Ealy-Simon et al v. Change Healthcare Operations, LLC
Filing
36
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Eli J. Richardson on 1/22/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(vh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CATHERINE EALY-SIMON and
KRISTIN WILSON, individually and on
behalf of all other similarly situated
individuals,
Plaintiffs,
v.
CHANGE HEALTHCARE
OPERATIONS, LLC,
Defendant.
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NO. 3:20-cv-00521
JUDGE RICHARDSON
MEMORANDUM OPINION
Pending before the Court is Plaintiffs’ Motion for Conditional Certification of this case as
a Collective Action. (Doc. No. 23, “Motion”). Defendant responded in opposition (Doc. No. 28),
and Plaintiffs replied (Doc. No. 32). The Motion is ripe for review.
For the reasons discussed below, Plaintiffs’ Motion (Doc. No. 37) will be granted in part.
BACKGROUND1
1
Unless otherwise noted, the facts set forth in this section are allegations taken from Plaintiffs’
Complaint (Doc. No. 1) and the four declarations attached to the Motion. At the conditional
certification stage, the black-letter rule is that “the court accepts as true the plaintiff’s
allegations[.]” Jones v. H&J Restaurants, LLC, No. 5:19-CV-105-TBR, 2020 WL 759901, at *2
(W.D. Ky. Feb. 14, 2020) (quoting Dominguez v. Don Pedro Rest., No. 2:06 cv 241, 2007 WL
271567, at *2 (N.D. Ind. Jan. 25, 2007)). But the Sixth Circuit has explained (and the Court
discusses further below) that plaintiffs seeking conditional certification are required to make a
“modest factual showing.” See, e.g., Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.
2006). “Although some district courts have not required plaintiffs to present additional factual
support beyond his or her own allegations at the conditional certification stage, . . . . [t]he
requirement of a ‘modest factual showing’ necessarily requires some factual showing.
Axiomatically, allegations do not meet the definition of a ‘showing.’ ” Tyler v. Taco Bell Corp.,
No. 215CV02084JPMCGC, 2016 WL 3162145, at *4 (W.D. Tenn. June 3, 2016) (internal citations
and emphasis omitted). So allegations alone, no matter how dispositive on the issue they would be
if true, do not suffice to make the required “showing.” In this sense, the black-letter rule that
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Plaintiffs Catherine Ealy-Simon and Kristin Wilson (“Plaintiff Ealy-Simon” and “Plaintiff
Wilson,” collectively “Plaintiffs”) brought this action individually and on behalf of all others
similarly situated pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.
(Doc. No. 1 at ¶ 1).
Defendant provides call center services and operates an outsourced call center for large
physician groups, hospitals, and health systems. (Id. at ¶ 2). Defendant employs hourly call center
employees, known as Patient Service Representatives (“PSRs”),2 in multiple call center facilities
throughout the United States, including in Port St. Lucie, Florida. (Id. at ¶¶ 3, 4). Aerotek, a
nonparty which provides recruiting and staffing services, hired and employed Plaintiff Ealy-Simon
and assigned her to work as a PSR at Defendant’s call center in Port St. Lucie. (Id. at ¶ 6).
allegations are accepted as true appears to be in conflict with Sixth Circuit law, raising the question
of what (if any) allegations can be accepted as true by this Court for purposes of the Motion. For
purposes of the instant Motion, it suffices to say that the Court is not accepting the material and
disputed allegations of Plaintiffs as true merely because they have been alleged. As for the
allegations presented in this section in particular, they are used to lay out the background of this
lawsuit and generally are supported by Plaintiffs’ evidence and/or not in dispute.
The Court further notes that “when determining whether Plaintiff has met [her] evidentiary
burden, a court does not resolve factual disputes, decide substantive issues going to the merits, or
make credibility determinations at this first stage.” Turner v. Utiliquest, LLC, No. 3:18-CV-00294,
2019 WL 7461197, at *3 (M.D. Tenn. July 16, 2019) (citing Bradford v. Logan’s Roadhouse, Inc.,
137 F. Supp. 3d 1064, 1072 (M. D. Tenn. 2015)). Thus, to the extent that Plaintiffs’ showing
supports the existence of certain facts or circumstances, the Court cannot rule against Plaintiffs on
the ground that those facts and circumstance actually do not exist; that is, it generally accepts as
true the testimony set forth in Plaintiffs’ declarations to the extent it is admissible under the Federal
Rules of Evidence and not inherently incredible.
