MARCIA S. KRIEGER, Chief District Judge.
DaVita operates a business performing kidney dialysis and related services for patients in numerous facilities around the country. The named Plaintiffs are four DaVita employees. They brought this action alleging, among other things, that DaVita failed to pay them and other employees overtime pay for hours they worked over 40 in a week, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.
The named Plaintiffs sought to pursue this action as a collective action under 29 U.S.C. § 216(b), which allows similarly-situated employees the opportunity to affirmatively opt-in to the litigation to assert similar claims. In April 2017, the Court authorized
DaVita now moves
28 U.S.C. § 216(b) allows for an FLSA claim to be "maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated," but provides that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."
Courts have struggled with devising — and describing — the mechanisms to be used to implement the collective action process contemplated by Section 216(b). The seminal 10
Here, the Court is at the second stage of that process, obligated to conduct a more searching inquiry as to whether the various opt-in Plaintiffs are sufficiently "similarly situated" to the four named Plaintiffs herein. Thiessen indicates that this second-stage analysis
DaVita's operations consist primarily of numerous dialysis clinics located in various communities. Most employees have a "home" facility where they are typically assigned, but it is not uncommon for employees to perform work at several facilities in the same workweek. Each facility is staffed by employees who provide direct patient care (e.g. dialysis technicians and nurses), employees who provide indirect services (e.g. social workers, coordinators of various types), and administrative staff. Facility staff are given day-to-day direction and supervision by the facility administrator in each clinic. The upper half of DaVita's organizational chart — that is, the levels above facility administrator — is largely unclear from the record. The Plaintiffs have not meaningfully identified who supervises the various facility administrators, nor who in the corporate structure sets policies for the facilities or controls their operational budgets.
During the time period at issue, DaVita had an express policy that prohibited employees from working off the clock and there is some evidence in the record that at least employees were occasionally disciplined for doing so. DaVita also required employees to obtain their facility administrator's (or equivalent supervisor) approval for overtime work. The record reflects that these policies were communicated to all employees in an employee handbook and most Plaintiffs testified to having at least a general awareness of the policies. With the exception of situations in which supervisors made "adjustments" to employees' timesheets for lunch breaks (discussed below), it appears to be undisputed that employees were typically paid overtime if their reported timecards or timesheets reflected more than 40 hours in a workweek. During their depositions, many Plaintiffs acknowledged various pay records that showed them receiving certain amounts of overtime pay. The issue here primarily concerns hours that employees worked but did not report on their timecards/timesheets — that is, "off-the-clock" work.
Turning to the named Plaintiffs' roles in the organization and the nature of their complaints, the record reflects the following:
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Ms. Oldershaw contends that her time records also have unexplained reductions in the number of hours she worked. The record is somewhat underdeveloped on this point. It is possible that this complaint correlates with a contention by Ms. Oldershaw that she routinely worked through her lunch break on most days. As the Court understands it, Ms. Oldershaw was expected to take an off-the-clock lunch break each day, and she believes that unspecified persons nevertheless adjusted her reported hours to deduct lunch breaks without her knowledge or approval.
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Few of the opt-in Plaintiffs have the same job titles or responsibilities as Ms. Oldershaw, Ms. Navarro, Ms. Stant, and Ms. Stevens. Most of the opt-in Plaintiffs are perform work in clinic facilities; only two, opt-in Plaintiffs, Denise Landin and Georgia Harmen, are executive assistants like Ms. Oldershaw at DaVita's headquarters. None of the opt-in Plaintiffs are full- or part-time administrators like Ms. Navarro. A relatively small number of opt-in Plaintiffs have training duties like Ms. Stant and Ms. Stevens. Most of the opt-in Plaintiffs are involved directly or indirectly in patient care, as technicians or nurses, or work as administrative assistants in individual facilities. The opt-in Plaintiffs typically clock themselves in and out at the start and end of their shifts. Unlike any of the named Plaintiffs, these employees are subject to the direction of a particular facility administrator where they work.
