United States District Court, D. Kansas
JACQUELINE FOLGER, On Behalf of Herself and All Others Similarly Situated Plaintiffs,
MEDICALODGES, INC., and GAREN FOX, Defendants.
MEMORANDUM AND ORDER
MONTI L. BELOT, District Judge.
This case comes before the court on plaintiffs' motion to conditionally certify this case as a collective action under section 16(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), to recover unpaid overtime compensation. (Doc. 76). The motion has been fully briefed and is ripe for decision. (Docs. 77, 87, 92). Plaintiffs' motion is denied for the reasons herein.
I. Facts and Procedural History
Plaintiff Jacqueline Folger was employed by Medicalodges at its Goddard nursing facility as a MDS Coordinator. Since the filing of the amended complaint, twelve current and former employees have opted in as plaintiffs. The opt-in plaintiffs held various positions at eleven different Medicalodges' facilities. Defendant Garen Fox is CEO and General Counsel for Medicalodges, which operates twenty-three skilled nursing facilities throughout Kansas, Missouri and Oklahoma.
The amended complaint alleges that Medicalodges violated the FLSA by misclassifying MDS Coordinators as salaried employees (Count 1) and failing to accurately record work time and properly pay hourly employees for the hours worked (count 2).
Medicalodges has several policies concerning its employees. (Doc. 77, exh. 2). Medicalodges requires hourly employees to take a thirty minute break during an eight hour shift. The hourly employees are not paid for the break and the thirty minutes is automatically deducted from their paychecks. In the event an hourly employee works during a lunch break, the employee is to complete a time clock adjustment form in order to receive compensation. Medicalodges also has a policy requiring employees to get approval prior to working overtime. Plaintiffs admit that these policies comply with applicable law.
Initially, Folger was an hourly employee. Folger testified that she was unable to complete her job duties in a 40 hour work week and was allegedly reprimanded for working overtime. Folger began working off the clock in order to complete her job duties and not incur overtime pay. Ultimately, Medicalodges converted Folger's position from hourly to salaried and Folger performed the same job duties.
Folger alleges that she and other similarly situated hourly employees were not properly compensated by Medicalodges for working overtime. Folger and other employees allegedly worked during their lunch break with Medicalodges' knowledge and without payment and that Medicalodges required the employees to work during their lunch break.
The magistrate judge issued a scheduling order in which discovery was separated into phases. The first phase (phase I) focused on issues related to collective action certification. (Doc. 22). During phase I, the parties served Rule 26(a)(1) disclosures, interrogatories and took depositions. At the conclusion of the phase I discovery, Folger moved for conditional collective action certification. (Doc. 76). Defendants oppose the certification.
An action under the FLSA may be brought "against any employer... 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). To participate in an FLSA collective action, all plaintiffs must give consent in writing and it must be "filed in the court in which such action is brought." Id . Before notice of the pending action is sent to putative plaintiffs, it must be conditionally certified as a collective action. The court may certify an opt-in collective action so long as the aggrieved employees are similarly situated. Thiessen v. Gen. Elec. Capital Corp. , 267 F.3d 1095, 1102, 1105 (10th Cir. 2001). Section 216(b) does not define "similarly situated." The Tenth Circuit has approved an ad hoc case-by-case basis for determining whether employees are "similarly situated" for purposes of § 216(b). Id.
This process involves a two-step inquiry. The first step occurs at the "notice stage" of the proceedings. Here, the court determines if certification is proper for purposes of sending notice of the action to potential collective action members. The notice stage "requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan." Id . The requirement for "conditional certification" at the notice stage is a "lenient one." Thiessen , 267 F.3d at 1103. It does not appear that discovery at the notice stage is required. Nonetheless, discovery was ordered by the magistrate judge and there is nothing in the record to show that any of the parties opposed it.
The second step occurs after discovery is complete. At that stage, defendants may file a motion to decertify and the court then applies a stricter standard to assure that plaintiffs are actually similarly situated. During the second stage, the court reviews a number of factors, including "(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the filings required... before instituting suit." Thiessen , 267 F.3d at 1102-03.
Defendants urge the court to apply an intermediate standard and cite to Thiessen v. General Elec. Capital Corp. , 996 F.Supp. 1071 (D. Kan. 1998) in support of their position. In his decision, Judge John Lungstrum utilized an intermediate standard in which the limited evidence was applied to the second stage factors. Judge Lungstrum noted that he made his "determination to provisionally certify, however, under a more lenient standard in light of deficiencies in the record." Id . at 1081. Judge Lungstrum's decision to conditionally certify the class using the intermediate standard was not ...