Though the Court adopts this term (from the parties’ briefing) to refer to the type of employee at
issue, Defendant has used myriad other terms to refer to this position, including: “Agent, AR
Support/Customer Service, Call Center Advocates, Call Center Representatives, CSRs, Customer
Service Representatives, Customer Service Representatives/Medical Appointment Setters,
Customer Service Reps, Eligibility Liaisons, Health Care Representatives, Healthcare Customer
Service Representatives, Healthcare Representatives, Hospital Solutions Operators, Medical Call
Center Reps, Medical Records Coordinators, Patient Service Representatives, Product Support
Analysts, and PSRs.” (Doc. No. 1 at ¶ 68).
2
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Defendant hired and directly employed Plaintiff Wilson as a PSR at the facility in Port St. Lucie.
(Id.). Defendant requires its PSRs to work a full schedule and overtime, but it does not compensate
them for all hours worked. (Id. at ¶ 10).
PSRs are required to perform compensable work tasks before and after their shifts and
during meal periods inasmuch as they are required to turn on their computers, launch the computer
networks, software programs, applications and phone systems required to take calls. (Id.). The preshift startup and log-in process typically takes 10-20 minutes. (Id. at ¶ 81). PSRs have one unpaid
30-minute meal period each shift, but PSRs must end their meal period early in order to unlock
their computers and log in to the needed programs, which takes around 5-10 minutes. (Id. at ¶¶ 88,
91). After the end of a shift, logging out and shutting down a computer takes approximately 5
minutes. (Id. at ¶ 94). Despite these log-in and log-out procedures, PSRs are paid only for the time
they are connected to Defendant’s phone system and are available to make and take phone calls.
(Id. at ¶ 10).
The Complaint asserts three counts: (1) a collective action for violation of the FLSA for
failure to pay overtime wages, (2) a nationwide class action for breach of contract under Fed. R.
Civ. P. 23, and (3) a nationwide class action for unjust enrichment under Fed. R. Civ. P. 23.
The Motion relates to the first Count only. Via the Motion, Plaintiffs seek to conditionally
certify a class of allegedly similarly situated workers allegedly denied unpaid overtime wages
under the FLSA. (Doc. No. 23 at 9). In support of the Motion, Plaintiffs filed declarations from
each of the two Plaintiffs and two proposed putative opt-in Plaintiffs. Plaintiffs ask the Court (1)
to conditionally certify this case as a FLSA collective action under 29 U.S.C. § 216(b) on behalf
of similarly situated employees; (2) to require Defendant to identify all putative FLSA Collective
members by providing a list of names and contact information within ten days of the Court’s
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decision; (3) to permit Plaintiffs’ Counsel to send notice via mail, email, and text message, and (4)
to approve a 60-day opt-in period from the date notice is sent, with a reminder postcard and email
sent 30 days into the notice period to those who have not opted in. (Doc. No. 23 at 1).
In support of its opposition, Defendant filed several declarations. (Doc. Nos. 29, 30, 31).
LEGAL STANDARD
A. Conditional Certification
The FLSA provides that a collective action may be maintained against any employer by
one or more employees for and on behalf of themselves and other employees similarly situated. 29
U.S.C. § 216(b). Because the FLSA requires only that employees be similarly situated, plaintiffs
seeking to certify a collective action under the FLSA face a lower burden than those seeking to
certify a class action under Federal Rule of Civil Procedure 23. O’Brien v. Ed Donnelly
Enters., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co.
v. Gomez, 136 S. Ct. 663 (2016). Also, unlike class actions under Federal Rule of Civil Procedure
23, FLSA collective actions require similarly situated employees to “opt-in” as plaintiffs. 29
U.S.C. § 216(b).
Typically, courts employ a two-phase inquiry to address whether the named plaintiffs are
similarly situated to the employees they seek to represent. White v. Baptist Mem’l Health Care
Corp., 699 F.3d 869, 877 (6th Cir. 2012); Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th
Cir. 2006). “The first [phase] takes place at the beginning of discovery. The second occurs after
all of the opt-in forms have been received and discovery has concluded.” Id. at 546 (internal
quotation marks omitted).
At the first stage, the plaintiff bears the burden of showing that employees in the class are
similarly situated. Benson v. Asurion Corp., Case No. 3:10-cv-526, 2010 WL 4922704, at *2 (M.D.
