REED O'CONNOR, District Judge.
Before the Court are Plaintiffs Mario Lee, Patricia Lopez, and Amy Coaxum's (collectively "Plaintiffs") Motion for Conditional Certification of Representative Action (ECF No. 8), filed July 18, 2013; Lee's Brief in Support of Motion for Conditional Certification of Representative Action (ECF No. 9), filed July 18, 2013; Defendant Metrocare Services's ("Metrocare") Response to Plaintiff's Motion for Conditional Certification of Representative Action (ECF No. 16), filed August 23, 2013; Metrocare's Brief in Support of Response to Plaintiff's Motion for Conditional Certification of Representative Action (ECF No. 17), filed August 23, 2013; and Lee's Reply in Support of Motion for Conditional Certification (ECF No. 27), filed September 6, 2013. Also before the Court are Metrocare's Motion to Strike and Brief in Support (ECF No. 19), filed August 23, 2013; and Lee's Response to Defendant's Motion to Strike Declarations (ECF No. 29), filed September 13, 2013. Having reviewed the pleadings and the applicable law, the Court finds Plaintiffs' Motion for Conditional Certification of Representative Action (ECF No. 8) should be and is hereby
Plaintiffs brought an action against Metrocare asserting claims to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Pls.' 1st Am. Compl. ¶ 1, ECF No. 12. Plaintiffs are current and former "Service Coordinators" of Metrocare, a non-profit organization that provides mental health care services to residents in Dallas County. Id. at ¶¶ 4-5; Def.'s Answer ¶ 5, ECF No. 14.
Plaintiffs also moved for a collective action under Section 216(b) of the FLSA and seek to represent "[a]ll non-supervisory, non-exempt employees of Metrocare ... at any time since June 20, 2010." Pls.' 1st Am. Compl. ¶ 6, ECF No. 12; see also 29 U.S.C. § 216(b). Plaintiffs allege that Service Coordinators' job duties are similar to case managers because their primary duties include meeting and working with consumers and their families to gather information, assessing consumer needs and costs of care, preparing a plan of care for the consumers, and identifying and implementing services to meet the consumer's needs. Id. at ¶ 12. Service Coordinators do not personally deliver or administer health services, rather they are responsible for planning and helping consumers obtain health care services. Id. The Service Coordinators were divided into approximately five separate teams, and Plaintiffs assert that each team had essentially the same responsibilities and each team reported to the Rights Protection Officer, Linda Thompson ("Thompson"), and the Interim Chief Executive Officer. Id. at ¶ 13. Plaintiffs allege that although
Plaintiffs allege that Metrocare violated Plaintiffs and potential class members' rights under the FLSA by failing to pay overtime. Id. at ¶ 32. Accordingly, Plaintiffs filed the instant Motion for Conditional Certification of Representative Action (ECF No. 8), on behalf of themselves and other similarly situated individuals. Plaintiffs also request that the Court toll the statute of limitations for potential opt-in plaintiffs and allow current and former Metrocare employees to opt-in if they were employed by Metrocare at any time from three years prior to the date of the filing of this action. Id. at 9.
The FLSA provides that "[a]n action to recover the liability prescribed in [Section 216] may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Accordingly, the district court may, in its discretion, facilitate notice to potential class members of their right to opt in to a collective action under Section 216(b). See Valcho v. Dall. Cnty. Hosp. Dist., 574 F.Supp.2d 618, 621 (N.D.Tex.2008) (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)).
The Fifth Circuit has applied two different approaches to determine whether certification of an FLSA collective action can be approved. See Ryan v. Staff Care, Inc., 497 F.Supp.2d 820, 823 (N.D.Tex. 2007) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995), overruled on other grounds by Desert Palace v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)); see also Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 518-19 (5th Cir.2010); Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D. 447, 449 (N.D.Tex.2011). The first approach requires a certification process similar to that of Federal Rule of Civil Procedure 23, whereby the plaintiffs must establish numerosity, commonality, typicality, and representativeness to certify an FLSA class. See Ryan, 497 F.Supp.2d at 823 (citing Mooney, 54 F.3d at 1214; Shushan v. Univ. of Colo. at Boulder, 132 F.R.D. 263 (D.Colo.1990)); see also Fed. R.Civ.P. 23. The other approach, introduced in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987), employs a two-stage certification process consisting of (1) the notice stage and (2) the certification stage. Ryan, 497 F.Supp.2d at 824.
