White v. Baptist Memorial Health Care Corporation et al, No. 2:2008cv02478 - Document 266 (W.D. Tenn. 2011)
Court Description: ORDER GRANTING 233 DEFENDANTS' MOTION TO DECERTIFY COLLECTIVE ACTION. Signed by Judge Samuel H. Mays, Jr., on 05/17/2011. (Mays, Samuel)
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White v. Baptist Memorial Health Care Corporation et al Doc. 266 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION MARGARET WHITE, on Behalf of Herself and All Others Similarly Situated, Plaintiff, v. BAPTIST MEMORIAL HEALTH CARE CORPORATION, and BAPTIST MEMORIAL HOSPITAL-DESOTO, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 08-2478 ORDER GRANTING DEFENDANTS’ MOTION TO DECERTIFY COLLECTIVE ACTION Plaintiff Margaret White (“White”) alleges that Defendants Baptist Memorial Health Care Corporation (“BMHCC”) and Baptist Memorial Hospital-DeSoto, Inc. (“Baptist Desoto” and, collectively, “Baptist”) violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., by failing to compensate her and other similarly situated hourly employees worked. (See Compl. ¶¶ 1-2, ECF No. 1.) Baptist’s February Action. 15, 2011 Motion to for all hours Before the Court is Decertify Collective (See Mot. to Decertify Collective Action, ECF No. 233.) White responded in opposition on March 15, 2011. (See Pl.’s Resp. to Defs.’ Mot. to Decertify Collective Action, ECF No. 250.) Baptist replied on April 12, 2011. (See Reply in Supp. Dockets.Justia.com of Mot. to Decertify (“Baptist’s Reply”) Collective Action, ECF No. 261.) For the following reasons, Baptist’s motion is GRANTED. Background1 I. BMHCC is the non-profit, parent corporation of a number of subsidiary corporations operating hospital facilities Mid-South. (See Ray Decl. ¶¶ 4-5, ECF No. 233-3.) in the One of those subsidiaries is Baptist DeSoto, which operates a hospital in Southaven, Mississippi. (Id. ¶ 6.) in Baptist the fall of 2008, When this litigation began DeSoto had more than sixty departments staffed by approximately 1,600 employees working in positions that would be non-exempt under the FLSA. Decl. ¶ 3, ECF No. 233-3.) (See Banks One of those employees was White, who worked as a nurse in Baptist DeSoto’s emergency department from 2005 to August 1, 2007. Baptist required its uncompensated meal breaks. ECF No. 233-4.) system an hourly employees to take daily, (See Baptist Policy Manual, Ex. 3, To account for those breaks, Baptist’s payroll automatically compensation (See Banks Decl. ¶ 5.) deducted amount from representing each the hourly time the employee’s employee received for meal breaks during the relevant pay period. Garrison Dep. 18:16-18:20, Mar. 22, 2010, ECF No. 250-2.) 1 (See If an The facts in this Part come from affidavits, declarations, and depositions submitted by the parties and are recited for background purposes only. Although the Court must consider the parties’ evidence to decide Baptist’s motion, it does not engage in fact finding. 2 employee experienced any work-related interruption during a meal break, no matter how brief, the employee was to receive a subsequent, uninterrupted meal break or be paid as if she had worked through the entire meal break.2 (See Banta Dep. 40:16- 41:17, Mar. 22, 2010, ECF No. 250-3.) Although Baptist the automatic hospitals, employees to experienced there cancel deduction was the interrupted no system-wide automatic or policy missed applied policy deduction meal to all allowing when they breaks. “Each [d]epartment [was] free to formulate the procedure that work[ed] best for its employees to govern how exceptions [were] recorded” in that department. (See Banks Decl. ¶ 8.) Many departments maintained “exception logs,” paper records where employees were able to note interrupted or missed meal breaks. (See id.) Within Baptist DeSoto, the departments had been instructed to use an exception log formatted hospital’s human resources director. and distributed did not use that the (See Banks Dep. 23:16- 23:23, 48:3-49:3, Aug. 20, 2010, ECF No. 250-4). departments by particular log, Although some many of them maintained some type of paper record for employees to report (See Simpson Decl. ¶¶ 4-5, ECF time worked during meal breaks. No. 2 233-3; Stone This Order refers to daily meal breaks and compensation equal to “meal break policy” or Decl. ¶¶ 5-6, ECF No. 233-3.) In a few Baptist’s policy of requiring hourly employees to take its practice of deducting automatically an amount of the time employees received for those breaks as the “automatic deduction policy”. 3 departments, employees were permitted to verbally inform their supervisors about time worked during meal breaks. (See V. Johnson Dep. 74:15-74:20, Jan. 11, 2011, ECF No. 233-3; King Dep. 9:18-10:3.) Whether through an exception log or another process, an hourly employee had to self-report her missed or interrupted meal breaks to Baptist to ensure she received proper compensation.3 (See Garrison Dep. 23:20-23:22.) All Baptist DeSoto employees learned about the automatic deduction policy at a system-wide orientation after they were hired. (See B. Johnson Dep. 17:21-18:5, 20:11-20:20, Mar. 23, 2010, ECF No. 250-5.) Baptist DeSoto also conducted a facility- specific where model orientation, exception log employees developed instructions on how to complete it. individual departments department-level at by human copies of resources (See id. 44:17-46:15.) Baptist orientations, received where DeSoto the also automatic the and The conducted deduction policy was discussed. (See Barbaree Dep. 16:20-17:2, Mar. 23, 2010, ECF No. 250-6.) After those orientations, Baptist did not regularly assess employees’ understanding of and compliance with the exception procedures and did not regularly discipline employees for working through meal breaks without reporting that time. (See id. 43:15-44:17.) Baptist’s Policy Manual discussed 3 This Order refers to the requirement that Baptist employees take some affirmative action to cancel or reverse the automatic deduction for meal breaks as the “exception procedures”. 