Freeman v. Medstar Health Inc. , 187 F. Supp. 3d 19 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DANIELLE FREEMAN, et al.,
Plaintiffs
v. Civil Action No. 14-628 (CKK)
MEDSTAR HEALTH INC., et al.,
Defendants
MEMORANDUM OPINION and ORDER
(May 20, 2016)
Plaintiffs are current and former hospital employees who bring claims against MedStar
Health, Inc. (“MedStar”) and against six MedStar hospitals. As the Court explained recently in
resolving Defendants’ motion for partial summary judgment, Plaintiffs essentially claim that they
were not paid for work that they conducted during their meal breaks. See Freeman v. MedStar
Health Inc., No. CV 14-628 (CKK), 2016 WL 2642958 (D.D.C. May 9, 2016). In addition to the
individual claims that Plaintiffs bring in this action, Plaintiffs seek to bring collective action
claims under the Fair Labor Standards Act (“FLSA”) with respect to 20 departments of four
hospitals at which they, severally, have worked—Franklin Square Hospital, Harbor Hospital,
Union Memorial Hospital, and Washington Hospital Center.
Before the Court is Plaintiffs’ [75] Revised Motion for Order Authorizing Notice to
Similarly Situated Persons Pursuant to 29 U.S.C. § 216(b). Upon consideration of the pleadings, 1
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The Court’s consideration has focused on the following documents:
• Pls.’ Revised Motion for Order Authorizing Notice to Similarly Situated Persons Pursuant
to 29 U.S.C. § 216(b) (“Pls.’ Mot.”), ECF No. 75;
• Defs.’ Mem. in Opp’n to Pls.’ Mot. (“Defs.’ Opp’n”), ECF No. 78;
• Pls.’ Reply Mem. of Law in Supp. of Pls.’ Mot. (“Pls.’ Reply”), ECF No. 80;
• Defs.’ Mot. for Leave to File a Sur-Reply in Further Opp’n to Pls.’ Mot., ECF No. 82;
• Pls.’ Opp’n to Defs.’ Mot. to File Sur-Reply, ECF No. 83; and
• Defs.’ Reply Brief in Further Supp. of its Mot. For Leave to File Sur-Reply, ECF No. 92.
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the relevant legal authorities, and the record as a whole, the Court GRANTS-IN-PART and
DENIES-IN-PART Plaintiffs’ [75] Revised Motion for Order Authorizing Notice. As explained
further below, the Court DENIES Plaintiffs’ motion with respect to certain proposed collectives
as a result of the Court’s prior resolution of Defendants’ motion for partial summary judgment.
The Court GRANTS the motion as to nine proposed department-specific collectives unaffected
by the motion for partial summary judgment. The Court will definitively resolve the final form of
the notice to be sent to the employees in those collectives after providing the parties an
opportunity to resolve several remaining issues regarding the notice and the methodology for
distributing that notice.
I. BACKGROUND
In light of the scope of the issues presented in the motion now before the Court, the Court
reserves the presentation of the relevant facts for the discussion of the individual issues below.
II. LEGAL STANDARD
The FLSA requires employers to pay a minimum wage for compensable working time
and an overtime premium for compensable hours worked in excess of forty hours per week. See
29 U.S.C. §§ 206, 207. The statute contemplates what is commonly referred to as a “collective
action,” in which plaintiffs bring claims on behalf of “similarly situated” employees but those
In light of the complexity of the issues raised in the pending motion, as well as in the parallel
motion for partial summary judgment, the Court concludes that Defendants’ proposed sur-reply
would provide assistance to the Court. Accordingly, the Court grants Defendants’ [82] Motion for
Leave To File a Sur-Reply in Further Opposition To Plaintiffs’ Revised Motion for Order
Authorizing Notice to Similarly Situated Persons Pursuant to 29 U.S.C. § 216(B).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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employees do not become part of the action unless and until they “opt-in” by filing a written
consent to join as party-plaintiffs. Under the FLSA:
An action ... may be maintained against any employer ... by any one or more
employees for and [o]n 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).
With collective actions, district courts have considerable discretion in managing the
process of joining similarly situated employees in a manner that is both orderly and sensible. See
Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); Alvarez v. City of Chicago, 605
F.3d 445, 449 (7th Cir. 2010). As the Court previously explained in Dinkel v. MedStar, 880 F.