The Fifth Circuit has not adopted either approach, but has noted that there is a "fundamental, irreconcilable difference" between "opt-in" collective actions under Section 216(b) of the FLSA and Rule 23 "opt-out" actions. See Clark v. City of Fort Worth, 800 F.Supp.2d 776, 779 (N.D.Tex.2011) (citing LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5th Cir. 1975)); see also Mooney v. Aramco Servs. Co., 54 F.3d at 1216; Songer v. Dillon Res., Inc., 569 F.Supp.2d 703, 706 (N.D.Tex.2008). A majority of federal courts, including this district, have applied the Lusardi approach. See Ryan v. Staff Care, Inc., 497 F.Supp.2d at 824 (citing other Northern District of Texas cases stating that the Lusardi approach is the "prevailing test among federal courts") (internal quotations omitted). Furthermore, both parties briefed the Lusardi approach. See Pls.' Br. Supp. Mot. 6, ECF No. 9; Def.'s Br. Supp. Resp. 3, ECF No. 17. Accordingly, the Court will analyze the instant motion for conditional certification under the Lusardi two-stage approach.
At the notice stage, the decision to facilitate notice of the action to potential class members is usually based only on the parties' pleadings and affidavits. Clark v. City of Fort Worth, 800 F.Supp.2d at 778-79 (citing Mooney v. Aramco Servs. Co., 54 F.3d at 1213-14). The court's determination at this stage is made using a "fairly lenient standard" because the court generally has minimal evidence. Jones v. SuperMedia Inc., 281 F.R.D. at 287; see also Marshall v. Eyemasters of Tex., Ltd., 272 F.R.D. at 449 (noting that the Lusardi standard is "admittedly lenient"). However, while the notice stage typically results in conditional certification, Jones, 281 F.R.D. at 287, it is by no means mandatory. Valcho v. Dall. Cnty. Hosp. Dist., 574 F.Supp.2d at 621; see also Clark, 800 F.Supp.2d at 779 (quoting Songer v. Dillon Res., Inc., 569 F.Supp.2d at 706) ("While the plaintiffs' burden at [the notice] stage is not onerous, neither is it invisible.").
At stage two, the certification stage, the court determines whether the class should be maintained through trial. Ryan v. Staff Care, Inc., 497 F.Supp.2d at 824. This stage typically begins when the defendant moves to decertify the class after discovery is largely complete. Lentz v. Spanky's Rest. II, Inc., 491 F.Supp.2d at 668. The collective action will proceed if the court finds the potential class members similarly situated, but the class will be decertified if discovery fails to adequately identify "a pool of claimants that are `similarly situated.'" Id.; see also Marshall, 272 F.R.D. at 449; Proctor v. Allsups Convenience Stores, Inc., 250 F.R.D. 278, 280 (N.D.Tex.2008) ("At this second stage, the burden is on the Plaintiff to prove that the individual class members are similarly situated.").
Plaintiffs submitted the declarations of former and current employees of Metrocare (collectively "Declarations") to support their conclusion that Plaintiffs and Service Coordinators are similarly situated. See Pls.' Mot. Conditional Certification 2, 9, ECF No. 8. Metrocare objects
Metrocare argues that the Declarations do not meet the standards of Federal Rule of Civil Procedure 56, which govern motions for summary judgment. Id. at 2-5; see also Fed.R.Civ.P. 56(e). Metrocare objects that the Declarations are inadmissible under the Federal Rules of Evidence, and are "conclusory, vague, and sweeping generalized assertions."
In White v. MPW Industrial Services, Inc., Judge Mattice of the United States District Court for the Eastern District of Tennessee noted that requiring affidavits submitted at the notice stage to meet the requirements of Rule 56(e) "would defeat the purpose of the two-stage analysis." 236 F.R.D. 363, 368 (E.D.Tenn.2006). Accordingly, Judge Mattice held that plaintiffs should not be required to present evidence in a form admissible at trial at the notice stage. Id. (citing Coan v. Nightingale Home Healthcare, Inc., No. 1:05-cv-0101-DFH-TAB, 2005 WL 1799454, at *1 n. 1 (S.D.Ind. June 29, 2005)). Other federal district courts have cited White with approval. See Reyes v. AT & T Mobility Servs. LLC, 759 F.Supp.2d 1328,
The Court finds the analysis in White persuasive and, therefore, Plaintiffs need not present evidence in a form admissible at trial at the notice stage.
