actually worked by Maxim external employees often
differs from the schedule Maxim provides to the external employees. Often, the client’s needs
change, requiring an external employee to modify their time working for that client. (See
Schafer Decl. ¶ 10 (explaining that “some clients prefer to have flexible care schedules and ask
their caregivers to come at different times than what was previously scheduled”). When this
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occurs, there are times when neither the client nor the Maxim employee informs the payroll
specialist of the time changes until the changes appear on the employee timesheets. (See Sauder
Decl. ¶ 16 (“For example, if employees pick up unscheduled shifts, or their shifts end later than
scheduled, my office has no way of knowing about this additional work until the external
employees report this time to us.”). If the timesheets are turned in after the payroll has ended,
the payment would be included in the following pay week, and be considered “late” under
Plaintiff’s damages model. Defendant contends that it would be unfair to penalize it for this late
payment when it had no knowledge about the additional hours reported by the external
Defendant is only responsible to pay wages for an employee’s work of which it has actual
or constructive knowledge. See Alers v. City of Phila., 919 F. Supp. 2d 528, 559 (E.D. Pa. 2013)
(“While an employer must pay for work it suffers or permits, an employer cannot suffer or
permit an employee to perform services about which the employer knows nothing.” (citing
Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2d Cir. 1998))); see also Oxner, 132 F.
Supp. 3d at 649 (noting that an implied contract for wages exists “where one performs for
another with the other’s knowledge, a useful service . . . .” (emphasis added)). Plaintiff does not
dispute that the class claims are contingent on Defendant’s knowledge of the hours worked by
Plaintiff contends that Maxim had constructive knowledge of the hours worked because
Maxim set the schedule, and any changes to that schedule had to be reported to Maxim. Whether
or not there was a requirement that alterations to schedules had to be reported to, and approved
by, Maxim, the evidence in the record demonstrates that numerous Maxim employees repeatedly
changed their schedule in accordance with the client’s needs and did not notify Maxim until
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turning in their timesheet. (See Beck Dep. 76-77, Def.’s Class Cert. Reply Ex. 1 (stating that she
frequently worked different hours than she was scheduled to work and did not notify Maxim of
these changes until submitting her timesheet)); Collins Decl. ¶¶ 8-10 (stating that if an external
employee does not turn in a timesheet, they are paid in accordance with the hours they were
scheduled to work, and then paid for any additional hours reported on their timesheet in the
subsequent pay week).
Based on this evidence, the only way for the Court to determine whether Maxim had
knowledge of the actual hours worked by an external employee is to make individual inquiries
with respect to each external employee and each alleged “late” payment. These individual
determinations clearly weigh against class certification. In re Hydrogen Peroxide Antitrust
Litig., 552 F.3d at 311 (“If proof of the essential elements of the cause of action requires
individual treatment, then class certification is unsuitable.” (citation omitted)). After a thorough
review of the record, we are satisfied that Plaintiff’s motion to certify a class action under the
WPCL must be denied because common issues do not predominate. See In re Morgan Stanley
Smith Barney LLC Wage & Hour Litig., No. 11-3121, 2016 U.S. Dist. LEXIS 48648 (D.N.J.
Apr. 11, 2016) (denying class certification of state law and FLSA claims where common issues
do not predominate); Kuznyetsov v. W. Penn Allegheny Health Sys., No. 10-948, 2011 U.S. Dist.
LEXIS 146056, at *24-26 (W.D. Pa. Dec. 20, 2011) (denying class certification because whether
the defendants had knowledge about the employees’ work during lunch breaks was an
“individualized defense” that would turn into numerous minitrials). Plaintiff has failed to meet
the predominance requirement of Rule 23(b)(3).
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Plaintiff also fails to establish the superiority requirement of Rule 23(b)(3). The
superiority requirement asks a district court to determine whether “a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P.
