Mayhew v. Loved Ones In Home Health Care, LLC et al

Filing 257

MEMORANDUM OPINION & ORDER denying the 221 MOTION to reissue notice and reopen the opt-in period for the collective action. Signed by Judge John T. Copenhaver, Jr. on 12/27/2018. (cc: counsel of record) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
PAMELA MAYHEW, BETSY FARNSWORTH,
on behalf of themselves and others
similarly situated,
Plaintiffs,
v.

Civil Action no. 2:17-cv-03844

LOVED ONES IN HOME CARE, LLC,
and DONNA SKEEN,
Defendants.
MEMORANDUM OPINION & ORDER
Pending is plaintiffs’ motion to reissue notice and
reopen the opt-in period for plaintiffs’ action under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., filed
August 30, 2018.

I.

Background

On an unspecified date in March 2016, the United
States Department of Labor (“DOL”) contacted defendants about
initiating an investigation related to their pay practices.
Rose Aff., ECF No. 223-1, Ex. 1, ¶¶ 21-22.

Plaintiff Pamela

Mayhew complained to the DOL in early 2017, seeking overtime pay
she was owed.

On July 28, 2017, Mayhew initiated an individual

action under the FLSA.

ECF No. 1.

On August 30, 2017, Mayhew

filed her First Amended Complaint expanding her prior claims to
include a collective action under the FLSA.

ECF No. 6.

The DOL held a final exit conference with defendants
on September 13, 2017, during which they were advised of an
overtime compensation obligation for over 200 employees of Loved
Ones In Home Care, LLC (“Loved Ones”).
1, Ex. 1, ¶¶ 30-31.

Rose Aff., ECF No. 223-

DOL ultimately offered to settle the claims

without Loved Ones admitting any liability.

Id. ¶¶ 46-47.

On

October 26, 2017, in facilitation of settlement, DOL presented
its final calculations to Loved Ones on a standard DOL Form 56,
which provided a summary of alleged unpaid wages for certain
current and former employees.1

Id. ¶¶ 39-40; see Form 56

Excerpt, ECF No. 223-1, Ex. D.

That form was accepted and

signed by defendant Donna Skeen on behalf of Loved Ones on
November 8, 2017, and the DOL allotted defendants until February
6, 2018 to settle with the affected employees.
No. 223-1, Ex. 1, ¶¶ 49-53.

Rose Aff., ECF

The DOL settlement process

concluded no later than February 6, 2018.

1

Id. ¶¶ 61-62.

The court held a scheduling conference in this case on the next
day, October 27, 2017, in which the DOL investigation and
settlement were discussed. ECF No. 13.
2

Defendants presented to employees who were offered a
DOL settlement three documents: a Cover Letter, a Form 58
(a standard form, drafted by DOL for defendants to use during
the settlement process), and a “Release.”

Id. ¶ 55-57; Cover

Letter, ECF No. 221-2, Ex. B; Release, ECF No. 221-3, Ex. C.
Notably, the Cover Letter provided three options to the
employees: 1) “voluntarily accept payment of the sum of money
calculated by the DOL,” 2) “voluntarily refuse to sign the Form
and choose to participate in the . . . [instant lawsuit] that is
seeking a larger sum of alleged unpaid overtime wages,” or 3)
“voluntarily do neither.”
at 1.

Cover Letter, ECF No. 221-2, Ex. B,

As noted, the Release explicitly identifies this civil

action and its potential for collective action under the FLSA.
The Release further states: “[t]he releases set forth in this
Release shall cover all claims both known and unknown in the
aforementioned civil action.”

Release, ECF No. 221-3, Ex. C, at

1, 3.
In addition, from November 2017 through January 2018,
some employees came to Loved Ones’ office to discuss the offer
of settlement.

Rose Aff., ECF No. 223-1, Ex. 1, ¶ 53.

were provided a verbal explanation of that offer.

Id.

They
At some

unknown point, defendants began video recording the meetings.
Id. ¶ 54.

Defendants sent a copy of the Cover Letter and the

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Release to plaintiffs’ counsel via email on December 14, 2017;
plaintiffs’ counsel responded with his own email containing
several objections to the content of those documents.

Mr. Toor

Email, ECF 223-2, at 11-12.
On December 1, 2017, the court conditionally certified
the collective action in this case.

ECF No. 23.

Defendants

subsequently moved to limit the conditional collective action
certification on the grounds that it was too broad.

ECF No. 27.

After full briefing, the court ordered, on February 23, 2018,
that the collective action be limited to employees who worked
for defendants in home health aide in two or more programs
during the course of the same pay period at any time between
July 28, 2014, and May 31, 2017.

ECF No. 54, at 4.

During the court’s consideration of the motion to
limit the collective class, the parties filed an agreed
collective proposed notice on December 19, 2017.
33.