The opt-in Plaintiffs describe several vectors for their lack of overtime pay: (i) being unexpectedly called upon to address an exigent circumstance or answer a co-worker question before clocking in for their shift or after clocking out, and forgetting (or choosing not) to thereafter ask their supervisor to adjust their time records accordingly; (ii) clocking in and out as scheduled, but performing additional work from home after hours (such as making reminder calls to patients, responding to e-mails, or preparing work materials for the next day) and forgetting or choosing not to report that time; (iii) being unable to complete their assigned in-clinic tasks during their shift and choosing to complete those tasks off-the-clock, sometimes at the specific direction of their administrator and sometimes simply because the employee chose not to ask the administrator about obtaining approval for overtime; (iv) being summoned to address an exigent circumstance during an off-the-clock lunch break and forgetting to clock back in before addressing the situation; (v) being unable to take any lunch break due to workloads, yet having an administrator or other person manually manipulate time records to falsely reflect the employee taking their mandatory unpaid 30-minute lunch break each day; and (vi) a variety of idiosyncratic complaints about unpaid travel time or relocation expenses, unreported training time, and other work time that employees did not report for various reasons.
The Plaintiffs' briefing struggles somewhat to articulate the "single decision, policy, or plan" by DaVita that unifies all of their claims. Thiessen, 267 F.3d at 1103. At best, the Plaintiffs' theory is that DaVita's "practice of allocating a certain number of hours per employee shift during which each hourly employee was to complete their work" that was the common cause of each Plaintiff performing off-the-clock work. The Plaintiffs explain that "they cannot complete their work within the number of hours that [DaVita] allocated to their shift," and that they were "encouraged by their supervisors to perform these duties off-the-clock." The Court pauses here to note that this theory might describe the claims of Ms. Stant and Ms. Stevents, but does not explain the circumstances that result in Ms. Oldershaw or Ms. Navarro not reporting their overtime.
Some components of the Plaintiffs' theory find support in the record. Several of the opt-in Plaintiffs testified that they were simply unable to perform all of their required job duties within their scheduled shift times. Fewer, however, testified that they were expressly instructed or encouraged by their supervisors to work off-the-clock to complete those tasks — only a few described situations in which a supervisor specifically instructed them to complete their work without being clocked in. Most of the Plaintiffs who testified, including Ms. Stant and Ms. Oldershaw, simply assumed or inferred that they should not report overtime hours, often relying on their own interpretation of ambiguous statements by a supervisor. Often, the statements the Plaintiffs relate simply direct the employees to get their work done within the time allotted, an instruction that could just as easily be understood as a directive to work harder, faster, or more efficiently during their scheduled shifts.
Other components of the Plaintiffs' theory have little or no support in the record. The Plaintiffs argue that DaVita had a "practice of allocating a certain number of hours per employee shift during which each hourly employee was to complete their work," but offer only a skeletal description of this process. Joshua Martinez supplied an affidavit that described unspecified persons at DaVita setting a "Direct Patient Care budget" for each facility, setting a fixed number of labor hours based on the number of patients the clinic served. Mr. Martinez testified that these budget amounts were insufficient to complete all of a facility's required work. But the record seems to suggest that the budget addressed a total number of hours allocated to the
Finally, it is important to recognize that although the Plaintiffs' budget theory might explain some instances of off-the-clock work, it does not explain all of the different circumstances that caused the Plaintiffs to work off-the-clock. Budget pressures would not explain why employees who chose to perform work from home rather than on-the-clock during their shifts would choose to not report it, nor would it account for employees who, while off-the-clock, were called upon to immediately resume work to address an exigency and forgot to request an after-the fact time adjustment.
The question presented to the Court is whether, under these circumstances, the opt-in Plaintiffs are similarly situated to the named Plaintiffs. Consistent with the discussion above, this Court considers this question in light of the Thiessen factors.
This factor examines several aspects of the various Plaintiffs' claims for similarities.
As noted above, courts examining this factor consider a wide range of facts, including employment locations, salaries, supervision, job titles, and many others aspects of employment for both the named and opt-in plaintiffs.