Supp. 2d 49, 52-53 (D.D.C. 2012), courts in this Circuit and others have settled on a two-stage
inquiry for determining when a collective action is appropriate:
The first step involves the court making an initial determination to send notice to
potential opt-in plaintiffs who may be “similarly situated” to the named plaintiffs
with respect to whether a FLSA violation has occurred. The court may send this
notice after plaintiffs make a “modest factual showing” that they and potential
opt-in plaintiffs “together were victims of a common policy or plan that violated
the law.” … The “modest factual showing” cannot be satisfied simply by
“unsupported assertions,” but it should remain a low standard of proof because
the purpose of this first stage is merely to determine whether “similarly situated”
plaintiffs do in fact exist. At the second stage, the district court will, on a fuller
record, determine whether a so-called “collective action” may go forward by
determining whether the plaintiffs who have opted in are in fact “similarly
situated” to the named plaintiffs. The action may be “de-certified” if the record
reveals that they are not, and the opt-in plaintiffs' claims may be dismissed
without prejudice.
Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (citations and emphasis in original), cert.
denied, 132 S. Ct. 368 (2011); accord Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192–
93 (3d Cir. 2011), rev’d on other grounds, 133 S. Ct. 1523 (2013); Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1260–62 (11th Cir. 2008), cert. denied, 558 U.S. 816 (2009); Comer
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v. Wal–Mart Stores, Inc., 454 F.3d 544, 546–47 (6th Cir. 2006); Ayala v. Tito Contractors, 12 F.
Supp. 3d 167, 170 (D.D.C. 2014); Blount v. U.S. Security Associates, 945 F. Supp. 2d 88, 92-93
(D.D.C. 2013).
At the first stage, often loosely referred to as “conditional certification,” the named
plaintiffs must present “some evidence, beyond pure speculation, of a factual nexus between the
manner in which the employer’s alleged policy affected [them] and the manner in which it
affected other employees.” Symczyk, 656 F.3d at 193 (quotation marks omitted). This factual
showing has been described as “ ‘not particularly stringent,’ ‘fairly lenient,’ ‘flexible,’ [and] ‘not
heavy.’ ” Morgan, 551 F.3d at 1261 (citations and notations omitted). As the Court noted in
Dinkel, at this stage, district courts should ordinarily refrain from resolving factual disputes and
deciding matters going to the merits. See Dinkel, 880 F. Supp. 2d at 53 (citing Lynch v. United
Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007); Camper v. Home Quality Mgmt.
Inc., 200 F.R.D. 516, 520 (D. Md. 2000)).
If a collective is “conditionally certified,” employees in the collective are provided notice
of the action and an opportunity to join as party-plaintiffs. After conducting discovery, the parties
then proceed to the second stage of analysis, at which point the question is “whether each
plaintiff who has opted in to the collective action is in fact similarly situated to the named
plaintiff[s].” Symczyk, 656 F.3d at 193.
III. DISCUSSION
Under the FLSA, as explained above, subject to additional requirements, “[a]n action to
recover the liability … 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). As the case currently stands, Plaintiffs seek “conditional certification” of 20
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separate groups of such individuals, each consisting of employees from a single department of
one of four MedStar Hospitals. 2 See Pls.’ Mot. at 3-4 (“Plaintiffs now seek to represent collective
groups from four of these hospitals”); Pls.’ Reply at 10-11 (“Plaintiffs deliberately structured
their complaint to seek certification of distinct department collectives. … That Plaintiffs seek
certification of distinct department collectives is largely lost on Defendants here.”); see also
Fourth Am. Compl. ¶ 36 (delineating separate collectives for 56 hospital departments). 3
Defendants present several arguments why the Court ought not “conditionally certify” the
20 department-specific collectives proposed for notice by Plaintiffs. The Court first addresses
Defendants’ argument that the Court cannot “conditionally certify” those departments that are
represented solely by individual named plaintiffs on whose claims the Court granted summary
judgment. The Court concludes that, with respect to the departments represented solely by those
named plaintiffs on which the Court has already granted summary judgment to the Defendants,
the Court cannot and will not “conditionally certify” those collectives for notice. The Court next
considers Defendants’ several arguments that Plaintiffs have not adequately demonstrated that
the members of the proposed department collectives are “similarly situated” to the named
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The Court emphasizes that Plaintiffs are seeking to certify 20 department-specific collectives.
Notwithstanding some lack of precision in Plaintiffs’ briefing, the Court does not understand
Plaintiffs to be seeking certification of one overall group of employees from all of the 20
departments. Compare Pls.’ Mot. at 4 (appearing to describe single collective encompassing 20
departments) with id. at 3 (describing request to certify “collectives groups” from four hospitals).
Indeed, Plaintiffs have clarified that they “seek certification of distinct department collectives.”
