Crane v. J & M Communications Inc
Filing
29
MEMORANDUM OPINION AND ORDER denying 10 Motion to Conditionally Certify FLSA Collective Action, Approve Notice, and Expedited Consideration. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 7/6/2017) (aaa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PAMELA CRANE, individually
and on behalf of all others similarly
situated,
Plaintiff,
v.
J & M COMMUNICATIONS, INC.,
d/b/a ULTIMATE HOME HEALTH
CARE,
Defendant.
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Civil Action No. 3:16-CV-2855-L-BH
MEMORANDUM OPINION AND ORDER
Pursuant to the order of reference dated February 22, 2017, this case has been referred for
full case management, including the determination of non-dispositive motions and issuance of
findings of fact and recommendations on dispositive motions. Before the Court is Plaintiff’s Motion
to Conditionally Certify FLSA Collective Action, Approve Notice, and Expedited Consideration,
filed February 7, 2017 (doc. 10). Based on the relevant filings, evidence, and applicable law, the
motion is DENIED.
I. BACKGROUND
On October 11, 2016, Pamela Crane (Plaintiff) brought this collective action to recover
unpaid overtime wages under the Fair Labor Standards Act (FLSA) on behalf of herself and all
current or former home healthcare workers employed by J & M Communications, Inc. d/b/a
Ultimate Home Health Care (Defendant) from January 1, 2015 to the present. (doc. 1 at 1.)1
Plaintiff alleges that Defendant violated 29 U.S.C. §§ 207 & 215(a)(2) of the FLSA by
1
Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.
failing to comply with new regulations from the Department of Labor (DOL) that require third-party
employers to pay overtime compensation to employees “who provided companionship and other
services to individuals who were unable to care for themselves.” (Id. at 5-6.) Plaintiff claims that
she and other similarly situated employees regularly worked more than 40 hours per week but were
not compensated with overtime wages for those additional hours. (Id. at 5-7.) She further alleges that
“Defendant’s practice and policy of not paying overtime effective January 1, 2015 uniformly affects
Plaintiff [and similarly situated employees] and is a willful violation of the FLSA.” (Id. at 6.) She
seeks unpaid overtime wages, liquidated damages, and attorney fees. (See id. at 7-8.)
Plaintiff moves for conditional certification of a collective action class comprised of “[a]ll
current and former home healthcare workers employed by J & M Communications, Inc. d/b/a
Ultimate Home Health Care and/or any of its or their affiliated entities, who were paid hourly and
who were not paid overtime for all hours worked over 40 in a work week since January 1, 2015.”
(doc. 10-1 at 7.) She provides a company brochure and an administrative policy manual from
Defendant, as well as her own declaration and payroll records. (See docs. 10-3, 10-4, 10-5.) She also
moves for authorization to provide written and electronic notice of the action to potential plaintiffs.
(doc. 10-1 at 14-22.)
II. OBJECTIONS
Defendant objects and moves to strike certain paragraphs from Plaintiff’s declaration
(Declaration) because she “lacks personal knowledge and personal observation” to make those
statements. (doc. 15 at 12.) It also objects and moves to strike three other exhibits because they are
not authenticated. (Id. at 16-17.)
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A.
Plaintiff’s Declaration
Defendant objects to paragraphs 7, 8, 10, 11, 12, 15, and 16 of the Declaration because
Plaintiff lacks personal knowledge and is making conclusory statements as to the employment of
Defendant’s other home healthcare workers. (Id. at 12.)
Because the “factual support necessary for certification of a collective action is modest,”
federal courts in this district apply “a lenient evidentiary standard.” Nguyen v. Versacom, LLC, No.
3:13-CV-4689, 2015 WL 1400564, at *3 (N.D. Tex. Mar. 27, 2015). This means “that affidavits or
declarations offered in support of motions for conditional certification need not be based on
evidence that would be admissible at trial.” Parker v. Silverleaf Resorts, Inc., No. 3:14-CV-2075-B,
2017 WL 1550522, at *6 (N.D. Tex. May 1, 2017) (citing Lee v. Metrocare Servs., 980 F. Supp.
2d 754, 759-61 (N.D. Tex. 2013) (“Plaintiffs need not present evidence in a form admissible at trial
at the notice stage.”)). However, the contents of affidavits and declarations must still be based on
personal knowledge. See Lee, 980 F. Supp. 2d at 762 (citation omitted).
