Miller v ThedaCare Inc
Filing
145
ORDER signed by Chief Judge William C Griesbach on 1/17/2018 DENYING 83 Motion to Certify Class and GRANTING 111 Motion to Decertify. The collective action is DECERTIFIED and the claims of the opt-in plaintiffs are DISMISSED WITHOUT PREJUDICE. The Clerk is directed to set this matter on the court's calendar in not less than ten days for a telephone conference to address further scheduling. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JUELAINE MILLER et al.,
Plaintiffs,
v.
Case No. 15-C-506
THEDACARE INC.,
Defendant.
ORDER DENYING CLASS CERTIFICATION AND
DECERTIFYING THE COLLECTIVE FLSA CLASS
This is a wage-and-hour collective and putative class action alleging that ThedaCare, Inc.,
a major health care provider in northeast Wisconsin, failed to pay hourly employees for time spent
working during meal breaks. As a result of such failure, ThedaCare is alleged to have violated its
employees’ rights to regular and overtime pay under the Fair Labor Standards Act (FLSA), 29
U.S.C. § 201, et seq., and the Wisconsin wage law, Wis. Stat. § 109.01, et seq. The court has
jurisdiction over the FLSA claims pursuant to 28 U.S.C. § 1331 and over the state law claims
pursuant to 28 U.S.C. § 1367.
The court previously granted Plaintiffs’ motion for conditional certification of a collective
class under the FLSA pursuant to 29 U.S.C. § 216(b) consisting of those individuals employed at
ThedaCare’s hospitals, now known as Regional Medical Centers, in Appleton and Neenah. The class
is defined as:
All persons who have been or are employed by ThedaCare at the Appleton Medical
Center or Theda Clark Medical Center hospitals on an hourly basis as direct patient
care providers, administrative associates, unit resource associates and employees of
the Staffing Resources department at any time three years prior to the
commencement of this lawsuit to the present whose scheduled hours included an
automatic deduction for unpaid meal breaks and who were denied minimum wage or
overtime wages for hours for compensable “oncall” time and/or hours performing
work during unpaid meal periods.
ECF No. 60 at 18. The entire class totals approximately 2,400 employees, most of whom are nurses,
paramedics, certified nursing assistants (“CNAs”), and other hourly employees who provide direct
patient care at its hospitals (“direct care providers”). It also includes a smaller number of employees
who work as registrars/administrative associates, unit resource associates, or hourly employees
within the Staffing Resources department (“staffing employees”). The case is now before the court
on Plaintiffs’ motion for final certification of their FLSA collective action and for certification of
their state law claims under Federal Rule of Civil Procedure 23. ECF No. 83. Also before the court
is ThedaCare’s motion to decertify Plaintiffs’ FLSA conditional collective action. ECF No. 111.
For the reasons below, Plaintiffs’ motion to certify the class is denied and ThedaCare’s motion to
decertify the conditional FLSA collective is granted.
I. BACKGROUND
ThedaCare operates a healthcare system of seven hospitals and approximately thirty-seven
medical clinics in northeast Wisconsin. In ThedaCare’s hospitals, employees work in dozens of
different departments (e.g., emergency medicine, surgery, oncology, behavioral health,
inpatient/outpatient rehabilitation, birthing, and many more). Over the past three years, hundreds of
individuals have managed and supervised those departments. ThedaCare employs approximately
3,000 nurses, paramedics, certified nursing assistants (“CNAs”), and other hourly employees who
provide direct patient care at its hospitals (“direct care providers”). In addition, it employs
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approximately 100 hourly employees who work as registrars/administrative associates, unit resource
associates, or hourly employees within the Staffing Resources department (“staffing employees”).
The three named plaintiffs in this case include Juelaine Miller, Kathleen Albers and Linda
Auler. Miller worked as a paramedic at Theda Clark (ThedaCare’s Neenah hospital) and Appleton
Medical Center (“AMC”) (ThedaCare’s Appleton hospital). Albers worked as a Unit Resource
Associate (“URA”), which required her to manage patient flow, ensure Emergency Department
(“ED”) patients are placed in the proper room, coordinate with physicians and nurses and place
orders for medical imaging or other treatment requested by the physicians. Auler worked as a
Registrar, which required her to greet patients who came to the ED, gather information about them
and input that information into a computer system. In addition to these three, approximately 165
employees have consented to join as FLSA opt-ins. Most of the opt-ins are employees who work
as nurses or in nurse-like roles, but some opt-ins are office workers. The named and opt-in plaintiffs
all work or have worked at either AMC, Theda Clark, or both.
ThedaCare pays its non-exempt direct care providers and staffing employees on an hourly
basis. During the three years prior to the filing of this lawsuit, ThedaCare employed uniform
employee pay and break policies for employees across each of its hospitals. One of ThedaCare’s
uniform policies is entitled: “Pay: General Information And Employee Responsibilities” and is
applicable at “All Locations.” ECF No. 33-4 at 10. This general policy includes a “Breaks and
Lunches” section, which states:
As a general practice, employees are scheduled for a half hour lunch. Breaks are
discretionary and are subject to the pressures of the daily workload. Managers and
supervisors are responsible for the scheduling of breaks and lunches. See the separate
policy on Breaks and Lunches for more information.
