Frye et al v. Baptist Memorial Hospital - Memphis

Filing 395

ORDER GRANTING MOTION TO DECERTIFY COLLECTIVE ACTION 339 . Signed by Judge Samuel H. Mays, Jr., on 9/27/2010. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION JAMES ALLEN FRYE, on Behalf of Himself and All Others Similarly Situated., Plaintiff, v. BAPTIST MEMORIAL HOSPITAL, INC. d/b/a BAPTIST MEMORIAL HOSPITAL--MEMPHIS, BAPTIST MEMORIAL HOSPITAL--COLIERVILLE, and BAPTIST MEMORIAL HOSPITAL FOR WOMEN Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 07-2708

ORDER GRANTING MOTION TO DECERTIFY COLLECTIVE ACTION

Before the Court is Defendant Baptist Memorial Hospital, Inc.'s ("Baptist") Motion to Decertify Collective Action, filed January 15, 2010. (See ECF No. 339.) On behalf of himself and

other similarly situated employees, Plaintiff James Allen Frye responded in opposition on April 9, 2010. Baptist replied on June 3, 2010. following reasons, the Court (See ECF No. 373.) For the to

(See ECF No. 387.) GRANTS Defendant's

Motion

Decertify Collective Action.

I. Background This case arises from the claims of Plaintiff James Allen Frye ("Frye"), a former employee of Baptist. three acute care hospitals in Tennessee: Baptist Baptist operates Baptist Memorial Memorial Hospital-

Hospital-Memphis

("BMH-Memphis"),

Collierville ("BMH-Collierville"), and Baptist Memorial Hospital for Women ("BMHW"). (See Wolfe Decl. ¶¶ 6, 15, ECF No. 340-2.)

From 2004 until his termination on April 19, 2007, Frye worked as a nurse at BMH-Memphis. Baptist requires its (Barbaree Decl. ¶ 4, ECF No. 340-1) hourly employees to take daily,

uncompensated meal breaks.

(See Baptist Policy Manual, Pl.'s ("Baptist Policy Manual") To

Resp. Ex. I, ECF No. 373-9.)

account for those breaks, Baptist's payroll system automatically deducts from each hourly employee's paycheck an amount

representing the time the employee received for meal breaks.1 (Ingram Dep. 29:7-29:9, Mar. 23, 2010, ECF No. 373-5.) break policy governs all three Baptist hospitals. The meal If an

(Id.)

employee experiences any work-related interruption during a meal break, no matter how brief, the employee must receive a

subsequent, uninterrupted meal break or be paid as if she had

1

This Order refers to this policy interchangeably as the "automatic deduction policy" or "meal break policy."

2

worked through the entire meal break.2

(See Banta Dep. 40:16-

41:17, Mar. 22, 2010, ECF No. 373-2; Baptist Policy Manual.) Although wide, Baptist its has automatic not deduction a policy applies policy systemallowing

adopted

system-wide

employees to cancel the automatic deduction when they experience interrupted employees or note missed meal breaks. or missed Baptist meal prefers breaks in that an

interrupted

"exception log."

(Garrison Dep. 58:1-58:25, Mar. 22, 2010, ECF

No. 373-1; Johnson Dep. 16:1-17:20, Mar. 23, 2010, ECF No. 3733.) Despite this preference, Baptist acknowledges that some use less formal procedures, like passing "sticky

departments

note[s]" from employees to supervisors. 16:19, Mar. 23, 2010.) or an informal

(Johnson Dep. 16:11-

Whether through a formal exception log however, each hourly employee must

process,

report missed or interrupted meal breaks to Baptist to ensure she receives proper compensation.3 (Garrison Dep. 23:20-23:22.)