The Fifth Circuit has noted that “a declarant may satisfy the personal knowledge requirement
based on his position” as an employee within the company. Id. at 763 (citing Villarreal v. St. Luke’s
Episcopal Hosp., 751 F. Supp. 2d 902, 912 (S.D. Tex. 2010) (“By virtue of his position, [declarant]
has properly stated a basis upon which he may have gained personal knowledge of the organization
by way of his day-to-day work and interaction with other employees . . . during his tenure with
[d]efendant.”)). A declaration can also overcome evidentiary objections to a declarant’s personal
knowledge when the declaration contains a statement that it is based on personal knowledge. See
Parker, 2017 WL 1550522, at *6 (citing Perez v. Alcoa Fujikura, Ltd., 969 F. Supp. 991, 998 (W.D.
Tex. 1997)).
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1.
Statements on the Duties of Other Home Healthcare Workers
Paragraphs 7, 8, 10, 11, and 12 of the Declaration all describe the work activities and job
responsibilities of the “other home healthcare workers.” (doc. 10-5 at 3.)
In these paragraphs, Plaintiff states that “Defendant hired other home healthcare workers
who had the same job responsibilities [as she did],” they all share the same job description, all of
the home healthcare workers have to perform a plan of care for their clients, and that their “activities
and hours were monitored and recorded using an automated system, called Vesta.” (Id.) Plaintiff
explains that she has knowledge of this because she has “worked with other home healthcare
workers,” she has “discussed job duties with other workers,”2 the “job duties and responsibilities
[were] discussed at company meetings,” the “duties and responsibilities are set forth in company
policies and procedures,” and because Defendant “uses the same automated system for all home
healthcare workers.” (Id. at 2-3.) This is sufficient to show personal knowledge regarding the
responsibilities of the other home healthcare workers. See Lee, 980 F. Supp. 2d at 763-64 (finding
it reasonable to infer at the notice stage that employees “had personal knowledge of the employment
conditions of other [employees] based on their own observations and experiences during their
employment.”); see Villareal, 751 F. Supp. 2d at 912 (finding that the affiant’s interactions and
conversations with other employees was sufficient to show personal knowledge about coworkers’
schedules and work responsibilities); see Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510,
2
Defendant appears to object that Plaintiff’s discussions with other employees regarding job responsibilities are
hearsay. (doc. 15 at 13.) To the extent that Defendant is making a hearsay objection, it is overruled because, at the
initial notice stage of a FLSA collective action, courts routinely look at hearsay statements as the movant does not
yet need to present evidence in a form admissible at trial. See Nguyen, 2015 WL 1400564, at *3-4 (overruling the
defendant’s hearsay objection to plaintiff’s evidence submitted at the notice stage of a FLSA collective action)
(citations omitted); see also Contreras v. Land Restoration LLC, No. 1:16-CV-883-RP, 2017 WL 663560, at *5
(W.D. Tex. Feb. 17, 2017) (collecting cases) (“Whether framed in terms of ‘personal knowledge’ or not, the
acceptance of hearsay at the conditional certification stage is widespread in Texas.”).
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514 (W.D. Tex. 2015) (finding that the affiant acquired personal knowledge “by way of his own
employment with the company, as well as specifically inquiring of other workers concerning their
experiences”). Defendant’s objections to paragraphs 7, 8, 10, 11, and 12 of the Declaration are all
OVERRULED.
2.
Statement on Overtime Hours of Other Home Healthcare Workers
Paragraph 15 of the Declaration describes the overtime hours worked by the “other home
healthcare workers.” (doc. 10-5 at 4.) The Declaration states that these other home healthcare
workers “also worked well over (40) hours per week in 2015 and 2016, and Defendant did not pay
them any overtime wages.” (Id.) Plaintiff states that she “knows this because . . . [she] was told by
a company representative that employees were no longer permitted to work overtime because of this
lawsuit.” (Id.) Even if this general statement is sufficient to support the inference that employees
worked overtime prior to the lawsuit, it is insufficient to show Plaintiff’s personal knowledge about
the existence of other home healthcare workers who worked over 40 hours in a week without
overtime compensation. See McCloud v. McClinton Energy Grp., L.L.C., No. 7:14-CV-120, 2015
WL 737024, at *5 (W.D. Tex. Feb. 20, 2015) (finding that one of the plaintiffs had an insufficient
factual basis to support his statements on the overtime hours and compensation of other employees
because he failed to show how he had personal knowledge of other employees’ overtime).