4 the meal break policy, however, and was available on Baptist’s intranet. At (See id. 29:2-29:9.) a managers corporate on level, educating Baptist new did employees not about train department the automatic deduction policy and exception procedures during departmental orientations and did not monitor or audit those orientations. (See Rhea Dep. 25:5-26:15, 28:4-29:10, Mar. 22, 2010, ECF No. 250-8.) Baptist instructed managers on the automatic deduction policy and exception procedures in their initial training class (See B. Johnson Dep. and, occasionally, at monthly meetings. 41:5-41:24.) In the training class, managers were told that they should use their department’s process for exceptions and that employees would be paid for time worked during meal breaks. (See Barbaree 34:7-34:20.) Baptist did not regularly assess managers’ understanding and departments’ implementation of the automatic Garrison deduction Dep. policy 29:12-29:20, and exception 63:5-64:1; B. procedures. Johnson Dep. (See 43:21- 44:17; 50:20-51:6.) On July 16, 2009, the Court conditionally certified a class of hourly employees of Baptist DeSoto “who suffered automatic deductions for lunch or other breaks[,] but who actually worked all [or] part of one or more of those lunches or breaks” without receiving compensation. (See Order Granting in Part and Denying in Part Pl.’s Mot. for Conditional Certification and Notice 3, 5 19-20, ECF No. 46; Order Approving Notice and Notice Plan, ECF No. 49.) former Since then, approximately two hundred current and Baptist DeSoto employees have joined the collective action as opt-in plaintiffs (the “Opt-in Plaintiffs”). (See Notices of Consent to Join, ECF No. 40, ECF Nos. 51-59, ECF Nos. 59-83.) The Court granted summary judgment in favor of Baptist on White’s individual FLSA claim on March 23, 2011, but the Optin Plaintiffs’ claims remain before the Court. (See Order Granting Defs.’ Mot. for Summ. J., ECF No. 258.) II. Jurisdiction Because White alleges violations of the FLSA, this Court has subject matter jurisdiction under the general grant of federal question jurisdiction in 28 U.S.C. § 1331. III. Standard of Review Section 216(b) of the FLSA permits employees to recover unpaid overtime compensation by suing an employer “in behalf of . . . themselves and other employees similarly situated.” U.S.C. § 216(b). 29 “Section 216(b) establishes two requirements for a representative action: 1) the plaintiffs must actually be ‘similarly situated,’ and 2) all plaintiffs must signal in writing their affirmative consent to participate in the action.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. Mich. 2006) (citing 29 U.S.C. § 216(b) and Hoffmann-La Roche, Inc., v. Sperling, 493 U.S. 165, 167-68 (1989)). 6 Unlike a class action under Federal Rule of Civil Procedure 23, in a collective or representative action under the FLSA, similarly situated employees must “opt into” the action by filing written consents. Compare 29 U.S.C. § 216(b), with Fed. R. Civ. P. 23; see also Comer, 454 F.3d at 546. Employees named in the collective action complaint are called “named” or “lead” plaintiffs, and those who opt in by later filing written consents are called See Frye v. Baptist Mem. Hosp., No. 07- “opt-in” plaintiffs. 2708, 2010 WL 3862591, at *2 n.4 (W.D. Tenn. Sept. 27, 2010). Unlike absent class members in a Rule 23 class action, opt-in plaintiffs who file written consents and join the collective action are party plaintiffs. O’Brien v. Ed Donnelly Enters., 575 F.3d 567, 583 (6th Cir. 2009) (citation omitted). To determine whether plaintiffs are similarly situated, courts generally employ a two-stage inquiry. See id.; Comer, 454 F.3d at 546; Frye, 2010 WL 3862591, at *2. “The first takes place at the beginning of discovery. The second occurs after all of the opt-in concluded.”4 forms Comer, have 454 been F.3d at received 546 and (citation discovery has and internal “fairly lenient” quotation marks omitted). At the first stage, courts apply a standard to determine whether plaintiffs are similarly situated, 4 Technically, a motion to decertify the collective action triggers the second-stage analysis. For that reason, courts often refer to the second stage as the “decertification stage.” See, e.g., Wilks v. Pep Boys, No. 3:020837, 2006 WL 2821700, at *2 (M.D. Tenn. Sept. 26, 2006). 7 relying on the pleadings and any filed affidavits. See Comer, 454 F.3d at 547; Carter v. Jackson-Madison Cnty. Hosp. Dist., No. 1:10-cv-01155-JDB-egb, 2011 WL 1256625, at *13 (W.D. Tenn. Mar. 31, 2011); Pacheco v. Boar’s Head Provisions Co., Inc., 671 F. Supp. 2d 957, 959 (W.D. Mich. 2009); Fisher v. Mich. Bell Tel. Co., 665 F. Supp. 2d 819, 825 (E.D. Mich. 2009) (citations omitted). Named plaintiffs need only make a “modest factual showing” of class-wide discrimination. See Comer, 454 F.3d at 546; Jackson, 2011 WL 1256625, at *14; Pacheco, 655 F. Supp. 2d at 825 (citations omitted); cf. Fisher, 655 F. Supp. 2d at 825 (noting that named plaintiffs must “submit evidence establishing at least a colorable basis for their claim that a class of similarly situated quotation marks plaintiffs omitted)). exists” If a (citation court and concludes internal that the potential opt-in plaintiffs are similarly situated to the named plaintiffs, potential the court opt-in conditionally plaintiffs are certifies provided the class, notice and opportunity to join the action by filing written consents. and an See Comer, 454 F.3d at 547; Carter, 2011 WL 1256625, at *18; Fisher, 655 F. Supp. 2d at 828-29. Although courts typically grant conditional certification, that certification is “by no means final.” See Comer, 454 F.3d at 547 (citation omitted). At the second stage, courts apply a “stricter standard.” Id.; Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 812 (M.D. Tenn. 8 2008) (“The similarly burden of situated decertification plaintiffs is stage “bear demonstrating . class significantly . the that . .” burden higher (citation of showing that are at omitted)). plaintiffs are similarly situated to the[m].” at 584 (citation omitted). members the Named the opt-in O’Brien, 575 F.3d Because the second stage follows discovery, a court “has much more information on which to base its decision” and “examine[s] more closely the question of whether particular members of the class are, in fact, similarly situated.” quotation Comer, marks 454 omitted); F.3d