Frye alleges that Baptist violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., by failing to compensate him and other similarly situated hourly employees properly for
2

Many Baptist employees are required to take 30-minute meal breaks. If, 15 minutes into her lunch, an employee is interrupted for 3 minutes for workrelated obligations and does not receive a subsequent, uninterrupted 30minute meal break, Baptist policy requires that she be paid as if she had worked throughout her 30-minute meal break. The automatic deduction for her 30-minute meal break must be cancelled for the day in question. (See Johnson Dep. 15:1-15:19, Mar. 23, 2010, ECF No. 373-3.) 3 This Order refers to the requirement that Baptist employees take some affirmative action to cancel or reverse the automatic deduction for meal breaks as the "exception policy" or "exception procedures."

3

all time worked. deduction policy

According to Frye, "through its automatic and the implementation of that policy,

[Baptist] has not paid employees for missed or interrupted meal breaks at all three of its facilities . . . ." (See Resp. to

Def.'s Mot. to Decertify Collective Action 1, ECF No. 373.) ("Pl.'s Resp.") By Order dated September 16, 2008, the Court granted

conditional certification of a proposed class of employees who were subject to an automatic 30-minute payroll deduction for lunch breaks. (See Order Granting in Part and Denying in Part Following currently

Mot. to Certify Collective Action, ECF No. 144.) discovery, Baptist filed the Motion to Decertify

before the Court.

(See ECF No. 339.)

II. Standard of Review Section 216(b) of the FLSA permits employees to recover unpaid compensation by collectively suing an employer under

certain circumstances.

See 29 U.S.C. § 216(b).

That subsection

states, in pertinent part: Any employer who violates [the maximum hours provisions] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be . . . . An action to recover [for such liability] may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such 4

consent is filed in the court in which the action is brought. 29 U.S.C. § 216(b) (emphasis added). named plaintiffs must therefore To proceed collectively, that they are

demonstrate

"similarly situated" to the opt-in plaintiffs -- the employees they seek to notify and represent.4 To determine whether plaintiffs are similarly situated,

courts generally employ a two-stage inquiry.

Comer v. Wal-Mart The first

Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).

stage occurs at the beginning of discovery, and "[t]he second occurs after `all of the opt-in forms have been received and discovery has concluded.'" Id. (quoting Goldman v. RadioShack

Corp., No. 2:03-CV-0032, 2003 WL 21250571, at *6 (E.D. Pa. Apr. 17, 2003)). At the first stage, courts apply a "fairly lenient"

standard to determine whether plaintiffs are similarly situated, relying on the pleadings and any filed affidavits. See Pacheco

v. Boar's Head Provisions Co., Inc., 671 F. Supp. 2d 957, 959 (W.D. Mich. 2009). Named plaintiffs must make only a "modest Comer, 454 F.3d opt-in plaintiffs

factual showing" of class-wide discrimination. at
4

546.

If

a

court

finds

the

potential

In a collective action, employees suing on their own behalf are referred to as "named" or "lead" plaintiffs. Employees represented by the named plaintiffs are called as "opt-in" plaintiffs, because they must provide written consent to join the action, see 29 U.S.C. § 216(b). Unlike class members in a class action under Rule 23 of the Federal Rules of Civil Procedure, however, opt-in plaintiffs are party plaintiffs. See O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 584 (6th Cir. 2009).

5

similarly

situated

to

the

named

plaintiffs,

the

court

conditionally certifies the class, and potential plaintiffs are provided notice and an opportunity to join the action. Id.

Although courts typically grant conditional certification, that certification is "by no means final." Id. See id.

A "stricter standard" applies at the second stage.

The burden of showing that the opt-in plaintiffs are similarly situated remains on the named plaintiffs. O'Brien v. Ed

Donnelly Enters., 575 F.3d 567, 584 (6th Cir. 2009).

However,

because the second stage follows discovery,5 courts "examine more closely the question of whether particular members of the class are, in fact, similarly situated." Comer, 454 F.3d at 547;

White v. MPW Indus. Servs., 236 F.R.D. 363, 366 (E.D. Tenn. 2006) (explaining that, because a court has much more

information on which to base its decision, the court "makes a factual determination on the similarly situated question")

(internal quotations omitted).