Accordingly, Defendant’s objection to paragraph 15 is SUSTAINED, and it will not be considered.
3.
Statement on Defendant’s Overtime Compensation
Paragraph 16 describes Defendant’s “policy” on overtime compensation. (See doc. 10-5 at
4.) It states that Defendant’s overtime policy was “to pay [her] and other home healthcare workers
‘straight time’ for all hours worked, including any hours worked in excess of 40 per work week.”
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(doc. 10-5 at 4.) She claims personal knowledge of this because a company representative told her
that “[Defendant] did not pay overtime.” (Id.) This is sufficient to show that Plaintiff has personal
knowledge regarding Defendant’s practice on overtime compensation. See McCloud, 2015 WL
737024, at *4 (finding that the plaintiff had personal knowledge on the defendant’s company pay
structure “because of conversations he had with company management [and other employees]”).
Defendant’s objection to paragraph 16 of the Declaration is OVERRULED.
B.
Exhibits A, B, and D
Defendant also objects to Plaintiff’s Exhibits A, B, and D because they are not authenticated
or referred to in Plaintiff’s Declaration. (doc. 15 at 16-17.) These exhibits are Defendant’s company
brochure, its administrative policy manual, and Plaintff’s pay stubs. (See docs. 10-3, 10-4, 10-6.)
As noted, federal courts in this district apply a “lenient evidentiary standard” at the initial
certification stage of a collective action where plaintiffs “need not present evidence in a form
admissible at trial at the notice stage.” Lee, 980 F. Supp. 2d at 759-61. Here, Defendant does not
contest that the company brochure, the administrative policy manual, or her own pay stubs are
incorrect reproductions, but it only objects that Plaintiff fails to authenticate them. (doc. 15 at 1617.) Even if these documents are not properly authenticated, the Court can still consider them
because of the “lenient evidentiary standard” at the certification stage of this collective action. See
Longcrier v. HL-A Co., 595 F. Supp. 2d 1218, 1222-23 (S.D. Ala. 2008) (overruling the defendant’s
authentication objections because there is no requirement “that all prerequisites of admissibility must
be satisfied before these exhibits may be considered at the conditional class certification stage” for
a FLSA collective action). Plaintiff’s objections to Exhibits A, B, and D are OVERRULED.
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III. CONDITIONAL CERTIFICATION
The FLSA provides that a suit may be instituted by “one or more employees for and in behalf
of himself or themselves and other employees similarly situated” to recover unpaid minimum wages,
overtime compensation, and liquidated damages from employers who violate the statute’s
provisions. 29 U.S.C. § 216(b). This type of collective action follows an “opt-in” procedure in which
“[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing
to become such a party and such consent is filed in the court in which such action is brought.”3 Id.
Under the FLSA, courts have discretion to allow a party asserting claims on behalf of others
to notify potential plaintiffs that they may choose to “opt-in” to the suit. See Hoffmann-La Roche,
Inc. v. Sperling, 493 U.S. 165, 169 (1989). Although the Fifth Circuit has not adopted a specific
standard to be used in determining the propriety of class certification under the FLSA, courts in this
district utilize a two-stage approach that involves a “notice” stage and a “decertification” stage with
different evidentiary thresholds applying at each. See 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); Valcho v. Dallas Cnty. Hosp. Dist., 574 F. Supp. 2d 618, 621 (N.D. Tex. 2008) (noting that
district courts in the Northern District of Texas apply the two-stage test).4
At the “notice” stage under the two-step approach, a plaintiff files a motion to authorize
notice of the lawsuit to potential class members. See Mooney, 54 F.3d at 1213-14. The evidentiary
3
Section 216(b) actions differ from Fed. R. Civ. P. 23 class actions in that members of the class are permitted to
“opt-in” rather than “opt-out” of the class. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995).
Rule 23 and § 216(b) class actions are “mutually exclusive and irreconcilable,” and those who choose not to opt-in
to a class action under § 216(b) are not bound by, and may not benefit from, the judgment. LaChapelle v. OwensIllinois, Inc., 513 F.2d 286, 288-89 (5th Cir. 1975) (per curiam).
4
Although Mooney addressed the collective action procedure under the Age Discrimination in Employment Act
(ADEA), it applies in the FLSA context because the ADEA explicitly incorporates 29 U.S.C. § 216(b). Villatoro v.
