Williams v. Guardian Living Services, Inc.
MEMORANDUM AND ORDER granting in part, denying in part 28 Amended MOTION to Certify Class (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
March 12, 2018
David J. Bradley, Clerk
§ CIVIL ACTION NO. 4:17-CV-1901
GUARDIAN LIVING SERVICES, INC., §
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff’s First Amended Motion for Conditional
Certification and Notice (Doc. No. 28).
This is a Fair Labor Standards Act (“FLSA”) case. Plaintiff Tiffery Williams (“Ms.
Williams” or “Plaintiff”) seeks conditional certification of a collective action consisting of:
All Direct Care Staff employees employed by Guardian Living
Services, Inc., in the past three (3) years who were not paid the full
time-and-a-half overtime premium for overtime hours worked in a
Defendant Guardian Living Services, Inc. (“Guardian” or “Defendant”) opposes the
The following facts are not in dispute. Guardian operates a business that provides
homecare to adults with intellectual disabilities. For nine months, Ms. Williams worked for
Guardian as a Direct Care Staff (“DCS”) employee. In that role, Ms. Williams’s Plaintiff’s job
duties included mopping the floor, cleaning patient rooms, preparing lunch for the patients,
assisting patients with daily activities, transporting patients to their doctor appointments,
inspecting the patients for injuries or abuse and filling out paperwork.
According to Plaintiff’s most recent Motion, Ms. Williams worked alongside
approximately 15-25 other DCS employees. (Doc. No. 28 at 3.)
When the case was first filed, Plaintiff relied on two pay stubs and a timesheet as prima
facie evidence that she and her co-workers were subject to a policy of no overtime payment. This
Court rejected that claim at a hearing on December 1, 2017 because Plaintiff simply misread her
At that hearing, Plaintiff introduced two new arguments. First, Plaintiff averred that
Defendant is liable for a recordkeeping violation because Guardian required Ms. Williams to
prefill her timesheets and to record only her assigned shifts rather than actual hours worked.
Second, Plaintiff suggested that Defendant is liable for off-the-clock work compensation because
Plaintiff and her colleagues would arrive at work before their shifts to check patients for signs of
abuse and neglect and Defendant prevented employees from recording that time. The Court
afforded Plaintiff time to plead these new allegations and then entered her Amended Complaint
(Doc. No. 24).
Plaintiff filed this First Amended Motion for Conditional Certification and Notice
pursuant to that Amended Complaint.
STANDARD OF REVIEW
On motions for collective action certification in FLSA cases, the Fifth Circuit has
affirmed district courts’ use of the lenient standard adopted by the United States District Court
for the District of New Jersey in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). See, e.g.,
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213–16 (5th Cir. 1995), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). The Lusardi approach consists of
two steps: (1) the plaintiff’s motion for conditional certification, and (2) the defendant’s motion
At the first stage, the court must decide whether notice of the action should be given to
potential class members. Id. at 1213–14. The court’s decision at that stage is usually based on the
pleadings and affidavits that have been submitted and is made using a “fairly lenient standard,
[which] typically results in ‘conditional certification’ of a representative class.” Id. at 1214; see
also Tolentino v. C & J Spec–Rent Servs. Inc., 716 F. Supp. 2d 642, 647 (S.D. Tex. 2010) (“The
remedial nature of the FLSA and § 216 militate strongly in favor of allowing cases to proceed
collectively.”). Plaintiffs may proceed collectively only if the challenged conduct is a 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)). Therefore, conditional certification should be denied when the action arises from
circumstances purely personal to the plaintiff. Id.
In order to obtain conditional certification, the plaintiff must make a “minimal showing”
that: (1) there is a reasonable basis for crediting the assertions that aggrieved individuals exist
and (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects
given the claims and defenses asserted. McKnight, 756 F. Supp. 2d at 801. Courts in this Circuit
are divided as to whether plaintiffs are required to present evidence supporting a third element:
that other individuals want to opt in to the lawsuit. Compare Heeg v. Adams Harris, Inc, 907
F.Supp.2d at 861 (applying third element) and Tolentino, 716 F. Supp. 2d at 647 (same) with
Jones v. Cretic Energy Servs., LLC, 149 F. Supp. 3d 761, 768 (S.D. Tex. 2015) (declining to
apply the third element) and Dreyer v. Baker Hughes Oilfield Operations, Inc., Civil Action No.
H–08–1212, 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008) (same).
On at least one occasion, this Court has applied the third element. Upon reflection, the
Court now decides that the two-element test is more appropriate.