ECF Nos. 32-

This notice was very similar to a notice filed by the

plaintiffs on March 5, 2018 and approved by the court on March
6, 2018.

ECF Nos. 66, 67.

Importantly, the Notice said: “The

lawsuit and the DOL settlement are completely separate from each
other” and “EVEN IF YOU SETTLE YOUR CLAIMS WITH DOL, YOU MAY
STILL PARTICIPATE IN THE LAWSUIT.”
(emphasis in original).

ECF No. 66, at 1, 2

Further, the Notice set a June 1, 2018
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deadline for potential plaintiffs to mail his consent to sue,
id. at 3, and the defendants had already provided plaintiffs’
counsel with the names and addresses of employees who met the
court’s conditional collective action definition on February 27,
2018.

ECF No. 60.
On August 31, 2018, the plaintiffs moved, the day

after filing the motion currently in dispute, to re-expand the
scope of the FLSA collective class.

ECF No. 222.

The

plaintiffs later sought to withdraw that motion, which the court
permitted them to do on September 27, 2018.

ECF No. 230.

On September 19, 2018, the plaintiffs moved to extend
certain deadlines, particularly for discovery.

ECF No. 226.

Defendants did not oppose extending the deadlines but did object
to the plaintiffs’ visiting blame on defendants respecting the
necessity of an extension.

On September 27, 2018, the court

extended discovery pending further order.

II.

Analysis

The parties offer competing standards governing the
adjudication of this dispute.
The plaintiffs first contend that the “Defendants were
directly communicating materially false information to their
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employees about the lawsuit and those employees’ rights . . . .
[which] created significant confusion within the potential
plaintiff population and . . . directly led to the failure of
many potential plaintiffs to opt-in to the action.”
Reissue Notice (“Mot.”) 3.

Pls.’ Mot.

Plaintiffs base their contention on

Hoffman-La Roche Inc. v. Sperling, in which the Supreme Court
stated:
These benefits [of collective action], however, depend
on employees receiving accurate and timely notice
concerning the pendency of the collective action, so
that they can make informed decisions about whether to
participate. Section 216(b)'s affirmative permission
for employees to proceed on behalf of those similarly
situated must grant the court the requisite procedural
authority to manage the process of joining multiple
parties in a manner that is orderly, sensible, and not
otherwise contrary to statutory commands or the
provisions of the Federal Rules of Civil Procedure.
See Fed. Rule Civ. Proc. 83. It follows that, once an
ADEA action is filed, the court has a managerial
responsibility to oversee the joinder of additional
parties to assure that the task is accomplished in an
efficient and proper way.
493 U.S. 165, 170-71 (1989).

In Sperling, the Supreme Court

observed that courts may play “any role in prescribing the terms
and conditions of communication from the named plaintiffs to the
potential members of the class on whose behalf the collective
action has been brought.”

Id. at 169.

Further, plaintiffs

assert that the court’s “procedural authority” empowers it to
dictate how and when a “defendant may communicate with potential

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collective action plaintiffs about the subject of that
litigation.”

Mot. 8.

Plaintiffs find further support in Kleiner v. First
Nat’l Bank of Atlanta, which states:
Unsupervised, unilateral communications with the
plaintiff class sabotage the goal of informed consent
by urging exclusion on the basis of a one-sided
presentation of the facts, without opportunity for
rebuttal. The damage from misstatements could well be
irreparable. . . . The [defendant’s] subterfuge and
subversion constituted an intolerable affront to the
authority of the district court to police class member
contacts.
751 F.2d 1193, 1203 (11th Cir. 1985) (internal citations
omitted).
Plaintiffs also contend that Sperling applies to the
situation presented here, where ex parte communications took
place “between Defendants in an on-going FLSA collective action
and all potential plaintiffs who ha[d] not yet received a courtapproved notice of that action.”

Mot. 4.

The primary focus of

plaintiffs’ contention is on the Cover Letter and Release
provided by defendants to the employees involved in the DOL
settlement and how those documents adversely impacted the
court’s “managerial” role over both parties to a collective
action.

Id. at 5.

Particularly, the plaintiffs complain that

the Cover Letter omits the option the employees had to both
accept the DOL settlement and participate in the FLSA collective
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action and that the Release purports to forfeit any causes of
action the employees might have against defendants.

Id. at 6.

In their reply, the plaintiffs also note two
additional factors that demonstrate how the defendants allegedly
confused or misled potential plaintiffs during the DOL
settlement.

First, the plaintiffs state that defendants have

yet to disclose the video recordings of the settlement
discussions, which they contend will either confirm or deny
whether defendants’ statements were misleading.
Defs.’ Resp. (“Pls.’ Reply”) 5-8.

Pls.’ Reply

In a separate motion, filed

by plaintiffs on October 12, 2018, the plaintiffs acknowledge
that defendants have provided video of the settlement meetings
with individuals who eventually opted into the collective
action.