Pls.’ Reply at 10-11. Moreover, this understanding accords with the Fourth Amended Complaint,
the operative complaint in this case. See Fourth Am. Compl. ¶ 36. Were Plaintiffs to seek to
amend the complaint, yet again, to reflect a single collective encompassing multiple departments,
the Court would be chary of allowing them to do so. Plaintiffs have proceeded on a department-
specific collective theory throughout this case, and the Court would not allow them to reverse
course and follow an alternative route going forward.
3
Plaintiffs do not seek “conditional certification”—i.e., the dissemination of notice—of all of the
56 collectives enumerated in the Fourth Amended Complaint. Nor do Plaintiffs seek “conditional
certification” of any collectives under the D.C. Minimum Wage Act.
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plaintiffs. The Court concludes that it is proper to “conditionally certify” the nine departmental
collectives not affected by the Court’s grant of partial summary judgment to Defendants. Finally,
the Court addresses the parties’ arguments regarding the specific notice proposed by Plaintiffs.
A. Collectives with no Viable Representative
As noted above, Plaintiffs seek “conditional certification” of 20 hospital departments.
Each of 19 of the proposed collectives would be represented by one of eight named plaintiffs:
Margaret Brown (one collective), Cathleen Keller (one collective), Lorraine Tyeryar (five
collectives), Melissa Gayle (one collective), Lisa Braswell (one collective), Raina McCray (eight
collectives), Cherry Graziosi (one collective), and Danielle Freeman (one collective). See Pls.’
Mot. at 3-4. The twentieth and final proposed collective would be represented by two named
plaintiffs—Tyeryar, together with Dorothy Eggleston. See id. at 3. On May 9, 2016, the Court
granted in part and denied in part Defendants’ [77] Motion for Partial Summary Judgment,
granting summary judgment to Defendants with respect to certain FLSA claims against Tyeryar,
Gayle, and McCray. In light of that result, the Court cannot “conditionally certify” any
department represented solely by one of those three plaintiffs, where the Court granted summary
judgment with respect to the claims of the proposed representative that pertain to that
department.
A word is in order about the timeline of the briefing of the pending “conditional
certification” motion and of the now-resolved motion for partial summary judgment. In opposing
Plaintiffs’ renewed motion for “conditional certification,” Defendants argued that the Court
should not “conditionally certify” classes that were to be represented by Tyeryar, Gayle, McCray,
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and Graziosi because those plaintiffs’ claims could not survive summary judgment. 4 The same
day that Defendants filed their opposition to Plaintiffs’ renewed motion for “conditional
certification” they filed a motion for partial summary judgment with respect to four individual
plaintiffs. The parties’ “conditional certification” arguments pertaining to the underlying merits
were based on an unknown—whether the Court would grant the motion for partial summary
judgment. Defendants argued that the Court ought to grant partial summary judgment based on
the record as it then stood and that, as a result, the Court could not “conditionally certify”
collectives represented by those plaintiffs. Plaintiffs argued the reverse. That hypothetical has
now been resolved as the Court subsequently granted the motion for partial summary judgment
with respect to Tyeryar, Gayle, and McCray for the reasons explained in the Court’s prior
Memorandum Opinion and Order. See Freeman, 2016 WL 2642958, at *5. Therefore, the legal
question for the Court is now whether, given that summary judgment has been granted to
Defendants on certain FLSA claims by these three plaintiffs, the Court can “conditionally
certify” collectives based on those individuals. 5 The Court concludes that it cannot and will not
4
Defendants initially framed this argument by stating that the specific named plaintiffs did not
have “standing” to represent the proposed collectives in this action because their claims would
not survive summary judgment. Defs.’ Opp’n at 42-43. Plaintiffs responded that each of the
named plaintiffs have standing under Article III of the Constitution to pursue their claims. Pls.
Reply at 20-21. Plaintiffs also explained Defendants’ summary judgment argument is not a
proper basis to deny “conditional certification.” Id. at 21. In their proposed sur-reply, Defendants
clarify that they are not arguing that Plaintiffs’ lack Article III standing; they simply argue that,
because partial summary judgment is warranted with respect to specific plaintiffs, those plaintiffs
cannot serve as the basis for “conditional certification.” Id. In light of Defendants’ clarification,
there is no need to address the supposed Article III argument further; instead, the Court the
addresses the parties’ arguments regarding the impact of the Court’s grant of partial summary
judgment.
5
Given the current posture of this case, cases concerning whether courts should allow discovery
prior to resolving “conditional certification” motions and whether courts should address any
merits issues before resolving “conditional certification” motions are inapposite.
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“conditionally certify” a collective for a department where there is no longer a named plaintiff
with a viable claim.
