COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiffs bring this action against Defendants MedStar Health, Inc. ("MedStar") and Washington Hospital Center ("WHC"), claiming that Defendants violated the Fair Labor Standards Act ("FLSA") and the District of Columbia Minimum Wage Act ("DC-MWA") by failing to compensate them for "meal break" and "uniform maintenance" work. Currently before the Court is Plaintiffs' [23] Motion for Order Authorizing Notice to Similarly Situated Persons Pursuant to 29 U.S.C. § 216(b) ("Motion for Conditional Certification"). Plaintiffs ask the Court to conditionally certify this case as a "collective
MedStar owns nine hospitals in the District of Columbia and Maryland.
Plaintiffs Peggy Dinkel, Valarie Gadson, and Deidre Beckford commenced this action on May 26, 2011 on behalf of themselves and similarly situated employees. See Pls.' [1] Compl. Subsequently, Plaintiffs Marlene Barber, Adama Gibateh, Jovita Ike, Donna Lawrence, Rajini Raj, Vilasini Sarang, and Barbara Townsend each filed a written consent to join in this action as a party-plaintiff. See Pls.' [16] Consents. Plaintiffs assert two basic claims. Plaintiffs' "meal break" claim asserts that Defendants violated the FLSA and DCMWA by failing to compensate them for the time they allegedly spent working during meal breaks. See Pls.' [1] Compl. ¶¶ 42-52. Plaintiffs' "uniform maintenance" claim asserts that Defendants violated the FLSA and DCMWA by failing to compensate them for "off-the-clock" uniform maintenance work. See id.
Once Defendants appeared and answered the Complaint, the parties agreed to a discovery period lasting well over three months focusing on whether this case should be conditionally certified as a collective action. See [14] Order at 5. The Court authorized each party to take up to ten depositions and to serve up to twenty-five document requests, interrogatories, and requests for admission. See id. The discovery period concluded without any meaningful disputes arising. Defendants produced approximately 2,700 pages of
The FLSA and DC-MWA require employers to pay minimum wage for compensable working time and an overtime premium for compensable hours worked in excess of forty hours per week. See 29 U.S.C. §§ 206, 207; D.C. CODE § 32-1003. Both statutes contemplate what is commonly referred to as a "collective action," in which plaintiffs bring claims on behalf of "similarly situated" employees but those employees do not become part of the action unless and until they "opt-in" by filing a written consent to join as party-plaintiffs. Under the FLSA:
29 U.S.C. § 216(b). Similarly, under the DC-MWA:
D.C. CODE § 32-1012(b).
With collective actions, district courts have considerable discretion in managing the process of joining similarly situated employees in a manner that is both orderly and sensible. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989); Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th Cir.2010). Courts in this Circuit and others have settled on a two-stage inquiry for determining when a collective action is appropriate:
Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir.2010) (citations, quotation marks, and emphasis omitted), cert. denied, ___ U.S. ___, 132 S.Ct. 368, 181 L.Ed.2d 234 (2011); accord Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192-93 (3d Cir.2011), cert. granted on other grounds, No. 11-1059, ___ U.S. ___, 133 S.Ct. 26, 183 L.Ed.2d 674, 2012 WL 609478 (June 25, 2012); Comer v. Wal-Mart
At the first stage, often loosely referred to as "conditional certification," the named plaintiffs must present "some evidence, beyond pure speculation, of a factual nexus between the manner in which the employer's alleged policy affected [them] and the manner in which it affected other employees." Symczyk, 656 F.3d at 193 (quotation marks omitted). This factual showing has been described as "`not particularly stringent,' `fairly lenient,' `flexible,' [and] `not heavy.'" Morgan, 551 F.3d at 1261 (citations and notations omitted). At this stage, district courts should ordinarily refrain from resolving factual disputes and deciding matters going to the merits. See Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 368 (S.D.N.Y.2007); Camper v. Home Quality Mgmt. Inc., 200 F.R.D. 516, 520 (D.Md.2000).
