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Dillon v. Jackson Home Care Services, LLC

United States District Court, W.D. Tennessee, Eastern Division

August 10, 2017

MONICA DILLON and FRANCES FUGATE, individually on behalf of themselves and all others similarly situated, Plaintiffs,



         Before the Court is Plaintiffs Monica Dillon and Frances Fugate's Motion for Conditional Certification (ECF No. 15). Defendant Jackson Home Care Services, LLC has responded in opposition, and Plaintiffs have filed a reply. For the reasons set forth below, the Motion for Conditional Certification is GRANTED in part, DENIED in part.


         On November 21, 2016, Plaintiffs filed a Complaint on behalf of themselves and those similarly situated, alleging violations of the Fair Labor Standards Act (“FLSA”). The Complaint named as Defendant Jackson Home Care Services, LLC (“Jackson Home Care”), Plaintiffs' former employer. According to the Complaint, Plaintiffs worked as home health care nurses. Starting in January 2015, Jackson Home Care began compensating home health care nurses on a “per visit” basis. Rather than a salary, nurses received a flat fee for each home visit they completed during their regular shifts, regardless of how long it took them to travel to the patient's home or how long the visit lasted or how much time the nurse had to devote to charting the visit after leaving the patient's home. As a result of this compensation system, Plaintiffs contend they worked in excess of 40 hours per week but did not receive overtime compensation.

         Plaintiffs now seek conditional certification of a class of similarly situated former and current employees of Jackson Home Care who were paid “per visit” in violation of the FLSA. Each named Plaintiff has furnished a declaration setting out additional facts about her work and compensation structure. In her declaration (ECF No. 15-2), Dillon avers that she worked as a home health nurse for Jackson Home Care from July 2014 to October 2015. Once Defendant elected to pay her for each patient visit, Dillon received $32 for a regular visit, $60 for a “start of care” visit, $45 for a “recertification” visit, and $34 for a patient discharge. After a visit was completed, Dillon had to chart the visit on a cellular device application. Dillon states that she routinely had to work beyond her normal shifts to complete her charting responsibilities and that Defendant did not compensate her for overtime hours she worked. Defendant also failed to pay Dillon for time she spent traveling to patient visits and to the hospital to deliver patient lab specimens. The result was that Dillon regularly worked 45 to 55 hours per work but without overtime pay. Fugate's declaration (ECF No. 15-3) is similar and corroborates Dillon's declaration in all material respects.

         In the Motion for Conditional Class Certification, Plaintiffs request that the Court (1) authorize this case to proceed as a collective action for overtime violations under the FLSA, 29 U.S.C. § 216(b), on behalf of all employees who worked for Defendant in any home health care capacity within the last three (3) years and were compensated on a “per visit” basis; (2) issue an Order directing Defendant to immediately provide a list of names, last known addresses, and last known telephone numbers for all putative class members who worked for Defendant within the last three years; (3) issue an Order that notice be prominently posted at any facility where putative class members work, attached to current employees' next scheduled paycheck, and be mailed to the employees so that they can assert their claims on a timely basis as part of this litigation; and (4) order that the opt-in plaintiffs' Consent Forms be deemed “filed” on the date they are postmarked. Defendant opposes the Motion for Conditional Certification.


         Section 216(b) of the FLSA provides as follows:

An Action [under § 206] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and on behalf of himself or themselves and other employees similarly situated. No 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.

29 U.S.C. § 216(b).

         Suits brought pursuant to section 216(b) are collective actions, as opposed to class actions, in that similarly situated plaintiffs are permitted to “opt into” the suit rather than “opt out” as required by Rule 23 of the Federal Rules of Civil Procedure. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). Courts generally employ a two-stage certification process in FLSA collective actions. At the initial stage, the Court determines whether to certify the proposed class conditionally. Monroe v. FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017) (reaffirming the continuing validity of the two-stage certification process and the similarly situated analysis adopted in O'Brien v. Ed Donnelly Enterp., Inc., 575 F.3d 567 (6th Cir. 2009)). Conditional certification allows the Court to order “notice to potential plaintiffs and to present them with an opportunity to opt in.” Lindberg v. UHS of Lakeside, LLC, 761 F.Supp.2d 752, 757-58 (W.D. Tenn. 2011). This early certification of a class at the notice stage is “conditional and by no means final.” Comer, 454 F.3d at 546.

         To obtain conditional certification to proceed as a collective action, the named plaintiff must demonstrate that he is “similarly situated” to the employees she seeks to represent. Although the FLSA does not define the term “similarly situated, ” the Sixth Circuit has explained that “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, 575 F.3d at 584. Other factors are relevant to the similarly situated analysis, including but not limited to the following: “(1) the factual and employment settings of the individual plaintiffs; (2) the different defenses to which the plaintiffs may be subject on an individual basis; and (3) the degree of fairness and procedural impact of certifying the action as a collective action.” Monroe, 860 F.3d at 397 (citing O'Brien, 575 F.3d at 584 and 7B Wright, Miller & Kane, Federal Prac. & Proc. § 1807 at 487 n.65 (3d ed. 2005)).

         The plaintiff's burden at the first stage is “fairly lenient” and requires only “a modest factual showing” that she is similarly situated to the other employees she seeks to notify. Comer, 454 F.3d at 547. A lead plaintiff need only prove at the early stage that the putative class shares “common theories of defendant['s] statutory violations, even if the proofs of these theories are inevitably individualized and distinct.” Id. Because the Court makes its determination at this initial under a more forgiving standard of review, the ...

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