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Medley v. Southern Health Partners, Inc.

United States District Court, M.D. Tennessee, Columbia Division

August 15, 2017

ELLA MEDLEY, individually and on behalf of all others similarly situated, Plaintiff,
v.
SOUTHERN HEALTH PARTNERS, INC., Defendant.

          MEMORANDUM

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

         This is an action brought under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., for the recovery of unpaid or improperly calculated overtime wages, liquidated damages, interest, attorneys' fees and costs. The plaintiff, Ella Medley, brings suit individually and on behalf of all other similarly situated employees of the defendant, Southern Health Partners, Inc. (“SHP”). Now before the court is Medley's Motion for Conditional Certification and Court-Authorized Notice (Doc. No. 16) (hereafter, “Motion to Certify”), in which the plaintiff seeks leave to pursue this case as a collective action, under 29 U.S.C. § 216(b), and a court order directing SHP to provide her with a list of the names, last known addresses, and last known telephone numbers of all similarly situated current and former employees who worked for SHP during the preceding three years. The plaintiff also requests approval of her proposed Notice of this collective action to be mailed to that list of employees so that they can choose whether to opt in as plaintiffs in this litigation.

         In response, besides opposing the Motion to Certify on its merits, defendant SHP has filed a Motion to Strike certain statements in the plaintiff's Declaration and an exhibit attached to her Motion to Certify. (Doc. No. 20.)

         Both motions have now been fully briefed and are ripe for review. For the reasons set forth herein, the court will deny the Motion to Strike as unauthorized by the Federal Rules of Civil Procedure. The court nonetheless finds it appropriate to exclude from consideration the same evidence the defendant seeks to strike. The court will also deny the Motion to Certify, on the basis that the plaintiff has not provided sufficient evidence of the existence of similarly situated employees.

         I. MOTION TO STRIKE

         The defendant moves to strike two paragraphs from Medley's Declaration (Doc. No. 17-1) and the entirety of Exhibit B (Doc. No. 17-2), submitted by Medley in support of her Motion to Certify. SHP argues that the exhibit and portions of the Declaration constitute hearsay, double hearsay, “and/or inadmissible speculation without evidence of any personal knowledge” (Doc. No. 21, at 4) and, as such, may not be considered by the court in ruling on the Motion to Certify. Medley opposes the motion, arguing that hearsay rules do not apply to motions for conditional certification and that the statements in her declaration are based on personal knowledge.

         Neither party actually addresses the standard of review applicable to a motion to strike or suggests the basis for the court's authority to strike in this context. Rule 12(f) of the Federal Rules of Civil Procedure provides only that a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f) (emphasis added). The Sixth Circuit has recognized that “[t]he Federal Rules of Civil Procedure do not require the district court to remove documents other than pleadings from the record in a case.” Fox v. Mich. State Police Dep't, 173 F. App'x 372, 375 (6th Cir. 2006). The court will therefore deny the Motion to Strike. Accord Id. (“The district court correctly decided not to strike the exhibits attached to defendants' dispositive motion. Under Fed. R. Civ P. 12(f), a court may strike only material that is contained in the pleadings. . . . Exhibits attached to a dispositive motion are not ‘pleadings' within the meaning of Fed.R.Civ.P. 7(a) and are therefore not subject to a motion to strike under Rule 12(f).”).

         SHP, however, in its Response to the plaintiff's Motion to Certify, also challenges the admissibility of the same evidence for purposes of ruling on the Motion to Certify. The court will address those arguments within the context of ruling on the Motion to Certify.

         II. MOTION TO CERTIFY

         A. Factual and Procedural Background

         Ella Medley is an adult resident of Lawrenceburg, Tennessee and has been employed by SHP from September 2013 through the present. (March 22, 2017 Decl. of E. Medley, Doc. No. 17-1 (“Medley Decl.”) ¶ 4; Compl. ¶ 4.) SHP is a corporate entity doing business in Wayne County, Tennessee, and is a “covered” employer under the FLSA, 29 U.S.C. § 203(d). (Compl. ¶¶ 7, 8.) All of SHP's wage and hour and related employee-compensation policies “are and were centrally and collectively dictated, controlled, and ratified.” (Compl. ¶ 10.)

         SHP provides nursing services to inmates in over 200 city and county detention centers located across fourteen states, including thirty-two facilities within Tennessee. (May 16, 2017 Decl. of K. Utz, Doc. No. 22 (“Utz Decl.”) ¶ 3; Medley Decl. ¶ 2.) Medley is a licensed practical nurse (“LPN”). (Medley Decl. ¶ 2.) She is employed by SHP to work at the Wayne County Jail in Waynesboro, Tennessee. (Medley Decl. ¶ 3.) The Wayne County Jail is the only facility in which she has worked for SHP. (Utz Decl. ¶ 10.) Throughout the course of her employment, Medley has performed work in excess of forty hours per week on a regular and repeated basis. (Compl. ¶ 15.) She estimates that she works, on average, fifty to sixty hours per week. (Medley Decl. ¶ 7.)