If a class is conditionally certified, similarly situated employees are provided notice of the action and an opportunity to join as party-plaintiffs. After conducting discovery, the parties then proceed to the second stage of analysis, at which point the question is "whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff[s]." Symczyk, 656 F.3d at 193.
Plaintiffs ask the Court to conditionally certify this case as a "collective action" and to allow notice of the case to be sent to all non-exempt, hourly employees working in nine MedStar hospitals during any workweek from May 26, 2008 to the present. Here, the Court first addresses conditional certification of Plaintiffs' meal break claim, see infra Part III.A, and then turns to Plaintiffs' uniform maintenance claim, see infra Part III.B.
With respect to their meal break claim, Plaintiffs ask the Court to conditionally certify this case as a collective action and to allow notice to be sent to all non-exempt, hourly employees working in nine hospitals during any workweek from May 26, 2008 to the present. For the reasons set forth below, the Court finds that Plaintiffs have not shown that their broad proposed case is both eligible and suitable for conditional certification, but the Court shall conditionally certify a more narrowly tailored collective action.
One of the essential factual underpinnings of Plaintiffs' meal break claim, as it has been framed by Plaintiffs themselves, is that the nine MedStar hospitals at issue share a common policy of automatically deducting thirty minutes from associates' total work time for each day to reflect a thirty-minute unpaid meal break. See Pls.' [23] Mem. at 4, 13, Pls.' [30] Mem. at 2-3, 8, 10. But in making this assertion, Plaintiffs cite only to evidence specifically relating to three hospitals (MMC, UMH, and WHC). See Pls.' [23] Mem. at 4 n. 3 (citing Pls.' [23] Ex. N at M-W 000497(MMC); Pls.' [23] Ex. I at M-W 000512(UMH); Pls.' [23] Ex. B ¶¶ 2, 5, Ex. C ¶¶ 2, 5, Ex. D ¶¶ 2, 5, Ex. T at M-W 001000(WHC)). Moreover, of these three hospitals, the evidence Plaintiffs cite relating
Were it not for the concessions made by Defendants in opposition, this might have spelled the end of Plaintiffs' efforts to secure conditional certification for their meal break claim insofar as it relates to those seven specific hospitals. But Defendants have conceded that seven hospitals (FSMC, GSH, HH, MMC, SMH, UMH, and WHC) follow an auto-deduct policy. See Defs.' [25] Mem. at 16. Indeed, Defendants submit evidence to this effect. See Defs.' [25] Ex. 33 ¶ 8, Ex. 40 ¶ 7, Ex. 44 ¶ 7, Ex. 46 ¶ 7, Ex. 57 ¶ 7 (FSMC); Defs.' [25] Ex. 31 ¶ 7, Ex. 32 ¶ 7, Ex. 42 ¶ 10, Ex. 53 ¶ 7(GSH);
Nonetheless, Plaintiffs have failed to direct this Court to any evidence to suggest that two hospitals (GUH and NRH) follow an auto-deduct policy.
With the foregoing limitation in mind, the Court now turns to the seven remaining hospitals (FSMC, GSH, HH, MMC, SM, UM, and WHC).
In the final analysis, Plaintiffs' factual showing for these six specific hospitals (FSMC, GSH, HH, MMC, SMH, and UMH) is limited to the bare existence of an auto-deduct policy, which is not by itself the least bit unlawful. See White v. Baptist Mem'l Health Care Corp., No. 08-2478, 2011 WL 1883959, at *8 (W.D.Tenn. May 17, 2011) ("Standing alone, an employer policy providing automatic deductions for meal breaks does not violate the FLSA. Therefore, [an employer'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 [a collective action]."); see also Blaney v. Charlotte-Mecklenburg Hosp. Auth., No. 3:10-CV-592-FDW-DSC, 2011 WL 4351631, at *6 (W.D.N.C. Sept. 16, 2011); McClean v. Health Sys., Inc., No. 11-03037-CV-S-DGK, 2012 WL 607217, at *6 (W.D.Mo. Feb. 23, 2012). Again, no matter how lenient the factual showing for conditional certification may be, Plaintiffs have fallen short by failing to produce any evidence that there was a common practice at these six hospitals of imposing limitations on, discouraging, or ignoring efforts to recover pay for missed meal breaks. The Court, left only with Plaintiffs' unadorned speculation and unsupported assertions, can only conclude that Plaintiffs have not met their burden of producing some evidence of a factual nexus between the manner in which Defendants' meal break policies affected them and the manner in which those policies affected employees at these six specific hospitals. Accordingly, the Court shall exclude employees of FSMC, GSH, HH, MMC, SMH, and UMH from any collective action relating to Plaintiffs' meal break claim.