To avoid decertification, the

named plaintiffs must introduce "substantial evidence" that the opt-in plaintiffs are similarly situated. Price v. Acosta,

Inc., No. 03-2686, slip op. at 7 (W.D. Tenn. Feb. 19, 2008); see also Crawford v. Lexington-Fayette Urban Cnty. Gov't, No. 06299-JBC, 2008 WL 2885230, at *5 (E.D. Ky. July 22, 2008).
5

Technically, the defendant's motion for decertification triggers the second stage. For that reason, many courts refer to the second stage as the "decertification stage." See, e.g., Wilks v. Pep Boys, No. 3:02-0837, 2006 WL 2821700, at *2 (M.D. Tenn. Sept. 26, 2006).

6

Although situated"

elevated

at is

the less

second stringent

stage, than

the the

"similarly requirement

requirement

that common questions predominate in certifying class actions under Rule 23 of the Federal Rules of Civil Procedure. O'Brien,

575 F.3d at 584 (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1095-96 (11th Cir. 1996)); see Fed. R. Civ. P. 23. The

plaintiffs need not be identically situated.

Wilks v. Pep Boys,

No. 3:02-0837, 2006 WL 2821700, at *3 (M.D. Tenn. Sept. 26, 2006). Rather, the question is simply whether the differences

among the plaintiffs outweigh the similarities of the practices to which they were allegedly subjected. See id.

If the plaintiffs are similarly situated, the action proceeds collectively. See Hipp v. Liberty Nat'l Life Ins. Co., "If the claimants are not

252 F.3d 1208, 1218 (11th Cir.2001).

similarly situated," however, the "court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives ­ i.e. the original plaintiffs ­ proceed to trial on their individual claims." Id. (quoting Mooney v.

Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), abrogated in part on other grounds by Desert Palace Inc., v. Costa, 539 U.S. 90 (2003) (internal quotation marks omitted)); see Alvarez v. City of Chicago, 605 F.3d 445, 450 (7th Cir. 2010) (holding that "[w]hen a collective action is decertified, it reverts to one or more individual actions on behalf of the 7

named plaintiffs"); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n.2 (5th Cir. 2008) (explaining that, if plaintiffs are not similarly situated, the court "must dismiss the opt-in employees, leaving only the named plaintiff's original claims"); cf. O'Brien, 575 F.3d at 573 (affirming dismissal of the opt-in plaintiffs and noting that most later filed individual actions); Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1301 (11th Cir. 2008) (affirming decertification of an FLSA collective action, dismissal of the opt-in plaintiffs, and severance of named plaintiffs into multiple individual actions). III. Analysis No inquiry. comprehensive criteria guide the similarly situated

O'Brien, 575 F.3d at 585.

However, at the second

stage, courts generally consider (1) the plaintiffs' disparate factual and employment settings, (2) the likely defenses that appear to be individual to each plaintiff, and (3) the degree of fairness and the Id. procedural impact of resolving the claims

collectively.

Considering these factors, Frye has failed

to meet his burden to continue this collective action, making decertification appropriate.6

6

Because the Court grants Defendant's Motion to Decertify on these grounds, it need not address Baptist's argument that O'Brien, 575 F.3d at 586, mandates decertification if some plaintiffs fail to allege the purported FLSA violations. (See Mem. of Law and Facts in Support of Def.'s Mot. to Decertify Collective Action 12-34, ECF No. 339-1.)

8

A. Factual and Employment Settings Under factual and the first factor, courts examine the plaintiffs' such as

employment

settings,

considering

issues

location, job duties, supervision, and salary. 2821700, at *3. Although the Plaintiffs in this case

Wilks, 2006 WL

were

all

Baptist

employees, they worked at three different Baptist-run hospitals. (See Wolfe Decl. ¶ 5.) approximately comprised 200 Each Plaintiff worked in one of the that, as of January Barbaree 8, 2010, 10

departments three

these

facilities.

(See

Decl.