         SHP pays her overtime under its Fluctuating Overtime Policy. (Compl. ¶ 16.) Medley understands this to mean that, instead of getting one and one-half times her regular pay for overtime, she only gets “half time” for the number of hours she works overtime. (Medley Decl. ¶ 13.[1]) As a result, she claims, her compensation is significantly less than it would be if she were paid overtime at one and one-half times her regular pay rate. (Medley Decl. ¶ 15.)

         SHP's Fluctuating Overtime Policy, contained in its Employee Manual, states as follows:

SHP non-exempt LPN salary employees will be paid based on a fluctuating work week. The salary amount will cover all hours worked during the week. Fluctuating half-time rate compensation will be paid for all hours worked over 40 in the work week. These half time hours will be paid using the Department of Labor Fluctuating Overtime Formula. For example, an employee with a weekly salary of $600.00 who works 50 hours in one week will be paid $600.00 for the 50 hours and an additional $60.00 as the half time payment for the 10 fluctuating overtime hours. The Department of Labor formula for this calculation is:
(Salary) / (Hours worked during week) = (New Hourly Rate)
(New Hourly Rate) / (2) = (Half time rate due)
(Half Time Rate Due) * (Hours Over 40 in Week) = Fluctuating Overtime Amount Due

(Employee Manual, Doc. No. 17-2, at 36.)

         Medley alleges that, as an SHP employee, she is “given a set number of days off, ” and, if she exceeds her accrued amount of paid time off (“PTO”), her pay is deducted. (Medley Decl. ¶ 18.) She also alleges that, under the Employee Manual, the company provides unpaid bereavement leave under certain circumstances. (Medley Decl. ¶ 19.) The Manual also states that “[e]mployees who serve jury duty are paid the difference between their regular pay and the juror's fee they receive, instead of being paid their full pay.” (Medley Decl. ¶ 20.) Medley does not allege that she ever took bereavement leave or jury duty leave.

         The plaintiff further alleges that SHP did not accurately record her hours in an effort to reduce its overtime obligations under the FLSA. More specifically, she alleges that her supervisor, Darrell Ragan, advised her “to only record/log eight (8) hours per day regardless of how many hours I work because that is all the company is contracted for.” (Medley Decl. ¶ 8.) She further alleges that Ragan “routinely edits [her] time records to reduce or even eliminate all of [her] overtime.” (Medley Decl. ¶ 8.) She has objected, but Ragan essentially told that her she had no choice: “It's this way everywhere. If you want to work off the clock, it's your own problem. I work off the clock all the time.” (Medley Decl. ¶ 9.) She claims “upon information and belief” that SHP treats other similarly situated employees the same, as a result of which she and the similarly situated employees have suffered lost wages. (Compl. ¶¶ 26-28.) She avers in her Declaration: “I personally knew other employees of the Company who were also forced to work off the clock and were told to falsify their time records by clocking out while they were still working.” (Medley Decl. ¶ 10.)

         She also states that she is “aware of postings on websites such as Indeed.com that, if true, show that this practice of forcing employees to work off the clock was widespread in the Company.” (Medley Decl. ¶ 11.) She states that these postings can be found at https://www.indeed.com/cmp/Southern-Health-Partners, -Inc./reviews. (Medley Decl. ¶ 11; see also Doc. No. 17, at 7 n.1.) These comments are attached as Exhibit E (Doc. No. 17-5) to the plaintiff's Motion to Certify.

         The reviews of SHP as reflected in Exhibit E are mixed, with an approximately equal number of positive, negative, and neutral or mixed reviews.[2] (Doc. No. 17-5.) The plaintiff's Exhibit B (Doc. No. 17-2) consists of just eight of the comments also contained in Exhibit E, selected for emphasis by the plaintiff, presumably because they pertain in some way to overtime hours, overtime pay, or working off the clock. The reviews in Exhibit B include the following language:

• “You are made to work off clock because site mgr changes your hours to appease administration.” Comment by “Staff RN (Former Employee) - Statesville, NC - September 17, 2017.” (Doc. Nos. 17-2, at 2, and 17-5, at 5.)
• “You are overworked but are not allowed to work OT, [n]or will they send help, but if you get behind, they light your tail up. You are expected to work off the clock in order to get caught up.” Comment by “RN Staff Nurse (Current Employee) - Anderson, SC - August 12, 2016.” (Doc. Nos. 17-2, at 3, and 17-5, at 5-6.)
• “You are not allowed to work over AT ALL. [I]f you do end up having to work over, they can not approve your overtime and not pay you for it. There is way to [sic] much to get done in the time you have to do it all.” Comment by “Med Tech (Former Employee) - [C]hattanooga, TN - February 21, 2015.” (Doc. Nos. 17-2, at 5, and 17-5, at 13.)
• “Work for 14 hours a day and management removes your overtime from payroll the [sic] threatens to write u up for working over! If there is an emergency you can't just walk out they know that but want you to work for free!” Comment by “Registered Nurse Medical Team Administrator (Former Employee) - Hillsborough, NC - April 9, 2014” (Doc. Nos. 17-2, at 7, and 17-5, at 16.)
• “There is NO overtime so this means if you are a RN . . . and have staff members that are out and you end up covering a shift you do not get paid for it. If you are a LVN [Licensed Vocational Nurse] or LPN . . . and have to cover a shift over 40 hours you do not get time and a half for it, you will get half time.” Comment by “staff nurse ...

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