Although the Court does not require Plaintiffs to present evidence that would meet all of the requirements of Rule 56(e), the Declarations must be based on personal knowledge. See White v. MPW Industrial Services, Inc., 236 F.R.D. at 369 (stating that more lenient standard at notice stage "does not mean that such affidavits need not meet any standards"); see also Page v. Nova Healthcare Mgmt., L.L.P., No. H-12-2093, 2013 WL 4782749, at *6 (S.D.Tex. Sept. 6, 2013) (discussing declarants' personal knowledge); Dooling v. Bank of the W., No. 4:11-cv-00576, 2012 WL 2417591, at *4 (E.D.Tex. June 26, 2012) (noting that declarant must have personal knowledge); Tice v. AOC Senior Home Health Corp., 826 F.Supp.2d 990, 995 (E.D.Tex.2011) (citing cases requiring factual showing to be based on personal knowledge); Owen v. Golf & Tennis Pro Shop, Inc., No. 4:09-cv-00571, 2010 WL 3859640, at *3 (E.D.Tex. Sept. 30, 2010) (stating that "at the very least, ... the preliminary factual showing must be based on a personal knowledge of the facts"); Oliver v. Aegis Comms. Grp., Inc., No. 3:08-cv-828-K, 2008 WL 7483891, at *3 (N.D.Tex. Oct. 30, 2008) ("The Plaintiffs [at the notice stage] must present competent evidence supporting this preliminary factual showing, so as to avoid stirring up unwarranted litigation."). Therefore, the Court will address Metrocare's objections that the Declarations are not based on personal knowledge.
Plaintiffs submitted the declaration of Stephen Miller ("Miller"), the former Director of Human Resources at Metrocare, in support of its motion for conditional certification. See Pls.' Mot. Conditional Certification Ex. A (Decl. of Miller), App. 4, ECF No. 8-1. Metrocare asserts that Miller's Declaration includes "numerous statements" that lack foundation and are not competent evidence.
Miller asserts that he has personal knowledge of all facts contained in his declaration. Pls.' Mot. Conditional Certification Ex. A (Decl. of Miller), App. 4, ECF No. 8-1; see also Black v. Settlepou, P.C., No. 3:10-cv-1418-K, 2011 WL 609884, at *3 (N.D.Tex. Feb. 14, 2011) (finding that declaration stating declarant had personal knowledge constituted "substantial allegations such that they meet the low threshold" for collective actions); Perez v. Alcoa Fujikura, Ltd., 969 F.Supp. 991, 998 (W.D.Tex.1997) (noting that declaration containing statement that it was based on personal knowledge constituted "sufficient indicia of personal knowledge" to overcome evidentiary objections). Furthermore, the Fifth Circuit has noted that a declarant may satisfy the personal knowledge requirement based on his position as a corporate employee. See Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 516 (5th Cir.2012) (citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir.2005)) ("Personal knowledge may be demonstrated by showing that the facts stated `reasonably' fall within the `sphere of responsibility' of the affiant as a corporate employee."); see also Villarreal v. St. Luke's Episcopal Hosp., 751 F.Supp.2d 902, 912 (S.D.Tex.2010) ("By virtue of his position, [declarant] has properly stated a basis upon which he may have gained personal knowledge of the organization by way of his day-to-day work and interaction with other employees...."); Tesco Corp. v. Weatherford Int'l, Inc., 722 F.Supp.2d 755, 770 n. 8 (S.D.Tex.2010) ("[T]he Court is willing to infer, from [declarant's] position, that he had personal knowledge...."); Perez, 969 F.Supp. at 998 ("[Declarant's] position as accounting manager ... would have put him in a position to have direct personal knowledge of these statements....").
Miller is the former Director of Human Resources at Metrocare and his declaration consists of statements regarding the job duties of Metrocare's Service Coordinators and Metrocare's policies. See generally Pls.' Mot. Conditional Certification Ex. A (Decl. of Miller), App. 4-12, ECF No. 8-1. The Court agrees with Plaintiffs that it is reasonable to infer that Miller has personal knowledge of the duties and employment conditions of Metrocare's Service Coordinators because it was reasonably within Miller's "sphere of responsibility" as the Director of Human Resources to be familiar with these issues. See Pls.' Resp. Def.'s Mot. Strike 10, ECF No. 29; see also DIRECTV, Inc., 420 F.3d at 530. Accordingly, Metrocare's objections to Miller's Declaration are
Plaintiffs also submitted the declarations of Mario Lee ("Lee") and Tiffany Albert ("Albert"), former Service Coordinators at Metrocare. See Pls.' Mot. Conditional Certification Ex. A (Decl. of Lee), App. 16, ECF No. 8-1; Pls.' Mot. Conditional Certification Ex. A (Decl. of Albert), App. 30, ECF No. 8-1. Metrocare asserts that Lee and Albert fail to establish their personal knowledge of the employment conditions of other Service Coordinators or of Metrocare's policies and practices.
Metrocare objects to statements made by Charles Hudson ("Hudson"), a former HCS Team Leader at Metrocare.