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Tenn. Nov. 29, 2010). Conditional certification requires only a modest factual showing, and
district courts should use a fairly lenient standard that typically results in certification. Comer, 454
F.3d at 547. At the first stage, the court does not resolve factual disputes, decide substantive issues
related to the merits of the case, or make credibility determinations. Roberts v. Corr. Corp. of
Am., Case No. 3:14-cv-2009, 2015 WL 3905088, at *10 (M.D. Tenn. June 25, 2015).
Although the required factual showing is “modest,” it cannot be satisfied simply by
unsupported assertions. Medley v. Southern Health Partners, Inc., Case No. 1:17-cv-00003, 2017
WL 3485641, at * 5 (M.D. Tenn. Aug. 15, 2017). In other words, conclusory allegations are
insufficient to support conditional certification. Arrington v. Michigan Bell Tel. Co., No. 10-10975,
2011 WL 3319691, at * 4 (E.D. Mich. Aug. 1, 2011) (citing 7B Wright, Miller & Kane, Federal
Practice & Procedure § 1807 (3d ed. 2005) at 490-91). This is true even if the conclusory
allegations are asserted not merely in a complaint, but rather in a (sworn) plaintiff’s declaration.
See McKinstry v. Dev. Essential Servs., Inc., No. 2:16-cv-12565, 2017 WL 815666, at * 2 (E.D.
Mich. Mar. 2, 2017) (noting that Arrington’s rule applies even to assertions made in a declaration).
The named plaintiff must present some factual support for the existence of a class-wide policy or
practice that violates the FLSA. Medley, 2017 WL 3485641, at *5. A plaintiff must submit
evidence establishing at least a colorable basis for her claim that a class of similarly situated
plaintiffs exists. Id.; Swinney v. Amcomm Telecom., Inc., No. 12-12925, 2013 WL 28063, at *5
(E.D. Mich. Jan. 2, 2013). At the first stage, a plaintiff must present substantial allegations
supported by declarations; if the plaintiff meets that burden, a court, in its discretion, may
conditionally certify the case as a collective action. Medley, 2017 WL 3485641, at *5.
“[T]he certification is conditional and by no means final.” Comer, 454 F.3d at 546. After
discovery, the defendant may move for decertification of the conditional class, which triggers the
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second phase of the court’s review. See O’Brien, 575 F.3d at 583. At this second stage, the court
has access to more information and employs a “stricter standard” in deciding whether class
members are, in fact, similarly situated. Comer, 454 F.3d at 547.
B. Similarly Situated
Although the FLSA does not define the term “similarly situated,” the Sixth Circuit has held
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. Employees also may be similarly situated if their claims
are merely “unified by common theories of defendants’ statutory violations, even if the proofs of
these theories are inevitably individualized and distinct.” Id. Indeed, “[s]howing a ‘unified policy’
of violations is not required.” Id. at 584.
As noted above, to obtain conditional certification, a plaintiff must submit evidence
establishing at least a colorable basis for her claim that a class of similarly situated plaintiffs exist.
Swinney, 2013 WL 28063, at * 5; O’Neal v. Emery Fed. Credit Union, No. 1:13-cv-22, 2013 WL
4013167, at * 5 (S.D. Ohio Aug. 6, 2013). Certification at the first (or “notice”) stage, although
governed by a lenient standard, is not automatic. Harriel v. Wal-Mart Stores, Inc., Civil Action
No. 11-2510, 2012 WL 2878078, at *4 (D.N.J. July 13, 2012). “A plaintiff must show a ‘factual
nexus’ between his or her situation and the situation of other current and former employees
sufficient to determine that they are similarly situated.” Id.
ANALYSIS
I.
Motion for Conditional Certification
The Motion involves the first (notice) stage and seeks only conditional, not final,
certification. The proposed class (which is sometimes referred to as a “collective” in situations
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involving a collective action under the FLSA rather than a class action under Federal Rule of Civil
Procedure 23) comprises:
All similarly situated current and former Patient Service Representatives and
similar job titles who work or have worked for Change Healthcare Operations, LLC
(“Defendant”) at any of its call center facilities at any time during the three years
preceding the filing of the Complaint through judgment.
(Doc. No. 23 at 9). Plaintiffs argue that they have demonstrated that they are similarly situated to
putative members because the lack of overtime pay stemmed from Defendant’s common policy.
(Id. at 26). Specifically, Plaintiffs point to a common timekeeping system, log-on instructions, and
similar job duties. (Id. at 26-29). To support their Motion, Plaintiffs rely on the Complaint, four
employee declarations, pre-shift login instructions, and similar job postings for PSRs from
different states. The Declarations are from Plaintiffs Ealy-Simon and Kristin Wilson, as well as
Veronda Delancy and Patrice Johnson (“Proposed Opt-In Plaintiffs”), who indicate they would
opt-in as plaintiffs if the collective action is certified.