23(b)(3); see also In re Cmty. Bank of N. Va., 418 F.3d 277, 309 (3d Cir. 2005). One factor to
consider in assessing the superiority requirement is “the likely difficulties in managing a class
action.” Fed. R. Civ. P. 23(b)(3)(D). As explained above, given the individual inquiries that are
associated with each payment made to each external employee on Plaintiff’s damages model,
managing this case as a class action would be untenable. There is simply no common proof
presented to the Court that supports Plaintiff’s theory of liability or damages.
Accordingly, Plaintiff’s request to certify her claims under the WPCL as a class action
under Rule 23 will be denied.
DEFENDANT’S MOTION TO DECERTIFY
Defendant also seeks to decertify the conditionally certified collective action under the
FLSA. Plaintiff alleges that, on numerous occasions, Maxim failed to timely pay wages to her
and the remaining opt-in Plaintiffs, in violation of 29 U.S.C. § 206(b). Under the collective
action provision of the FLSA, an employee alleging an FLSA violation can bring suit on behalf
of “[her]self or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). In
2014, Judge Bartle granted Plaintiff’s request for conditional class certification as to “all home
healthcare aids employed by Maxim in Pennsylvania and who were paid beyond scheduled pay
dates that fell on or after April 10, 2011.” (Dec. 11 Mem. 9.) Noting the light burden placed on
plaintiffs at the conditional class certification phase, Judge Bartle concluded that Plaintiff had
“made a modest factual showing” that “remote employees worked under a common policy
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applicable to all home healthcare aides which resulted in a systematic failure by Maxim to meet
the FLSA requirement of timely payment.” (Id. at 7.) A significant amount of discovery
occurred subsequent to Judge Bartle’s decision granting conditional class certification of the
FLSA class. Based upon our thorough review of that discovery and the entire record before us,
we are persuaded that decertification is warranted.
The Third Circuit prescribes a two-step process for certification of collective actions
brought pursuant to the FLSA. Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 535 (3d Cir.
2012). At the first step—conditional certification—the plaintiff must make a “modest factual
showing” which requires the plaintiff to “produce some evidence, beyond pure speculation, of a
factual nexus between the manner which the employer’s alleged policy affected her and the
manner in which it affected other employees.” Id. at 536 n.4 (citation and internal quotation
marks omitted). As stated above, Judge Bartle determined that Plaintiff had made this showing
and granted conditional class certification.
At the second stage of FLSA certification, the district court, “with the benefit of
discovery . . . makes a conclusive determination as to whether each plaintiff who has opted into
the collective action is in fact similarly situated to the named plaintiff.” Camesi v. Univ. of
Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013) (citation omitted); see also Zavala, 691
F.3d at 534 (“[A]fter considering the claims and defenses of the parties and all the relevant
evidence [the district court] must make a finding of fact that the members of the collective action
are “‘similarly situated.’”). Plaintiff has the burden of demonstrating that each opt-in plaintiff is
similarly situated to her by a preponderance of the evidence. Zavala, 691 F.3d at 534. “This
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step may be triggered by the plaintiffs’ motion for ‘final certification,’ by the defendants’ motion
for ‘decertification,’ or, commonly, by both.” Camesi, 729 F.3d at 243.
Defendant makes two arguments in support of decertification. First, Defendant contends
that Plaintiff has failed to show that opt-in plaintiffs are similarly situated to her and to each
other. In support, Defendant relies on arguments made in opposition to Plaintiff’s request to
certify the WPCL class action. Second, Defendant contends that the Court’s evaluation of its
defenses—namely, whether each opt-in plaintiff is exempt under the FLSA companionship
services exemption—requires an individualized assessment that cannot be accomplished on a
In determining whether opt-in plaintiffs are similarly situated, the Third Circuit has
adopted the “ad-hoc approach.” Zavala, 691 F.3d at 536. This approach “considers all the
relevant factors and makes a factual determination on a case-by-case basis.” Id. In using this
approach to assess whether plaintiffs are similarly situated, courts look at: “whether the
plaintiffs are employed in the same corporate department, division, and location; whether they
advance similar claims; whether they seek substantially the same form of relief; and whether
they have similar salaries and circumstances of employment.” Id. at 536-537. In addition, opt-in
plaintiffs may be considered “dissimilar” if there are “individualized defenses.” Id. at 537.