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Id. at 11. The separate “Breaks and Lunches” policy referenced above also applies to “All
Locations” and provides additional detail about ThedaCare’s policy on lunches and breaks. Wilcox
Exs. 3 & 4, ECF No. 33-5. Regarding lunches, the policy states:
As a general practice, employees who work at least a 6 hour shift are scheduled for
a half-hour unpaid lunch. This half-hour will be deducted by the time and attendance
system . . . . If employees’ shift length qualifies them for an unpaid lunch break that
they are required to forego, employees must record a “no lunch” entry1 in accordance
with the site’s timekeeping procedures. Managers or their designee are responsible
for oversight and approval of “no lunch” situations.
Id. The policy then discusses 15 minute paid breaks, which are “discretionary and are subject to the
pressures of the daily workload.” Id. The policy specifically states that “[e]mployees may not leave
the premises during a break.” Id.
After explaining break rules, the policy proceeds to discuss breaks and lunches generally:
The employee should exercise discretion in taking breaks and lunches in such a way
that both the needs of the employee and the needs of the organization are met. In
some work areas, managers or their designees may designate breaks. However,
patient load along with professional practice and team collaboration, generally
determines the practicality of breaks.
Id. The policy proscribes combining a break with lunch, with another break, or at the beginning or
close of the work day. Though the policy specifically prohibits going off the premises during breaks,
it allows employees to leave the premises for lunches so long as they properly record the time away:
“Generally, employees are not required to record the lunch period if they remain on the premises.
However, if an employee leaves the premises, the lunch period must be recorded using the
appropriate record keeping method for the site (i.e., time clock, manual timecard, etc.).” Id. Finally,
1
The court will refer to the process of pressing the “no lunch” button to cancel the automatic
deduction as the “no-lunch option” or a “no-lunch entry.”
4
the policy states that conflicts regarding breaks should be brought to the employee’s manager, along
with any questions or concerns regarding the overall policy. Id.
In its order granting Plaintiffs’ motion for conditional certification, the court held that
ThedaCare’s lunch and breaks policy was lawful on its face:
ThedaCare’s lunch and breaks policy is not unlawful on its face. As other courts have
found, automatic deduction policies are legal and insufficient, standing alone, to
permit a collective action. Fengler v. Crouse Health Found., Inc., 595 F. Supp. 2d
189 (N.D.N.Y. 2009); see Brabazon v. Aurora Health Care, Inc., 2011 WL
1131097, at *3 (E.D. Wis. Mar. 28, 2011) (“The court agrees that simple allegations
of the existence and implementation of a practice of making automatic deductions for
scheduled meal breaks in and of itself is not ‘sufficient as a common denominator to
permit a collective action.’”) (quoting Fengler, 595 F. Supp. 2d at 195). A policy
such as ThedaCare’s, which allows employees to use the “no lunch” punch when they
are unable to take a full 30 minute lunch break, provides a mechanism to prevent
employees from having pay automatically deducted for time they were really working.
Though ThedaCare managers have the right to cancel a “no lunch” punch, such a
safeguard is reasonably oriented to ensuring that employees do not abuse the “no
lunch” punch system and does not render the whole system unlawful. See White v.
Baptist Mem’l Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012) (“Under the
FLSA, if an employer establishes a reasonable process for an employee to report
uncompensated work time the employer is not liable for non-payment if the employee
fails to follow the established process.”).
ECF No. 60 at 8.
Notwithstanding the fact that ThedaCare’s written policy may be lawful on its face, Plaintiffs
contend that ThedaCare’s application of the policy violates their rights under federal and state wage
and hours laws. They claim that “ThedaCare, by uniform policies, failed to compensate members of
the class where it required them to perform work duties during the unpaid lunch periods where they
were subject to interruption during the unpaid periods, required to respond to patient and hospital
needs, require[d] to remain on the employer’s property during their unpaid breaks, and where they
were not able to effectively cancel the automatic deduction through a procedure of ‘punching ‘no
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lunch.’’” Pls.’ Br. in Supp. of Final Certification, ECF No. 130 at 4. Plaintiffs contend that
“ThedaCare, at its Neenah and Appleton hospital campuses, maintains a culture . . . of strongly
encouraging its clinical staff and schedulers to work through their unpaid lunch breaks while, at the
same time, automatically deducting a half-hour from the employees’ pay.” Id. at 5. When combined
with its practice of discouraging, if not prohibiting, employees from recording a no-lunch entry in its
timekeeping systems, Plaintiffs contend that ThedaCare’s violations of state and federal wage and
hour laws warrant relief on a collective and class-wide basis.
II. MOTION TO CERTIFY WISCONSIN WAGE CLAIMS
Plaintiffs allege that ThedaCare’s conduct violates Wisconsin wage law, specifically
Wisconsin Administrative Code § DWD 272.04(1)(c), which requires employers to pay employees
for “on duty” meal periods. The regulation defines an “‘on duty’ meal period” as “one where the
employer does not provide at least 30 minutes free from work.” Id. The regulation further provides:
“Any meal period where the employee is not free to leave the employer’s premises will also be
considered an ‘on duty’ meal period.” Id. As a result of failing to pay employees for work
performed over their lunch breaks, Plaintiffs allege that ThedaCare has also violated Wisconsin
Statute § 103.02, which requires an employer to pay overtime compensation to all non-exempt
employees who work more than forty hours during a week. Additionally, Plaintiffs allege that
ThedaCare’s failure to pay for work resulted in violations of Wisconsin Statute § 104.02, which
requires an employer to pay employees at least the minimum wage defined in § 274.03.