(noting BMH-Memphis had approximately 105 departments); Ingram Decl. ¶ 9, ECF No. 340-3 (noting BMHW had approximately 50

departments); Johnson Decl. ¶ 9, ECF No. 340-4 (noting BMHCollierville had approximately 47 departments).) Plaintiffs' job duties varied significantly, depending on their departments. medical Like Frye, some Plaintiffs on worked in

specialized

departments,

focusing

patient

care.

(See, e.g., Harris Dep. 16:17-17:5, Feb. 25, 2009, ECF No. 342-5 (describing unit).) duties as a patient care assistant in cardiac

In contrast, others worked in supporting departments.

(See, e.g., Wilkerson Dep. 7:13-9:8, Mar. 12, 2009, ECF No. 3426 (describing housekeeping duties in food and nutrition

department).)

9

Even within a single department, job duties varied. example, intensive patients. No. 342-7 in departments units, focused on patient directly care, such

For as with

care

staff

nurses

interacted

(See, e.g., Neal Dep. 17:7-25, Sept. 16, 2009, ECF (explaining that staff nurses dressed patients,

administered medicines, and monitored responses and therapies). Administrative unit coordinators working in the same departments facilitated patient care, but did not directly interact with patients. ECF No. (See, e.g., DeMoss Dep. 15:23-16:25, Sept. 10, 2009, 342-8 charts, (explaining ordered that unit coordinators tests, and prepared provided

patient

laboratory

administrative support to unit nurses).) Baptist had a system-wide human resources director. Decl. ¶ 6.) (Wolfe

However, each hospital maintained "its own finance (Id.) During the period in responsible and keeping for FLSA

and human resources functions." question, each a hospital time was

independently mechanism

implementing records. As various

reporting

(Id. ¶¶ 6-7.) a result of to this ensure decentralization, they were employees for used time

procedures

compensated

worked during meal breaks. used "exception logs" --

At BMH-Memphis, many departments paper records on which employees

recorded, among other things, time worked during meal breaks. (Barbaree Decl. ¶ 7.) However, employees in several BMH-Memphis 10

departments simply notified their supervisors when they worked through lunch. (See, e.g., Peterson Decl. ¶ 10, ECF No. 124-45

(noting that he would simply tell his supervisor); Brown Decl. 2, ECF No. 118-38 (explaining that she would write "no lunch" on a sheet of paper).) Like the departments at BMH-Memphis, most,

but not all, departments at BMH-Collierville and BMHW maintained exception logs for employees to note time worked during meal breaks. together, (See Ingram Decl. ¶ 5; Johnson Decl. ¶ 5.) these facts show significant differences Taken the

among

plaintiffs' factual and employment settings, many of which would determine how Baptist's meal break policy affected them. Frye acknowledges these distinctions, but contends they are immaterial to the decertification question. (Pl.'s Resp. 31.)

Frye emphasizes that all the Plaintiffs were "subject to the automatic deduction policy and the illegal implementation of

that policy, making them all victims of Baptist's attempts to shift the responsibility of ensuring they are paid properly to the employees themselves." (Pl.'s Resp. 31.) According to

Frye, this commonality makes the Plaintiffs similarly situated. Where plaintiffs' factual and employment settings differ, "a material factor in a court's consideration of the plaintiffs' factual and employment settings is whether they were all

affected by a `single decision, policy, or plan.'"

Crawford,

2008 WL 2885230, at *4 (quoting Wilks, 2006 WL 2821700, at *3). 11

As the Sixth Circuit Court of Appeals has explained, "it is clear that plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs." O'Brien, 575 F.3d at 585.