at 547 Frye, see (citation 2010 WL and internal 3862591, at *2 (citations omitted); cf. White v. MPW Indus. Servs., 236 F.R.D. 363, 366 (E.D. Tenn. 2006) (contrasting its first-stage analysis with the second-stage analysis and explaining that, at the second stage, a court “makes a factual determination on the similarly situated question” (citing Mooney v. Aramco Servs. Co, 54 F.3d 1207, 1213 (5th Cir. 1995))). To avoid decertification, the named plaintiffs must introduce “substantial evidence” that the opt-in plaintiffs are similarly situated. Frye, 2010 WL 3862591, at * 2 (citations omitted); see Crawford v. LexingtonFayette Urban Cnty. Gov’t, No. 06-299-JBC, 2008 WL 2885230, at *5 (E.D. Ky. July 22, 2008) (citations omitted); cf. Heldman v. King Pharm., Inc., No. 3-10-1001, 2011 WL 465764, at *3 (M.D. Tenn. Feb. 2, 2011) (contrasting 9 first-stage analysis with second-stage analysis and explaining that, at the second stage, a plaintiff must show “substantial evidence” (citing Frye, 2010 WL 3862591, at *2))). Although the “similarly situated” requirement is elevated at the second requirement stage, that it common remains questions class actions under Rule 23. Grayson 1996)). v. K Mart Corp., 79 less stringent predominate than in certifying O’Brien, 575 F.3d at 584 (citing F.3d 1086, 1095-96 (11th Cir. Plaintiffs need not be identically situated to proceed collectively. Comer, 454 F.3d at 546-47; Frye, 2010 WL 3862591, at *3; Crawford, 2008 WL 2885230, at *5 (citations omitted). the the second stage, “the question is simply whether At the differences among the plaintiffs outweigh the similarities of the practices to which they were allegedly subjected.” Monroe v. FTS USA, LLC, ___ F. Supp. 2d ___, 2011 WL 442050, at *12 (W.D. Tenn. Feb. 7, 2011) (citing Frye, 2010 WL 3862591, at *3); see also Wilks v. Pep Boys, No. 3:02-0837, 2006 WL 2821700, at *3 (M.D. Tenn. Sept. 26, 2006) (citation omitted). If a court concludes that the plaintiffs are similarly situated, it denies the motion to decertify, and the action proceeds collectively. See Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001); Monroe, 2011 WL 442050, at *12, 15 (citations plaintiffs are not omitted). similarly If the situated, 10 court it concludes “decertifies that the class, and prejudice. the opt-in The plaintiffs class are dismissed representatives—i.e. the without original plaintiffs—proceed to trial on their individual claims.” Hipp, 252 marks F.3d at 1218 (citations and internal quotation omitted); Frye, 2010 WL 3862591, at *3, 10 (citation omitted); see also Alvarez v. City of Chicago, 605 F.3d 445, 450 (7th Cir. 2010) (explaining that “[w]hen a collective action is decertified, it reverts to one or more individual actions on behalf of the named plaintiffs”); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n.2 (5th Cir. 2008) (explaining that, if plaintiffs are not similarly situated, the court “must dismiss the opt-in original employees, claims”); cf. leaving only O’Brien, 575 the F.3d named at plaintiff’s 573 (affirming dismissal of the opt-in plaintiffs and noting that most later filed individual actions); Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1301 (11th Cir. 2008) (affirming decertification of an FLSA collective action, dismissal of the opt-in plaintiffs, and severance of named plaintiffs into multiple individual actions) (citations omitted). IV. Analysis A. Named Plaintiff’s Lack of an FLSA Claim At the decertification stage, the question is whether the “the opt-in plaintiffs are similarly plaintiffs.” O’Brien, 575 F.3d 11 at situated 584 to (citation the lead omitted). Baptist argues that, because the Court granted summary judgment in favor of Baptist on White’s individual FLSA claim, she is not similarly situated to the Opt-in Plaintiffs and decertification is proper. Where “cannot (See Baptist’s Reply 27-28.) a named represent situated.” plaintiff’s others FLSA she whom claim alleged has failed, were she similarly See Grace v. Family Dollar Store, Inc. (In re Family Dollar FLSA Litig.), ___ F.3d ___, 2011 WL 989558, at *10 (4th In In re Family Dollar, the Court of Cir. Mar. 22, 2011). Appeals for the Fourth Circuit affirmed a district court’s grant of summary judgment in plaintiff’s FLSA claim. favor of the defendant See id. at *9. on the named Having concluded that the named plaintiff had no claim, the court decided that it need not address whether the district court’s refusal to certify her collective action was also proper because, “[w]ithout a viable claim,” she could not have been employees she sought to represent. similarly situated to the See id. The court’s reasoning in In re Family Dollar comports with that of the Court of Appeals for the Sixth Circuit in O’Brien, which considered the converse of the Dollar. See O’Brien, 575 F.3d at 586. Appeals affirmed a district court’s facts in In re Family In O’Brien, the Court of decertification of a collective action because the only opt-in plaintiff whose claims had not been previously mooted or claim-precluded had no viable 12 claim “because either she unlawful failed to allege practice.” See that id. she suffered Because the from opt-in plaintiff had no claim, she was “clearly not similarly situated to the lead plaintiffs.” Dollar and O’Brien Considered together, In re Family Id. stand for the proposition that named plaintiffs and opt-in plaintiffs must have viable FLSA claims to be deemed similarly Section 216. situated and proceed collectively under See In re Family Dollar, 2011 WL 989558, at *10; O’Brien, 575 F.3d at 586. Although numerous Opt-in Plaintiffs have joined collective action, White is the only named plaintiff. Compl. ¶ 1.) this (See This Court granted summary judgment on White’s FLSA claim because there was no evidence that she had performed work for which she was not properly compensated. See White v. Baptist Mem. Health Care Corp., No. 08-2478, 2011 WL 1100242, at *7 (W.D. Tenn. Mar. 23, 2011). “Without a viable claim,” White cannot be similarly situated to the Opt-in Plaintiffs she seeks to represent, whose FLSA claims have not been adjudicated on the merits. *10. See In re Family Dollar FLSA Litig., 2011 WL 989558, at Because White’s FLSA