The strongest argument in support of the third element is that it helps the court balance
concerns regarding judicial economy with the desire to avoid the “stirring up” of litigation
through unwarranted solicitation. Bunker v. PCP For Life, PA, 2017 WL 3187610, at *2 (S.D.
Tex. July 26, 2017) (internal citation omitted). That justification is overpowered, however, by
four reasons to reject the third element:
First . . . this element is not a statutory requirement at this stage. Second, this
element has not been required, or even discussed, by any higher court opinion that
this court has been able to find or to which the parties have cited. Rather, the Fifth
Circuit’s discussion of the Lusardi approach only requires, at the first stage, that
putative class members’ claims are sufficiently similar to merit sending notice of
the action to possible members of the class. Third, unlike under Rule 23, there is
no numerosity requirement in a FLSA class action lawsuit under the Lusardi
approach. Fourth, this element, requiring evidence of purported class members
who are willing to join a class action before an appropriate class is even
determined, is dissonant with the Supreme Court’s directive that the FLSA be
liberally construed to effect its purposes.
Villarreal v. St. Luke’s Episcopal Hosp., 751 F. Supp. 2d 902, 916 (S.D. Tex. 2010) (internal
The other two requirements at this stage – (1) that there is a reasonable basis for crediting
the assertions that aggrieved individuals exist, and (2) that those aggrieved individuals are
similarly situated to the plaintiff in relevant respects given the claims and defenses asserted –
sufficiently safeguard against the risk of “stirring up” unwarranted litigation. In the hypothetical
case where the post-certification opt-in process reveals that there are no additional plaintiffs who
desire to join the lawsuit, it is true that the defendant would have incurred some disclosure costs
and possibly a reduction in settlement value, but the plaintiff would have also incurred the
significant costs of communicating notices and reminders. Those plaintiff costs should
sufficiently deter unwarranted solicitation. Additionally, certain potential plaintiffs might
hesitate to express willingness to join a collective action before it is certified by the court, due to
fear of retaliation, even if they would ultimately join and benefit from it. The two-element test
furthers the remedial purposes of the FLSA by protecting them.
Accordingly, this Court now elects the two-element approach; at the Lusardi certification
stage, a plaintiff need not present evidence that other individuals want to join the lawsuit.
a. Recordkeeping violation
Plaintiff argues that Guardian required Ms. Williams to prefill her timesheets and record
only her assigned shifts and not her actual work hours or any overtime hours. There is no
evidence, however, of any such generally applicable rule, policy, or practice. In fact, Plaintiff’s
own timesheets and pay stubs reflect compensated .5-hour overtime work on multiple occasions.
(Doc. No. 30, Exhibit #4.) Accordingly, this claim is unfit for conditional certification because
there is no reasonable basis for crediting Ms. Williams’s assertions that similarly aggrieved
b. Off-the-clock work
Plaintiff’s Motion states that Guardian requires DCS employees to conduct “body
checks” off-the-clock before the beginning of their shifts. (Doc. No. 28.) Plaintiff’s declaration
describes the body check as follows:
To do a thorough body check, Guardian required me, as the DCS whose
shift is ending to do the following:
a. Remove all the Patients’ clothes including their diaper even if the
Patient resisted this;
b. Inspect the body of the patient for bruises, bite marks, scratches,
burns or diaper rash or bedsores.
c. Put a new diaper on the Patient and redress the Patient completely.
The incoming DCS observes me performing this inspection. When I am
the relieving DCS, I observe while the person I relieve conducts the
(Doc. No. 28, Exhibit #1, ¶¶ 7-9.)
Plaintiff argues that these “body checks” are crucial because a DCS employee is liable for
any injury that is identified during that employee’s shift, even if such injury occurred during the
prior shift (such that it would be incumbent upon DCS employees to check patients before their
shift begins).1 Defendant counters that there is no requirement to perform a “body check” as
Plaintiff describes it and that in fact, what Plaintiff describes is a HIPAA violation. (Doc. No. 30,
There is no documentary evidence in the record to verify the “body check” procedure as
Ms. Williams recounts it. There is ample evidence in employee declarations suggesting that no
such “body check” requirement existed. See Doc. No. 31, Exhibit #1, ¶ 6; Doc. No 30, Exhibit
#2, Doc. No 30, ¶ 8; Exhibit #2, ¶ 7.2 However, there is also evidence that some kind of patient
observation was required3, albeit in a less intrusive form.4
Christina Kizzee, the owner of Guardian, acknowledged the following during her deposition: “If an employee
assumes their shift . . . and a patient has [a physical injury] . . . that resulted from a prior shift but was not identified
until the employee’s shift or middle of their shift or end of their shift, that employee would be responsible for that
injury . . . .” (Doc. No. 28, Exhibit #2 at 20.)
