Mayhew v. Angmar Medical Holdings, Inc.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge.

         Plaintiff, individually and on behalf of others similarly situated, filed this wage and hour suit against defendant, alleging violations of the overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Specifically, plaintiff, a former employee who worked for defendant as a Licensed Practice Nurse (“LPN”), alleges that defendant failed to compensate its LPNs for off-the-clock tasks such as pre- and post-shift answering of phone calls from clients. This matter is presently before the court on plaintiff's motion for conditional class certification under § 216(b) of the FLSA and for the issuance of court-supervised notice (doc. 43). As set forth in more detail below, the motion is granted in part and denied in part.

         Standard Section 216(b) of the Fair Labor Standards Act of 1938 provides for an opt-in collective action where the complaining employees are “similarly situated.” 29 U.S.C. § 216(b). The Tenth Circuit has approved a two-step approach in determining whether plaintiffs are “similarly situated” for purposes of § 216(b). See Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). Under this approach, a court typically makes an initial “notice stage” determination of whether plaintiffs are “similarly situated.” See Id. at 1102 (citing Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). That is, the district court determines whether a collective action should be certified for purposes of sending notice of the action to potential class members. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995). For conditional certification at the “notice stage, ” a court “require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” See Thiessen, 267 F.3d at 1102 (quoting Vaszlavik, 175 F.R.D. at 678). The standard for certification at the notice stage, then, is a lenient one. See id. at 1103. At the conclusion of discovery, the court then revisits the certification issue and makes a second determination (often prompted by a motion to decertify) of whether the plaintiffs are “similarly situated” using a stricter standard. Id. at 1102-03. During this “second stage” analysis, a court reviews several factors, including the disparate factual and employment settings of the individual plaintiffs; the various defenses available to defendant which appear to be individual to each plaintiff; and fairness and procedural considerations. Id. at 1103.

         Background

         The parties here do not dispute that the court should apply the lenient “notice stage” standard to plaintiff's motion. Thus, the court looks to the “substantial allegations” in plaintiff's complaint as supplemented by the limited discovery conducted by the parties on the conditional certification issue. As alleged by plaintiff in her complaint, defendant failed to compensate plaintiff and all other hourly, non-exempt LPNs for “off the clock” tasks such as answering post-shift telephone calls from clients without compensation for the time spent on those phone calls. Plaintiff alleges that defendant's uniform compensation policy to deny compensation for such tasks applied to all hourly, non-exempt LPNs. In her deposition, plaintiff expanded on her “off the clock” claims. She testified that LPNs were not paid for any time spent driving to and from different work sites and to and from clients' homes. Jim McAllister, defendant's former director of human resources, testified that LPNs and LVNs are not paid for drive time and that defendant's compensation policies are applied uniformly to all LPNs and LVNs.

         Discussion

         In her collective action complaint, plaintiff asserts that she is bringing the lawsuit on behalf of the following persons:

All current and former hourly, non-exempt LPNs who worked for Defendant and were not paid for all hours worked, including but not limited to overtime hours at any time during the last three (3) years.

         In her motion for conditional certification of this action as a collective action, plaintiff expands the class definition to include current and former Licensed Vocational Nurses (“LVNs”) who worked for Defendant and were not paid for all hours worked in the last three years.^[1] Plaintiff asserts that she is similarly situated to potential opt-in plaintiffs in that all were required to perform post-shift work without compensation (such as answering phone calls from clients) and all were required to drive to and from client visits without compensation. Plaintiff further assert that all potential opt-in plaintiffs were subjected to the same compensation practices uniformly applied by defendant at the corporate level.

         Defendant opposes conditional certification of the class. Defendant contends that plaintiff has no evidence of any common plan, practice or policy that violated the FLSA. Essentially, defendant contends that any failure to compensate plaintiff for all hours worked was a result of plaintiff's failure to complete her timesheets. This is a factual dispute that cannot be resolved at this stage. Moreover, plaintiff's evidence is sufficient to show that defendant maintained a corporate policy of not compensating its LPNs and LVNs for time spent driving even when those employees were performing job-related tasks during drive time, such as answering phone calls from clients.

         Defendant also contends that plaintiff cannot show that she is similarly situated to anyone without some evidence indicating that other putative class members wish to join this action. The Tenth Circuit has not endorsed this additional notice-stage requirement and the court does not believe that the Circuit would do so if confronted with the issue. See Courtright v. Board of County Commr's of Payne County, 2009 WL 1076778, at *3 (W.D. Okla. 2009) (concluding that Tenth Circuit would not require a plaintiff, as a pre-condition to notice-stage certification, to demonstrate that other individuals desire to join the lawsuit); Torres v. Cache Cache, Ltd., 2012 WL 6652856, at *4 (D. Colo. 2012) (rejecting requirement that other proposed collective action members be identified and finding no authority to support that requirement); Gonzalez v. Family Dollar Stores, Inc., 2005 WL 8163793, at *3 n.3 (D.N.M. 2005) (declining to require plaintiffs to demonstrate that other employees desire to opt in). This argument is flatly rejected.

         Relatedly, defendant asserts that plaintiff may not pursue this lawsuit on a collective basis because her deposition testimony demonstrates that her specific claim in this lawsuit is so narrow that no other employee shares her dispute. This argument is based on defendant's characterization of plaintiff's deposition testimony. According to defendant, plaintiff's claim is limited to a complaint that she was not paid for drive time between Emporia, Kansas and Topeka, Kansas over the course of 15 work days in early 2018. But coupled with the complaint, plaintiff's claims in this case are broader than alleged by defendant and are sufficient to include the potential opt-ins described in the class definition.

         In short, the court concludes that plaintiff has met her burden to show that this collective action should be certified for purposes of sending notice of the action to potential class members. The court grants conditional certification of a class of LPNs and LVNs who worked for defendant at any time during the last three years.

         Proposed ...