claim failed on the merits, but the Opt-in Plaintiffs’ claims have not been adjudicated, White cannot meet her burden of showing that she and Opt-in Plaintiffs are similarly situated. See In 13 re Family Dollar, 2011 WL 989558, at *10; cf. O’Brien, 575 F.3d at 586. Decertification is proper. B. Partial Decertification In O’Brien, the Court of Appeals explained that, where some plaintiffs have not alleged violations of the FLSA, the “court should examine whether partial O’Brien, 575 F.3d at 586. decertification is possible.” “The option of partial certification is important to consider, because it counters the argument that a collective action must be totally decertified if some members are not similarly situated to the others.” Id. The court explained that “plaintiffs who are not similarly situated . . . could be dismissed while keeping intact a partial class.” O’Brien did not consider the situation presented by this action—where a court has concluded on the merits that a named plaintiff has no FLSA claim, but the opt-in plaintiffs’ FLSA claims have not been adjudicated on the merits. explaining that a court should consider Indeed, in decertification, the O’Brien court implied that the named plaintiffs’ FLSA claims must be viable: “Plaintiffs who do present evidence that they are similarly situated to the lead plaintiffs should not be barred from the opportunity to be part of a FLSA collective action, because remedial purpose.” the collective action Id. (emphasis added). 14 serves an important Because White’s individual FLSA claim has been dismissed, she is not similarly situated to the Opt-in Plaintiffs. See In re Family Dollar, 2011 WL 989558, at *10. Before the Court granted however, summary judgment on White’s claim, she had responded to Baptist’s motion to decertify and advanced various arguments on behalf of the Opt-in Plaintiffs in her capacity as named plaintiff. Def.’s Mot. to (“Pl.’s Mem.”).) (See Pl.’s Resp.; Mem. in Supp. of Resp. to Decertify Collective Action, ECF No. 250-1 Because the remaining Opt-in Plaintiffs are party plaintiffs, the Court will consider White’s arguments and the evidence in the record to decide whether some or all of the Opt-in Plaintiffs are similarly situated to one other such that, although White’s individual FLSA claim partial decertification is possible. has been adjudicated, See O’Brien, 575 F.3d at 583, 585-86. The Court of Appeals has not created “comprehensive criteria for informing the similarly-situated analysis.” id. at 585. Courts generally consider (1) the factual See and employment settings of the individual plaintiffs, (2) the likely defenses that appear to be individual to each plaintiff, and (3) the degree of fairness and the procedural impact of resolving the claims collectively. See id. at 584-85; Monroe, 2011 WL 442050, at *12; Frye, 2010 WL 3862591, at *3; Crawford, 2008 WL 15 2885230, at *5; Jordan, 542 F. Supp. 2d at 812; Wilks, 2006 WL 2821700, at *3 (citations omitted). 1. Factual and Employment Settings In considering plaintiffs’ factual and employment settings, courts review issues such as location, job duties, supervision, and salaries. 2885230, at omitted). factual Frye, 2010 WL 3862591, at *3; Crawford, 2008 WL *5; 2006 Wilks, WL 2821700, at *3 (citations Baptist argues that the Opt-in Plaintiffs’ disparate and employment settings make decertification proper. (See Mem. of Law and Facts in Supp. of Defs.’ Mot. to Decertify Collective Action 10-43, ECF No. 233-1.) (“Baptist’s Mem.”) White argues that the purported differences among the Opt-in Plaintiffs’ factual and employment settings are superficial and irrelevant because their “common theory exists without regard to job duties, location, or supervision.” Although the Opt-in (See Pl.’s Mem. 14-28.) Plaintiffs were all employees of Baptist DeSoto, each worked in one of more than sixty different departments at the hospital. duties Some of varied the significantly, Opt-in (See Banks Decl. ¶ 3.) depending Plaintiffs worked departments, focusing on patient care. on in their Their job departments. specialized medical (See, e.g., Corey Dep. 16:10-16:21, 18:11-20:18, ECF No. 234 (stating that she provided direct care to patients while working in the “ICU step-down” department); see also Lee Dep. 31:1-31:11, Dec. 7, 2010, ECF No. 16 234; McPhail Dep. 41:20-43:23, ECF No. 234; Vierhout Dep. 20:2521:4, ECF No. 234.) Other Opt-in Plaintiffs worked in non- medical departments, supporting the hospital’s core function of providing patient care. (See, e.g., V. Johnson Dep. 26:9-27:23, Jan. 11, 2011, ECF No. 234 (stating that she did not provide direct care to patients while working in the admissions department); see also Howard Dep. 35:14-35:19, Dec. 12, 2010, ECF No. 234; McClore Dep. 18:12-18:24, Jan. 14, 2011, ECF No. 234.) Within departments, job duties also varied. In departments focused on medical care, staff nurses worked “on the floor” and provided direct care to patients. (See, e.g., Corey Dep. 16:10- 16:21, 18:11-20:18 (explaining that she assessed and monitored patients unit and administered coordinators their provided providing direct care. medications).) administrative By support contrast, to those (See, e.g., Griggs Dep. 28:25-30:6, July 31, 2010, ECF No. 234 (explaining that her primary duty as a unit coordinator was entering orders in a computer).) The duties of some Opt-in Plaintiffs varied from shift to shift depending on their department’s needs. 41:7-42:14, charge (See, e.g., Pipkin Dep. Nov. 16, 2010, ECF No. 234 (explaining that, as a nurse, she generally assigned patients to the other nurses and managed the unit but that, when the unit was busy, she also provided direct care to patients).) 17 The job duties of Opt-in Plaintiffs varied. who worked in non-medical departments also (See, e.g., Ester Dep. 27:10-33:9, Oct. 13, 2010, ECF No. 234 (explaining that, as a “dipper” and dish washer in the food and nutrition department, she worked exclusively in the kitchen and dish room and did not provide patient care); Mitchell Dep. 50:5-50:12, 52:3-54:8, Sept. 3, 2010, ECF No. 234 (explaining that, as a catering associate in the food and nutrition department, she delivered food directly to patients in the hospital).) Differences in the Opt-in Plaintiffs’ job duties are highly relevant to their claims that they worked during meal breaks without compensation because their job duties dictated whether and why they experienced missed or interrupted meal breaks. Some Opt-in Plaintiffs working in medical departments did not have scheduled meal breaks and had to care for their patients during meal breaks. contrast, some (See, e.g., Corey Dep. 46:9-47:23.) Opt-in Plaintiffs departments had scheduled meal breaks. 