The FLSA only provides for an action to “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). In other words, a named plaintiff can be a representative for “other
employees similarly situated,” subject to other criteria not relevant here. The gravamen of
Plaintiffs’ renewed motion for conditional certification is that there are 20 department-specific
groups of employees who are “similarly situated” to the named plaintiff identified in connection
with each department. For example, Plaintiffs seek “conditional certification” of a collective of
employees in the Orthopedic Department of Union Memorial Hospital, to be represented by
Gayle, who worked in that department. Pls.’ Mot. at 3. However, the Court has now granted
summary judgment to Defendants with respect to Gayle’s FLSA claims. Because those claims
are, as a result, eliminated from this case, the other employees in this department cannot be said
to be “similarly situated” to Gayle. See 29 U.S.C. § 216(b). In short, without a named plaintiff
who retains a viable claim that is the same as the one to be prosecuted by members of a specific
proposed collective, the Court cannot “conditionally certify” that collective.
The Supreme Court’s analysis of mootness in FLSA actions confirms this result. As the
Supreme Court recently explained in Campbell-Ewald Co. v. Gomez, “[a]bsent a plaintiff with a
live individual case, the Court concluded, the suit could not be maintained.” 136 S. Ct. 663, 670
(2016), as revised (Feb. 9, 2016) (citing Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523,
1528, 1529, n.4 (2013)). Although the Supreme Court’s analysis in both Campbell-Ewald and
Genesis Healthcare concerned circumstances where a named plaintiff’s individual claim was
moot as a result of an offer of judgment, there is no reason for a different result here. With
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respect to any department-specific collective that would be solely represented by Tyeryar, Gayle,
or McCray, and where the Court granted summary judgment as to the claims pertaining to that
department, there is no longer any plaintiff in the proposed collective “with a live individual
case.” Campbell-Ewald, 136 S. Ct. at 670. Therefore, no suit may be maintained with respect to
those collectives. See id.
Plaintiffs argue that “[c]ourts routinely authorize notice to departments, positions,
locations and the like where no named plaintiff worked so long as there are other indicia that the
parties are similarly situated.” Pls.’ Reply at 22. That may be true as a general matter. But the
critical question is not whether a named plaintiff in a certain department could be similarly
situated to a group of employees in a different department. The question is whether a collective
can be “conditionally certified” when there is no named plaintiff with a viable claim pertaining to
that proposed collective in the first instance. It is important that Plaintiffs only seek “conditional
certification” of department-specific collectives. See Pl.’s Reply at 11 (“That Plaintiffs seek
certification of distinct department collectives is largely lost on Defendants.”). They are doing so
because they argue that employees within each of several departments are similarly situated. See
id. (similarity of “the meal break policies and practices” within departments “is all Plaintiffs need
for a finding that those within the department collectives are similarly situated such that notice
should be issued.”). Without a named plaintiff from within the respective departments with a live
claim regarding work in those departments, the Court cannot and will not grant “conditional
certification.”
With all of that in mind, the Court turns to the specific departments for which Plaintiffs
seek “conditional certification” with either Gayle, McCray, or Tyeryar as representative.
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With respect to Union Memorial Hospital, Plaintiffs seek “conditional certification” for
employees in the Orthopedic Department, to be represented by Gayle alone. Because the Court
has granted summary judgment to Defendants with respect to Gayle’s FLSA claims, Gayle
cannot serve as the representative for this department. Absent any other collective representative,
the Court cannot and will not “conditionally certify” a Union Memorial Orthopedic Department
collective. The Court denies the “conditional certification” motion as to that department.
With respect to Harbor Hospital, Plaintiffs seek “conditional certification” of six
department-specific collectives:
1. Dialysis Department (represented by Tyeryar alone)
2. Oncology Department (represented by Tyeryar alone)
3. Orthopedic Department (represented by both Tyeryar and Dorothy Eggleston)
4. Pediatric Department (represented by Tyeryar alone)
5. Nursery and Neonatal Department (represented by Tyeryar alone)
6. Telemetry Department (represented by Tyeryar alone)
The Court granted Defendants’ motion for partial summary judgment with respect to Tyeryar,
granting summary judgment as to Tyeryar’s FLSA claims in connection with the Dialysis
Department, the Orthopedic Department, and the Nursery and Neonatal Department. 6 Regarding
the Orthopedic Department, the grant of summary judgment to Defendants provides no basis for
denying the “conditional certification” motion because Eggleston, another named plaintiff, is
also named as a representative of the proposed collective.
Regarding the Dialysis Department and the Nursery and Neonatal Department, the Court
granted summary judgment to Defendants on Plaintiffs’ FLSA claims. As a result, Tyeryar has no
6
Defendants did not seek summary judgment with respect to the remaining three departments—
Oncology, Pediatric, or Telemetry; therefore, the Court’s resolution of the motion for partial
summary judgment does not provide a basis for denying Plaintiffs’ request for “conditional
certification” as to those departments.
