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Lizette Mara Pegues, Individually and On Behalf of A Class of All Others Similarly Situated v. Carecentrix

May 6, 2013

LIZETTE MARA PEGUES, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
CARECENTRIX, INC., DEFENDANT.



The opinion of the court was delivered by: Carlos Murguia United States District Judge

MEMORANDUM AND ORDER

Plaintiff Lizette Mara Pegues brings this putative collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., claiming that her former employer-defendant CareCentrix, Inc.-requires non-exempt employees to perform work off the clock, without pay. Plaintiff worked as a Medicare Assessment Coordinator for defendant in a call center in Overland Park, Kansas. She was part of the Medicare Assessment Team, which was a group formed on a trial basis in 2010. Defendant has five call centers located throughout the country. According to plaintiff, she and other similarly-situated employees were required to complete a number of critical tasks before they could clock in via defendant's time-tracking software. This matter is before the court on plaintiff's Motion for Conditional Class Certification of Class Claims Under § 216(b) of the FLSA (Doc. 16). For the following reasons, the court grants the motion in part and denies it in part.

I.Legal Standards

Conditional certification of a class under the FLSA requires compliance with the FLSA class action mechanism, which states: "An action to recover the liability prescribed in either of the preceding sentences may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Whether an employee may maintain a § 216(b) class action, then, depends on whether he or she is "similarly situated" to other members of the putative class. Although § 216(b) does not define the term "similarly situated," the Tenth Circuit has endorsed the ad hoc method of determination. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001).

Under the ad hoc method, "a court typically makes an initial 'notice stage' determination of whether plaintiffs are 'similarly situated.'" Id. at 1102 (citation omitted). This initial determination "'require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'" Id. (citation omitted); see also Hadley v. Wintrust Mortg. Corp., No. 10-2574-EFM, 2011 WL 4600623, at *2 (D. Kan. Oct. 3, 2011); Shockey v. Huhtamaki, Inc., 730 F. Supp. 2d 1298, 1300 (D. Kan. 2010). This standard is a lenient one. Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483, 485 (D. Kan. 2004). "Because the court has minimal evidence, [the notice stage] determination . . . typically results in 'conditional certification' of a representative class." Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995). The "similarly situated" standard is considerably less stringent than Rule 23(b)(3) class action standards. Grayson v. K-Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). Ordinarily, the court makes the determination fairly early in the litigation, before the parties complete discovery. Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 679 (D. Kan. 2004). And in making the determination, the court does not reach the merits of the plaintiff's claims. Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 435 (D. Kan. 2007); Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997) (citation omitted). But a plaintiff must provide more than speculative allegations. Stubbs v. McDonald's Corp., 227 F.R.D. 661, 666 (D. Kan. 2004). And "conclusory and general allegations" are insufficient. Blancarte v. Provider Plus, Inc., No. 11-2567-JAR, 2012 WL 4442641, at *4 (D. Kan. Sept. 26, 2012).

The court must therefore determine whether plaintiff has offered substantial allegations that members of the putative class are similarly situated. As suggested above, a plaintiff can demonstrate that she and putative class members are similarly situated by showing that they were subject to a common policy. Brown, 222 F.R.D. at 679; Hoffman, 982 F. Supp. at 261 ("[C]courts have held that plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.").

II.Plaintiff's Allegations

Plaintiff alleges that defendant uses software for payroll and timekeeping called "Timesaver." Timesaver has a time stamp functionality. According to plaintiff, defendant's use of Timesaver, coupled with the policies implemented for its use, facilitated violations of the FLSA.

After beginning her employment, plaintiff received an email from Jamie Rosenkoetter, defendant's Vice President for Human Resources. The email was directed to "All KS Users," and instructed that "[a]ll non-exempt associates will be required to time stamp into Timesaver upon arriving at work, leaving for lunch, returning from lunch and leaving at the end of the day." (Doc. 1-2 at 1.) A second email from Kaye Newsome-an Area Vice President located at the Overland Park, Kansas office-also sent to "All KS Users," stated, "We will be using the time-stamp feature to determine if you are 'late' as defined in the Attendance Guidelines. . . . [I]f your shift begins at 8:00am, your time-stamp should reflect 8:00am. . . . [I]f your shift ends at 5:00, you should be . . . time stamped out at 5:00." (Doc. 1-3 at 1.)

Before "time stamping" into Timesaver, plaintiff alleges employees had to complete a "number of critical tasks." The critical tasks that plaintiff identifies are:

 Arrive at workstations  Prepare work stations and apparatuses  Log onto computers  Log onto the CareCentrix network  Boot up Timesaver Plaintiff claims that defendant failed to pay class members "for the time they spend logging in and out of their computers, the time they spend with any updates to the computer program, and the rest of the time they spend performing integral and indispensable preliminary and postliminary work activities." (Doc. 1 at 5.) In response to a question from plaintiff about the Timesaver system, Ms. Newsome instructed plaintiff:

You should be here a few minutes early every morning to get your computer up and running in order to be logged in at your start time, this typically doesn't take more than 2-3 minutes. It takes less time when coming back from lunch. You will be paid for the actual time you have logged in [Timesaver]. (Doc. 1-4 at 1.)

Arguing that the above-identified statements by Ms. Rosenkoetter and Ms. Newsome constitute company policy, plaintiff submits that the putative class should be comprised of the following members:

All current and former customer service representatives who worked in CareCentrix's call centers and who were denied compensation for time worked and whose hours worked were not accurately recorded, including denial of compensation at a rate of one and one-half times their regular rate of ...


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