46:7-47:15.) working in By non-medical (See, e.g., Howard Dep. Some Opt-in Plaintiffs in non-medical departments were required to carry pagers during their shifts, and their meal breaks were interrupted. (See, e.g., Mitchell Dep. 54:9- 55:11 (explaining that, as a catering associate, she carried a pager and that her meal breaks would be occasionally interrupted by requests for service she received on the pager).) 18 Because there was no central policy for reporting time worked during meal breaks, Opt-in Plaintiffs reported missed and interrupted breaks in different ways, depending on the systems their departments departments used departments, if used. (See Banks exception an logs. hourly employee Decl. (See ¶ 8.) id.) experienced Many In a some missed or interrupted meal break, management attempted to schedule a later meal break, and, if that were not possible, the employee recorded the missed or interrupted break in an exception log. (See Simpson verbally Decl. informed meal breaks. ¶ their 4.) In other supervisors departments, about time employees worked during (See V. Johnson Dep. 74:15-74:20; King Dep. 9:18- 10:3.) Despite these differences, White argues that the Opt-in Plaintiffs are similarly situated because the Opt-in Plaintiffs can “demonstrate the existence of common policies or practices with respect to missed and interrupted meal breaks.” Mem. 18.) (See Pl.’s Specifically, White argues that all of the Opt-in Plaintiffs were subject to Baptist’s automatic deduction policy, its “attempt[] to shift the burden of ensuring they are paid for all time “inadequate worked from education, [Baptist] training, to and them, and monitoring” automatic deduction policy and exception procedures. 19 Baptist’s about its (See id. at 26-27.) According to White, Baptist’s policies and practices make the Opt-in Plaintiffs similarly situated. (See id.) Although showing a “unified policy of violations” is not required, see O’Brien, 575 F.3d at 585, a material factor in considering plaintiffs’ factual and employment settings is whether they were affected by a single decision, policy, or plan. See Frye, 2010 WL 3862591, at *5; Crawford, 2008 WL 2885230, omitted). at *4; Wilks, 2006 WL 2821700, at *3 (citations “[I]t is clear that plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity policy proves a violation as to all the plaintiffs.” 575 F.3d at 585. concerns about with that O’Brien, “The existence of this commonality may assuage plaintiffs’ otherwise varied circumstances.” Wilks, 2006 WL 2821700, at *3 (citations omitted). To bind together otherwise differently situated employees, an alleged common policy must potentially violate the FLSA. O’Brien, 575 F.3d at 585; see See Oetinger v. First Residential Mortg. Network, Inc., No. 3:06-CV-381-H, 2009 WL 2162963, at *3 (W.D. Ky. July 16, 2009) (explaining that “companies may indeed apply company-wide policies to their employees, but these policies must cause the alleged FLSA violation for the policy to be considered as a factor in determining whether employees are ‘similarly situated’ for purposes 20 of bringing a collective action”). Standing alone, an employer policy providing automatic deductions for meal breaks does not violate the FLSA. See Fengler v. Crouse Health Found., Inc., 595 F. Supp. 2d 189, 195 (N.D.N.Y 2009); see also Wage and Hour Div., U.S. Dep’t of Labor Fact Sheet No. 53, The Health Care Industry and Hours Worked (July 2009), ECF No. 373-16, available at http://www.dol.gov/whd/regs/compliance/ whdfs53.pdf (recognizing that the FLSA permits automatic deduction policies) (“DOL Fact Sheet”). Therefore, Baptist’s mere adoption of a system that, by default, deducts meal breaks from its employees’ compensation does not constitute a unified policy of FLSA violations capable of binding together the Opt-in Plaintiffs. Where an employer’s formal policy is to compensate employees for all time worked, courts have generally required a showing that the employer’s “common or uniform practice was to not follow its formal, written policy.” 2d at 959. automatic policy.” Pacheco, 671 F. Supp. There must be a showing that “enforcement of the deduction policy created a policy-to-violate-the- See Saleen v. Waste Mgmt., Inc., No. 08-4959, 2009 WL 1664451, at *4 (D. Minn. June 15, 2009) (citing Thompson v. Speedway SuperAmerica, LLC, No. 08-CV-1107 (PJS/RLE), 2009 WL 130069, at *2 (D. Minn. Jan. 9, 2009)) (denying conditional certification where employees 21 failed to show a corporate decision by employer not to follow its formal policy of paying for time worked during meal breaks). Baptist’s official policy is to compensate employees for time worked during meal breaks. (See Banks Decl. ¶ 6.) There is no direct evidence that Baptist maintained a de facto policy to the contrary. admit that, procedures, Most Opt-in Plaintiffs deposed by Baptist when they Baptist used paid their them for departments’ time worked during (See Collective Ex. 9, ECF No. 236.) breaks. exception meal Nor is there circumstantial evidence that would permit the Court to infer any illicit de Plaintiffs facto policy deposed by on Baptist’s Baptist admit part. that Most they Opt-in were never discouraged from or retaliated against for reporting time worked during meal breaks. (See Collective Ex. 8, ECF No. 235-1.) White also argues that the Opt-in Plaintiffs are similarly situated because they were all subject to Baptist’s “attempt to shift enforcement of the FLSA . . . to its employees.” Pl.’s Mem. 21-26.) (See White emphasizes that Baptist required its employees to self-report time, although it was aware that they were working through meal breaks and that Baptist could have implemented a more accurate ensure they were compensated. of White’s argument is that, system to monitor employees (See id. at 22-23.) by shifting employees, Baptist abdicated its FLSA duties. 