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viable claim against Defendants as to these departments. Plaintiffs argue that, even though there
may no longer be a viable FLSA claim against Defendants as to either of those specific
departments, the Court may “conditionally certify” collectives because these named plaintiffs
retain viable claims with respect to other departments. The Court disagrees. Given the resolution
of the motion for partial summary judgment, there are no named plaintiffs with viable claims that
could serve as the basis for “similarly situated” collectives for the Dialysis Department and the
Nursey and Neonatal Department. As explained above, that conclusion is sufficient to require
denying Plaintiffs’ request to “conditionally certify” collectives consisting of employees in those
departments. It is simply immaterial whether the would-be representative as to those two
departments retains a viable claim as to other departments. Accordingly, the Court denies the
“conditional certification” motion as to the Dialysis Department and the Nursery and Neonatal
Department.
Turning to Washington Hospital Center, Defendants argue that the Court should deny the
“conditional certification” motion with respect to departmental collectives represented by named
plaintiffs Cherry Graziosi and Raina McCray. 7 Because the Court denied the motion for partial
summary judgment as to Cherry Graziosi, the resolution of that motion provides no basis for the
denial of “conditional certification” as to the Trauma Department. Because McCray is the only
named representative for eight proposed departmental collectives—the Nursery Department and
Units 2H, 2NW, 3H, 3NE, 4F, 4H, and 4NW—and because the Court granted summary judgment
to Defendants as to McCray’s FLSA claims, there is no basis for “conditional certification” of
7
Defendants do not present any such argument with respect to the Cardiac Arrhythmia Center
(represented by Lisa Braswell) or with respect to Unit 4D (represented by Danielle Freeman).
Indeed, the Court’s partial summary judgment order would provide no basis for denying
“conditional certification” as to those departments.
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these eight departments. Plaintiffs argue that they could substitute named plaintiffs Lisa Braswell
or Danielle Freeman for McCray to serve as representatives of these departments because both
Braswell and Freeman worked elsewhere at Washington Hospital Center. Notably, Plaintiffs have
not even attempted to actually effect such substitutions—either before or after the Court resolved
Defendants’ motion for partial summary judgment. Moreover, doing so would be inconsistent
with Plaintiffs’ entire theory of this case: that even if employees across an entire hospital are not
similarly situated, employees within specific departments may be similarly situated. Indeed, that
theory emerged, at least in part, from the Court’s resolution of the “conditional certification”
motion in Dinkel, in which the Court rejected a hospital-wide collective as to the meal break
claims, but allowed several department-specific collectives as to those claims. See 880 F. Supp.
2d at 55-57. For these reasons, the Court concludes that Plaintiffs’ suggestion that either
Braswell or Freeman could be substituted as representatives of the several proposed collectives
to be represented by McCray does not provide a basis to “conditionally certify” those collectives.
Accordingly, the Court denies Plaintiffs’ motion for conditional certification as to the Nursery
Department and Units 2H, 2NW, 3H, 3NE, 4F, 4H, and 4NW at Washington Hospital Center.
In sum, in light of the resolution of the motion for partial summary judgment, the Court
denies “conditional certification” as to the following proposed departmental collectives:
• MedStar Harbor Hospital
o Dialysis Department
o Nursery and Neonatal Department
• MedStar Union Memorial Hospital
o Orthopedic Department
• MedStar Washington Hospital Center
o Nursery Department
o Unit 2H
o Unit 2NW
o Unit 3H
o Unit 3NE
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o Unit 4F
o Unit 4H
o Unit 4NW
In other words, the following nine proposed collectives are the only collectives that are not
eliminated as a result of the parties’ arguments regarding the impact of the Court’ granting partial
summary judgment to Defendants:
• MedStar Franklin Square Medical Center
o Intensive Care Unit
o Pharmacy Department
• MedStar Harbor Hospital
o Oncology Department
o Orthopedic Department
o Pediatric Department
o Telemetry Department
• MedStar Washington Hospital Center
o Cardiac Arrhythmia Center
o Unit 4D
o Trauma Department
The Court addresses Defendants’ other arguments in opposition to the motion for “conditional
certification,” below, in the context of these remaining nine proposed collectives.