Plaintiff has failed to show that opt-in plaintiffs are similarly situated to her, or that they
are similarly situated to each other. They worked for at least four different Maxim offices, and
had different supervisors who maintained different requirements on how external employees
should report their time. The evidence reveals that there was no overarching Maxim policy on
how employees were to report their time. Some reported their time over the phone, some
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reported by email, some mailed-in their time sheets, some faxed-in their time sheets, and some
hand-delivered their timesheets. There was also no overarching Maxim policy on how
employees were paid. Some offices paid external employees according to their scheduled hours
if those employees failed to timely submit timesheets. Other offices did not pay external
employees until the actual reported time was turned in to the payroll officer.
Plaintiff was required to hand-deliver her time sheet, and was not paid until she did so.
However, Plaintiff has failed to show that the other opt-in plaintiffs were burdened by the same
requirements, or that there was a common Maxim policy dictating these requirements. This is
fatal to class certification. See Kuznyetsov, 2011 U.S. Dist. LEXIS 146056, at *24-26 (granting
motion to decertify and finding plaintiffs not similarly situated where 312 different supervisors
had discretion to implement the meal break policy, and “[c]onsequently, this factor exponentially
compounds the differences and individualized experiences that go to whether there was a
violation of the law, rather than creating consistency”); Camesi, 2011 U.S. Dist. LEXIS 146067,
at *24-25 (finding opt-in plaintiffs not similarly situated where they worked for different
supervisors, and were subject to different requirements on how to report time); Blaney v.
Charlotte-Mecklenburg Hosp. Auth., No. 10-592, 2011 U.S. Dist. LEXIS 105302, at *26
(W.D.N.C. Sept. 16, 2011) (“When alleged FLSA violations stem from the enforcement
decisions of individual supervisors, without a company-wide policy or plan directing those
enforcement decisions, collective treatment is not appropriate.” (citation omitted)); see also
Postiglione v. Crossmark, Inc., No. 11-960, 2012 U.S. Dist. LEXIS 163615, at *24 (E.D. Pa.
Nov. 14, 2012) (denying conditional class certification because the “[e]vidence admitted at trial
Case 2:13-cv-07175-RBS Document 118 Filed 07/21/17 Page 32 of 38
is likely to be highly individualized and focused on the policies and instructions of the named
plaintiffs’ 38 different supervisors”). 10
Defendant also argues that the conditionally certified FLSA action should be decertified
because determining whether each plaintiff is exempt under the FLSA companionship services
exemption cannot be accomplished on a class-wide basis. According to Defendant, the
individualized nature of this defense supports decertification. The FSLA precludes coverage for
“any employee employed on a casual basis in domestic service employment to provide . . .
companionship services for individuals who (because of age or infirmity) are unable to care for
themselves.” 29 U.S.C. § 213(a)(15). 11
The FLSA Regulations during the relevant time period elaborate on the meaning of
companionship services. Specifically, it notes that “the term companionship services” includes
“the provision of fellowship and protection for an elderly person or person with an illness, injury,
or disability who requires assistance in caring for himself or herself.” 29 C.F.R. § 552.6(a). The
term “companionship services” includes “the provision of care when the care is provided
attendant to and in conjunction with the provision of fellowship and protection, and does not
We also find persuasive that, under Plaintiff’s damages model, four out of the eight
opt-in plaintiffs would not have any claimed damages because they did not have more than one
late payment in any given pay quarter. (Thomson Report 4, Def.’s Class Cert. Resp. Ex. 44
(“Even among the current opt-ins in this matter, [Plaintiff’s expert’s] own exposure estimates
show no damages for 4 of them. Mary Arelt, Ebony Moore, Mohamed Sall, and Robin Scott
have no potential damages based on [the expert’s] estimates.”).) Plaintiff does not dispute this.