22 the and The essence burden (See id.) to its Under the FLSA, management has a duty “to exercise its control and see that the work is not performed if it does not want it to “cannot sit be performed.” back and 29 accept compensating for them.” the Id. C.F.R. 785.13. benefits [of An employer work] without (“The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”) An employer’s failure “to police and oversee hourly workers and their supervisors during unpaid to meal ensure that[,] breaks[,] potentially violates the FLSA. they when are working through compensated . . or .” Fengler, F. Supp. 2d at 195; see also DOL Fact Sheet (explaining that an employer implementing an automatic deduction policy for meal breaks remains “responsible for ensuring that the employees take . . . meal break[s] without interruption”). At least two courts have conditionally certified collective actions White’s. based on “shifting the burden” theories similar to See Kuznyetsov v. W. Penn Allegheny Health Sys., No. 2:09-cv-00379-DWA, 2009 WL 1515175, at *5, (W.D. Pa. June 1, 2009); Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2009 WL 1361265, at *4 (W.D. Pa. May 14, 2009). these cases were medical centers that The defendants in required their hourly employees to initiate cancellation of their automatic deductions when they worked through meal breaks. 23 See Kuznyetsov, 2009 WL 1515175, at *3-5; Camesi, 2009 WL 1361265, at *1-2. In both cases, however, the courts spoke at the lenient first stage of the similarly situated granting conditional 1515175, at *5 responsibility analysis, certification. (“Arguably, to which the See Defendants’ employees. they recognized Kuznyetsov, policies Consequently, I in 2009 WL shift the find this evidence is sufficient at this stage to proceed with conditional certification.”) (emphasis added); Camesi, 2009 WL 1361265, at *4 (concluding that the medical center’s “arguable attempt to shift statutory responsibilities to [its] workers constitutes an ‘employer policy’ susceptible to challenge at this stage in the proceedings.”) (emphasis added). Because this action is at the second stage, the burden is higher. At the first stage, plaintiffs need make only a “modest factual showing” that they are similarly situated. See Comer, 454 F.3d at 546; Jackson, 2011 WL 1256625, at *14; Pacheco, 655 F. Supp. 2d at 825 (citations omitted); cf. Fisher, 655 F. Supp. 2d at 825. At the second stage, plaintiffs must offer substantial evidence that they are, in fact, similarly situated. Comer, 454 F.3d at 547. See Heldman, 2011 WL 465764, at *3; Frye, 2010 WL 3862591, at * 2; Crawford, 2008 WL 2885230, at *5. At this stage of the litigation, to support a “shifting the burden” theory capable of binding the Opt-in Plaintiffs together, there must be “substantial evidence” that Baptist, in 24 fact, shirked its FLSA responsibilities. As this Court explained in Frye, A natural consequence of any employer’s adopting an automatic deduction policy is that employees will be required to cancel the deduction if they work through meal breaks. In this sense, any automatic deduction policy ‘shifts the burden’ to employees. Because the FLSA permits automatic deduction policies, standing alone, this so-called ‘burden shift’ cannot form the basis of an alleged FLSA violation. Frye, 2010 WL 3862591, at *7. Standing alone, Baptist’s requiring its employees to self-report time worked during meal breaks to ensure they received compensation does not support a common theory of statutory violations capable of overcoming the Opt-in Plaintiffs’ otherwise disparate factual and employment settings. Therefore, the Opt-in Plaintiffs are not similarly situated based on that fact alone. White attempts to bolster her “shifting the burden” theory by pointing to Baptist’s “inadequate education, training, and monitoring” about its automatic deduction policy and exception procedures. (Pl.’s Mem. 18-21, 26.) According to White, because of those inadequate measures, “Opt-in [P]laintiffs from across all departments consistently claim that they were not made aware of the general meal break policy . . . or their departments’ implementation of that policy during orientation.” (See id. at 18.) White also argues the Opt-in Plaintiffs frequently learned about the policy and procedures from their 25 non-supervisory co-workers and that they were “consistently unaware of the accurate meaning of an uninterrupted meal break . . . or of their ability to note partially missed meal breaks on exception logs.” Because at (See id. at 19.) least fifteen of the Opt-in Plaintiffs those claims, there is some support for them.5 Ex. H, ECF No. 250-9.) make (See Collective However, the vast majority of the Opt-in Plaintiffs deposed by Baptist testified that they were aware of their departments’ exception procedures for reporting time worked during meal breaks, and many of them conceded that they (See Collective Ex. 7, ECF No. 235.) used those procedures. Baptist’s education, inadequate, there training, would be and more monitoring evidence were, that Plaintiffs were unaware of Baptist’s policies. in the If fact, Opt-in That a handful of Opt-in Plaintiffs were unaware of the meal break policy and exception evidence log that procedures Baptist does shirked not its 5 constitute FLSA duties substantial and that the Baptist argues that the Court should not consider the declarations in support of White’s arguments because they were submitted through the ECF electronic filing system, but do not include scanned ink signatures. (See Baptist’s Reply 14-15.) Under the local rules of this district, third-party affidavits “are to be filed electronically as a scanned image.” See W.D. Tenn. Civ. R. Electronic Case Filing (ECF) Policies & Procedures 10.5. White’s declarations were submitted as scanned images, but the signatures are type-written, not handwritten. (See Collective Ex. H.) Although the declarations are arguably in violation of the local rules, other district courts have overlooked similar technical shortcomings. See Sammons v. Baxter, No. 1:06-cv-137, 2007 WL 325752, at *4 (E.D. Tenn. Jan. 31, 2007) (considering a plaintiff’s affidavit although it was “not a scanned version of the original affidavit and [did] not contain the actual signature of the affiant,” in violation of the court’s electronic case filing rules and procedures). The Court will consider White’s submitted declarations. 