Collier et al v. Careplus Health Services, Inc. et al
MEMORANDUM OPINION AND ORDER re 17 Opposed MOTION to Certify Class filed by Freddy Rodriguez, Angela Wagner, Cristy Collier. Plaintiffs Motion for Conditional Certification (Dkt. #17) is hereby GRANTED. Signed by Judge Amos L. Mazzant, III on 2/1/17. (cm, )
United States District Court
EASTERN DISTRICT OF TEXAS
CRISTY COLLIER, FREDDY
RODRIGUEZ, ANGELA WAGNER
CAREPLUS HEALTH SERVICES, INC.,
Civil Action No. 4:16-CV-00178
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion for Conditional Certification (Dkt. #17).
After reviewing the motion and the pleadings, the Court finds that Plaintiffs’ motion is granted.
Plaintiffs are Licensed Vocational Nurses (“Field LVNs”) who were employed by
Defendant Careplus Health Services, Inc. (“Careplus”). Defendant Anil Joseph (“Joseph”) is the
president of Careplus, is responsible for the day-to-day operations of Careplus, and exercised
control over the work Plaintiffs performed.
Plaintiffs’ primary job duties as Field LVNs included traveling to patients’ homes and
providing patients with nursing care. Plaintiffs allege that they and other Field LVNs often worked
more than forty hours in a week and did not receive overtime compensation for such time.
Plaintiffs further allege that the software Defendants used to track Field LVN time did not
accurately record all time Field LVNs spent providing care. Defendants do not allege that
Plaintiffs were classified as employees exempt from the overtime pay requirements of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.
Defendants compensated Field LVNs in the following ways: on a salary basis, on a per
visit basis consisting of a set amount of pay for each patient visit, on a salary plus “points” basis,
or on a points only basis. Individuals paid on a “points” basis received one point for each in-home
visit and were paid a certain dollar amount for each point received. Plaintiff Christy Collier
(“Collier”) was paid on a salary plus points basis. Collier stated that she worked approximately
sixty to seventy hours a week but was not paid overtime compensation at any point during her
employment. Plaintiff Freddy Rodriguez (“Rodriguez”) was paid on a salary basis and at the end
of his employment was “paid as a 1099 contractor” (Dkt. #19, Exhibit A–2, at p. 13). Rodriguez
stated that he worked between fifty-five and sixty hours a week but was not paid overtime
compensation at any point during his employment. Careplus allegedly told Rodriguez that he was
not entitled to overtime pay because it paid him on a salary basis. Plaintiff Angela Wagner
(“Wagner”) worked on a per visit basis and on a salary basis. Wagner stated that at times she
worked up to sixty hours per week but was not paid overtime compensation at any point during
her employment. Opt-in Plaintiff Paulette Whiteside (“Whiteside”) was paid on a points basis.
Whiteside stated that she worked more than forty hours per week on multiple occasions but was
not paid overtime compensation.
Collier, Rodriguez, Wagner, and Whiteside all stated that at there are other Field LVNs
who were not paid overtime compensation. Defendants terminated Collier and Rodriguez’s
employment in March 2016 after Plaintiffs filed their original complaint.
On March 30, 2016, Plaintiffs filed an amended complaint (Dkt. #5). On April 18, 2016,
Defendants filed an answer to the amended complaint (Dkt. #8). Plaintiffs filed the pending
motion for conditional certification on July 14, 2016 (Dkt. #17). That same day, Defendants filed
a response (Dkt. #19).
The FLSA requires covered employers to compensate nonexempt employees at overtime
rates for time worked in excess of statutorily defined maximum hours. 29 U.S.C. § 207(a). Section
216(b) of the FLSA gives employees the right to bring an action on behalf of themselves, as well
as “other employees similarly situated” for violations of the FLSA. 29 U.S.C. § 216(b). “Under
§ 216(b), district courts have the discretionary power to conditionally certify collective actions and
authorize notice to potential class members.” Tice v. AOC Senior Home Health Corp., 826 F. Supp.
2d 990, 994 (E.D. Tex. 2011).
While the Fifth Circuit has not specifically addressed the meaning of “similarly situated”
in this context, “[t]wo approaches are used by courts to determine whether collective treatment
under § 216(b) is appropriate: (1) the two-stage class certification set forth in Lusardi v. Xerox,
Corp., 118 F.R.D. 351 (D. N.J. 1987); and (2) the ‘Spurious Class Action’ method outlined in
Shushan v. Univ. of Colorado, 132 F.R.D. 263 (D. Colo. 1990).” Cripe v. Denison Glass Mirror,
Inc., No. 4:11-CV-224, 2012 WL 947455, at *3 (E.D. Tex. Jan 27, 2012) report and
recommendation adopted, 2012 WL 947362 (E.D. Tex. Mar. 20, 2012); Villatoro v. Kim Son Rest,
L.P., 286 F. Supp. 2d 807, 809 (S.D. Tex. 2003). “The Lusardi two-stage approach is the
prevailing standard among federal courts.” Tice, 826 F. Supp. 2d at 994 (citations omitted). This
Court has applied the Lusardi approach in a number of other cases. See Halleen v. Belk, Inc., No.
4:16-CV-00055, 2016 WL 5118646, at *2 (E.D. Tex. Sept. 21, 2016); Miranda v. Mahard Egg
Farm, Inc., No. 4:15-CV-406, 2016 WL 1704861, at *1 (E.D. Tex. Apr. 28, 2016); Stier v. Great
Plains Nat'l Bank, No. 4:15-CV-519, 2016 WL 1572194, at *1 (E.D. Tex. Apr. 19, 2016). As
such, the Court will apply the Lusardi approach in this case.
