United States District Court, D. Kansas
Lynette Mayhew, individually and on behalf of all others similarly situated, Plaintiff,
v.
Angmar Medical Holdings, Inc. d/b/a Angels Care Home Health, Defendant.
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
...