B. Defendants’ Other Arguments Opposing “Conditional Certification”
The Court now turns to Defendants’ other arguments that “conditional certification” is
not warranted, as applied to the nine proposed collectives that are not eliminated as result of the
Court’s resolution of Defendants’ motion for partial summary judgment. The Court first
addresses Defendants’ argument regarding the legal standard for “conditional certification,”
where, as here, the Court has already allowed a brief period of discovery. Then, the Court
addresses Defendants’ several arguments that, essentially, the members of the proposed
collectives are not similarly situated to the respective named plaintiffs. The Court concludes that
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none of Defendants’ remaining arguments have merit at this stage of these proceedings and will
“conditionally certify” nine department-specific collectives.
1. A Heightened Legal Standard?
Defendants argue that, because the parties have already exchanged some discovery, the
Court should apply a more stringent standard for reviewing the request for “conditional
certification” than the one generally applicable to such motions. Specifically, Defendants argue
that the Court ought to apply something akin to the “modest plus” legal standard used by certain
district courts in Ohio. See Defs.’ Opp’n at 27-28 (citing cases). The Court agrees with Plaintiffs
that there is no basis to apply a heightened legal standard in this case at the “conditional
certification” stage. The fact that more than two years have elapsed since the filing of this case is
immaterial. That passage of time largely occurred because Defendants, first, filed a motion to
dismiss and/or to sever claims for misjoinder and, then, requested a period of discovery before
the Court resolved Plaintiffs’ motion for “conditional certification” (which had already been
filed). It is certainly within Defendants’ rights to file a motion to dismiss, and the Court
concluded that it was proper to allow a period of discovery before resolving the question of
“conditional certification.” However, the length of time that has elapsed as a result of those
decisions does not provide a basis for applying a higher standard for “conditional certification.”
There is no basis in the text of the FLSA or in the associate case law for a higher standard in
these circumstances. Nor would it be fair to impose a higher burden on Plaintiffs as a result of
Defendants’ actions in this case.
In Dinkel, this Court explained that the standard for “conditional certification” is that
“plaintiffs must present ‘some evidence, beyond pure speculation, of a factual nexus between the
manner in which the employer’s alleged policy affected [them] and the manner in which it
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affected other employees.’ ” 880 F. Supp. 2d at 53 (quoting Symczyk, 656 F.3d at 193) (alteration
in original). The Court also noted that “[t]his factual showing has been described as “not
particularly stringent, fairly lenient, flexible, [and] not heavy.’ ’’ Id. (quoting Morgan, 551 F.3d at
1261). In Dinkel, this Court applied this “fairly lenient” standard after the parties had engaged in
three months of discovery, id. at 51, much as the parties have done—at Defendants’ request—in
this case. Finally, the Court in Dinkel refrained from resolving factual disputes at the
“conditional certification” stage. See id. at 58 n.7 (“[U]nlike a motion for summary judgment,
courts ordinarily do not address disputed factual matters when presented with a motion for
conditional certification.”). Throughout their papers, the parties have cited an array of district
court cases from this and other jurisdictions regarding how district courts have exercised their
discretion under the FLSA. The Court does not find any basis in those cases to deviate from the
path it followed in Dinkel; therefore, further analysis of those cases is not necessary here. In
considering whether to grant the request for “conditional certification,” the Court will not use a
heightened standard in evaluating the record now before it. Moreover, the Court will not resolve
issues of fact at this stage. Such issues will be considered if, subsequently, Defendants seek “de-
certification” of any of the collectives that the Court “conditionally certifies” today.
Finally, the Court notes that it appears that Defendants seek premature resolution of
factual issues in this case. The Court need only determine at this stage whether Plaintiffs have
identified collectives that contain potential “plaintiffs who may be ‘similarly situated’ to the
named plaintiffs with respect to whether a FLSA violation has occurred.” Myers, 624 F.3d at 555
(emphasis added) (citing cases). The purpose of sending the notice is to determine whether such
individuals exist; it is, therefore, not necessary to pretermit that inquiry and require proof that
those potential plaintiffs are, actually, similarly situated before those potential plaintiffs even
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identify themselves. See id. (“The ‘modest factual showing’ cannot be satisfied simply by
‘unsupported assertions,’ but it should remain a low standard of proof because the purpose of this
first stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist[.]”)
(emphasis added and citations omitted). If there are individuals who opt-in to participating in this
case as party-plaintiffs, the Court can subsequently determine whether those individuals are, in
fact, similarly situated and whether this action can proceed as a representative action under the
FLSA.
The Court now turns to Defendants’ specific arguments why the proposed collectives
should not be “conditionally certified.”
2. Differences Among and Within Departments
Defendants argue that the proposed collectives should not be “conditionally certified”
because of differences among the departments identified by Plaintiffs. See, e.g., Defs.’ Mot. at 34
(“The alleged common policies that Plaintiffs complain of are, in fact, decentralized and vary
drastically depending on the individual department.”). However, as the Court has explained
above, Plaintiffs are seeking “conditional certification” of department-specific collectives.