Plaintiffs move to certify their Wisconsin wage claims as a class actions under Federal Rule
of Civil Procedure 23. The class action is “an exception to the usual rule that litigation is conducted
by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700–01
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(1979). In order to proceed as a class, “a class representative must be part of the class and ‘possess
the same interest and suffer the same injury’ as the class members.” E. Tex. Motor Freight Sys., Inc.
v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War,
418 U.S. 208, 216 (1974)). Rule 23(a) serves as a gate-keeper to ensure that a class format is an
appropriate procedure for adjudicating a particular claim. Bell v. PNC Bank Nat. Ass’n, 800 F.3d
360, 373 (7th Cir. 2015).
Under Rule 23(a), four requirements must be met: numerosity,
commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). In addition to
meeting the four requirements of Rule 23(a), the class must also meet one of the requirements of Rule
23(b). Plaintiffs seek certification under Rule 23(b)(3), which allows for certification of classes
seeking monetary damages when “questions of law or fact common to the class members
predominate over any questions affecting individual members” and when the “class action is superior
to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.
23(b)(3).
In conducting the Rule 23 analysis, the court should not turn the class certification
proceedings into a dress rehearsal for trial on the merits of the case. See, e.g., Schleicher v. Wendt,
618 F.3d 679, 685 (7th Cir. 2010). However, on issues affecting class certification, “a court may not
simply assume the truth of the matters as asserted by the plaintiff.” Messner v. Northshore Univ.
HealthSystems, 669 F.3d 802, 811 (7th Cir. 2012). “If there are material factual disputes, the court
must ‘receive evidence . . . and resolve the disputes before deciding whether to certify the class.’”
Id. (citing Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001)). Plaintiffs bear
the burden of showing that a proposed class meets the Rule 23 requirements by a preponderance of
the evidence. Id. Furthermore, the court must consider the elements of the underlying complaint
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because “[a]nalysis of predominance under Rule 23(b)(3) ‘begins, of course, with the elements of the
underlying cause of action.’” Messner, 669 F.3d at 815 (citing Erica P. John Fund, Inc. v.
Halliburton Co., 563 U.S. 804, 809 (2011)).
ThedaCare challenges the commonality, typicality, adequacy of representation, and
predominance of Plaintiffs’ class. The court finds the commonality and typicality requirements of
Rule 23(a), which “tend to merge,” see General Telephone Co. v. Falcon, 457 U.S. 147, 157 n.13
(1982), determinative, and therefore begins and ends its analysis of this issue there.
Rule 23(a)(2), known as the “commonality” requirement, requires a plaintiff seeking class
certification to show that “there are questions of law or fact common to the class.” Rule 23(a)(3),
known as the “typicality” requirement, requires that “the claims or defenses of the representative
parties are typical of the claims or defenses of the class.” The Supreme Court has interpreted the
commonality requirement to mean that the claims of the proposed class must depend on a common
contention that is “of such a nature that it is capable of classwide resolution—which means that the
determination of its truth or falsity will resolve an issue that is central to the validity of each one of
the claims in one stroke.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “What matters
to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the
capacity of a classwide proceeding to generate common answers apt to drive the resolution of the
litigation. Dissimilarities within the proposed class are what have the potential to impede the
generation of common answers.” Id. (internal quotation marks omitted).
As noted above, Plaintiffs contend that ThedaCare had a de facto policy of requiring, or at
least encouraging, employees who were unable to take a complete meal break from recording a nolunch entry. They also contend that employees were also led to believe they could not leave the
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premises during their meal break.
Moreover, because ThedaCare management had at least
constructive knowledge of the fact that its employees were performing work during their unpaid meal
periods, Plaintiffs contend it was required to pay them compensation. See Kellar v. Summit Seating,
Inc., 664 F.3d 169, 177 (7th Cir. 2011) (“The FLSA imposes an obligation on the employer ‘to
exercise its control and see that the work is not performed if it does not want it to be performed.’”
See 29 C.F.R. § 785.13. The employer ‘cannot sit back and accept the benefits without compensating
for them.’” Id.); see also Wis. Adm. Code § DWD 272.12(2) (same). Given these facts, Plaintiffs
argue that Rule 23 certification should be granted.
The evidence presented does not support Plaintiffs’ allegations that ThedaCare management
had a de facto policy to deprive its employees of compensation to which they are entitled. This is not
to say that there were not employees who worked during their meal breaks and were not
compensated for it. But to the extent this occurred, it was due to the myriad of factors each
employee faced over the period of time covered by this lawsuit. These factors include the department
in which the employee worked, the supervisor to whom they reported, and each employee’s own
subjective attitude and intent. Moreover, even in those departments where employees were
discouraged from recording no-lunch entries, violations only occurred on those days when a high
patient count and a heavy work load caused significant interruptions during an employee’s meal
break. Given the variability that each of these elements may have had on each employee on any given
day, Plaintiffs are unable to satisfy the commonality/typicality requirements for Rule 23 certification.
A. De Facto Policy of Upper Management
Plaintiffs have not established a de facto uniform policy imposed by ThedaCare’s upper
management to prevent employees from using the no-lunch entry when they were unable to take a
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full lunch. In particular, Plaintiffs assert that upper management instructed supervisors to discourage,
prevent, or limit employee use of the no-lunch option. Their assertion that such a policy existed is
based on speculation and equivocation, and disregards the unequivocal testimony of actual
management personnel who were deposed or offered declarations. While the evidence presented
does support the claim that some supervisors may have believed they were to discourage employee
use of the no-lunch option, even if employees were interrupted or called back to work during their
lunch periods, there is no evidence of a uniform practice. The evidence also supports a finding that
there may have been some confusion over what management expected.