Showing such a "unified policy of violations" is not required. Id. However, "[t]he existence of this commonality may assuage about plaintiffs' otherwise varied circumstances."

concerns

Wilks, 2006 WL 2821700, at *3. [P]laintiffs . . . are all

Frye argues that "the opt-in subject to Baptist's conscious

decision to apply a less accurate time-keeping procedure -- the automatic deduction policy -- to their meal breaks." Resp. 18.) Standing alone, an employer policy providing automatic See, (Pl.'s

deductions for meal breaks does not violate the FLSA.

e.g., Fengler v. Crouse Health Found., Inc., 595 F. Supp. 2d 189, 195 (N.D.N.Y 2009); see also Wage and Hour Div., U.S. Dep't of Labor Fact Sheet No. 53, The Health Care Industry and Hours Worked (July 2009), ECF No. 373-16 ("Dep't of Labor Fact Sheet") (recognizing policies). that the FLSA permits automatic deduction

Therefore, Baptist's mere adoption of a system that,

by default, deducts meal breaks from its employees' compensation does not constitute a unified policy of FLSA violations capable of binding the Plaintiffs together. 12

More importantly, where an employer's formal policy is to compensate require practice a employees showing was to for that not all the time worked, courts or generally uniform policy."

employer's its

"common

follow

formal,

written

Pacheco, 671 F. Supp. 2d at 959. the lead plaintiff deduction must show

As one court has explained, the a "enforcement of the

that

automatic policy."

policy

created

policy-to-violate-the-

Saleen v. Waste Mgmt., Inc., No. 08-4959, 2009 U.S.

Dist. LEXIS 49891, at *14 (D. Minn. June 15, 2009) (denying conditional certification where employees failed to show a

corporate decision by employer not to follow its formal policy of paying for time worked during meal breaks). Baptist's formal policy is to compensate employees for time worked during meal breaks. (See Barbaree Decl. ¶ 6; Ingram Frye has introduced no direct

Decl. ¶ 4; Johnson Decl. ¶ 4.)

evidence that Baptist has maintained a de facto policy to the contrary. admit Indeed, many of the employees deposed by Baptist when Baptist they paid used them their for departments' worked exception meal

that,

procedures, breaks. ECF No.

time

during

(See Def.'s Mot. to Decertify Collective Action Ex. 13, 13 (collecting relevant excerpts from Plaintiffs'

depositions).) Frye has not proffered any circumstantial evidence that

would permit the Court to infer any illicit de facto policy on 13

Baptist's part.

Most Plaintiffs deposed by Baptist admit that

Baptist never discouraged them from or retaliated against them for reporting time worked during meal breaks. (See Def.'s Mot.

to Decertify Collective Action Ex. 14, ECF No. 341-2 (collecting relevant excerpts from Plaintiffs' depositions showing that 23 of the 39 deposed Plaintiffs made such admissions).) Thus, Frye

has failed to show a unified policy of violations at this stage of the proceeding. See Crawford, 2008 WL 2885230, at *5 ("The

plaintiffs must produce substantial evidence demonstrating that a central policy exists that binds the potential class members together.") (citations omitted). Having failed to show a unified policy, Frye seeks to

construct a common theory of FLSA violations.

Common theories

of a defendant's FLSA violations may support a finding that plaintiffs are similarly situated, despite their disparate

factual and employment settings.

See O'Brien, 575 F.3d at 585"Even if the

86 (affirming decertification on other grounds).

proofs . . . are inevitably individualized and distinct," where the plaintiffs allege "common theories of defendants' statutory violations," they are similarly situated. Id. at 585. In

O'Brien, the plaintiffs showed they were similarly situated by "articulat[ing] two common means by which they were allegedly cheated: forcing employees to work off the clock and improperly editing time-sheets." Id. at 585-86. 14

According application of

to its

Frye, automatic

Baptist's deduction

"implementation policy is an

and

illegal

shift of enforcement of the FLSA from itself to its employees . . . ." (Pl.'s Resp. 14.) To support this "shifting the burden"

theory, Frye emphasizes that all Plaintiffs must initiate some sort of action to receive payment for missed meal breaks. id. at 14-17.) its FLSA duties. (See

Therefore, in Frye's view, Baptist has abdicated (See id.)

Under the FLSA, management has a duty "to exercise its control and see that the work is not performed if it does not want it to sit be performed." and accept Id. 29 the C.F.R. 785.13. [of An work] employer without

"cannot

back

benefits

compensating for them."