Kim Son Restaurant, L.P., 286 F. Supp. 2d 807, 809 n.7 (S.D. Tex. 2003).
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standard at this stage is lenient, requiring “nothing more than substantial allegations that the putative
class members were together the victims of a single decision, policy, or plan . . . .” Id. at 1214 n.8.
However, a court should be mindful of the “responsibility to avoid the ‘stirring up’ of litigation
through unwarranted solicitation.” Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266-67 (D.
Minn. 1991). If the motion is granted, the district court will conditionally certify the class so that
putative class members are given notice and the opportunity to “opt-in” to the lawsuit. Mooney, 54
F.3d at 1214. The action then proceeds as a representative action throughout discovery. Id. Once
discovery is complete, the case proceeds to the second stage of litigation, in which the court revisits
the issue of certification, usually when the defendant files a motion to decertify the class. Id.
To demonstrate that conditional certification and notice to potential plaintiffs is proper,
a plaintiff must make a minimal showing that (1) there is a reasonable basis for
crediting the assertions that aggrieved individuals exist, (2) [ ] those aggrieved
individuals are similarly situated to the plaintiff in relevant respects given the claims
and defenses asserted, and (3) [ ] those individuals want to opt in to the lawsuit.
Prater v. Commerce Equities Mgmt. Co., Inc., No. H-07-2349, 2007 WL 4146714, at *4 (S.D. Tex.
Nov. 19, 2007) (citing Haynes v. Singer Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983). To determine
whether the requisite showing has been made, courts look to the similarity of job requirements and
pay provisions and at whether the putative class members appear to be possible victims of a common
policy or plan. See Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp. 2d 234, 238 (N.D.N.Y.
2002); Butler v. City of San Antonio, No. SA-03-CA-170-RF, 2003 WL 22097250 at *1 (W.D. Tex.
Aug. 21, 2003). Courts may also consider whether potential plaintiffs were identified, whether
affidavits of potential plaintiffs were submitted, and whether evidence of a widespread
discriminatory plan was submitted. See H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D.
Tex. 1999). Certification should be denied “‘if the action arises from circumstances purely personal
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to the plaintiff, and not from any generally applicable rule, policy, or practice.’” McKnight v. D.
Houston, Inc., 756 F. Supp. 2d 794, 801 (S.D. Tex. 2010) (quoting England v. New Century Fin.
Corp., 370 F. Supp. 2d 504, 507 (M.D. La. 2005)).
Here, Plaintiff contends that Defendant’s company brochure and administrative policy
manual, as well as her Declaration and payroll records, demonstrate that a class of similarly situated
aggrieved individuals exists. (doc. 10-1 at 11-14.) She alleges that “Defendant subjected all home
healthcare workers . . . to the same unlawful compensation policies,” which was its “policy of
classifying all home healthcare workers as exempt from the overtime requirements of the [FLSA]
after January 1, 2015.” (Id. at 8.)
Defendant’s company brochure explains that its mission is to “provid[e] and continuously
improv[e] the home healthcare needs of the patient by delivering value driven, high quality
compassionate care.” (doc. 10-3 at 2.) The brochure further explains that Defendant provides the
following services: skilled nursing services; physical, occupational, and speech therapy services;
home health aides; medical social workers; and personal attendant services. (See id. at 3.) Plaintiff
identifies the class as “home healthcare workers,” but she appears to focus only on the services
provided by the “home health aides” who perform the duties of “personal hygiene care, assist with
activities of daily living, light meal preparation, [and] light housekeeping.” (Id.) Defendant’s
administrative policy manual similarly includes a section that lists the duties of the home health
aides as “bathing/hygiene, dress, assist with elimination, range of motion, light housekeeping,
hair/nail care, linen change, and light meal preparation.” (doc. 10-4 at 16.) This manual, however,
does not include any information as to the hours, payment provisions, overtime wages, or anything
about the approximate number of “home healthcare workers” that Defendant employs. It also does
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not explain or differentiate between the “home health aide” and the “skilled nurses,” medical social
workers, or therapists. (See id.)