Accordingly, differences among departments provide no basis for denying Plaintiffs’
“conditional certification” motion, even in part. With respect to differences within departments,
the Court concludes that Defendants have not rebutted Plaintiffs’ showing that employees within
the individual departments may be similarly situated. Of course, it is possible that differences
among employees in a single department may, ultimately, result in a determination that some or
all of those employees are not “similarly situated.” However, Defendants’ mere suggestion that
such differences exist, whether by position or by shift, do not pose a stumbling block to the
issuance of notice to the employees in the nine remaining proposed collectives.
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Similarly, Defendants argue that the notice that Plaintiffs seek to distribute should be
limited to employees that worked in the individual departments at the same time as the named
plaintiffs. The Court disagrees. Defendants have not suggested affirmatively that policies or
practices within individual departments have shifted over time. 8 And there is no reason to infer
such changes based on the record before the Court. Moreover, there is no basis in the case law to
apply such a firm limit at this stage of the proceedings. As the Court has emphasized, whether
any such employees are, in fact, similarly situated, can be determined after such employees have
the opportunity to opt-in to this action and after additional discovery.
Finally, the Court need not address the supposed contradictions that Defendants have
identified in the record. The Court will not weigh the evidence at this stage. The only question is
whether there is enough evidence in the record to conclude that there may be “similarly situated”
employees in the nine identified departments such that notice to those employees is warranted.
Plaintiffs have provided the required support based on the personal knowledge of the named
plaintiffs and based on the evidence in the record as a whole. The Court concludes that any
alleged contradictions do not undermine the proffered basis for “conditional certification.” In
sum, Defendants have not identified any reason to conclude that any differences among or within
the nine individual departments considered here indicate that there are not employees within the
respective departments who are “similarly situated.”
3. Manageability
Finally, the Court addresses the question of manageability of a representative action
based on the nine proposed department-specific collectives that remain in this case. It bears
8
The Court need not address, at this stage, the parties’ dispute regarding the supposed
acknowledgement by Defendants that policies have not changed over time and regarding the
scope of any such acknowledgment.
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emphasizing that the scope of this action has evolved over the course of this case thus far,
becoming more modest over time. The Fourth Amended Complaint included more than 50
proposed collectives. In the pending motion for “conditional certification,” Plaintiffs then
proposed 20 department-specific collectives. And, now, as a result of the Court’s resolution of
Defendants’ motion for partial summary judgment and the attendant elimination of collectives
based on certain named plaintiffs, the Court is considering only nine department-specific
collectives at a total of three hospitals. Nine collectives proceeding in a single action are
manageable in a way that more than 50 may not have been. At this time, Defendants have not
shown that an action including the nine proposed collectives could not be manageable going
forward.
The Court concludes that any further consideration of manageability issues is properly
postponed until after other “similarly situated” employees have had an opportunity to opt-in.
Indeed, further discovery, potential dispositive motions, and any motions for “de-certification”
have the potential to further shape the scope of the case. Any questions about the proper use of
representative evidence at trial, as well as whether bifurcation for trial is warranted, are properly
considered at later stages of these proceedings. Finally, the Court will consider the scope of
discovery, including the scope of the discovery as to the opt-in plaintiffs, after such individuals
have had a chance to opt-in.
* * *
For all of these reasons, the Court will “conditionally certify” department-specific
collectives pertaining to the following nine departments:
• MedStar Franklin Square Medical Center
o Intensive Care Unit
o Pharmacy Department
• MedStar Harbor Hospital
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o Oncology Department
o Orthopedic Department
o Pediatric Department
o Telemetry Department
• MedStar Washington Hospital Center
o Cardiac Arrhythmia Center
o Unit 4D
o Trauma Department
The Court concludes there is a basis in the record to conclude that these nine collectives include
employees who may be “similarly situated” to the named plaintiffs in this case. The Court will
authorize the sending of a notice to employees who have worked in these departments within the
appropriate statute of limitations.
C. Notice
The Court now addresses the parties’ arguments regarding the notice that Plaintiffs seek
to send to the “conditionally certified” collectives. The Court notes that Plaintiffs have proposed
a form of notice that is substantially similar to the one issued in Dinkel. Defendants raise several
specific objections to the proposed notice, the method of dissemination and collection, and the
data to be generated and shared by Defendants. The Court will provide guidance in this
Memorandum Opinion and Order regarding the disputes between the parties. However, the Court
will not definitively resolve those issues today. Instead, the Court will require the parties to
confer, in light of the Court’s guidance and the current posture of the case, in order to attempt to
resolve the remaining issues jointly.