("The mere promulgation of a rule

against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.") An

employer's failure "to police and oversee hourly workers and their during supervisors unpaid to ensure that[,] they when are working through . . or ."

meal

breaks[,]

compensated

potentially violates the FLSA.

Fengler, F. Supp. 2d at 195; see

also Dep't of Labor Factor sheet (explaining that an employer implementing an automatic deduction policy for meal breaks

remains "responsible for ensuring that the employees take . . . meal break[s] without interruption").

15

At least two courts have conditionally certified collective actions Frye's. based on "shifting the burden" theories similar to

See Kuznyetsov v. W. Penn Allegheny Health Sys., No.

2:09-cv-00379-DWA, 2009 U.S. Dist. LEXIS 47163, at *14-15 (W.D. Pa. June 1, 2009); Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2009 WL 1361265, at *4 (W.D. Pa. May 14, 2009). The

defendants in these cases were medical centers that required their hourly employees to initiate cancellation of their See

automatic deductions when they worked through meal breaks.

Kuznyetsov, 2009 U.S. Dist. LEXIS 47163, at *12-13; Camesi, 2009 WL 1361265, at *1-2. In both cases, however, the courts spoke

at the lenient first stage of the similarly situated analysis, which See they recognized 2009 in granting Dist. conditional LEXIS certification. at *14-15

Kuznyetsov,

U.S.

47163,

("Arguably, Defendants' policies shift the responsibility to the employees. this stage Consequently, I find this evidence is sufficient at to proceed with conditional certification.")

(emphasis added); Camesi, 2009 WL 1361265, at *4 (holding that the medical center's to "arguable [its] to attempt to shift an stage statutory `employer in the

responsibilities policy'

workers challenge

constitutes at this

susceptible

proceedings.") (emphasis added). Frye's burden is significantly higher than the burden of the plaintiffs in the foregoing cases. 16 At the first stage, a

lead plaintiff need make only a "modest factual showing" that all plaintiffs are similarly situated. Comer, 454 F.3d at 546.

At the second stage, the lead plaintiff must show that the optin plaintiffs are, "in fact," similarly situated. Id. at 547.

To support a "shifting the burden" theory capable of binding the Plaintiffs together, Frye must introduce "substantial evidence" that Baptist, in fact, shirked its FLSA responsibilities. Crawford, 2008 WL 2885230, at *5. A natural consequence of any employer's adopting an See

automatic deduction policy is that employees will be required to cancel the deduction if they work through meal breaks. In this

sense, any automatic deduction policy "shifts the burden" to employees. Because the FLSA permits automatic deduction

policies, standing alone, this so-called "burden shift" cannot form the basis of an alleged FLSA violation. Therefore,

Baptist's requiring its employees to take affirmative action to ensure payment for time worked during meal breaks, by itself, does not support a common theory of statutory violations capable of overcoming the Plaintiffs' otherwise disparate factual and employment settings. Frye attempts to bolster his "shifting the burden" theory by contending that the Plaintiffs were all subject to Baptist's "inadequate education, training, and monitoring regarding its FLSA meal break policies . . . ." (Pl.'s Resp. 17-18.) 17 Frye

describes Baptist's current education and training processes and implies that they are inadequate. (See Pl.'s Resp. 3-8.) For

example, other than an initial new employee orientation, Baptist provides no formal training on the exception procedures for nonmanagement employees. (Barbaree Dep. 16:20-17:18, Mar. 23,

2010, ECF No. 373-4; Ingram Dep. 24:7-9, Mar. 23, 2010; Johnson Dep. 17:21-20:10, Mar. 23, 2010.) There is no systematic

training about the automatic deduction policy for managementlevel employees, aside from an initial training program and

occasional managers meetings. Despite contradicts these Frye's supposed argument

(Johnson Dep. 41:19-41:21.) shortcomings, "there is other no evidence that

that

evidence

employees leave orientation with a solid understanding of the meal break policy." (Pl.'s Resp. 16). The vast majority of the