The videos include defendants reading from a script in

which they verbalize the same communications that plaintiffs
complain of in the Cover Letter and Release.

ECF No. 234, at ¶¶

4-5.
Second, the plaintiffs argue that the Notice was too
lengthy and complex to cure the purported confusion suffered by
this particular group of potential plaintiffs.

Id. at 8-9.

court notes that the Notice was devised by the parties and
approved by this court on March 6, 2018.

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The

In conclusion, plaintiffs contend that regardless of
the content of the communications between defendants and the
employees who received the Cover Letter and Release, the
defendants’ unsupervised and unilateral communications offend
the court’s procedural authority over the collective action.
Mot. 8.

Plaintiffs also maintain that the content of

defendants’ direct communications with potential plaintiffs via
the Cover Letter and Release violates 29 U.S.C. § 216(b) because
it was patently false and therefore was part of a “scheme to
skirt the court’s responsibility” to ensure potential plaintiffs
make informed decisions about whether to participate in
collective actions.
171-72).

Id. at 12 (citing Sperling, 493 U.S. at

Specifically, the plaintiffs claim that because these

communications were made while the Notice was being negotiated,
defendants knew the options provided to the potential plaintiffs
in the Cover Letter, Release, and DOL Settlement meetings
contradicted the option in the Notice to both obtain a DOL
settlement and pursue this collective action.

See Pls.’ Reply

3-4.
Plaintiffs’ arguments are unpersuasive.

It is

undisputed that defendants presented the Cover Letter and
Release to, and had conversations with, potential plaintiffs in
this FLSA claim during the DOL settlement process.

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But the

other circumstances herein are quite different from either
Sperling or Kleiner.

Respecting Sperling, the emphasis there

was on the court’s role in providing accurate and timely notice
of a collective action to potential plaintiffs.

The plaintiffs

reason that because Sperling states “a trial court has a
substantial interest in communications that are mailed for
single actions involving multiple parties . . . . a district
court has both the duty and the broad authority to exercise
control over a class action and to enter appropriate orders
governing the conduct of counsel and the parties.”
(internal citations omitted).

493 U.S. 171

The Court, however, also observed

that “the potential for misuse of the class device, as by
misleading communications, may be countered by court-authorized
notice.”

Id.
Here, the alleged misleading communications

contained in the Cover Letter, Release and/or the employees’
direct communication with defendants were made to all the
employees who inquired about the DOL settlement by February 6,
2018.

The Notice for this FLSA case was distributed and posted

on March 6, 2018, at least one month after any of those
communications were made.

The March 6, 2018 Notice thus

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resolved any of the confusion caused by the misleading
communications made by defendants in the DOL settlement.2
Respecting Kleiner the court there approved the class
notice under Rule 23(c)(2) of the Federal Rules of Civil
Procedure, which informed recipients that they were included in
the class unless they opted out.

751 F.2d at 1197.

The

defendants in that case proceeded to solicit class exclusion
requests in a surreptitious manner that the court later found to
be illegal.

Id.

Here, in contrast, notice of the collective

action had not been given at the time of the alleged confusing
and inappropriate communications, and the employees, at the time
of their settlement meetings, were prospective plaintiffs who
would have to take the affirmative step of opting into the
collective action after certification and notice.
§ 216(b).

See 29 U.S.C.

Inasmuch as defendants sent plaintiffs’ counsel an

email attaching both the Cover Letter and Release on December
14, 2017, it further appears that the defendants here were

2

Plaintiffs’ counsel states that he received between twenty and
thirty phone calls from potential plaintiffs before, during and
after the opt-in period, each expressing the caller’s belief
that she had waived the right to participate in the FLSA action
by taking the DOL settlement. Mot. 4. However, the Notice
included counsel’s contact information, in part, to help clarify
any confusion a potential plaintiff might have felt after
receiving the Notice.
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forthcoming with plaintiffs’ counsel about their communications
with the employees.
Ultimately, the communications between defendants and
their employees during the DOL settlement proceedings may have
confused some of the potential plaintiffs, but the law does not
support plaintiffs’ claim that confusing or false
communications, made before adequate and appropriate notice went
out to the potential plaintiffs in a collective action, entitles
plaintiffs to reissue notice and reopen the opt-in period.

No

act by defendants has interfered with the “managerial role” the
Supreme Court requires of district courts in collective actions.3

III. Conclusion

For the foregoing reasons, plaintiffs’ motion to
reissue notice and reopen the opt-in period for the collective
action be, and it hereby is, denied.
The Clerk is directed to forward copies of this order
to all counsel of record.
ENTER: December 27, 2018

3

In view of this disposition of plaintiffs’ motion, the court
does not address defendants’ further arguments.
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