In her Declaration, Plaintiff Ealy-Simon describes other PSRs at her facility participating
in the same unpaid work, during their pre-shift, post-shift, and meal breaks, in which she allegedly
participated.3 (Doc. No. 23-6 at ¶¶ 16, 21, 26). Before work, according to Plaintiff Ealy-Simon,
the startup and login process4 took about 10-20 minutes per shift, or longer depending on technical
As discussed, the Court accepts the statements in Plaintiffs’ declarations as true for purposes of
ruling on the Motion and does not resolve the merits of Plaintiffs’ claims. Jones, 2020 WL 759901,
at *2.
3
4
This process consisted of:
•
•
•
•
Locate our workstation and turn on the computer;
Unlock the computer screen by punching in an assigned username and
passcode;
Log into Citrix;
Log into Epic;
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issues, and that she was not paid for this time. (Id. at ¶¶ 10-17). Before the end of her lunch break,
Plaintiff Ealy-Simon had to spend 5-10 unpaid minutes logging back into her programs. (Id. at ¶¶
18-22). At the end of her shift, Plaintiff Ealy-Simon would have to log out and shut down her
computer, which took around five unpaid minutes per shift. (Id. at ¶¶ 23-27). The computer
programs and phone systems used by the PSRs, including Plaintiff Ealy-Simon, were “integral,
indispensable, and important part of work, and we could not perform our jobs effectively without
them.” (Id. at ¶ 4). The job duties and responsibilities of each PSR were largely similar to those of
other PSRs:5 “interacting with health plan members, hospitals and insurance companies through
outbound and inbound telephonic contact to review and assess health plan members’ eligibility for
services, schedule appointments, resolve billing inquiries, process payments, confirm insurance
acceptance, and collect and manage accounts receivables.” (Id. at ¶ 6). Plaintiff Ealy-Simon
manually tracked and submitted her time to Defendant using a platform called “SAP Fieldglass.”
(Id. at ¶ 7). Regardless of the time-reporting system used, PSRs were only paid for time spent once
•
•
•
•
•
•
•
•
Ensure OCI Jar file is up and running on startup;
Ensure softphone is open on desktop and that the softphone adaptor is plugged
in;
Authenticate Salesforce from the NYULMC site;
Answer the security question to verify your identity;
Log into phone system through the softphone in Salesforce;
Log into various internal and external email, messaging and communications
systems, including Microsoft Outlook, Skype for Business, Microsoft Teams,
and the NYU Langone email system;
Read and respond to work-related emails, chats and instant messages, including
important notices, work instructions and training updates; and
Set our state to “Ready” to accept calls using the adapter
(Doc. No. 23-6 at ¶ 10).
5
It appears to the Court that Plaintiff was referring here only to the PSRs at Port St. Lucie because,
as discussed herein, she does not purport to have knowledge of the workings at other company
locations.
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they were “ready” to take calls, and not for the time spent turning on computers and launching
programs before starting work or for shutting the systems down after work. (Id. at ¶ 9).
Plaintiff Wilson’s Declaration is substantially similar6 to Plaintiff Ealy-Simon’s, but
Plaintiff Wilson entered her time into a different software and was directly employed by
Defendant. (Doc. No. 23-7 at ¶¶ 7, 8). The Declarations of each of the Proposed Opt-In Plaintiffs
is similar to Plaintiff Wilson’s, as each of the Opt-In Plaintiffs was directly employed by Defendant
and used the same software to enter their time worked. (Doc. No. 23-8 at ¶¶ 7, 8); (Doc. No. 23-9
at ¶¶ 7, 8).
Defendant sets forth several arguments against conditional certification of the proposed
class.
First, Defendant argues that it did not employ the Plaintiffs or the Proposed Opt-In
Plaintiffs, and that it does not employ any PSRs. (Doc. No. 28 at 9-10). Whether Defendant
“employed” Plaintiffs and the Proposed Opt-In Plaintiffs, however, is a merits-based argument
that is not relevant at the conditional certification stage.7 See Gallardo v. Los Portales Bolivar
LLC, Case No. 1:16-cv-01055, 2017 WL 913805, at *4 (W.D. Tenn. Mar. 7, 2017) (finding that
whether defendants “satisfy the FLSA’s definition of an ‘employer’ . . . [is a] fact-bound issue, . .