Plaintiffs try to connect their various theories of discouragement, disallowance and limitations
of the no-lunch option as all arising from pressure by ThedaCare’s upper management to meet
productivity numbers and stay within departmental budgets. ThedaCare uses the Full Time
Equivalent (“FTE”) percentage metric to measure its employee hours and set departmental budgets.
The FTE increases when an employee works through lunch and uses the no-lunch option, thereby
increasing the number of employee hours worked and decreasing the productivity output. Plaintiffs
contend upper management places pressure on supervisors to prevent employees from using the nolunch option because recording a no-lunch entry causes departments to exceed budgets and reduces
overall productivity. Upper management’s concern to meet productivity and budgeting standards
resulted in the creation of ThedaCare’s common policy to discourage, disallow and limit employee
use of the no-lunch option.
To support their claim, Plaintiffs suggest that increasing productivity and reducing the use of
the no-lunch option were discussed at upper management meetings. Plaintiffs allege that Chief
Operating Officer Mary Jean Schaffmeyer “told [management] that [they] cannot allow employees
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to punch ‘no lunch’ and that they need to take a lunch break and whatever it takes to do it needs to
be done.” Luker Aff., ECF 124 at 5. Plaintiffs also allege that when management asked how they
should do that when they are short-staffed, Schaffmeyer responded, “Well, you have to figure that
out.” Id. Plaintiffs allege that this brief exchange recounted by a former supervisor is evidence of
unofficial pressure from upper management to discourage, disallow, or limit the use of the no-lunch
option while still requiring or allowing employees to work through lunch.
Plaintiffs’ argument is flawed for several reasons. First, the fact that upper management
wanted supervisors to minimize employee use of the no-lunch option does not mean employees were
to be forced or even allowed to work over their lunch break without compensation. As COO
Schaffmeyer explained, “I never pressured or suggested to managers that they should improperly
suppress use of the lunch cancellation. My goal was to encourage healthy lunch periods, and to help
them understand what resources they needed to help their employees get a bona fide lunch.”
Schaffmeyer Dec., ECF No. 136-4 at 2. It is also entirely reasonable for management to direct
supervisors and department heads to take the steps needed to ensure that employees were not
unnecessarily working over their lunch periods and thereby increasing the operating costs of the
hospital. In other words, upper management viewed excessive use of the no-lunch option as
detrimental both to the health and productivity of individual employees and to the hospitals’ overall
efficiency. Some supervisors may have mistakenly believed this meant they were to prevent
employees from utilizing the lunch cancellation feature even when the employee was unable to take
a full lunch break, but Plaintiffs offer no evidence that this was upper management’s intent.
Furthermore, Plaintiffs fail to show by a preponderance of the evidence that upper
management pressured supervisors to prohibit employee use of the no-lunch option, even if the
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employee worked through lunch. For evidence, Plaintiffs offer only the affidavit of one supervisor
at Theda Clark who states that his manager—not someone from upper management—told him that
“a directive came from upper management that we need to start taking ‘no lunch’ punches away from
employees, even when the employee did not get a lunch.” Luker Aff., ECF No. 124 at 5. In
response, ThedaCare offered testimony from sixteen upper management members, managers, or
supervisors declaring that they have never encouraged the suppression of the no-lunch option in order
to improve productivity costs. Augustine Dec., ECF No. 136-5 at 2; Bardon Dec., ECF No. 136-6
at 2; Crandall Dec., ECF No. 136-7 at 2; Drath Dec., ECF No. 136-8 at 2; Dunham Dec., ECF No.
136-2 at 2; Fredriksen, ECF No. 136-9 at 2; Knox Dec., ECF No. 136-10 at 2; Lubinsky Dec., ECF
No. 136-11 at 9; Martin Dec., ECF No. 136-12 at 2; McNamara Dec., ECF No. 136-13 at 2;
McGinnis Dec., ECF No. 136-3 at 2; Olson Dec., ECF No. 136-14 at 2; Reed Dec., ECF No. 136-15
at 2; Schoenauer Dec., ECF No. 136-16 at 2; Thelen Dec., ECF No. 136-17 at 2; Tripp Dec., ECF
No. 136-18 at 2.
Plaintiffs’ argument that upper management used no-lunch entries and corresponding FTE
calculations to measure department productivity also finds no support in the record. As ThedaCare
explained, there is not an exclusive relationship between the use of the no-lunch option and
productivity metrics or department budgets. Productivity levels can change based on a variety of
things, such as patient volume, patient flow, documentation, and duties. Dunham Dec., ECF 136-2
at 2–3. Correlation does not equal causation. Because the no-lunch option, FTEs, and productivity
levels do not have a fixed relationship, the correlation between them does not create an inference that
the pressure from upper management to achieve productivity metrics was actually pressure from
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upper management to make employees work through lunch without paying them, especially given
that productivity levels can be affected by many sources.
Finally, Plaintiffs’ contention that ThedaCare’s upper management adopted a de facto policy
that prevented employees from using the no-lunch option even when they were unable to take a full
lunch break is undermined by the report of their own expert. Plaintiffs’ expert report shows a wide
variation in the use of the no-lunch option over the course of 3.5 years, including those years
covering this lawsuit.2 ECF No. 122-1. The expert report analyzed the percentage of shifts in which
an employee used the no-lunch option in each department. Id. at 8. This percentage varied from
3.1% to 69.7% between the departments in the two hospitals. Id. at 8–9. No less than eleven
departments3 contained employees that used the no-lunch option during at least 10% of their shifts.
