United States District Court, W.D. Kentucky, Louisville Division
ALAN BERNARDEZ AND TAWANNA PITTMAN, individually and on behalf of a class of persons similarly situated, Plaintiffs
FIRSTSOURCE SOLUTIONS USA, LLC D/B/A MEDASSIST Defendant
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, United States District Court District
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.
“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].
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.
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].
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 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].
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.
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.
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
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.
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.
Common Plan or Policy
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.
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
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 ...