The question that remains is whether conditional certification is appropriate with respect to WHC. Plaintiffs seek conditional certification of a collective action that would cover all nonexempt, hourly employees at WHC during the relevant time period. At any given moment of time, there are over four thousand nonexempt, hourly employees working at WHC and they hold over two hundred and fifty job titles and work in over two hundred departments. See Pls.' [23] Ex. T at M-W 000986-1000; Defs.' [25] Ex. 2 ¶¶ 6-7. As a result, the proposed collective action would cover "individuals who work in different units ..., work different shifts and schedules, have different supervisors, are entitled to different rates of pay according to divergent schemes, and hold vastly different job positions and functions spanning the health care occupational gamut." Manning v. Boston Med. Ctr. Corp., Civil Action No. 09-11463-RWZ, 2012 WL 1355673, at *3 (D.Mass. Apr. 18,
Despite the breadth of the proposed action, Plaintiffs offer a decidedly narrow factual showing. Plaintiffs worked in one of two departments at WHC: the Emergency Department or the 4NE Medical Cardiology Unit. See Pls.' [26] Decls. ¶ 1; Pls.' [31] Decls. ¶ 1. Plaintiffs admit they were able to request compensation for missed meal breaks, but contend that they were subject to a common practice of imposing limitations on, discouraging, or ignoring efforts to recover pay for missed meal breaks. See Pls.' [23] Ex. A ¶ 9, Ex. B ¶ 9, Ex. C ¶ 9; Pls.' [31] Decls. ¶ 7. However, Plaintiffs do not present any evidence that there was a similar practice at departments other than the two in which they work or worked.
Plaintiffs try to make an end-run around the requisite factual showing simply by averring that "[t]hrough their personal observations of, and discussions with, their co-workers during the relevant period, Plaintiffs believe that Defendants' Hospital Employees were subjected to the same meal break work policies and practices and [were] affected the same way by them." Pls.' [23] Mem. at 5 (citing Pls.' [23] Ex. B ¶ 10, Ex. C. ¶ 10, Ex. D. ¶ 10); see also Pls.' [31] Decls. ¶¶ 1, 8. These unsupported assertions are made in such a conclusory fashion as to be devoid of meaning. Plaintiffs' declarations lack the sort of factual content that would allow the Court to conclude that Plaintiffs have any personal knowledge of practices or policies outside their specific departments and, if so, which departments.
Once again, no matter how lenient the factual showing for conditional certification may be, Plaintiffs have fallen short by failing to produce any evidence that there was a practice at other departments of imposing limitations on, discouraging, or ignoring efforts to recover pay for missed meal breaks. Plaintiffs' unsupported assertions are insufficient to discharge their burden of producing some evidence of a factual nexus between the manner in which Defendants' meal break policies affected them and the manner in which those policies affected employees in other departments. Accordingly, the Court shall exclude employees outside the Emergency Department and the 4NE Medical Cardiology Unit from Plaintiffs' meal break claim.