. properly raised in a Rule 12 motion attacking the sufficiency of the pleadings or a Rule 56 motion
6
The Court is not concerned by the similarities between the declarations. Although the Court
understands that a seemingly scripted declaration can undermine the credibility of a declarant and
his or her claims, the Court has no reason to believe that the near identical language in the
declarations is not accurate or credible. See Watson v. Advanced Distrib. Servs., LLC, 298 F.R.D.
558, 564 (M.D. Tenn. 2014) (finding that essentially identical affidavits suggested that plaintiffs
had identical experiences and had made identical observations).
7
The Court notes that the sole case Defendant cites for this argument, Grant v. Shaw Envtl., Inc.,
No. 3:08-CV-350, 2013 WL 1305596, at *2 (E.D. Tenn. Mar. 28, 2013), did not arise in the FLSA
conditional class certification context.
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for summary judgment”); Martinez v. First Class Interiors of Naples, LLC, No. 3:18-CV-00583,
2019 WL 4242409, at *5 (M.D. Tenn. Sept. 6, 2019). The Court declines to reach this argument
at this time.
Second, Defendant argues that Plaintiffs are not sufficiently similar to putative opt-in
members (other PSRs) in the proposed class, arguing that Plaintiffs have not advanced a policy or
common theory under which Plaintiffs plan to proceed. As previously noted, “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. Employees also may be similarly situated if their claims are merely
“unified by common theories of defendants’ statutory violations, even if the proofs of these
theories are inevitably individualized and distinct.” Id.
Defendant points to various differences that exist among PSRs, arguing that these
differences evidence that Plaintiffs allege circumstances particular to them, instead of a common
theory among all PSRs. (Doc. No. 28 at 15-16). Defendant states that there are two general types
of PSRs: Patient Access PSRs and Physician Services PSRs. (Id. at 3). Defendant states that job
duties of a PSR vary significantly based on which customer they support, and Plaintiffs and the
Proposed Opt-In Plaintiffs all worked at the same location which served a single customer. (Id. at
3-4). Thus, Defendant suggests, their duties were site-specific and therefore not representative of
the duties of PSRs company-wide. Defendant states that company-wide, PSRs have worked for
around 214 different managers and supervisors. (Id. at 6). Defendant states that PSR job duties
vary by the level and experience, with some PSRs performing different job duties or being parttime. (Id. at 6-7). Finally, Defendant states that a PSR’s job duties will vary based upon their
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individual action. (Id. at 7). Defendant argues that despite these differences, Plaintiffs present
evidence regarding only the Port St. Lucie call center. (Id. at 14).
Notably, all four Declarations state that the declarant worked on the NYU Langone Health
account in Port St. Lucie, Florida. (Doc. No. 23-8 at ¶¶ 2, 16); (Doc. No. 23-9 at ¶¶ 2, 16). None
of the declarations indicate that any of the Plaintiffs or the Proposed Opt-In Plaintiffs are aware of
the working conditions at other facilities or on other accounts. There is no indication that any of
the Plaintiffs or Proposed Opt-In Plaintiffs were aware of the compensation policies or working
conditions of PSRs at other facilities or on other accounts. Additionally, the pre-shift log-in
instructions submitted by Defendant are clearly marked “NYU Lagone Health,” indicating that
they applied specifically to the account Plaintiffs and Proposed Opt-In Plaintiffs worked on. (Doc.
No. 23-10).
However, the declarations do mention seeing other PSRs at the Port St. Lucia facility
logging in before clocking in, “hustling” back from lunch, and shutting down after clocking out.
E.g., (Doc. No. 23-6 at ¶¶ 16, 21, 26). The declarations also mention the declarants having
conversations with other PSRs about the compensation policies. E.g., (Id. at ¶ 33).
As this Court stated last year, in rejecting the defendants’ argument that the affidavits of
the plaintiffs seeking certification were insufficient to show that plaintiffs and putative class
members suffered the same FLSA-violating policy because the affidavits (supposedly) contained
only conclusory statements were not based on personal knowledge:
This Court has routinely held that the “personal observations” of other
employees and conversations had or overheard at work are sufficient to demonstrate
personal knowledge of FLSA-violating policies and are not “mere conclusory
allegations.” Burgess v. Wesley Fin. Grp, LLC, Case No. 3:16-cv-1655, 2017 WL
1021294, at *4 (M.D. Tenn. Mar. 16, 2017). For example, in Amos v. Lincoln Prop.