Plaintiff rightly points out that it would be inappropriate to afford significant weight to “happy camper”
declarations of employees when those individuals have not been deposed. See In re Wells Fargo Wage & Hour
Employment Practices Litig. (No. III), No. H-11-2266, 2012 WL 3308880, at *18 (S.D. Tex. Aug. 10, 2012). But
the Court need not ignore them entirely.
One of Ms. Williams’s coworkers, Aqua McGee, declared:
There is also evidence that pre-shift or post-shift work was required in the form of verbal
shift summaries from the outgoing to the incoming employee.
One of Plaintiff’s coworkers (a declarant for Defendant) stated, “Guardian instructed us
to do verbal shift summaries . . . For example, when Tiffery arrived for her shift, I would provide
her with a summary about my shift – such as the client’s sleeping schedule or bowel movements;
whether the client had problems taking medication, how much the client ate, any issues the client
was having, anything unusual that happened during my shift, etc.” (Doc. No. 30, Exhibit #2, ¶ 8.)
Another of Defendants’ declarants stated, “Guardian instructed us to do verbal shift summaries
. . . For example, when I arrived for my shift, Tiffery would provide me with a summary about
her shift.” (Doc. No. 30, Exhibit #3, ¶ 6.) A declarant for the Plaintiff stated, “Guardian . . .
required the DCS to give each other [a] shift change report about what happened during the shift.
One or both of the DCS would do the shift change report off the clock.” (Doc. No. 31, Exhibit
#1, ¶ 11.)
Defendant is correct that Plaintiff and her sole supporting declarant cannot point to any
written company policy requiring employees to perform shift change procedures off-the-clock.
Before I or another DCS start our shift, we were to come in before our shift and conduct
an inspection of the patients for bodily injury. If the patient has any injury, the DCS are
supposed to report to Guardian and the state as soon as we find any bruising or injury.
The DCS who was on duty when the bruising or injury occurred was responsible. That is
why I and other DCS come in before our assigned shift begins to do the inspection
because if we discover the injury to the patients once our shift time starts we would be
Since the inspection is performed by the incoming DCS and the DCS who is being
relieved, one or both of us would be performing the shift change procedure off the clock.
(Doc. No. 31, Exhibit #1, ¶ ¶ 9-11.)
See Doc. No. 30, Exhibit #2, ¶ 8 (“Clients are not completely undressed to perform any type of ‘body check.’ We
visually examine the client while they are fully clothed.”) See also Doc. No. 25, ¶ 18 (Defendant’s admission that
“Defendant has written policies on how to identify different levels of abuse and neglect of their patients (See Exhibit
2) and a reporting policy for suspected cases of abuse, neglect or exploitation (See Exhibit 3).”).
Defendant is also correct that the three coworkers quoted above cannot agree on the precise
content of the off-the-clock work (most notably with respect to patient injury inspection
procedure). Nonetheless, at this stage, Plaintiff must make only a “minimal showing” that (1)
there is a reasonable basis for crediting the assertions that aggrieved individuals exist and (2)
those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the
claims and defenses asserted. McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 801 (S.D. Tex.
Although at the outer edge of acceptability under this lenient standard, Plaintiff’s claim
passes muster. There has been a minimal showing that Guardian scheduled its employees to
work consecutive 8-hour shifts with no overlapping time and yet required its employees to
overlap for some period of time at the shift change at least to communicate shift summaries and
possibly also to perform patient inspections. According to Defendant’s own declarant, the shift
summaries were to include “the client’s sleeping schedule or bowel movements; whether the
client had problems taking medication, how much the client ate, any issues the client was having,
anything unusual that happened during my shift, etc.” (Doc. No. 30, Exhibit #2, ¶ 8.) This level
of detail provides a reasonable basis for crediting the assertion that Ms. Williams was required to
work compensable off-the-clock time. And because all DCS employees perform similar job
duties and experience shift changes, she and the putative class members are similarly situated.
Therefore, the action should proceed collectively.
Plaintiff’s Motion is DENIED with respect to the allegation of recordkeeping violations
and is GRANTED with respect to the claim for off-the-clock work.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 12th day of March, 2018.
HON. KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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