The Court begins with the observation that all four of the named Plaintiffs had employment settings that are substantially different than that of the typical opt-in Plaintiff (to the extent one can even describe a "typical opt-in Plaintiff" in the circumstances presented here). Ms. Oldershaw was not employed at a facility, but instead at DaVita's headquarters, a circumstance she shares only with two opt-in Plaintiffs. There is some question as to whether Ms. Navarro was an employee covered by the FLSA at all; to the extent that she is, unlike the opt-in Plaintiffs, she was her own supervisor and thus cannot blame DaVita for discouraging her from reporting of overtime. Ms. Stant and Ms. Stevens are not subject to the Plaintiffs' facility-level budgeting theory because they took their instructions from someone other than a facility administrator, they reported their working time across numerous facilities each week, and there is no evidence as to any DaVita facility budgeting policies applied to their work anyway. The disparity between the employment situations of the named Plaintiffs and those of the facility-based opt-in Plaintiffs who reported to only one facility, performing direct patient care work under the direction of a single administrator, is so stark that this as to render them dissimilar under Thiessen.
This Court is further persuaded that the Plaintiffs' evidence, which focuses solely on the individual experiences of the Plaintiffs themselves, fails to illustrate any single, cohesive corporate policy that applied similarly to all of them. A recent decision by the Ninth Circuit affirmed a trial court's decertification of overtime claims by a group of some 2,500 Los Angeles Police Department officers is instructive. Campbell v. City of Los Angeles, 903 F.3d 1090, 1120 (9
Although Campbell is not binding precedent, it is instructive because the same problems of proof identified in it are presented here. The record contains considerable anecdotal evidence that
Giving due deference to the Plaintiffs' unifying theory, this Court is reluctant to treat all the named Plaintiffs and the opt-in Plaintiffs as similarly situated simply because DaVita budgets for its labor hours. Certainly, there may be circumstances where an employer's budgeting is so aggressive and unrealistic, and the punishments for failing to meet those budgets so punitive, that a court might find that the employer effectively forces its employees to work off-the-clock. But, at least in the abstract, the notion of an employer budgeting for labor costs and encouraging, even perhaps strongly, its managers to attempt to keep overtime expenses to a minimum is hardly unusual in the American workplace. If employees need only show that their employer imposes budgets for labor costs in order to obtain certification of a single, broadly-disparate collective FLSA action, the purpose of a certification requirement at all would be rendered effectively meaningless; nearly every collective would be certified. As in Campbell, the larger and more diffuse the collective, the more important it is for the plaintiffs to demonstrate the existence of a uniform, corporately-imposed policy that clearly encourages off-the-clock work, not to merely point to a vague "culture" of suppressing overtime. As noted above, the DaVita's budgeting practices appears to give each facility administrators some degree of discretion in deciding how to allocate that available hours among the facility's employees and moves the locus of decisionmaking with regard to overtime from DaVita's corporate headquarters down to each individual facility and individual administrator. This, in turn, demonstrates the absence of a single, overarching policy that binds a collective of employees from numerous facilities with numerous different administrators into a cohesive whole.
Accordingly, the Court finds that the Plaintiffs have not come forward with significant evidence that suggests that each Plaintiffs shares similar employment situations to support treating all Plaintiffs as sharing a collective claim.
In addition, the Court finds that, because the proposed collective is so broad and diffuse, there is great risk that the breadth of potential individualized defenses would overwhelm the efficiencies of proceeding in a collective action.
FLSA overtime claims offer an employer two primary defenses. First, the burden is on the employee to show that the employer had actual or constructive knowledge that the employee was working overtime hours without compensation. McGrath v. Central Masonry Corp., 276 Fed.Appx. 797, 799 (10
Second, although the FLSA calls for automatic liquidated damages, employers may attempt to avoid such damages by showing that they acted in "good faith" in attempting to comply with the FLSA. Mumby v. Pure Energy Services (USA), Inc., 636 F.3d 1266, 1272 (10
Moreover, as noted above, there are additional, highly-individualized questions about whether a given Plaintiff was instructed or encouraged to work off-the-clock or not that will turn on which facility administrator was in charge of them. In a suitably-narrow collective action — e.g. one that encompassed
For these and other reasons, this Court is persuaded that there are significant individualized defenses that DaVita can reasonably be expected to develop given the broad composition of the current collective.