Co., Case No. 3:17-cv-37, 2017 WL 2935834 (M.D. Tenn. July 7, 2017) (Trauger,
J.), this Court held that the plaintiff’s statements that she learned through personal
visits and conversations that other business managers, like her, were “expected to
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work in excess of 40 hours per workweek without being paid an overtime wage”
were not “mere conclusory allegations.” Id. at *3-4. Rather, this Court found that
such statements regarding the pay policies applied to, and the hours worked by,
other business managers were based on “[f]irst-hand experience” and “personal
observations” and were, therefore, sufficient to support conditional certification. Id.
at *4. Like those in Amos, the affidavits of Plaintiffs and Mr. Torres contain
statements regarding direct observations of and conversations with other drywall
workers, demonstrating that Plaintiffs and [one other declarant] have personal
knowledge that [other putative class members] who worked similar hours and
performed similar duties were denied overtime pay in violation of the FLSA. Brito
Aff. ¶¶ 7, 8, 10; Martinez Aff. ¶¶ 7, 8, 10; Castro Aff. ¶¶ 7, 8, 10; Torres Aff. ¶¶ 7,
8, 10. These representations are not merely conclusory as Defendants suggest;
rather, they are sufficient to demonstrate that Plaintiffs and putative members of the
[proposed class] are similarly situated to each other.
Martinez v. First Class Interiors of Naples, LLC, No. 3:18-CV-00583, 2019 WL 4242409, at *5
(M.D. Tenn. Sept. 6, 2019). This means that Plaintiffs here should be, and are, deemed to have
established adequate personal knowledge as to the relevant situations of other putative class
members at Port St. Lucie and whether they are similar.
But the declarations have not shown personal knowledge as to putative class members who
work elsewhere, which could present a problem for certification of any class with a scope outside
of Port St. Lucie. But in their Reply, Plaintiffs state that they nevertheless have shown that all
PSRs (whatever their location) are similar because Defendant admits that PSRs must log in before
clocking in. In her Declaration, Dasha Cates, Defendant’s Executive Director for Patient Access
supervising approximately 600 PSRs and their managers, states that:
The only activity PSRs have to do before clocking-in for work is log-in to their
computer—which consists of a 5-second task of entering a user name and password.
Once they are logged-in to the computer, PSRs click on an icon for the “PingOne”
application which enables them to clock-in to the Kronos system. Temporary
employees enter their time manually at the end of each week using the Fieldglass
system, so they could not perform any off-the-clock work.
(Doc. No. 26 at ¶ 25); see also (Doc. No. 28 at 9). Plaintiffs point the Court to Serbay v.
Dialogdirect, Inc., No. 16-12716, 2017 WL 163866 (E.D. Mich. Jan. 17, 2017) where the court
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held that “defendants admit to the basic premise of plaintiff’s case—that a CSR has to log in to a
computer before being paid for time at work. This is enough to meet the ‘fairly lenient’ evidentiary
standard for conditional certification of a collective action under the FLSA.” Id. at *5. The court
in that case further noted that:
The declarations reflect that timekeeping practices varied by call center and
client team. Defendants acknowledge a timekeeping system across all call centers
that fits the mold of plaintiff’s claim enough to warrant further scrutiny.
Specifically, CSRs are required to log in to the computer and a timekeeping
program to “clock in” for work. Together with plaintiff’s declaration, these
submissions provide a sufficient basis for a colorable claim that a single FLSAviolating policy exists as to the CSRs at each of the call centers.
Id. Similar to Plaintiffs, the plaintiffs in Serbay alleged that they were not paid for pre-shift and
post-shift work comprising logging in and shutting down their computers, nor paid for logging in
during their lunch breaks. Id. at *1. The court found that the defendants’ admission that the
plaintiffs had to do some work before logging in, together with the plaintiff’s declarations, was
sufficient to warrant conditional class certification. Id. at *5.
Based on Serbay, Plaintiffs conclude that the putative class members’ claims are unified
by a common theory of FLSA violations since Defendant admits that all PSRs were required to
log in and be “phone ready” before being paid. (Doc. No. 32 at 2). Though Defendant implies that
this (supposedly) 5-second task is not enough to constitute a FLSA violation,8 the Court does not
consider merits-based arguments (such as that a task was merely de minimis) when ruling on a
motion for conditional class certification. See Roberts v. J.R. Eng’g, Inc., No. 5:19-CV-00110,
8
The Court understands the gist of this argument; after all, if the time spent is as short as a mere
five seconds (or even somewhat longer), it may be de minimis and thus not grounds for an FLSA
claim. See White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 873 (6th Cir. 2012); Arnold
v. Schreiber Foods, Inc., 690 F. Supp. 2d 672, 685 (M.D. Tenn. 2010). But the Court cannot accept
at this stage the assertion that the applicable time span is only five seconds (or a little bit longer),
and even five seconds conceivably could be in violation of the FLSA, albeit just barely.