Metrocare also objects that LaXanthia Hattley's ("Hattley") declaration fails to provides facts establishing that she has personal knowledge of Metrocare's overtime policies and the general employment conditions of Service Coordinators. See Def.'s Mot. Strike 19-23, ECF No. 19. Hattley stated that she has worked at Metrocare for over eight years as a trainer and mentor for Service Coordinators, but not as a supervisor. Pls.' Mot. Conditional Certification Ex. A (Decl. of Hattley), App. 26-27, ECF No. 8-1. The Court finds that Hattley's position as a trainer and mentor enabled her to interact with and observe the Service Coordinators and, therefore, it is reasonable to infer at this stage that she had personal knowledge of what Service Coordinators were told about Metrocare's policies, how the policies affected the Service Coordinators, and the general employment conditions at Metrocare. See United States v. Cantu, 167 F.3d at 204; Wojciechowski, 763 F.Supp.2d at 846-47. Hattley also states that she has personal knowledge of the statements made in her declaration. Pls.' Mot. Conditional Certification Ex. A (Decl. of Hattley), App. 26, ECF No. 8-1. Therefore, Metrocare's motion to strike portions of Hattley's declaration is
The Court now addresses Plaintiffs' motion for conditional certification.
Plaintiffs seek to represent all Service Coordinators who were employed by Metrocare at any time since June 20, 2010. Pls.' Mot. Conditional Certification 1, ECF No. 8; see also Pls.' Compl. ¶ 6, ECF No. 1 (stating that Plaintiffs seek to represent "all non-supervisory, non-exempt employees of Metrocare"). The Court finds that Plaintiffs have met their light burden of establishing that there are "similarly situated" potential class members. See Ryan v. Staff Care, Inc., 497 F.Supp.2d at 825; see also White v. MPW Indus. Servs., Inc., 236 F.R.D. at 366-67 (discussing standards applied by federal courts at the notice stage and concluding that "[t]he burden ... is not heavy"). Plaintiffs have provided substantial allegations that they are similarly situated to the potential class members. The Declarations show that the Service Coordinators had similar job requirements and pay provisions as Plaintiffs. Plaintiffs have also sufficiently alleged that the Service Coordinators were all subject to a company-wide policy of being denied overtime compensation, which was allegedly instituted by Thompson and Metrocare's management. See Def.'s Br. Supp. Resp. Pls.' Mot. Conditional Certification 20, ECF No. 17; Pls.' Reply Supp. Conditional Certification 8, ECF No. 27.
Metrocare focuses on the differences in job duties between the Service Coordinators and argues that these "disparities" show that Plaintiffs are not "similarly situated" with the proposed class. See Def.'s Br. Supp. Resp. Pls.' Mot. Conditional Certification 18, ECF No. 17. Metrocare states that Service Coordinators in the different programs "have jobs that vary significantly from one another" and each Service Coordinator has a "very unique job." Def.'s Resp. Pls.' Mot. Conditional Certification 13-14, ECF No. 16. However, the Court need not find "uniformity in each and every aspect of employment" to determine that Plaintiffs and potential class members are similarly situated. See Jones v. SuperMedia Inc., 281 F.R.D. at 288; see also Tice v. AOC Senior Home Health Corp., 826 F.Supp.2d at 996 (citing Allen v. McWane, Inc., No. 2:06-cv-158-TJ, 2006 WL 3246531, at *3 (E.D.Tex. Nov. 7, 2006)) ("[T]he relevant inquiry [at the notice stage] is whether the potential class members performed the same basic tasks and were subject to the same pay practices."); Ryan v. Staff Care, Inc., 497 F.Supp.2d at 825 ("The positions need not be identical, but similar.") (internal quotations omitted).
The evidence available at this stage shows that Service Coordinators performed the same basic tasks and any differences in duties between the Service Coordinators' positions were not material.
Metrocare also argues that there is "irrefutable evidence" that there was no "single decision, policy, or plan" to discriminate against the Service Coordinators and that Metrocare's official policy prohibited non-exempt employees from working "off the clock." See Def.'s Br. Supp. Resp. Pls.' Mot. Conditional Certification 20-21, ECF No. 17. However, these issues are inappropriate at this time because the Court does not decide the merits at the notice stage. See Heeg v. Adams Harris, Inc., 907 F.Supp.2d 856, 861 (S.D.Tex. 2012) (noting that courts do not review the "underlying merits" at the notice stage); McKnight v. D. Houston, Inc., 756 F.Supp.2d at 802 (noting that the court does not assess the merits of the claim at either stage of certification).