The Court freely acknowledges that there is expediency in trying as many as 70 Plaintiffs' claims in a single proceeding, rather than inividually or on a series of smaller trials. And there is much to recommend allowing Plaintiffs to band together to vindicate mostly low-value claims that might otherwise not be pursued if individualized proceedings were required. See generally Monroe, 860 F.3d at 405.
At the same time, much of the preceding discussion highlights the considerable obstacles that may prevent a full and fair single trial of all Plaintiffs' claims as currently certified. Were the Plaintiffs prepared to propose a group of smaller, more similarly-situated collectives — e.g. those limited to a specific administrator known to have commanded or encouraged off-the-clock work — the Court might weigh this factor differently. But the Plaintiffs have neither suggested the option of breaking the case into smaller, more discrete collectives, nor provided the Court with sufficiently granular facts to allow the Court to do so on its own. Rather, the Plaintiffs have presented the question of decertification as an all-or-nothing proposition. Faced with that scenario, the Court concludes that concerns of fairness and procedural complications tip against continued certification of the current collective as a whole.
Accordingly, the Court finds that the Thiessen factors all favor "decertification" at this second stage.
Simultaneously with the decertification motion, DaVita filed a lengthy Motion for Summary Judgment
The FLSA excludes from its coverage "any employee employed in a bona fide executive. . . capacity." 29 U.S.C. § 213(1). As pertinent here, an "executive" employee's "primary duty" must involve "management" of a department or subdivision of the business. 29 C.F.R. § 541.100(a)(2). "Management" includes tasks such as interviewing, selecting, and training employees; setting and adjusting rates of pay and hours of work; directing the work of employees; appraising employee performance; imposing discipline; and firing employees (or at least making recommendations for firing that are "given particular weight"). 29 C.F.R. § 541.100(a)(4), 541.102. In determining an employee's "primary duty," the focus is on the "principal, main, major, or most important duty that the employee performs," examined in light of the job as a whole. 29 C.F.R. § 541.700(a). The inquiry is fact-intensive, examining not only the relative amount of time the employee spends performing each duty, but also the employee's freedom from direct supervision, the employee's pay relative to others performing similar non-exempt work, the extent to which the employee herself chooses when to perform the non-exempt work, and the extent to which the employee is held responsible for the success or failure of the operation. 29 C.F.R. § 541.700(a), (b); 29 C.F.R. § 541.106(a). The employer bears the burden of proving that an employee is exempt from the FLSA's coverage. Lederman v. Frontier Fire Protection, Inc., 685 F.3d 1151, 1157-58 (10
Ms. Navarro worked at the Westminster facility as an assistant facility administrator in the Westminster clinic from 2013 until 2015, and as the facility administrator from March 2015 until November of that year. She testified that throughout that time, no one of higher rank was ever physically present at the Westminster clinic. There appears to be no dispute that, in her role as facility administrator, Ms. Navarro was exempt from coverage under the FLSA because she was responsible for scheduling and supervising employees, keeping the clinic on budget and otherwise managing the clinic's finances, participating in hiring and disciplinary decisions, and so on. But Ms. Navarro testified that, although she was the nominally the facility administrator, due to understaffing she was also required to regularly perform the duties of administrative assistant during normal clinic operating hours, including "answering the phones, searching for medical records, making sure that the medical records and the documentation is complete on the floor, [and] making sure that the teammate records are kept up to date." Ms. Navarro testified that these administrative duties occupied most of the normal work day — from roughly 7:00 a.m. until the early afternoon hours — and that she completed her facility administrator duties at home, before and after the regular work day. Ms. Navarro testified, repeatedly, that she understood that DaVita coded her as being both an administrative assistant and a facility administrator in its personnel records.