26 otherwise disparately situated Opt-in Plaintiffs are, in fact, similarly situated. See Comer, 454 F.3d at 547; Heldman, 2011 WL 465764, at *3; Frye, 2010 WL 3862591, at * 2; Crawford, 2008 WL 2885230, at *5. Where employees sometimes use procedures to report time worked outside their normal shifts, but neglect to do so for all time worked, an employer has no reason to know of the unreported time. (6th Cf. Wood v. Mid-Am. Mgmt. Corp., 192 F. App’x. 378, 380 Cir. 2006) (concluding that, because an employee had reported some of his overtime hours, the employer “had no reason to suspect that he neglected to report other overtime hours”). Many of the employees deposed by Baptist sometimes used the exception procedures. 7.) admit that they (See Collective Ex. Because many employees admit that they sometimes used the exception procedures, Baptist had no reason to know that uncompensated work was regularly occurring during meal breaks, that employees exception were procedures, generally and that unaware more of how education, to use the training, and monitoring were needed to improve compliance with its policies. Cf. Wood, 192 F. App’x at 380 (“Quite sensibly, ‘an employer cannot suffer or permit an employee to perform services about which the employer knows nothing.’”) (quoting Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2d Cir. 1998)). 27 Baptist has shown that the Opt-in Plaintiffs are disparately situated with regard to location, job duties, and supervision. The record contains little evidence of a common FLSA-violative policy or common capable of binding them together. theory of FLSA violations Based on the record before the Court, the differences among the Opt-in Plaintiffs’ factual and employment settings outweigh the similarities between them. The first factor weighs in favor of decertification. 2. Individualized Defenses The second relevant factor is the extent to which defenses appear to be individual 2821700, at *7. to each plaintiff. Wilks, 2006 WL The presence of many individualized defenses makes a representative class unmanageable, and “several courts have granted motions for decertification on this basis.” Crawford, 2008 WL 2885230, at *9 (quoting Moss v. Crawford & Co., 201 F.R.D. 398, 410 (W.D. Pa. 2000)). Baptist argues that its defenses are “just as disparate and individualized as the facts and circumstances of the” Opt-in Plaintiffs’ employment. (See Baptist’s Mem. 43-60.) to be Baptist, it would forced to conduct According individualized evidentiary inquiries to determine, among other things, whether each Opt-in breaks, Plaintiff knew of or experienced used the missed or exception interrupted meal procedures, was discouraged from using those procedures, and, ultimately, worked 28 enough hours to be eligible for overtime compensation. at 43-44.) (See id. Baptist also asserts that it would raise defenses based on bankruptcy, the statute of limitations, and credibility that are individual to each plaintiff. (See id. 45-57.) White argues that Baptist’s arguments do not support decertification because they are common to any FLSA collective action. (See Pl.’s Mem. 28-31.) That a defendant, and a court, may be required to conduct individualized plaintiff’s evidentiary FLSA claim inquiries does not into necessarily each make opt-in collective See O’Brien, 575 F.3d at 584-85 (explaining treatment improper. that “such a collection of individualized analyses is required of the district court”); Monroe, 2011 WL 442050, at *14 (explaining that “many of the purported defenses . . . [were] clearly amenable to classwide determination”); Crawford, 2008 WL 2885230, at *10-11 (noting that many of the asserted defenses were “uniform and suitable for assertion against each plaintiff who testifies at trial”). If the plaintiffs’ claims are “unified by common theories of . . . statutory violations,” they are similarly situated, “even if the proofs of these theories are inevitably individualized and distinct.” See O’Brien, 575 F.3d at 585. Bankruptcy and credibility preclude collective treatment. defenses do not necessarily See Crawford, 2008 WL 2885230, 29 at *10-11 (explaining that “contradictions in testimony among the plaintiffs are matters of credibility for the factfinder, not individualized defenses” and that the “lack of standing due to bankruptcy filings would not require individualized proof at trial”) (citations omitted); cf. Monroe, 2011 WL 442050, at *14 (explaining that credibility was an issue for the finder of fact that could be raised against opt-in plaintiffs testifying in a representative capacity at trial). A defense based on the statute of limitations, including whether the FLSA’s two-year limitations period for non-willful violations or three-year limitations period for willful violations applies, also does not Cf. Monroe, 2011 WL 442050, at preclude collective treatment. *14 (explaining that whether “management knew of the methods being used to deny overtime pay and whether Defendants acted willfully” were “clearly amenable to classwide determination”). If the Opt-in Plaintiffs’ factual and employment settings were similar, the defenses Baptist collective action unmanageable. raises would not make a See O’Brien, 575 F.3d at 584- 85; Monroe, 2011 WL 442050, at *14; Crawford, 2008 WL 2885230, at *10. Unlike the plaintiffs in O’Brien, Monroe, and Crawford, the record does not contain substantial evidence that the Opt-in Plaintiffs are similarly situated. 584-85; Monroe, 2011 2885230, at *5-9. WL 442050, See O’Brien, 575 F.3d at at *13; Crawford, 2008 WL As in Frye, although Baptist’s purported 30 individualized defenses would not preclude collective action if the Opt-in Plaintiffs were similarly situated, those defenses do not necessarily weigh in favor of collective treatment. Frye, 2010 WL 3862591, at *8-9. See The second factor is neutral. 