In 2015, the Secretary for the Department of Labor issued a Final Rule amending the
companionship services regulations to exclude caregivers who were employed by third-party
employers. Application of the Fair Labor Standards Act to Domestic Service, 78 Fed. Reg.
60454, 60455 (Oct. 1, 2013). The change precluded third party employers, such as Maxim, to
claim that they were exempt from the FLSA’s wage requirements with respect to companionship
service employees. The time period encompassed by Plaintiff’s claims all pre-date the changes
to the regulations. Therefore, Maxim may claim application of the companionship services
exemption. Plaintiff does not dispute this.
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exceed 20 percent of the total hours worked per consumer and per workweek.” Id. at § 552.6(b).
The term “provision of care” means assisting individuals “with activities of daily living,” which
include “dressing, grooming, feeding, bathing, toileting, and transferring” individuals, and
assisting with “tasks that enable a person to live independently at home (such as meal
preparation, driving, light housework, managing finances, assistance with the physical taking of
medications, and arranging medical care).” Id. Companionship services do not include
“medically related services.” Id. at § 552.6(c).
Plaintiff and opt-in Plaintiffs were home health aides that provided various in-home
services to Maxim clients. Each opt-in Plaintiff testified that the actual job duties performed by
home health aides varied depending on the need of the individual clients. (See, e.g., Moore Dep.
50-52 (testifying that the only way to determine what type of work a home health provided was
to look at the individual clients and their associated plan of care); Watson Dep. 89-90, Def.’s
Class Cert. Resp. Ex. 27).) A determination of whether the work provided by an opt-in Plaintiff
satisfies the definition of companionship services is highly individualized. Plaintiff contends
that determining whether the exemption applies is not individualized, and should not prevent
certification. Plaintiff states that the Court can simply rely on general testimony of the job duties
of home health aides to conclude that the exemption does not apply. However, Plaintiff does not
point to any general testimony or any common proof to support her contention.
In fact, many courts that have considered the companionship services exemption in the
context of collective action claims have concluded that the individualized nature of the inquiry
precludes certification. See, e.g., Cowell v. Utopia Home Care, Inc., No. 14-736, 2016 U.S. Dist.
LEXIS 104495, at *17 (E.D.N.Y. Aug. 8, 2016) (denying conditional certification because “the
unique and individualized Plans of Care that are prepared for [the defendant’s] patients, and
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which [the defendant Home Health Aids] are required to follow, result in very fact-specific
inquiries that are not susceptible . . . to a similarly-situated person analysis that would support
the issuance of a collective action notice.” (citation and internal quotation marks omitted));
Severin v. Project OHR, Inc., No. 10-9696, 2012 U.S. Dist. LEXIS 85705, at *19 (S.D.N.Y. June
20, 2012) (“[T]he question of whether an individual OHR home attendant is subject to the FLSA
companionship services exemption is not susceptible to generalized, classwide proof.”); Johnson
v. Bridges of Ind., No. 10-153, 2010 U.S. Dist. LEXIS 103696, at *7-8 (S.D. Ind. Sept. 28, 2010)
(denying certification of collective action under FLSA because of the “individualized inquiry”
that would be required of each employee to determine whether the companionship services
exemption applies); Threatt v. CRF First Choice, Inc., No. 05-117, 2006 U.S. Dist. LEXIS
50934, at *45 (N.D. Ind. July 21, 2006) (granting decertification because the individualized
nature of analysis to determine whether the companionship services exemption applies “renders a
collective action completely unworkable”); see also Camesi, 2011 U.S. Dist. LEXIS 146067, at
*27-28 (granting decertification of FLSA action due to the individualized nature of the defenses,
including whether individual opt-in plaintiffs were exempt from the FLSA).
Accordingly, Defendant’s Motion to De-Certify the Conditionally Certified Class will be
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Finally, Defendant seeks summary judgment with respect to Plaintiff’s FLSA claims.