Plaintiffs deposed by Baptist stated that they were aware of Baptist's breaks. procedures for reporting time worked during meal

(See Def.'s Mot. to Decertify Collective Action Ex. 13 relevant excerpts from Plaintiffs' depositions

(collecting

showing that 33 of 39 deposed Plaintiffs were aware of Baptist's exception procedures).) that they used the Many of the deposed Plaintiffs concede procedures. were, in (See fact, id.) If

exception and

Baptist's

education

training

inadequate,

there would be substantial evidence that the Plaintiffs were unaware of Baptist's policies. 18

Frye also describes Baptist's current monitoring process, implying that it is inadequate. (Pl.'s Resp. 8.) For example,

Baptist does not monitor managers' or employees' compliance with the meal break policy. (Johnson Dep. 50:13-51:6, Mar. 23,

2010).

Nor does Baptist audit the exception logs themselves, Dep. 29:12-29:20), are not other than to ensure that the

(Garrison exceptions 44:22). These

given

"subjective,"

(Johnson

Dep.

43:21-

limited

facts

do

not

constitute

"substantial Where

evidence" that Baptist has abdicated its FLSA duties.

employees sometimes use procedures to report time worked but neglect to do so for all time worked, an employer has no reason to know of the unreported time. Cf. Wood v. Mid-America Mgmt.

Corp., 192 F. App'x. 378, 380 (6th Cir. 2006) (concluding that, because employee reported some overtime hours, employer "had no reason to suspect that he neglected to report other overtime hours"). Many of the employees deposed by Baptist admit that (See Def.'s Mot. relevant

they sometimes used the exception procedures. to Decertify Collective Action Ex. 13

(collecting

excerpts from Plaintiffs' depositions).)

They also admit that

they sometimes voluntarily failed to report time worked during meal breaks. Ex. 18, ECF (See Def.'s Mot. to Decertify Collective Action No. 342-1 (collecting relevant excerpts from

Plaintiffs' depositions showing that 19 of 39 deposed Plaintiffs 19

knew of, but failed to use, the exception procedures).)

Thus,

Baptist had no reason to know of uncompensated work occurring during meal breaks and no reason to conduct more significant monitoring or auditing. Cf. Wood, 192 F. App'x at 380 ("Quite

sensibly, `an employer cannot suffer or permit an employee to perform services about which the employer knows nothing.'")

(quoting Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2d Cir. 1998)). If Baptist's monitoring were, in fact, inadequate, the

Court would expect to see instances of non-payment by Baptist even when employees used the exception procedures. isolated incidents, which Baptist corrected Aside from (see,

promptly,

e.g., Nowley Dep. 45:12-46:12, Aug. 22, 2009, ECF No. 342-1), Frye has proffered no such evidence. Rather, many of the

employees deposed by Baptist concede that, when they used the exception procedures, they received proper compensation. (See

Def.'s Mot. to Decertify Collective Action Ex. 13 (collecting relevant excerpts from Plaintiffs' depositions).) For these reasons, Frye's "shifting the burden" argument cannot form the basis of a common theory of FLSA violations that brings commonality to the otherwise differently situated

Plaintiffs. Plaintiffs'

Based on the foregoing, the differences among the factual and employment settings outweigh the

20

similarities.

Therefore, the first factor weighs in favor of

decertification. B. A second Individualized Defenses relevant factor is the extent to which the

defenses appear to be individual to each plaintiff. WL 2821700, at *7.

Wilks, 2006

The presence of many individualized defenses

makes a representative class unmanageable, and "several courts have granted motions for decertification on this basis."

Crawford, 2008 WL 2885230, at *9 (quoting Moss v. Crawford & Co., 201 F.R.D. 398, 410 (W.D. Pa. 2000)). Baptist argues that its defenses are "just as disparate and individual as the facts and circumstances Mem. of of Law the and putative Facts in

[P]laintiffs'

employment."