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2019 WL 5653340, at *7 (N.D. Ohio Oct. 31, 2019). The Court agrees with Plaintiffs; Defendant’s
admission that PSRs must log on before being paid, taken with Plaintiffs’ declarations, is enough
for Plaintiffs to meet their modest factual showing that members of the class are sufficiently
similar. See Comer, 454 F.3d at 547.
Additionally, the Court does not find the differences pointed to by Defendant between
various PSRs to be convincing at this stage. The Court has previously found that:
[A]lthough the putative class members may have different job titles, or work on
different campaigns, or even work in different environments (a brick and mortar
location versus work from home), the class members share similar characteristics
in that their job involves taking calls from customers and responding to their
complaints, concerns, or issues. Significantly, each declarant avers that he or she is
subject to Defendant’s policy that all CSRs and WFH agents should have their
computer systems prepared (i.e., “call ready”) before clocking in and regardless of
the clock in procedure used. The different methods by which putative class
members are able to clock-in does not change the fact that Defendant’s alleged
policy applies to them. Further, the declarants aver that they know this policy
applies company wide.
Foster v. Sitel Operating Corp., No. 3:19-CV-00148, 2020 WL 1640427, at *8 (M.D. Tenn. Apr.
2, 2020) (internal citations to the record omitted). In Foster, the Court was aided by declarations
from employees from various locations, and here all declarations from employees are from one
location. But just as the declarants in Foster swore to the existence of a company-wide policy, here
Defendant itself admits that there is a company-wide policy that putative class members complete
some work (even if allegedly de minimis) prior to the period for which they are paid. This
admission is backed up by the declarations filed by Plaintiffs, which evidence the existence of this
policy (albeit only be reference to a single location). Therefore, the Court is unpersuaded by
Defendant’s arguments regarding the differences between PSRs.
Defendant also argues that its policies and procedures mandate compliance with the FLSA.
(Doc. No. 28 at 8). However, the alleged fact that Defendant has a written policy that complies
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with the FLSA does not defeat a motion for conditional class certification. See Hamric v. True N.
Holdings, Inc, No. 1:16-CV-01216, 2016 WL 3912482, at *2 (N.D. Ohio July 20, 2016)
(“Defendant cannot defeat conditional certification, or require a higher burden of proof, merely by
pointing to a written policy that True North complied with the FLSA.”); Foster, 2020 WL
1640427, at *6. Moreover, to the extent that Defendant has a policy and/or procedure requiring
work (even if allegedly only five seconds) for which putative class members are not paid, the
policy or procedure well may not be compliant with the FLSA. So at this stage, this argument does
not move the needle for Defendant.
Finally, as an alternative to the class Plaintiffs seek, Defendant requests the class be limited
to Port St. Lucie employees. (Doc. No. 28 at 17). The Court realizes that the declarations filed by
Plaintiffs might not support a class extending beyond Port St. Lucie. But since Defendant has
admitted that all PSRs are required to log in before clocking in, a basic theory of Plaintiffs’ claim
of FLSA violations, the Court will not limit the class to Port St. Lucie employees.
Therefore, the Court finds that Plaintiffs have satisfied their burden of making a modest
factual showing that Plaintiffs and the putative class members are similarly situated. See Comer,
454 F.3d at 546-47 (“ ‘The plaintiff must show only that his position is similar, not identical, to
the positions held by the putative class members.’ ”) (quoting Pritchard v. Dent Wizard Int’l Corp.,
210 F.R.D. 591, 594 (S.D. Ohio 2002)). “If discovery later shows the claims in this case to be so
individualized as to render a collective action unmanageable, [Defendant] may move to decertify
the collective action at the second stage of the certification proceedings.” Cowan v. Nationwide
Mut. Ins. Co., No. 2:19-cv-1225, 2019 WL 4667497, at *8 (S.D. Ohio Sept. 25, 2019). And thus
the Court will certify the proposed class.