Id. The wide variation in the percentage of shifts in which employees used the no-lunch option
weighs against the allegation that ThedaCare had a common policy or practice that prevented
employee use of the no-lunch option. If there was a common application of the no-lunch option, it
should manifest itself through less variance in the usages between the departments.4
2
Plaintiffs’ expert studied over 2 million lines of timekeeping data from the pay period ending
on April 7, 2012 through the pay period ending on November 12, 2016. Id. at 1–2.
3
These include the following AMC departments: Birth Center, Emergency Services,
Inpatient Operating Room, Patient Registration, and Pulmonary. Id. at 8. These include the
following Theda Clark departments: Birth Center, Emergency Services, ICU, Surgery, Trauma. Id.
at 9. These also include the Staffing Resources Department. Id. at 10.
4
Although variances could be attributed to other factors (like patient census and staffing
levels), this does not strengthen Plaintiffs’ position. Rather, the variances only further support the
finding that the employees in different departments are too dissimilar to proceed as a class.
Additionally, if there was a common suppression of the no-lunch option, it should have
evidenced itself as similar low usage rates of the no-lunch option.
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In sum, Plaintiffs have failed to offer persuasive evidence that ThedaCare’s upper
management adopted a de facto policy of denying its employees compensation for work performed
over their unpaid lunch breaks. In this respect, this case differs from Bell v. PNC Bank on which
Plaintiffs place significant weight. 800 F.3d at 365. In Bell, the Seventh Circuit affirmed the district
court’s certification of a class of employees at twenty-seven banks in Illinois based on strong evidence
of an explicit official policy on the part of management to deny employees compensation for
overtime. Id. at 381. Here, as explained above, there is no persuasive evidence of such a policy.
B. Individualized Determination
Absent persuasive evidence of a common de facto policy to deny employee use of the nolunch option when they were unable to take a full meal break, Plaintiff’s remaining arguments
asserting that ThedaCare violated its employees’ rights under state and federal law require
individualized inquiries dependent upon the myriad of factors noted above, including the employee,
the department in which the employee worked, the supervisor to whom he or she reported, the level
of work on the particular day in question, and what the supervisor may have said to the employee.
First, Plaintiffs assert ThedaCare had a common policy which required employees to remain at the
hospital during their lunch. It is true that most employees remained at the hospital over their thirtyminute meal break, going either to the cafeteria or, for those who brought their own lunch, to the
break room located on the floor they worked. But this fact alone does not mean that ThedaCare
required its employees to remain on its premises. With only thirty minutes for a meal break,
employees might reasonably conclude that it would make little sense to leave the premises absent a
compelling need to do so. This is especially true of those clinical staff employees handling
medications who, for security reasons, were required to trade in their car keys for their work keys
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during their shifts. For those employees, making arrangements to leave may be more trouble than
it is worth. But this does not mean they could not leave, particularly in light of ThedaCare’s policy
which explicitly contemplates them being able to do so. The crucial question is whether management
required the employees to remain on the premises over their meal period, not whether the employees
found it more convenient to remain. Plaintiffs offer no evidence of a common policy requiring
employees to remain on the hospital premises over their meal break, and ThedaCare has presented
evidence that at least some, at times, left the premises.
In addition, the fact that employees in certain departments were required to carry
communication devices, so-called “zone phones,” while they were at work does not mean they were
forbidden from leaving the premises. Judge Adelman addressed this issue in Aguilera v. Waukesha
Memorial Hospital, Inc., No. 13-C-1245, 2015 WL 3791469 (E.D. Wis. June 18, 2015). There,
two Waukesha Memorial Hospital employees sought Rule 23 certification of a class action for
violations of state wage and hour law on behalf of CNAs and housekeepers who were required to
carry wireless phones or pagers at all times during their shifts, including during their meal periods.
As in this case, the employees’ half-hour uncompensated meal periods were automatically deducted
from their paid time, but employees could use a “cancel lunch” function on the timekeeping system
if the full meal break was not taken. Also, as in this case, the plaintiffs alleged that they were
frequently interrupted during their meal periods and supervisors had instructed them that they were
not to use the “cancel lunch” feature on the timekeeping system, even when they were interrupted
by phone calls, required to answer their communication devices, or asked to perform work during
their lunch period. Id. at *1. Like some of the employees who have opted in here, the named
plaintiffs in Aguilera stated they understood this to mean that they could not leave the hospital
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premises during their meal breaks. As a result, the plaintiff employees claimed that their meal periods
should be treated as compensable time. Id. at *2.
Although the court in Aguilera had granted preliminary certification to a collective FLSA
class, upon a more complete record the court denied the plaintiffs’ motion for Rule 23 class
certification and decertified the collective class it had preliminarily approved based on the lack of
commonality in the claims. In so ruling, the court rejected the plaintiffs’ contention that use of the
communication devices during meal periods presented a common question:
However, this question cannot be answered for the entire class in one stroke. The
problem is that the phrase “carrying, monitoring, or answering communication
devices” describes a wide spectrum of activities, some of which might be work and
some of which might not. On one end of the spectrum is an employee who simply
carries a device during a meal period but receives no calls or ignores any calls he or
she receives; at the other end is an employee who monitors her device, is constantly
interrupted by calls, and is frequently asked to leave her meal period to perform a task
such as assisting a patient or making a bed. In between are employees whose
experiences include things like receiving a call but forwarding it to another employee
who is on duty, receiving a call and responding by doing no more than informing the
caller that the employee is on break, receiving a call and answering a work-related
question, and receiving a call and then performing a task—all of which could happen
with varying frequency.
Id. at *4.
