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Bernardez v. Firstsource Solutions USA, LLC

United States District Court, W.D. Kentucky, Louisville Division

September 11, 2019

ALAN BERNARDEZ AND TAWANNA PITTMAN, individually and on behalf of a class of persons similarly situated, Plaintiffs


          Rebecca Grady Jennings, United States District Court District Judge

         Plaintiffs Alan Bernardez and Tawanna Pittman (“Plaintiffs”) sue Defendant Firstsource Solutions USA, LLC (“Defendant”) seeking relief for alleged violations of Section 16(b) of the Fair Labor Standards Acts (“FLSA”), 29 U.S.C. § 216(b). [DE 21 at 125]. Plaintiffs move for pre-discovery conditional certification and court-authorized notice to potential opt-in plaintiffs under 29 U.S.C. § 216(b) (the “Motion”). [DE 21]. The matter is ripe. For the reasons below, the Motion is GRANTED IN PART.

         I. BACKGROUND

         Defendant “assist[s] hospitals and patients in their efforts to recover monetary benefits from state and federal sources to pay for patient medical bills and related expenses.” [DE 24 at 271-272]. Defendant “divides its . . . operations into nine (9) regions . . . based in . . . Birmingham, Alabama; Cincinnati, Ohio; Columbus, Ohio; Durham, North Carolina; Hayward, California; Indianapolis, Indiana; Louisville, Kentucky; Miami, Florida; and Tampa, Florida.” [DE 24-1 at 294]. Plaintiffs and opt-in plaintiffs, Victoria Holland and Yolanda Banuelos, are former hourly, non-exempt employees of Defendant. [DE 21 at 135-137]. Ms. Banuelos worked out of the Birmingham region, and Mr. Bernardez, Ms. Pittman, and Ms. Holland “worked out of the Durham region, which consists of operations in North Carolina, South Carolina and Virginia.” [DE 24-1 at 294]. Defendant “employs three categories of non-exempt employees . . . (1) Patient Services Representatives-Onsite Eligibility (“PSRO”); (2) Floaters; and (3) Team Leads.” [DE 24 at 271-272]. “Team Leads generally perform the same work as PSROs but they also assist with training PSROs and provide oversight and direction to the PSROs. All PSROs, Floaters and Team Leads are responsible for screening or interviewing incoming hospital patients to determine their eligibility for Medicaid and other public programs.” Id. Defendant hired Mr. Bernardez as a PSRO and promoted him to a Team Lead. [DE 21-3 at 164].

         Defendant assigned him to work at Danville Regional Medical Center in Danville, Virginia as a PSRO. Id. He was Team Lead for eight facilities located through Virginia and North Carolina. Id. at 165. Ms. Pittman was a PSRO and assigned to work at Martinsville Memorial Hospital in Martinsville, Virginia. [DE 21-4 at 170]. Ms. Holland was also a PSRO and assigned to work at Danville Regional Medical Center in Danville, Virginia. [DE 21-5 at 175]. Ms. Banuelos was first a Floater and later a PSRO. [21-6 at 186]. Defendant assigned her to several hospitals in Texas. Id.

         “All non-exempt employees are required to clock in and out of [Defendant's] computerized time clock system (known as ‘KRONOS') at the beginning and end of their shifts, as well as at the beginning and end of their 30 minute lunch break.” [DE 24 at 275]. Employees can also log overtime hours in Kronos. Id. at 276. Plaintiffs allege that Defendant requires a “volume of work assignments that cannot be completed within a 40-hour workweek, but prohibits these hourly workers from reporting or clocking in more than 40 hours of work per week, thereby subjecting them to a de facto policy to work uncompensated overtime hours off-the-clock.” [DE 21 at 133].