(See

Support of Def.'s Mot. to Decertify Collective Action 42, ECF No. 339-1.) According to Baptist, it would be forced to conduct

individualized inquires to determine, inter alia, whether each Plaintiff missed meal breaks, knew of Baptist's meal break

policy, and made use of the exceptions log or other procedures to ensure compensation for time worked during meal breaks. at 42-43, 47-49.) such as Baptist also argues that it would (Id. raise

defenses

Plaintiffs'

bankruptcies,

conflicting

declarations, and the statute of limitations. Where similar, plaintiffs' defenses factual do not 21 and

(Id. at 43-47.) settings are

employment

these

necessarily

render

collective

treatment unmanageable.

See Crawford, 2008 WL 2885230, at *10

(finding similar defenses "uniform and suitable for assertion against each plaintiff who testifies at trial"). However,

unlike the Crawford plaintiffs, Frye has failed to produce the significant evidence of a unified policy or common theory of violations required by the first factor of the similarly

situated analysis, see supra Section III.A.

Therefore, although

Baptist's likely defenses would not necessarily bar collective treatment, the second factor does not weigh against

decertification in this case. C. To Fairness and Manageability the third factor, courts consider whether

analyze

collective treatment comports with the purposes of the FLSA, which Congress intended to be "broadly remedial and

humanitarian." v. Brandel, the 736

Wilks, 2006 WL 2821700, at *8 (quoting Donovan F.2d 1114, cost to 1116 (6th Cir. 1984)). Courts and any

balance increased

reduced

individual might

plaintiffs from

judicial

utility

that

result

collective

action against the potential detriment to the defendant and any possible judicial inefficiency. See id. (citing Hoffman-La As a

Rouche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)).

remedial statute, the FLSA "must not be interpreted or applied in a narrow, grudging manner." 548 F.2d 139, 144 (6th Cir. Dunlop v. Carriage Carpet Co., 1977). 22 However, "the remedial

nature of the FLSA, standing alone, does not justify allowing a case to proceed collectively . . . ." Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 541 (S.D. Tex. 2008). According to Frye, decertifying this class would result in a waste of judicial resources. (Pl.'s Resp. 36. ("The opt-in

[P]laintiffs have all been subject to the same policies and practices by Baptist which have resulted in their not having been paid for missed and interrupted meal breaks.").) "plaintiffs' assertions about the defendant's Where

purportedly

improper time-keeping and pay practices play a predominant role in each of their claims," courts have concluded that

decertification "would waste more judicial time and resources than trying their cases individually would preserve." Wilks, 2006 WL 2821700, at *8. E.g.,

Unlike the named plaintiffs in

Wilks, however, Frye has not shown substantial evidence of any improper time-keeping and pay practices by Baptist. Compare

id., at *10 (finding "substantial evidence" that the defendant's de facto policies no violated of FLSA), with supra Section III.A. by

Therefore,

waste

judicial

resources

would

result

requiring the Plaintiffs to proceed individually. In this case, the would Plaintiffs' present disparate factual and

employment problems. Frye's

settings

significant

manageability Despite the

See Price, No. 03-2686, slip op. at 10. that representative 23 testimony could

claim

ensure

collective

action

remains

manageable,

(Pl.'s

Resp.

33),

Frye

provides no workable classification of the Plaintiffs and cites no testimony that could be considered representative. Plaintiffs' disparate factual and employment Given the settings,

proceeding collectively would result in unfairness to Baptist and reduce judicial economy. in favor of decertification. IV. Conclusion For the foregoing reasons, the Court concludes that Frye has failed to meet his burden of showing that this case should proceed collectively. Therefore, Defendant's Motion to Therefore, the third factor weighs

Decertify Collective Action is GRANTED.

As a result, the claims

of all Plaintiffs other than named Plaintiff James Allen Frye are DISMISSED WITHOUT PREJUDICE. So ordered this 27th day of September, 2010.

s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE

24