The Aguilera court also rejected the named plaintiffs’ claim that by requiring them to carry
their communication devices throughout the day, the hospital implicitly required them to remain on
the premises during their lunch periods. The court first noted that the hospital’s policy, like
ThedaCare’s policy in this case, “contemplate[s] that employees may leave the premises during meal
periods so long as they swipe out.” Id. at *5. The court also noted that “the evidence does not show
that all CNAs and housekeepers were subject to the same policies and practices concerning the use
of communication devices during meal periods.” Id. at *6. One supervisor testified that employees
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had the option of leaving their devices at work if they wanted to leave for lunch. Another said
employees took the devices with them when they left. Others said that they turned the devices off
or handed them off to others over their breaks. In other words, there was not a single answer to the
question of whether employees were free to leave. The Aguilera court explained, “Individualized
inquiries will be needed to identify the policies or practices that applied to each employee, and
therefore ‘whether CNAs and housekeepers were free to leave the premises during their meal
periods’ is not a common question of law or fact.” Id.
The same variation in employee circumstances exists in this case. Some employees who are
assigned wireless phones do not carry them during their lunch period or hand them off. Others carry
the devices but understand they are not required to do so. Regardless, the mere fact that employees
carry the communication devices during their meal break does not mean they were working during
that time. Although carrying a zone phone during a meal break could result in interruptions during
lunch, it does not follow that each and every lunch period was interrupted so as to render all meal
periods compensable. Possession of a phone during their lunch break also does not require an
employee to remain on the premises.
Plaintiffs maintain that remaining at the hospital, particularly in a break room within the
department where the employee is working, could result in the employee answering any question that
may arise or returning to work early because of patient needs. Yet, Plaintiffs fail to distinguish
between minor brief interruptions and more significant ones. They appear to assume that any
interruption, no matter how brief, turns an unpaid thirty-minute meal period into compensable work
time. That assumption ignores the de minimus doctrine and the definition of work under both federal
and state law. Both the FLSA and Wisconsin wage law define “work” as “physical or mental exertion
17
(whether burdensome or not) controlled or required by the employer and pursued necessarily and
primarily for the benefit of the employer and his business.” Musch v. Domtar Indus., 587 F.3d 857,
859 (7th Cir. 2009).5 To prevail on a claim for compensation then, each employee would need to
prove that they engaged in activities that predominantly benefitted the defendant during their meal
breaks. White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 873 (6th Cir. 2012) (holding that
an automatic meal deduction system was lawful under the FLSA and explaining that compensation
is necessary only “when an employee is required to give up a substantial measure of his time”)
(quotation omitted). Additionally, determining whether there a violation occurred will require a
determination of whether the work performed was de minimis. Id.
Plaintiffs also argue ThedaCare violated their rights by citing to the fact that some supervisors
on occasion cancelled their no-lunch entries even though their meal period was interrupted. But this
issue would also require consideration of a variety factors in addition to the question of how often
it occurred. Whether such a supervisor’s action was lawful would depend on why the no-lunch entry
was cancelled. Was it because someone simply asked an employee a question while she was on break
and the interruption, if any, was de minimis? Was it because the employee took it upon herself to
do work over her break that could have just as well have been done later? Or was it because the
supervisor misunderstood management’s directions to make sure employees were receiving their meal
breaks? Again, no one answer applies to all of the employees on each occasion it occurred.
5
Wisconsin designates what is considered “work” more broadly than the FLSA, finding that
“[a]ny meal period where the employee is not free to leave the premises of the employer will also be
considered an ‘on duty’ meal period.” However, as previously explained, the court finds no evidence
that employees were required to stay.
18
Individual perception also plays a role in determining whether ThedaCare violated the FLSA
and Wisconsin law. Some employees testified they stopped using the no-lunch option because when
they did, the supervisor asked them questions about why they did so. A supervisor’s questioning is
not, on its face, a prohibition or even discouragement, however. Given the interest of management
in ensuring that employees could generally take a full lunch break and its interest in controlling costs,
it is not surprising that a supervisor would want to know why an employee found it necessary to skip
lunch, especially if it occurs repeatedly. Was the questioning by the supervisor intimidating?
Plaintiffs do not explain what was said; only that some felt intimidated. No employee has claimed
that they were disciplined because of their utilization of the no-lunch entry. Rather, some say they
were “counseled,” but there is no clear indication of what that means.
The potential class members worked in many different departments, each of which had
different supervisors over the period covered by the suit. Some departments, by the nature of the
care provided, were more susceptible to the kind of sudden emergencies that required immediate
attention from those responsible for patient care. Moreover, different supervisors within those
departments, and over time, utilized different staffing models and different departmental lunch period
practices and rules in an effort to ensure that employees had enough time to take a complete meal
period free from work. To be sure, ThedaCare has directed its managers and supervisors to pay more
attention to the problem of employees working through their meal period since Plaintiffs commenced
this action, but this only underscores the wide variation that already existed within the two hospitals
where Plaintiffs worked.
There were not only variations in how employees received their lunch breaks across the
different shifts, departments, and hospitals. There were also variations in when and if an employee
19
would select the no-lunch option. Some employees, who never received a lunch because they were
the only employee on duty during the night shift, would select the no-lunch entry every time. Some
employees who felt comfortable selecting the no-lunch option on night shift would not do so during
day shift. However, this only highlights that these claims cannot be resolved on a class level. Not
only are there physical variations in daily hospital work (like patient levels and staff attendance), there
are also variations in the decision-making each employee made in deciding whether or not to use the
no-lunch option or whether they believed their lunch was interrupted.