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Certifying such a class at this stage is hardly a novel step; as a district court in this circuit
has explained, “the vast majority of United States District Courts have routinely granted
conditional certification to call center employees alleging similar ‘off-the-clock’ FLSA
violations.” Fisher v. Mich. Bell Tele. Co., 665 F. Supp. 2d 819, 826 (E.D. Mich. 2009) (collecting
cases).
II.
Notice
Although a plaintiff in an FLSA action is not required to affirmatively seek the district
court’s approval to send out notices, a district court may exercise its broad discretion under the
FLSA to facilitate notice to potential collective action plaintiffs. See Hoffmann–La Roche v.
Sperling, 493 U.S. 165, 169 (1989); Woodard v. FedEx Freight E., Inc., 250 F.R.D. 178, 185 n. 6
(M.D. Pa. 2008) (“District courts, however, have discretion to ‘facilitat[e] notice to potential
plaintiffs’ of the pending collective action.”) (citation omitted)). The Supreme Court has explained
that “[b]y monitoring preparation and distribution of the notice, a court can ensure that it is timely,
accurate, and informative.” Hoffman–LaRoche, 493 U.S. 165 at 172.
In regards to notice, Plaintiffs ask the Court: (1) to require Defendant to identify all putative
FLSA Collective members by providing a list of names and contact information within ten days
of the Court’s decision; (2) to permit Plaintiffs’ Counsel to send notice via mail, email, and text
message, and (3) to approve a 60-day opt-in period from the date notice is sent, with a reminder
postcard and email sent 30 days into the notice period to those who have not opted in. (Doc. No.
23 at 1).
Defendant protests that the proposed notice and consent form are overbroad and misleading
and that the method for distributing notice is overreaching. (Doc. No. 28 at 19). Defendant has
requested that, if the Court grants Plaintiffs’ Motion, Defendant be allowed 14 days to submit an
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alternate version of the notice and consent form, and/or that the Court order the parties to meet and
confer regarding the content and form of these documents. (Doc. No. 28 at 19). Defendant
additionally requests that the Court limit the method of notice to regular mail and limit the
production of information to names and addresses only.9 (Id. at 20).
In the Order accompanying this Memorandum Opinion, the Court will direct the parties to
meet and confer regarding the substance of the notice and the notice and consent protocol, and
then submit a joint report to the Court no later than fourteen days after the date of the
accompanying Order. If the parties cannot agree on a protocol, or the language of the notice, then
by that same date (1) Plaintiffs shall file their proposed notice and consent protocol, and (2)
Defendant shall separately file specific objections as to points of disagreement. If this occurs,
Plaintiffs may respond to Defendant’s objections within five days. The Court will consider
extending this time frame if requested.
While explicitly opposing some aspects of Plaintiffs’ requested notice procedures (i.e., the
supplying of certain categories of information and the form of a reminder notice), Defendant does
not indicate whether it opposes, or otherwise respond to, other aspects of Plaintiffs’ request (i.e.,
whether there should be a reminder notice, the appropriateness of a sixty-day notice period, the
availability of electronic consent to join forms). Because Defendant has not briefed all aspects of
Plaintiffs’ request, the Court will defer ruling on the areas Defendant has briefed (such as limiting
the method of notice to regular mail and limiting the production of information to names and
addresses only) until the parties have had an opportunity to meet and confer regarding the other
aspects of notice. Additionally, the Court will defer setting a deadline for Defendant to identify
9
Defendant also argues that Plaintiffs should not be allowed to collect social security numbers.
(Doc. No. 28 at 20-21). The Court does not see anywhere in the Motion that Plaintiffs requested
social security numbers.
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potential class members (which Plaintiffs requested to be ten days after entry of the accompanying
Order) until after the parties have had an opportunity to meet and confer regarding notice
procedures and the categories of information that should be provided by Defendant. Any issues
the parties are not able to resolve shall be brought to the Court’s attention via briefing filed by the
date(s) outlined above (and in the accompanying Order).
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Conditional Class Certification (Doc. No.
37) will be GRANTED in part. The Court conditionally certifies this matter as a collective action
consisting of all similarly situated current and former PSRs and similar job titles who work or have
worked for Change Healthcare Operations, LLC at any of its call center facilities at any time during
the three years preceding the filing of the Complaint through judgment.
In addition, the parties shall meet and confer regarding the substance of the notice and the
notice and consent protocol within the timeline set forth in this Memorandum and the
accompanying Order. The Court defers ruling on the substance of the notice and the proposed
notice and consent protocol until the parties have conferred and filed their joint or separate briefing.
An appropriate order will be entered.
____________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
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