Because DaVita bears the burden of proving that Ms. Navarro was FLSA-exempt, Ms. Navarro need only adduce sufficient evidence to raise a genuine dispute of fact as to whether her "primary duty" was managerial in order to avoid summary judgment. The Court finds that she has done so. Although there is no dispute that Ms. Navarro had managerial duties at the Westminster clinic, there is also significant evidence that the bulk of Ms. Navarro's working time was spent performing routine, non-exempt work typical of an administrative assistant, and that managerial duties occupied only a few hours of her day before and after a normal shift. There is evidence that Ms. Navarro performed the administrative assistant duties involuntarily, as she testified that she asked her superiors "if I could . . . give the [administrative assistant] work to someone who was better equipped to do [it]," but was apparently told that she could not. And there is significant evidence that DaVita itself classified Ms. Navarro as both a facility administrator
Finally, DaVita seeks summary judgment on the claim of each named Plaintiff for breach of contract. The named Plaintiffs's response brief indicates that the breach of contract claims arise from provisions in the DaVita employee handbook that require DaVita to pay employees for "any time worked." This quoted phrase, however, does not appear in the handbook excerpts relied upon by the named Plaintiffs in Docket # 203-50. Instead, it appears that the named Plaintiffs are relying on DaVita's statement of its policy of paying employees for "overtime at one- and one-half times their regular rate of pay for hours worked in excess of 40 for any workweek" (section 4.3 and 4.5) or its policy that "if it is necessary for non-exempt teammates to work during a meal period . . . then the meal period is considered time worked, and they will be compensated accordingly" (section 4.6). DaVita argues that the policies stated in the handbook do not constitute a contract because the handbook contains conspicuous and express disclaimer language stating that "the language used in these policies . . . are not intended to constitute a contract of employment" and that they "may be cancelled or modified at any time, at DaVita's sole discretion, without or without prior notice."
Under Colorado law, an employee asserting a contract claim based on an employee handbook is required to show that the employer's words or actions "manifested to a reasonable person an intent to be bound by the provisions" of the handbook. Romstad v. City of Colo. Springs, 650 Fed.Appx. 576, 580 (10
The named Plaintiffs' arguments to the contrary are unavailing. They cite to two cases, Baker v. Echostar Communications Corp., 2007 WL 428794 (D.Colo. Dec. 4, 2007), and Duran v. Flagstar Corp., 17 F.Supp.2d 1195 (D.Colo. 1998), for the proposition that disclaimer language only operates to preserve an employee's
For the foregoing reasons, DaVita's Motion to Decertify
DaVita's Motion for Summary Judgment
The Court will assume, without finding, that every Plaintiff in this action purports to have worked more than 40 hours in at least one week without receiving overtime pay.
Other Plaintiffs, like Ms. Oldershaw or William Vue, construed seemingly-innocuous statements that merely reverenced overtime — Ms. Anderson mentioning to Ms. Oldershaw that she was working a lot of overtime, or Mr. Vue's administrator telling him that employees should "avoid overtime if possible" — as a sort of directive to work off-the-clock.
DaVita has moved
The Court agrees with the Plaintiffs that Mr. Martinez's activities in scheduling might give him sufficient personal knowledge to discuss the operation and effect of the labor budget process, but it also agrees with DaVita that nothing in Mr. Martinez's position or job duties would suggest that he would have personal knowledge about DaVita's goal structure for facility administrators. Thus, the Court grants DaVita's motion to strike paragraphs 18-27 of Mr. Martinez's affidavit, which encompasses all discussion of the goal-setting scheme.
Admittedly, both Ms. Navarro and Ms. Stevens testified vaguely about how minimizing overtime had an effect on the bonuses DaVita gave to facilities. But neither testified about the situation in sufficient detail for the Court to assume that any bonus structure was particularly coercive.
Indeed, the Court has considerable doubt that even the four named Plaintiffs
In the interests of efficiency, it would seem to be appropriate to resolve