The evidence reflects the type of variations that preclude a finding of commonality. For
example, Ruthann Bartman testified that at Theda Clark she had to work through lunch when she
worked as a nurse in the Emergency Room, but always got a lunch when she worked as a nurse in
the Operating Room. Bartman Dep., ECF 122-2 at 15–16. Bartman also testified that, while she
often worked through lunch during both her day shift and her night shift, she would punch no-lunch
on night shifts but not day shifts. Id. at 44. Additionally, Bartman testified that when she worked
in the Emergency Room at AMC, her managers insisted she go take a lunch, which did not happen
at Theda Clark. Id. at 59–60. Bartman’s testimony alone shows the highly individualized questions
that would need to be answered to determine each violation.
Evidence of the individualized factors is apparent throughout the record, not just in Bartman’s
testimony. Vicki Wideman, a nurse at Theda Clark, testified that she did not get an uninterrupted
lunch while she worked in cardiac medicine; however, she was more likely to get one in outpatient
infusion. Wideman Dep., ECF No. 122-9 at 44, 47. Katherine Doornink, a nurse in behavioral health
at Theda Clark, testified that she received a 30 minute uninterrupted lunch on half the lunches she
worked. Doornink Dep., ECF No. 122-3 at 49–50. Whereas Kevin Grohler, a nurse at AMC,
20
testified that he received uninterrupted lunches very rarely during day shifts but during about onethird of the time while he was on night shifts. Grohler Dep., ECF No. 122-4 at 58. Grohler testified
that his interruptions could include phone calls, call lights, pages, and face-to-face interruptions. Id.
at 43. These interruptions would vary in the time required to respond, from minimal (call lights and
pages) to more time intensive (phone calls and face-to-face interruptions). Id. at 44–49. Autumn
Wood, a nurse in the Birth Center, testified that she was more likely to get a lunch at AMC than
Theda Clark. Wood Dep., ECF No. 122-10 at 40. Juliane Miller, one of the named plaintiffs who
worked as a paramedic at Theda Clark, testified that she was more likely to punch no-lunch with her
second manager than her first. Miller Dep., ECF No. 50-1 at 15. These are just a few of the
examples of the individualized factual differences that would predominate over the determination of
whether there was a common violation. And as noted above, Plaintiffs make no attempt to distinguish
between significant interruptions in their break and a two-second inquiry. Given all of these
variations in the multiple factors that affect whether an employee was able to take a break on any
given day and whether the employee, if unable to do so, could effectively record a no-lunch entry,
the required commonality for Rule 23 class certification cannot be found.
This conclusion finds substantial support in other cases in which similar policies have been
challenged. See, e.g., Aguilera, 2015 WL 3791469, at *4–6 (finding no commonality amongst class
members in a hospital class action alleging violation of the FLSA because of interruptions during
lunch and the use of an automatic lunch deduction procedure); DeSilva v. N. Shore-Long Island
Jewish Health Sys., 27 F. Supp. 3d 313, 328–30 (E.D.N.Y. 2014) (“In sum, because the question of
LLJ’s FLSA and NYLL liability necessarily depends on whether, on a department-by-department
basis, a particular manager failed to follow LLJ’s directive to approve mealtime work or knew that
21
such work was performed but did not compensate employees as required, Plaintiffs cannot meet Rule
23(b)’s commonality pre-condition, nor can it satisfy the Rule’s predominance requirement.”);
Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 346–52
(N.D. Ill. 2012)
(decertifying a similar class because “significant factual differences exist among Plaintiffs’
employment locations and work settings, job duties, supervision, and meal break practices”); see also
Bolden v. Walsh Constr. Co., 688 F.3d 893, 896 (7th Cir. 2012) (explaining that class certification
was inappropriate under Rule 23 because supervisors at individual sites had significant hiring
discretion, therefore to analyze the claim, “a court would need site-specific, perhaps worker-specific,
details, and then the individual questions would dominate the common questions (if, indeed, there
turned out to be any common questions)”); Vang v. Kohler Co., 488 F. App’x 146, 147 (7th Cir.
2012) (explaining that a single, firm-wide policy could satisfy Rule 23 under Wal-Mart and Bolden,
but that the variable circumstances of individual supervisors departing from a firm-wide policy does
not present a common question); Leahy v. City of Chicago, 96 F.3d 228, 232 (7th Cir. 1996)
(holding that a collective bargaining agreement requiring individual grievances was more appropriate
than an FLSA action because “the individual inquiry facilitated by the grievance process is the most
efficient way to determine whether an officer’s meal period should be compensable work time” for
“a police department of some 12,000 officers in different districts with different shift schedules and
different exigencies arising each day that might affect officers’ meal periods”); Jonites v. Exelon
Corp., 522 F.3d 721, 726 (7th Cir. 2008) (“The plaintiffs in this case want us to rule that because
some Com Ed employees may sometimes do work at lunch, all Com Ed employees are entitled to pay
during their lunch break . . . . It is that argument . . . that is preposterous.”).
22
Plaintiffs seek to avoid these difficulties by proposing a set of three subclasses for employees,
as opposed to one entire class. Plaintiffs propose that in the event the court does not find sufficient
commonality in its proposed class to meet the requirements of Rule 23, it should certify three subclasses consisting of (1) employees with direct patient care responsibilities who use “zone phones,”
(2) those who monitor acute patients, and (3) schedulers with indirect patient care duties. This would
not cure the essential problem: that the question of how many, if any, of the meal periods of each
employee within the class over the period of time covered by the complaint were interrupted and are
therefore compensable because of work performed does not lend itself to a single adjudication. While
the employees who worked and yet were unpaid may have suffered the same injury, the determination
of each violation for each employee within the class turns on too many variable factors to allow
consideration as a class. I therefore conclude that class certification of Plaintiffs’ state law claims
pursuant to Rule 23 should be denied.