3. Fairness and Manageability To analyze the third factor, courts consider whether collective treatment comports with the purposes of the FLSA, which Congress Brandel, balance the increased to be “broadly remedial and Wilks, 2006 WL 2821700, at *8 (quoting Donovan humanitarian.” v. intended 736 F.2d reduced judicial 1114, cost utility 1116 to (6th Cir. individual that might 1984)). Courts plaintiffs result from and any collective action against the potential detriment to the defendant and any possible judicial inefficiency. See id. (citing Hoffman-La Rouche, Inc. v. Sperling, 493 U.S. 165, 170 (1989)); see also 2008 Crawford, WL 2885230, at * 11 (explaining that, in analyzing the third factor, courts “consider that the primary objectives of a § 216(b) collective action are: (1) to lower costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently resolves common issues of law and fact that arose from the same alleged activity” omitted))). As a (citation remedial and internal statute, the quotation FLSA “must interpreted or applied in a narrow, grudging manner.” 31 marks not be Dunlop v. Carriage Carpet Co., 548 F.2d 139, 144 (6th Cir. 1977). However, “the remedial nature of the FLSA, standing alone, does not justify Crawford, allowing 2008 WL a case 2885230, to at proceed collectively.” * 11 (citation because of the and See internal quotation marks omitted). Baptist argues that, Opt-in Plaintiffs’ varied employment settings and its individualized defenses, the collective action would “consist of hundreds of ‘mini-trials’ in which each [Opt-in] Plaintiff attempted to prove a series of small, off-the-clock claims” and would require nearly every Opt-in Plaintiff in preparation. Mem. 60-61.) collectively White because, argues it if that were the case decertified it to depose (See Baptist’s should and the proceed Opt-in Plaintiffs filed individual claims, each would have to establish proof about Baptist’s automatic deduction policy, because that policy forms the basis of each of their claims. 31-34.) (See Pl.’s Mem. White also argues that, because the automatic deduction policy was implemented at a departmental level, “representative testimony would be exceedingly manageable.” (See id. at 32.) That a collective action might result in “mini-trials” does not necessarily justify decertification. 442050, at *14. See Monroe, 2011 WL Where a collective action is decertified, and the opt-in plaintiffs file individual claims, the claims that would otherwise have been “mini-trials” within the collective 32 action become their own independent actions. WL 442050, at *14. See Monroe, 2011 Where opt-in plaintiffs have shown that they are similarly situated, plaintiffs are deprived of the benefit of pooling their resources and judicial economy is reduced. See id. (“If not addressed as a collective action, the claims of the plaintiff class would have to be heard in individual suits— 2008 perhaps requiring more than 300 mini-trials.”); Crawford, WL 2885230, at * 11-12 (“Not only would decertification place each plaintiff back at square one without the benefit of pooled resources, but also the court would be required to consider the same common question of whether the defendant had a de facto policy or practice of denying the plaintiffs a bona fide meal period.”) Because White has not shown that the Opt-in Plaintiffs are similarly situated, however, there is no judicial economy to be collectively. gained The by only allowing possible their results claims are to proceed unfairness Baptist and manageability problems for the Court. to See Frye, 2010 WL 3862591, at *11-12. White argues that representative testimony at a departmental level would resolve any fairness and manageability issues. (See Pl.’s Mem. 32.) Although representative testimony could theoretically assuage the Court’s concerns, White has not directed the Court to any deposition testimony that would be representative. In addressing the Opt-in Plaintiffs’ factual 33 and employment circumstances, the only evidence she submits are declarations, not depositions. representative testimony that (See would id. resolve 14-28.) the If fairness and manageability issues in this litigation were readily available, the Court would expect White to rely on that testimony to support her argument that the Opt-in Plaintiffs are similarly situated. that There is no representative testimony before the Court would resolve the fairness and inherent in proceeding collectively.6 manageability issues The third factor weighs in favor of decertification. No substantial evidence of a common policy or theory of FLSA violations disparate and individualized overcomes factual defenses the Opt-in employment would not Plaintiffs’ settings. preclude otherwise Although proceeding collectively, because the Opt-in Plaintiffs are not similarly situated, doing so would be unfair to Baptist and inefficient for the Court. On balance, the differences among the Opt-in Plaintiffs outweigh the similarities of the practices to which they were allegedly subjected. *12. See Monroe, 2011 WL 442050, at Baptist’s motion to decertify is well-taken. 6 For the same reason, White’s argument for partial decertification of the Opt-in Plaintiffs based on department is not well-taken. (See Pl.’s Resp. 18.) White argues that any differences among the Opt-in Plaintiffs “would support the creation of various sub-classes from each department or floor rather than the complete decertification of the collective action.” (Id.) Because White has not proffered testimony that would be representative of the departmental sub-classes she proposes, partial decertification would not resolve the fairness and manageability issues in this litigation. 34 V. Conclusion Because White no longer has an FLSA claim, similarly situated to the Opt-in Plaintiffs. she is not Considering the Opt-in Plaintiffs themselves, there is not substantial evidence that they are similarly situated to one other. Decertification is proper. Baptist’s Motion is GRANTED. The claims of all plaintiffs other than White are DISMISSED WITHOUT PREJUDICE. So ordered this 17th day of May, 2011. s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 35
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