         Thus, Plaintiffs move to represent a class of “All current and former Patient Service Representatives, Floaters/Trainers, and/or Team Leads employed by Defendant Firstsource Solutions USA, LLC d/b/a MedAssist at any time from October 4, 2014 through present.” [DE 21-1 at 157]. In support of their Motion, named Plaintiffs [DE 21-3 and 21-4] and opt-in Plaintiffs, Yolanda Baneulos[1] and Victoria Holland, [DE 21-5 and 21-6], filed declarations. Plaintiffs move the Court to: 1) conditionally certify the proposed FLSA collective; 2) approve Plaintiffs' proposed Notice of Right to Join Lawsuit (“Notice”); 3) direct Defendant to identify all potential opt-in plaintiffs; and 4) allow putative FLSA collective members to file their written consent forms within 60 days from circulation of the court-approved Notice. [DE 21 at 125-126]. Defendant opposes the Motion. [DE 24].

         II. STANDARD

         “Congress passed the FLSA with broad remedial intent” to protect all “covered workers from substandard wages and oppressive working hours.” Keller v. Miri Microsystems LLC, 781 F.3d 799, 806 (6th Cir. 2015); Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 147 (2012) (quoting Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739 (1981); 29 U.S.C. § 202(a). Under the FSLA, non-exempt, hourly employees who work more than forty hours weekly have a right to receive overtime compensation. 29 U.S.C. § 207(a). If an employer violates the FSLA by not paying overtime, an employee may bring a collective action individually, and on behalf of all those similarly situated and opt-in by giving written consent. 29 U.S.C. § 216 (b). “Courts interpreting the FLSA must consider Congress's remedial purpose.” Keller, 781 F.3d at 806.

         “The certification process in a FLSA collective action typically proceeds in two phases.” Atkinson v. TeleTech Holdings, Inc., No. 3:14-CV-253, 2015 WL 853234, at *2 (S.D. Ohio Feb. 26, 2015). “The first phase takes place at the beginning of discovery, ” Hathaway v. Masonry, No. 5:11-CV-121, 2012 WL 1252569, at *2 (W.D. Ky. Apr. 13, 2012), and the plaintiff must only “show that his position is similar, not identical, to the positions held by the putative class member.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-547 (6th Cir. 2006) (quoting Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 594 (S.D. Ohio 2002)) (internal quotation marks omitted). Plaintiffs “are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 585 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016). Employees may also be similarly situated if their claims are merely “unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct.” Id. Indeed, showing a unified policy of violations is not required for conditional certification. Id. at 584.

         In the first phase, the court applies a “fairly lenient standard, ” which “typically results in conditional certification of the class.” Comer, 454 F.3d at 547 (6th Cir. 2006) (quoting Morisky v. Public Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 497 (D.N.J. 2000)). To meet this standard, plaintiffs must make “a modest factual showing” of “a colorable basis for their claim that a class of similarly situated plaintiffs exist.” See Stine v. Fedex Ground Package Sys., Inc., No. CV 18-114-DLB-CJS, 2019 WL 2518127, at *2 (E.D. Ky. June 18, 2019) (quoting Olivo v. GMAC Mortg. Corp., 374 F.Supp.2d 545, 548 (E.D. Mich. 2004)) (internal quotation marks and formatting omitted). In this phase, a court “does not generally consider the merits of the claims, resolve factual disputes, or evaluate credibility.” Myers v. Marietta Mem'l Hosp., 201 F.Supp.3d 884, 890 (S.D. Ohio 2016) (quoting Waggoner v. U.S. Bancorp, 110 F.Supp.3d 759, 765 (N.D. Ohio 2015)). “Once a court determines that the potential opt-in plaintiffs are similarly situated to the named plaintiffs, notice is sent, opt-in forms are filed and discovery takes place.” Atkinson v. TeleTech Holdings, Inc., 2015 WL 853234 at *3 (internal quotation marks omitted).

         In the second phase, “the defendant may file a motion to decertify the class” and “the court revisits, with greater scrutiny, the question of whether the class members are, in fact, similarly situated.” Id.