Defendant contends that each of the opt-in Plaintiffs is a home health aide that performs nonmedical, and companionship services to Maxim clients. According to Defendant, these opt-in
Plaintiffs are therefore exempt from the FLSA. Because we have already granted Defendant’s
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request to decertify Plaintiff’s FLSA collective class action, we limit our discussion of the
summary judgment arguments to the only remaining Plaintiff in this case—Markisha Gordon.
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” A dispute is “genuine” if there is a sufficient evidentiary basis on
which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). “[A] factual dispute is material only if it might affect the outcome of the suit under
governing law.” Id. The court must view the evidence in the light most favorable to the nonmoving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). However, “unsupported
assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for
summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D.
Pa. 2010) (citing Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)).
Where the nonmoving party bears the burden of proof at trial, the moving party may
identify an absence of a genuine issue of material fact by showing the court that there is no
evidence in the record supporting the nonmoving party’s case. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir.
2004). If the moving party carries this initial burden, the nonmoving party must set forth specific
facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c) (“A party asserting
that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of
materials in the record . . . .”); see also Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (noting that the nonmoving party “must do more than simply show that
Case 2:13-cv-07175-RBS Document 118 Filed 07/21/17 Page 36 of 38
there is some metaphysical doubt as to the material facts” (citation omitted)). “Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
As noted above, the FSLA provides no protection to “any employee employed on a
casual basis in domestic service employment to provide . . . companionship services for
individuals who (because of age or infirmity) are unable to care for themselves.” 29 U.S.C. §
213(a)(15). Companionship services are “the provision of fellowship and protection for an
elderly person or person with an illness, injury, or disability who requires assistance in caring for
himself or herself.” 29 CFR § 552.6(a). It may include the “provision of care”—meaning the
assistance with activities of daily living such as dressing, grooming, feeding, bathing, toileting—
so long as those services do not exceed 20 percent of the total hours worked per week. Id. at §
552.6(b). Companionship services do not include medically-related services.
Plaintiff contends that she does not meet the exemption because she provided medical
services to Maxim clients. However, her own deposition testimony refutes this argument.
Specifically, Plaintiff testified as follows:
And when you were working for Maxim – when you were working for
Maxim’s clients, you never provided the types of services that a nurse or
another trained medical profession would provide, did you?
You provided companionship services?
You were a home health aide for Maxim?
Case 2:13-cv-07175-RBS Document 118 Filed 07/21/17 Page 37 of 38
(Gordon Dep. 18.)
In addition, Plaintiff argues that she does not qualify for the companionship services
exemption because she spent more than twenty percent of weekly hours on household work.
Again, Plaintiff’s own deposition testimony does not support this. Specifically, she testified:
The weekly note provides all of the services you provided to the client?
And it includes everything you did?
And each of your weekly notes would demonstrate that 100 percent of
your time was spent on companionship services?
And that zero percent of your time was spent, say, doing laundry for
somebody else, or doing general household work not related to the
No we didn’t do that.
(Id. at 90.)
Plaintiff’s entire Memorandum in opposition to summary judgment relies on evidence
related to the other opt-in Plaintiffs. She fails to point to any evidence specifically about herself
as the named Plaintiff representative. In addition, despite testifying that the services she
provided to clients would be stated specifically in her weekly notes, she failed to submit any of
those notes as evidence in opposition to summary judgment. Plaintiff has failed point to a
genuine dispute as to any material fact with respect to the services she provided to clients, and
whether those services qualify under the companionship services exemption of the FLSA. Based
upon her own testimony, Plaintiff provided exclusively companionship services to Maxim
Case 2:13-cv-07175-RBS Document 118 Filed 07/21/17 Page 38 of 38
clients. As a result, Defendant Maxim is entitled to judgment as a matter of law with respect to
Plaintiff Gordon’s claims under the FLSA.
For these reasons, Plaintiff’s Motion for Certification will be denied, Defendant’s Motion
to De-certify Conditionally Certified Collective Action Class will be granted, and Defendants’
Motion for Summary Judgment will be granted.
An appropriate Order follows.
BY THE COURT:
R. BARCLAY SURRICK, J.
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