Plaintiff’s Declaration states that she is employed as a home healthcare worker by Defendant
and that she and the other home healthcare workers have the same responsibilities of “assisting
clients with household duties and personal needs, including but not limited to, running errands,
shopping, companionship, administering prescribed and over-the-counter medications, housework,
meal preparation, bathing, and assistance with daily living activities.” (doc. 10-5 at 2-3.) It further
states that Plaintiff was paid $8.50 an hour, was never paid overtime wages, and that a company
representative told her that it was “company policy” that Defendant did not pay overtime. (Id. at 34.) It does not provide any information as to the approximate number of other “home healthcare
workers” that Defendant employs and also does not include any statements that Plaintiff spoke with,
worked with, or personally knew the other home healthcare workers who were also denied overtime
compensation.5 Plaintiff also includes her personal payroll earnings statements from May 16, 2015
to August 31, 2015, which show that she did not receive any overtime wages for hours worked over
40 hours a week. (See doc. 10-6.) None of the evidence or pleadings identify any other home
healthcare worker, and no other home healthcare worker submitted a declaration or joined this suit.
While Plaintiff is not required to provide multiple declarations from other potential opt-in
plaintiffs, she must still provide a reasonable basis for the existence of aggrieved individual who are
similarly situated to her. See Jones v. SuperMedia, Inc., 281 F.R.D. 282, 291 (N.D. Tex. 2012)
(noting that “other courts have allowed for class certification without either the submission of
5
Although the Declaration does state that other home healthcare workers “worked well over forty (40) hours per
week in 2015 and 2016, and Defendant did not pay them any overtime wages,” Defendant’s objection to this
statement was sustained, and it will not be considered. (doc. 10-5 at 4.)
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statements from similarly situated employees, or affidavits from named plaintiffs that provide
specific information about other employees”). The Declaration and other evidence include no
specific information as to Defendant’s company or the approximate number of employees it hires.
The Declaration also seems inconsistent with the brochure and administrative policy manual in that
the Declaration defines the position generally as a “home healthcare worker” while the other
evidence identifies these individuals as “home health aides” and appears to identify other employees
as “skilled nurses,” medical social workers, and therapists. (See docs. 10-3 at 3, 10-4 at 16.) It is not
clear if these other types of employees are included in Plaintiff’s description of the home healthcare
worker or what their compensation scheme is. Plaintiff additionally does not submit anything to
show that she has personal knowledge as to the existence of other home healthcare workers who
were denied overtime wages. Though she generally alleges that a company representative told her
that Defendant did not pay overtime wages, Plaintiff fails to show how it was a policy that affected
or was generally applicable to the other employees as opposed to just Plaintiff. Without more
evidence or information, any determination about whether other “home healthcare workers” were
subject to the same overtime compensation policy would be based on speculation.
Plaintiff’s evidence offers support to her individual claim against Defendant for failure to
pay overtime compensation, but it does not meet her burden to show a reasonable basis for the
existence of other aggrieved individuals who are similarly situated to her.6 See Pruneda v. Xtreme
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Plaintiff further argues that she should not be required to show that other aggrieved individuals want to opt-in to
this suit. (doc. 20 at 5-6.) Several other district courts in the Fifth Circuit have rejected this element on a variety of
bases, the most common being that evidence of potential opt-in plaintiffs’ willingness to join the lawsuit is not
statutorily required and that requiring such evidence “conflicts with the Supreme Court’s directive that the FLSA be
liberally construed to effect its purposes.” Jones, 149 F. Supp. 3d at 768 (citing Tony and Susan Alamo Foundation
v. Sec’y of Labor, 471 U.S. 290 (1985)); see also Villareal, 751 F. Supp. 2d at 916. Because Plaintiff failed to show
a reasonable basis for the existence of other aggrieved individuals who are similarly situated to her, this element is
not outcome-determinative, and Plaintiff’s arguments regarding it need not be considered.
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Drilling & Coil Servs., Inc., No. 5:16-CV-91-DAE, 2016 WL 8673853, at *4 (W.D. Tex. Apr. 14,
2016) (finding that the plaintiff’s affidavit was insufficient to create a factual nexus that bound the
plaintiff and potential class members as victims of a particular alleged policy or practice because
it stated nothing about how the other potential class members received compensation). Plaintiff has
not met her burden for conditional certification.7
IV. CONCLUSION
Plaintiff’s motion for conditional certification and notice to potential plaintiffs is DENIED.
SO ORDERED on this 6th day of July, 2017.
___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
7
Because Plaintiff’s motion for conditional certification is denied, her arguments regarding the type of notice sent to
the conditional class will not be considered.
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