         A. Conditional Certification

         Plaintiffs request conditional certification. In support, Plaintiffs' declarations uniformly allege that: 1) “[t]he company's written policy was that [they] could not work overtime without prior approval, ” but “the actual policy was that [they] were to work as many hours as needed to complete [their] job including overtime, but just not receive overtime pay for it.”; 2) “The volume of work assignments realistically could not be completed within the 8-hour daily work schedule, or 40-hour weekly work schedule.”; 3) they “communicated to management that the workload could not be completed within the 40-hour weekly work schedule, but they still would not allow [them] to report or clock in more than 40 hours of work per week.”; 4) “Due to the company's policy of disallowing overtime pay while pressuring [them] to complete a workload that is not doable within the 40-hour weekly work schedule and reprimanding [them] for not getting work done and/or reporting more than 40 hours of work time, [they] . . . were forced to perform off-the-clock work” and were “not paid for the actual time” they worked. [DE 21-3 at 166-68; DE 21-4 at 171-73; DE 21-5 at 176-78; DE 21-6 at 187-89]. Plaintiffs assert that the Court should conditionally certify because their declarations are “unified by common theories of defendants' statutory violations”. O'Brien, 575 F.3d at 585. Defendant argues that Plaintiffs have failed to meet their burden.

         1. Common Plan or Policy

         Under O'Brien, Plaintiffs need not present evidence of a “a corporate decision to ignore” published policies. Rather, Plaintiffs must set forth claims that are “unified by common theories of defendants' statutory violations.” 575 F.3d at 585. Plaintiffs have done so by presenting evidence that Defendant: 1) required them to complete more work than Defendant knew they could within an eight-hour day or forty-hour week; 2) “reprimanded” them for not completing their workload within that schedule; and 3) “prohibited” them from reporting or clocking in overtime. [DE 21-3 at 166-67; DE 21-4 at 171-72; DE 21-5 at 176-77; DE 21-6 at 187-88]. Defendant argues that Plaintiffs have failed to both “put forth evidence of a common plan or policy that unites all of their claims” and show a “systemic policy emanating from [Defendant's] headquarters not to pay for all hours worked, or to deprive employees of overtime.” [DE 24 at 280]. In support, Defendant cites two cases: Brickey v. Dolgencorp., Inc., 272 F.R.D. 344, 348 (W.D.N.Y. 2011) and Thompson v. Speedway SuperAmerica LLC, No. 08-CV-1107, 2009 WL 130069, at *2 (D. Minn. Jan. 20, 2009). Brickey, a non-binding District Court case from New York, is distinguishable because there, unlike here, the plaintiffs took “substantial pre-certification discovery.” Brickey, 272 F.R.D. at 348.

         Thompson is also a non-binding decision from a District Court in Minnesota. The court there, and the underlying report and recommendation that was on review, deny conditional certification in part because of the possibility of individualized issues. 2009 WL 130069, at *2, **9-13. Such rationale conflicts with the Sixth Circuit's reasoning in O'Brien that plaintiffs can establish they are “similarly situated” within the meaning of 29 U.S.C. § 216(b) by showing that their “claims [a]re unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct.” 575 F.3d at 584.

         Pacheco v. Boar's Head Provisions Co.,671 F.Supp.2d 957, 960 (W.D. Mich. 2009), is a relevant case that relies on Thompson. Because the plaintiffs there took discovery before filing for conditional certification, the court held them to a “more restrictive, but still lenient standard” and based the “certification determination on the evidence rather than the pleadings.” Id. The court declined to follow as dicta the suggestion in O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 585 (6th Cir. 2009) “that FLSA plaintiffs do not have to show a unified policy of violations in order to be similarly situated.” Id. at 961 (internal quotation marks omitted). Relying on Thompson's reasoning that the plaintiff must submit evidence of “a corporate decision to ignore [the company's] published policies, ” the court denied conditional certification because plaintiffs “offered no direct evidence ...

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