Under Lusardi, “certification for a collective action under § 216(b) is divided into two
stages: (1) the notice stage; and (2) the merits stage.” Id. “At the notice stage, the district court
makes a decision—usually based only on the pleadings and any affidavits which have been
submitted—whether notice of the action should be given to potential class members.” Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). Because the Court has minimal evidence before it at
this stage, “the determination is made using a fairly lenient standard requiring nothing more than
substantial allegations that the putative class members were victims of a single decision, policy or
plan.” Tice, 826 F. Supp. 2d at 995. “Notice is appropriate if the court concludes that there is
‘some factual nexus which binds the named plaintiffs and potential class members together as
victims of a particular alleged [policy or practice].’” Allen v. McWane, Inc., No. 2:06-CV-158
(TJW), 2006 WL 3246531, at *2 (E.D. Tex. Nov. 7, 2006). “If the first step [of the Lusardi
approach] is satisfied, the court conditionally certifies a class; and the action proceeds as a
collective action during discovery.” Sedtal v. Genuine Parts Co., No. 1:08-CV-413-TH, 2009 WL
2216593, at *3 (E.D. Tex. July 23, 2009).
Defendants contend that collective treatment is not appropriate because each Field LVN’s
schedule varied based on the “location of the patient, the type of treatment required, the day of the
week or the time of the treatment, whether the patient required a LVN who spoke a foreign
language, and the individual LVN patient caseload for that day or week.” However, this case is in
the first stage under Lusardi. At this stage, “Plaintiff bears the burden of presenting preliminary
facts to show that there is a similarly situated group of potential plaintiffs.” Cripe, 2012 WL
947455, at *2. This does not mean that their positions must be identical. “The court need not find
uniformity in each and every aspect of employment to determine a class of employees are similarly
situated [under § 216(b)].” Tice, 826 F. Supp. 2d at 995-96. Rather, “the relevant inquiry is
whether the potential class members performed the same basic tasks and were subject to the same
pay practices.” Id. at 996. “[Plaintiffs] need only show that their positions are similar to the
potential plaintiffs.” Id. at 995.
Here, Plaintiffs have submitted sufficient evidence that each of their primary duties
involved traveling to a patient’s house and providing nursing care. Plaintiffs performed the same
basic tasks and are thus similarly situated, even if the time at which Plaintiffs provided nursing
care or the language in which Plaintiffs spoke to patients differed. Plaintiff’s positions do not need
to be identical for the Court to conditionally certify the class.
Defendants next argue that Plaintiffs are not similarly situated because Plaintiffs are paid
differently and some worked full-time while others worked part-time. However, Plaintiffs allege
that they each often worked over forty hours a week and were not paid overtime compensation at
any point during their employment. Plaintiffs also allege that they are aware of other Field LVNs
who were not paid overtime compensation. Plaintiffs have satisfied the fairly lenient Lusardi
standard requiring nothing more than substantial allegations that the putative class members were
victims of a single decision, policy, or plan. Plaintiffs here sufficiently alleged that they were
victims of a similar plan under which they did not receive overtime compensation. See Williams
v Grayco, 187 F. Supp. 3d 760 (S.D. Tex. 2016) (granting conditional certification where Plaintiffs
were all paid under “the same overall scheme” even though some employees were classified
differently and Defendants alleged there was no uniform pay policy); Tice, 826 F. Supp. 2d at 996
(granting conditional certification where all Plaintiffs claimed that they were required to work
overtime without appropriate compensation); Foraker v. Highpoint Sw., Servs., L.P., No. CIV.A.
H-06-1856, 2006 WL 2585047, at *4 (S.D. Tex. Sept. 7, 2006) (granting conditional certification
because “Plaintiffs’ claim [was] fundamentally that they routinely worked in excess of forty hours
per week, that they did not receive any overtime pay, and that [Defendant’s] practice or policy of
failing to pay overtime affected the proposed class members in exactly the same way.”).
The Court finds that Plaintiffs have come forward with sufficient evidence to warrant
conditional certification of a collective action and notice to potential class members. It is therefore
ORDERED that Plaintiffs’ Motion for Conditional Certification (Dkt. #17) is hereby GRANTED.
It is further ORDERED, ADJUDGED AND DECREED that the Court conditionally
certifies a class of Defendant’s current and former employees that is described as follows and
referred to herein as the “Workers”:
All Field LVNs employed by Careplus Health Services, Inc. and Anil Joseph from
March 30, 2013 to the Present.
It is further ORDERED, ADJUDGED AND DECREED that the Notice and Consent to
Join Form (the “Notice”) presented to the Court as Exhibit 1 to Docket #18 is conditionally
approved, subject to Plaintiffs’ insertion of the appropriate dates. Notice shall be issued by
Plaintiffs’ counsel to the Field LVNs identified by Defendants in response to discovery (Dkt. #18,
Exhibit 2) within seven (7) days of the entry of this Order. Such Notice shall be mailed on one
occasion by first-class mail. The mailing shall include the relevant forms and a return-addressed
stamped envelope. Plaintiffs’ counsel may also disseminate the forms by email. Defendants shall
post the Notice in a conspicuous place at Defendants’ facility for a period of sixty (60) days
commencing on the date of initial mailing of the Notice.
Any Notice returned to Plaintiffs’ counsel by the Workers shall be filed within sixty (60)
days of the date of initial mailing of the Notice. If such list is sent piecemeal, the sixty (60) days
shall begin to run on the date that the last address or other identifying information is sent by
Defendant to Plaintiffs’ counsel.
SIGNED this 1st day of February, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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