United States District Court, D. Maine
KRISTOPHER T. SAUNDERS, et al., Plaintiffs,
GETCHELL AGENCY INC., et al., Defendants
For CORY A SCRIBNER, JARED FORREST, KATELIN S VARNEY, TAYLOR PERKINS, KAREY ANN SINCLAIR, Plaintiffs: DONALD F. FONTAINE, LEAD ATTORNEY, LAW OFFICE OF DONALD F., PORTLAND, ME; HAROLD L. LICHTEN, LICHTEN & LISS-RIORDAN, P.C., BOSTON, MA; MATTHEW THOMSON, PRO HAC VICE, LICHTEN & LISS-RIORDAN, P.C., BOSTON, MA.
For GETCHELL AGENCY INC, RENA GETCHELL, Defendants: FRANK T. MCGUIRE, MATTHEW M. COBB, RUDMAN & WINCHELL, BANGOR, ME.
John C. Nivison, United States Magistrate Judge.
In this action, Plaintiffs Cory Scribner, Jared Forrest, Katelin Varney, Taylor Perkins, and Karey Ann Sinclair, allege that Defendants Getchell Agency Inc. and Rena Getchell violated the overtime pay requirements of the Fair Labor Standards Act and the Maine minimum wage and overtime laws.
On February 12, 2014, the Court granted Plaintiffs' Motion to Conditionally Certify a FLSA Collective Action and approved a form of notice to be sent to potential plaintiffs. The matter is before the Court on Plaintiffs' Motion to File Opt-In Consent Forms (ECF No. 75), Plaintiffs' Motion for Certification of Class Action under Rule 23 (ECF No. 82), and Defendants' Motion to Decertify Conditionally Certified Collective Action (ECF No. 81).
Following a review of the pleadings, and after consideration of the parties' arguments, as explained below, the recommendation is that the Court grant Plaintiffs' Motion for Certification, deny Defendants' Motion to Decertify, and grant Plaintiffs' Motion to File Opt-In Consent Forms.
Nature of the Case
Plaintiffs are former employees of Defendant Getchell Agency, a Maine corporation that provides housing and services to dependent adults (" consumers"). Each Plaintiff was employed as a " House Manager, " and worked multi-day, consecutive, 24-hour, " live-in" shifts. Typically, the shifts were assigned for seven consecutive days from a Wednesday to a Wednesday. The work hours, therefore, were divided over a two week period for purposes of computing overtime. House Managers were to be paid for 16 hours per day, with an 8-hour period classified by policy as unpaid sleep time. Upon completion of a seven-day shift, House Managers did not work until the following Wednesday.
Both the Fair Labor Standards Act, 29 U.S.C. § 207 (FLSA), and the Maine minimum wage and overtime law, 26 M.R.S. § 664, require overtime pay for the time worked in excess of forty hours per week. Under the FLSA, Plaintiffs can pursue wage claims on their own behalf and on behalf of others similarly situated in a collective action. 29 U.S.C. § 216(b). Because a collective action is not available on Plaintiffs' supplemental state law wage claim, Plaintiffs seek to pursue the state claim as a class action pursuant to Federal Rule of Civil Procedure 23.
Plaintiffs define the individuals in the collective action and the proposed class to include all House Managers who were required to be with consumers 24 hours per day who were not paid for all overtime hours. (Second Amended Complaint ¶ ¶ 33, 44.) Plaintiffs assert that the bases for their claims for unpaid wages are (1) that Defendants never entered into proper agreements with them to exclude the sleep-time hours; (2) that Defendants refused to pay for overnight hours even when Plaintiffs were awake and attending to the needs of the consumers; and (3) that Plaintiffs' sleeping arrangements were insufficiently private to permit Defendants to exclude the sleep hours when computing Plaintiffs' wages. ( See, e.g., Plaintiffs' Motion for Certification of Class Action at 4-8.)
Following the conditional certification of the FLSA collective action and the issuance of court-approved notice to prospective members, approximately 100 individuals opted-in to the action. (Id. at 9.)
The conditionally certified FLSA collective is defined as follows:
House Managers who were paid on an hourly basis sometime during three years prior to the Complaint and who were required to be with consumers twenty-four (24) hours per day.
The three-year period is based on the three-year statute of limitation applicable to " willful" violations of the FLSA. 29 U.S.C. § 255(a).
The proposed class for the state law claim is defined as follows:
All persons who were, are, or will be employed by Defendant as House Managers in the State of Maine and who were paid on an hourly basis during the six years prior to the filing of the complaint in this case, and who were required to be with the consumers for 24 hours per day.
The six-year period is based on Maine's general six-year statute of limitation. 14 M.R.S. § 752.
A. Defendants' Motion to Decertify Conditionally Certified Collective Action
" Like a class action under Federal Rule of Civil Procedure 23, a collective action under 29 U.S.C. § 216(b) gives 'plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources' and allows for 'efficient resolution in one proceeding of common issues of law and fact arising from the same alleged ... activity.'" Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357, 359 (D. Me. 2010) (quoting Hoffmann-- La Roche v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). Unlike a class action, potential plaintiffs must " opt in" to be included in the action and certification of a collective action proceeds in two-stages. Id.
At the first stage of the certification process, the Court determined that Plaintiffs made the requisite " modest factual showing" that they and the prospective plaintiffs suffered from " a common unlawful plan." (Order on Motion for Conditional Certification at 13, ECF No. 52, quoting Johnson v. VCG Holding Corp., 802 F.Supp.2d 227, 234 (D. Me. 2011).) Following a period of discovery, Defendants move to decertify the class. Defendants contend that a collective action is not appropriate because the liability issue requires individualized inquiries and thus the case cannot be resolved through the presentation of representative evidence.
The Court must now determine, with the benefit of discovery, whether Plaintiffs and the prospective plaintiffs who have opted-in to the action are in fact similarly situated. Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357, 364 (D. Me. 2010); see also Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013); O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 583 (6th Cir. 2009). The second-stage inquiry is governed by a stricter standard than the modest standard applied at the first stage. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th Cir. 2006). Plaintiffs must demonstrate that they are similarly situated to the other members of the conditionally certified action, and they must produce " 'more than just allegations and affidavits' demonstrating similarity in order to achieve final certification." Frye v. Baptist Mem'l Hosp., Inc., 495 Fed.App'x 669, 671 (6th Cir. 2012) (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008)).
The " overriding question" is whether the original plaintiffs and the opt-in plaintiffs are " similarly situated." Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). In order to serve the interest of judicial economy and prevent abuse, the similarity among plaintiffs to a collective action must relate to more than just " job duties and pay provisions" . Morgan, 551 F.3d at 1262; White v. Osmose, Inc., 204 F.Supp.2d 1309, 1314 (M.D. Ala. 2002).
The three factors that are typically used to assess the similarity of potential plaintiffs in a collective action are: the plaintiffs' employment settings, the individual defenses available to the defendant that may require individualized proof, and fairness and procedural considerations. Id.; Morgan, 551 F.3d at 1261. Although these three factors are commonly considered, certification involves an ad hoc consideration of all relevant factors, made on a case-by-case basis. Mott v. Driveline Retail Merch., Inc., No. 2:12-cv-05244, 2014 WL 2115469, at *3 (E.D. Pa. May 21, 2014).
If the Court concludes that Plaintiffs are similarly situated, the action proceeds collectively; otherwise, " the class is decertified, the claims of the opt-in plaintiffs are dismissed without prejudice, and the class representative[s] may proceed on [their] own ...