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

Filing 293

MEMORANDUM OPINION AND ORDER granting 240 MOTION by Pamela Mayhew, Betsy Farnsworth for Final FLSA Collective Certification; directing the class consist of current and former Loved Ones home health aides who worked in both the private care program and the Medicaid waiver program during the same pay period at any time between July 28, 2014 and May 31, 2017. Signed by Judge John T. Copenhaver, Jr. on 6/10/2019. (cc: counsel of record) (ts)

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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 OPINON AND ORDER
Pending is the plaintiffs’ motion for final collective
action certification under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., filed December 12, 2018.

I.

Relevant Background

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

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during the course of the same pay period at any time between
July 28, 2014, and May 31, 2017.

ECF No. 54, at 4.

In their motion for final collective action
certification, the plaintiffs contend that inasmuch as the
defendants were successful on their motion to limit the
conditional collective action certification, they essentially
conceded that the following definition of the class applies in
this action: “only those individuals who serviced clients in
both the private care program and also the Medicaid waiver
program, i.e., employed as a ‘hybrid’ aide.”

Pls.’ Mot., ECF

No. 240, at 4-5 (quoting ECF No. 27, at 4).
On December 4, 2018, the defendants filed a motion to
dismiss the second amended complaint.

ECF No. 237.

Subsequent

to that filing, the defendants responded to plaintiffs’ motion
for final collective action certification, arguing that the
motion was premature inasmuch as defendants believed the case
should be dismissed.

ECF No. 244.

After the court denied defendants’ motion to dismiss,
ECF No. 258, defendants filed, on December 28, 2018, another
response to plaintiffs’ motion for final collective action
certification in which they stated: “Defendants do not oppose
Final FLSA Class Certification to the extent that those persons

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who have given consents to sue are actually within the defined
class and entitled to relief.”

II.

ECF No. 259, at 1.1

Analysis

Most courts have utilized a two-step process for
certification of a collective action.

First, after making a

threshold determination of whether the potential class is
similarly situated, the court may conditionally certify a class.
See Butler v. DirectSAT USA, LLC, 876 F. Supp. 2d 560, 566 (D.
Md. 2012).

The next step follows the close of discovery and

requires a more “stringent inquiry to determine whether the
plaintiff class is [in fact] ‘similarly situated,’” and
typically begins when the defendant files a motion for
decertification.

Syrja v. Westat, Inc., 756 F. Supp. 2d 682,

686 (D. Md. 2010) (quoting Rawls v. Augustine Home Health Care,
Inc., 244 F.R.D. 298, 300 (D. Md. 2007)).
The Court of Appeals for the Second Circuit has noted:
“At the second stage, the district court will, on a fuller
record, determine whether a so-called ‘collective action’ may go

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Defendants believe that many of the individuals who have given
consents to sue either did not work during the applicable time
period or worked but did not accrue overtime and are therefore
not entitled to compensation and should be dismissed from the
suit. ECF No. 259, at 1-2.
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forward by determining whether the plaintiffs who have opted in
are in fact ‘similarly situated’ to the named plaintiffs.”
Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010).

In

addition, the “burden is on the named plaintiff to prove that
the other employees are similarly situated.”

McGlone v.

Contract Callers, Inc., 49 F. Supp. 3d 364, 367 (S.D.N.Y. 2014)
(quoting Zivali v. AT&T Mobility, LLC, 784 F. Supp. 2d 456, 460
(S.D.N.Y. 2011)).

“If the record shows all putative class

members are ‘similarly situated,’ the ‘conditional’ aspect is
removed, the collective action is finally certified, and the
matter proceeds to trial.”

Id. (quoting Morano v.

Intercontinental Capital Grp., Inc., No. 10 CV 02192 KBF, 2012
WL 2952893, at *6 (S.D.N.Y. July 17, 2012)).
Here, it appears that the plaintiffs believe that the
only pertinent part of the record regarding whether the class
members are similarly situated to the named plaintiffs is the
defendants’ statement in a prior briefing which concedes that
there is a similarly situated group of employees.
ECF No. 240, at 3-5.

Pls.’ Mot.,

Noting the absence of a motion to

decertify the class or any substantive opposition to the
plaintiffs’ motion by defendants, the court finds plaintiffs’
position persuasive.

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III. Conclusion

For the reasons stated above, it is ORDERED that
plaintiffs’ motion for final FLSA certification be, and hereby
is, granted.

The class consists of current and former Loved

Ones home health aides who worked in both the private care
program and the Medicaid waiver program (“hybrid aides”) during
the same pay period at any time between July 28, 2014 and May
31, 2017.
The Clerk is directed to transmit copes of this order
to all counsel of record.
ENTER: June 10, 2019

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