Metrocare also alleges that there is a "lack of interest" among potential class
Plaintiffs' complaint states that they seek to represent all "non-supervisory, non-exempt employees of Metrocare ... at any time since June 20, 2010." Pls.' 1st Am. Compl. ¶ 6, ECF No. 12. However, Plaintiffs' motion focuses on the Service Coordinators and Metrocare's failure to pay overtime compensation to Service Coordinators. See Pls.' Mot. Conditional Certification 1, ECF No. 8; see also id. at 9 ("This Court should grant conditional certification ... based on the similarity of job requirements and pay provisions of Plaintiff[s] and prospective plaintiff Service Coordinators...."); Def.'s Resp. Pls.' Mot. Conditional Certification 6-7, ECF No. 16 (noting that Plaintiffs' motion "focuses exclusively" on Service Coordinators). Therefore, the Court finds that conditional certification is appropriate for a class consisting of individuals employed as Service Coordinators by Metrocare during the relevant period.
Under the FLSA, an action for unpaid overtime compensation must be commenced within two years after the cause of action accrued, but a cause of action arising out of a willful violation may be commenced within three years.
The Court notes, however, that this action did not commence until September 6, 2013, when Lee, Coaxum, and Lopez filed their written consents. See Notice Consent ECF Nos. 24-26; see also 29 U.S.C. § 256.
Plaintiffs also request that the Court toll the statute of limitations period from June 20, 2013, until at least ninety days after all potential plaintiffs have been notified of their opportunity to opt in. Pls.' Mot. Conditional Certification 10, ECF No. 8. The Fifth Circuit has adopted a strict view of the FLSA's limitations provision stating that the limitations run from the opt-in date and courts cannot "alter the express terms of the statute." See McKnight v. D. Houston, Inc., 756 F.Supp.2d at 808 (citing Atkins v. Gen. Motors Corp., 701 F.2d 1124, 1130 n. 5 (5th Cir.1983)); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ("Federal courts have typically extended equitable relief only sparingly."); Granger v. Aaron's, Inc., 636 F.3d 708, 712 (5th Cir.2011) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)) (same). Equitable tolling may be applied only if it is shown that a plaintiff "acted diligently and the delay concerns extraordinary circumstances." Shidler v. Alarm Sec. Grp., LLC, 919 F.Supp.2d 827, 829-30 (S.D.Tex. 2012) (citing Caldwell v. Dretke, 429 F.3d 521, 530 n. 23 (5th Cir.2005); Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002)); see also Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir.1996) ("Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.").
Plaintiffs assert that equitable tolling is appropriate because Metrocare has "sought to delay [the] assertion of rights" by employees through "intimidation
Additionally, other than providing general allegations that Metrocare has interfered with the ability of potential plaintiffs to assert their rights, Plaintiffs have failed to establish the "rare and exceptional circumstances" that justify equitable tolling. See Castillo v. Hernandez, No. EP10cv247-KC, 2010 WL 4595811, at *8 (W.D.Tex. Nov. 4, 2010) (citing Teemac v. Henderson, 298 F.3d at 457) (stating that allegations of willful conduct by defendants "hardly qualify as `rare and exceptional circumstances'"). Furthermore, "Congress did not provide for tolling while a court considers whether to certify a case as a collective action." McKnight v. D. Houston, Inc., 756 F.Supp.2d at 808 (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1106 (11th Cir.1996)). Therefore, the Court denies Plaintiffs' request to toll the limitations period.
Plaintiffs submitted a proposed notice with their motion for conditional certification. See Pls.' Mot. Conditional Certification Ex. A (Proposed Notice), App. 35-37, ECF No. 8-1. Metrocare objected that Plaintiffs' proposed notice was insufficient. See Defs.' Br. Supp. Resp. Pls.' Mot. Conditional Certification 25-28, ECF No. 17 (discussing Metrocare's objections to Plaintiffs' proposed notice); see also Def.'s App. Supp. Resp. Pls.' Mot. Conditional Certification Ex. 17 (Metrocare's Proposed Notice), App. 1, ECF No. 18-17 (proposing an alternative notice). Plaintiffs' reply to Metrocare's objections indicated that Plaintiffs were willing to modify the proposed notice to take into account Metrocare's objections and concerns. See Pls.' Reply Supp. Mot. Conditional Certification 16, ECF No. 27. Accordingly, the parties must confer with each other in an attempt to resolve their differences regarding the notice. Plaintiffs, within fourteen days from the date of this order, shall either (1) submit a joint proposed class notice to the court or (2) file a motion for approval of an opposed notice.
Based on the foregoing, the Court
29 U.S.C. § 256 (emphasis added).