III. MOTION TO DECERTIFY PLAINTIFFS’ CONDITIONAL FLSA CLASS
As noted above, the court conditionally certified Plaintiffs’ FLSA class action pursuant to 29
U.S.C. § 216(b) in a previous order. The FLSA permits collective actions “against any employer . . .
by any one or more employees for and on behalf of himself or themselves and other employees
similarly situated.” 29 U.S.C. § 216(b). Employees or former employees must give their consent in
writing to become a party to a collective action brought pursuant to § 216(b). Therefore, unlike a
typical class action suit under Federal Rule of Civil Procedure 23, where unwilling parties must “opt
out” of the class, the FLSA requires employees to “opt in” to the class. Woods v. N.Y. Life Ins. Co.,
686 F.2d 578, 579–80 (7th Cir. 1982). Since the class was conditionally certified, 165 individuals
have consented to join the collective action.
23
Before the court now is Plaintiffs’ motion for final certification on their FLSA collective
action. ECF No. 83. Also before the court is ThedaCare’s motion to decertify the FLSA collective
action. ECF No. 111. FLSA collective actions differ from Rule 23 class actions in that Rule 23 sets
forth a set of detailed procedural provisions that have no counterpart in the FLSA. Epenscheid v.
DirectStat USA, LLC, 705 F.3d 770, 772 (7th Cir. 2013). But despite these differences between the
two, “there isn’t a good reason to have different standards for the certification of the two different
types of action, and the case law has largely merged the standards, though with some terminological
differences.” Id. Therefore, the Seventh Circuit has indicated, albeit in dicta, that the standards for
certification under the FLSA § 216 and Rule 23 should be treated as the same. Id. at 771–72.
Treating them as the same, the court finds that the opt-in plaintiffs are not similarly situated for the
reasons described in the Rule 23 analysis.
Even if the court applied the FLSA’s “similarly situated” standard, as a separate, lower
standard, the end result would be the same. See Flavel v. Svedala Indus., 875 F. Supp. 550, 553
(E.D. Wis. 1994) (treating the “similarly situated” standard as lower than the requirements of Rule
23(a)). At the second step of a FLSA collective action, typically on a defendant’s motion for
decertification, courts determine whether plaintiffs who have opted in are, in fact, similarly situated.
Brabazon v. Aurora Health Care, Inc., No. 10-C-714, 2011 WL 1131097, at *2 (E.D. Wis. Mar. 28,
2011). At that second stage, the court assesses whether continuing as a collective action will provide
efficient resolution in one proceeding of common issues of law and fact. See Hoffmann-La Roche
v. Sperling, 493 U.S. 165, 170 (1989). On a motion to decertify the class, Plaintiffs still bear the
burden of producing a record that demonstrates that maintaining class certification is appropriate.
Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 419 (N.D. Ill. 2003).
24
In determining whether parties are “similarly situated,” the court considers factors like any
disparate factual and employment settings of the individual plaintiffs, the various individualized
defenses available to the defendant, and fairness and procedural considerations. Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d 1095, 1102–03 (10th Cir. 2001) (cited approvingly in Espenscheid,
705 F.3d at 771–72). As described during the Rule 23(a) discussion, there are significant differences
between class members. These differences remain prevalent even when examining the narrowed class
of opt-in members. There are still over 165 different employees from 33 departments across two
different hospitals who reported to at least 38 managers and 55 supervisors. There are too many
differences in situations for Plaintiffs to be similarly situated. All of the factors considered by the
court in denying class certification under Rule 23 apply equally to Plaintiffs’ collective action. There
is no common policy that denies the collective class compensation for work performed over their
meal periods, and the determination of which employees should have been paid for which meal
periods over the last two to three years depends upon too many variables to regard each employee’s
claim as similarly situated. The individualized determinations the case calls for exist not only as to
damages, but concern each allegedly compensable meal period. Only by denying ThedaCare the
opportunity to assert individualized defenses to each meal period that each employee claims should
have been compensated over the entire period can all of the claims of all of the employees be tried
in a single action. While such a ruling may force ThedaCare to settle the case rather than incur the
costs of interposing individualized defenses to each class member’s claim for compensation for each
working meal period, the means by which it would accomplish this result are inconsistent with the
principles of fundamental fairness that the procedural protections of both the FLSA and Rule 23 are
25
intended to insure. The court therefore concludes that ThedaCare’s motion to decertify should be
granted.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ motion for final certification and to certify
a class (ECF No. 83) is DENIED.
IT IS FURTHER ORDERED that Defendant’s motion to decertify (ECF No. 111) is
GRANTED. The collective action is DECERTIFIED and the claims of the opt-in plaintiffs are
DISMISSED WITHOUT PREJUDICE. Plaintiffs’ counsel is directed to notify the opt-in plaintiffs
of this order decertifying the class and informing them of their ability to bring individual claims and
warning them that the statute of limitations on their ability to file suit has resumed running. See, e.g.,
Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002); Espenscheid v. DirectSat USA,
LLC, No. 09-cv-625-bbc, 2011 WL 13209268, at *3 (W.D. Wis. July 7, 2011).
The Clerk is directed to set this matter on the court’s calendar in not less than ten days for
a telephone conference to address further scheduling.
Dated this
17th
day of January, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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