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Powers v. Blessed Homecare, LLC

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

September 17, 2019

MICHELLE POWERS, Plaintiff,
v.
BLESSED HOMECARE, LLC and CAROL LEATHERMAN, Defendants.

          MEMORANDUM OPINION

          ELI RICHARDSON, UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiff's Motion to Conditionally Certify Collective Action, Order Disclosure of Putative Members' Names and Contact Information, and Facilitate Court-Supervised Notice (Doc. No. 14), to which no response has been filed.

         BACKGROUND

         Plaintiff Powers' First Amended Complaint (Doc. No. 12) asserts that she is a former employee of Defendants Blessed HomeCare and Leatherman, who provide in-home care services and group home services to clients. Plaintiff filed this action pursuant to the Fair Labor Standards Act (“FLSA”), alleging failure to pay time and one-half the hourly wage (“overtime compensation”) to caregivers, such as Plaintiff, who worked more than 40 hours per week for Defendants. Id. In the pending motion, Plaintiff asks the Court to conditionally certify a class of all current and former employees of Defendants who worked as caregivers within the last three years. (Doc. No. 14). Plaintiff also asks the Court to require Defendants to provide Plaintiff with a computer readable data file containing the name, last known address, last known email address, and dates of employment for each such employee, to conspicuously post notice of this case in the group homes maintained by Defendants, and to disseminate the notice with paychecks and/or pay stubs. Id. Finally, Plaintiff asks the Court to approve her proposed Consent to Join form. Id.

         CONDITIONAL CERTIFICATION

         The FLSA provides that a collective action to recover compensation may be maintained against any employer by any one or more employees for and on behalf of themselves and other employees similarly situated. 29 U.S.C. § 216(b). Unlike class actions under Fed.R.Civ.P. 23, FLSA collective actions require similarly situated employees to “opt in” as party plaintiffs. Also, because the FLSA requires only that the employees be “similarly situated, ” plaintiffs seeking to certify a collective action under the FLSA face a lower burden than those seeking to certify a class under Rule 23. Watson v. Advanced Distribution Servs., 298 F.R.D. 558, 561 (M.D. Tenn. 2014).

         Generally, courts recognize a two-step process to determine whether plaintiffs are similarly situated. Bradford v. Logan's Roadhouse, Inc., 137 F.Supp.3d 1064, 1071 (M. D. Tenn. 2015). The first step takes place at the beginning of discovery, where the plaintiff bears the burden of showing that employees in the purported class are similarly situated. Id.[1] The plaintiff must show only that her position is similar, not that it is identical, to the positions held by the putative class members. Id. (citing Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)). At this first stage, courts use a “fairly lenient standard” that typically results in conditional certification of a representative class. Id.

         Although the required factual showing is “modest, ” it cannot be satisfied simply by unsupported assertions. Medley v. Southern Health Partners, Inc., No. 1:17-cv-00003, 2017 WL 3485641, at * 5 (M.D. Tenn. Aug. 15, 2017). In other words, conclusory allegations are insufficient to support conditional certification. Arrington v. Michigan Bell Tel. Co., No. 10-10975, 2011 WL 3319691, at * 4 (E.D. Mich. Aug. 1, 2011) (citing 7B Wright, Miller & Kane, Federal Practice & Procedure § 1807 (3d ed. 2005) at 490-91). This is true even if the conclusory allegations are asserted not merely in a complaint, but rather in a (sworn) plaintiff's declaration. See McKinstry v. Dev. Essential Servs., Inc., No. 2:16-cv-12565, 2017 WL 815666, at * 2 (E.D. Mich. Mar. 2, 2017) (noting that Arrington's rule applies even to assertions made in a declaration). The named plaintiff must present some factual support for the existence of a class-wide policy or practice that violates the FLSA. Medley, 2017 WL 3485641, at * 5. A plaintiff must submit evidence establishing at least a colorable basis for her claim that a class of similarly situated plaintiffs exists. Id.; Swinney v. Amcomm Telecom., Inc., No. 12-12925, 2013 WL 28063, at * 5 (E.D. Mich. Jan. 2, 2013). At the first stage, a plaintiff must present substantial allegations supported by declarations; if the plaintiff meets that burden, a court, in its discretion, may conditionally certify the case as a collective action. Medley, 2017 WL 3485641, at * 5.[2]

         A court may consider the factual record developed to date when determining whether the plaintiff has met her evidentiary burden, but the court does not resolve factual disputes, decide substantive issues going to the merits, or make credibility determinations at this first stage. Bradford, 137 F.Supp.3d at 1072. If a court determines that conditional certification is warranted, it may authorize the notification of similarly situated employees to allow them to opt into the lawsuit. Id. Such certification is conditional and by no means final. Id.

         SIMILARLY SITUATED EMPLOYEES

         The FLSA does not define the term “similarly situated, ” but courts have held 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 plaintiffs. Bradford, 137 F.Supp.3d at 1071; Watson, 298 F.R.D. at 561. Employees may be similarly situated if their claims are unified by common theories of the defendant's statutory violations, even if the proofs of these theories are individualized and distinct. Id. In the FLSA context, courts have consistently required the plaintiffs to show that the class members were together the victims of a “single decision, policy, or plan” before they will conditionally certify a collective action. Pacheco v. Boar's Head Provisions Co., 671 F.Supp.2d 957, 961 (W.D. Mich. 2009).

         As noted above, a plaintiff must submit evidence establishing at least a colorable basis for her claim that a class of similarly situated plaintiffs exists for the purposes of conditional certification. Swinney, 2013 WL 28063, at * 5; O'Neal v. Emery Fed. Credit Union, No. 1:13-cv-22, 2013 WL 4013167, at * 5 (S.D. Ohio Aug. 6, 2013).[3] Certification at the notice stage, although governed by a lenient standard, is not automatic. Harriel v. Wal-Mart Stores, Inc., Civil Action No. 11-2510, 2012 WL 2878078, at *4 (D.N.J. July 13, 2012). “A plaintiff must show a ‘factual nexus' between his or her situation and the situation of other current and former employees sufficient to determine that they are similarly situated.” Id.

         ANALYSIS

         The only question before the Court on the instant motion is whether Plaintiff has carried her burden of showing that employees in the purported class are similarly situated for purposes of the first (“notice”) stage of conditional certification. In support of her motion, Plaintiff has filed her own Declaration (Doc. No. 14-1), in which she describes the factual basis for her own claim of failure to pay overtime compensation. The only facts Plaintiff asserts with regard to the allegedly similarly situated employees, however, is the following: “I am aware of other caregivers who worked for Defendants within the last three years who worked more than 40 hours in a workweek and who were ...


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