Even absent this complete gap in Plaintiffs' factual showing, the Court would still decline to conditionally certify a class covering departments outside those in which Plaintiffs claim to have worked because Plaintiffs have not shown that the proposed action would be manageable. This Court has the responsibility to ensure that the action proceeds in a manner that is both "orderly" and "sensible," Hoffmann-La Roche, 493 U.S. at 170, 110 S.Ct. 482, and in discharging this role, it is appropriate for the Court to take into account the "manageability and efficiency" of proceeding as a collective action, Chase v. AIMCO Props., L.P., 374 F.Supp.2d 196, 200 (D.D.C.2005); see also Bouthner v. Cleveland Constr., Inc., Civil Action No. RDB-11-0244, 2012 WL 738578, at *4 (D.Md. Mar. 5, 2012) ("[C]onsideration of issues relating to the manageability of a proposed collective action is appropriate at the notice stage of a[n] FLSA action."); Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266 (D.Minn.1991) ("[A]s a matter of sound case management, a court should... make a preliminary inquiry as to whether a manageable class exists."). In this particular instance, Plaintiffs' meager
Plaintiffs concede that WHC "maintained policies that allowed their employees to request payment for missed meal breaks." Pls.' [23] Mem. at 5; see also Pls.' [30] Mem. at 4. As aforementioned, the mere existence of an auto-deduct policy is not by itself unlawful. Therefore, Plaintiffs seek to couple WHC's auto-deduct policy with a "practice of imposing limitations on, discouraging, and ignoring efforts to recover pay for missed meal breaks." Pls.' [30] Mem. at 3-4. Even at this early stage of the proceedings, the Court cannot turn a blind eye to the fact that such a practice will ultimately turn on the way in which individual supervisors and managers exercised their discretion to manage employees' meal breaks. Plaintiffs have not suggested, let alone made a factual showing, that there is a workable across-the-board approach for such a determination. Cf. Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2554, 180 L.Ed.2d 374 (2011) (faulting plaintiffs seeking certification of a class under FED. R. CIV. P. 23 for failing to identify "a common mode of exercising discretion"). The Court would therefore be left to make individualized determinations for each party-plaintiff. See Blaney v. Charlotte-Mecklenburg Hosp. Auth., No. 3:10-CV-592-FDW-DSC, 2011 WL 4351631, at *4-11 (W.D.N.C. Sept. 16, 2011). Plaintiffs have not persuaded the Court that such an approach is manageable. See Alvarez, 605 F.3d at 449 (providing that a collective action may be inappropriate if "determining whether any given plaintiff ha[s] a viable claim depend[s] on a detailed, fact-specific inquiry"). Accordingly, the Court shall exclude employees outside the Emergency Department and the 4NE Medical Cardiology Unit from Plaintiffs' meal break claim.
With respect to Plaintiffs' meal break claim, the Court finds that Plaintiffs have failed to make the requisite showing that their broad proposed case is both eligible and suitable for conditional certification as a collective action. However, the Court finds that Plaintiffs' factual showing is sufficient to warrant conditional certification of a more circumscribed collective action. Specifically, with respect to Plaintiff's meal break claim, the Court shall conditionally certify a collective action covering all nonexempt hourly employees who work or worked in WHC's Emergency Department or 4NE Medical Cardiology Unit in any workweek from May 26, 2008 to the present.
For their uniform maintenance claim, Plaintiffs similarly ask the Court to conditionally certify this case as a collective action and to allow notice to be sent to all non-exempt, hourly employees working at all nine hospitals (FSMC, GSH, GUH, HH, MMC, NRH, SMH, UMH, and WHC) during any workweek from May 26, 2008 to the present. In this regard, Plaintiffs point the Court to a set of analogous dress and appearance policies that appear to be common across all nine hospitals. See Pls.' [23] Mem. at 5-6; Pls.' [30] Mem. at 4-5. Meanwhile, Defendants' opposition barely acknowledges the existence of Plaintiffs' uniform maintenance claim, let alone provides any meaningful argument why the Court should deny conditional certification as to this specific claim.
Accordingly, with respect to Plaintiffs' uniform maintenance claim, the Court shall conditionally certify this case as a collective action and allow notice to be sent to all non-exempt, hourly employees working at all nine hospitals during any workweek from May 26, 2008 to the present. However, the Court shall divide the action into two subclasses, one covering employees at MedStar's District of Columbia hospitals (GUH, NRH, and WHC) and a second covering employees at MedStar's Maryland hospitals (FSMC, GSH, HH, MMC, SMH, and UMH) because Maryland employees are not similarly situated for purposes of applying the DC-MWA.
Accordingly, it is, this 29th day of July, 2012, hereby
It is