1. Preservation Language
Plaintiffs’ proposed notice includes language regarding the discovery obligations of any
individual that opts in to this action. See Proposed Notice, ECF No. 75-3, at 2 (“While the
lawsuit is proceeding, you may be required to provide Defendants with documents, information,
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and/or deposition testimony relating to your claim.”). Emphasizing that the current plaintiffs
appear unaware of their discovery obligations, Defendants request that language regarding the
preservation obligations of party-plaintiffs be added to the notice. Specifically, they request—in
a footnote—that the following language replace Plaintiffs’ proposed language regarding
discovery:
By joining the lawsuit, you may be required to participate in the litigation,
including providing information, producing documents, responding to written
discovery requests, sitting for a deposition and testifying in court. If you join the
case, you must preserve any information and/or documents you may have
pertaining to your employment with Defendants including but not limited to time
records, information related to meal or rest breaks taken by you, email, or social
media.
Defs.’ Opp’n at 44 n.52. Defendants never explain why the existing language about discovery is
insufficient—aside from the issue of preservation obligations—and the Court sees no reason to
require changes to the sentence currently included in the proposed notice regarding discovery.
Indeed, that sentence is identical to the one included in the notice disseminated in Dinkel. See
Joint Status Report, Dinkel v. Medstar, 11c-v-998-CKK, ECF No. 44-1 (Aug. 29, 2012). With
respect to preservation, the Court agrees with Defendants that some modest language regarding
preservation would be proper. However, the Court also agrees with Plaintiffs that the language
proposed by Defendants is excessive. Accordingly, the parties shall confer to determine whether
they can agree on modest language regarding the preservation of materials by party-plaintiffs
who opt in.
2. Providing Information to Plaintiffs’ Counsel
Defendants argue that the information regarding the collective members should not be
given to Plaintiffs’ counsel, but rather should be entrusted only to a third-party, in order to ensure
that the information is not misused. Plaintiffs respond that an appropriate protective order
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would—or should eliminate—Defendants’ concerns. The parties shall confer regarding a
potential protective order in order to determine whether they can agree on an order that would
eliminate Defendants’ concerns about providing information directly to Plaintiffs’ counsel.
3. Methods of Dissemination and Return
In addition to names and addresses for the members of the “conditionally certified”
collectives, Plaintiffs request the telephone number and e-mail address for each of those
individuals. Plaintiffs seek to disseminate the proposed notice by e-mail, as well as by “regular”
mail (via the United States Postal Service). Plaintiffs do not make clear the purpose of the
telephone information; therefore, in the interest of protecting the privacy interests of the
members of the proposed collectives, the Court will not require that Defendants’ provide
telephone numbers for the members of the “conditionally certified” collectives. 9
With respect to dissemination by e-mail, the Court acknowledges that the availability and
use of certain technological media has evolved since the Court’s “conditional certification” order
in Dinkel, four years ago. Nevertheless, the Court is wary of using such a method of
dissemination and the attendant invasion of privacy entailed by providing e-mail addresses to
Plaintiffs’ counsel. However, the Court will provide the parties an opportunity to confer to
attempt to narrow the areas of disagreement regarding such methods. In doing so, Plaintiffs shall
clarify whether they seek to use e-mail for all collective members, or simply for former MedStar
employees. See Wolfram v. PHH Corp., No. 1:12-CV-599, 2012 WL 6676778, at *4 (S.D. Ohio
Dec. 21, 2012) (e-mail and mail both used for former employees); Swigart v. Fifth Third Bank,
9
In Plaintiffs’ Reply, they discuss another case in which telephone numbers were used to
disseminate, via text message, a link to a notice and opt-in form. But nowhere do Plaintiffs
suggest that they seek to disseminate notice via text message. Nor would the Court be convinced
that disseminating the information by such a mechanism is proper.
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276 F.R.D. 210, 215 (S.D. Ohio 2011) (“The Court also finds that Plaintiffs’ proposed plan for
transmitting judicial notice to all putative opt-in Plaintiffs by mail and, additionally by email to
those who are no longer employed by Fifth Third Bank, is appropriate.”) (noting that plan was
unopposed). In addition, Plaintiffs shall further explain (a) what information would be included
in the text of any e-mail, to which the proposed notice and opt-in form would be attached and
(b) security mechanisms to ensure that the notice itself is not compromised by virtue of
distribution by e-mail. 10
Regarding the method by which recipients of the notice can return the opt-in form, the
Court concludes that it is preferable that all forms be returned by mail to the mailing address
designated by Plaintiffs’ counsel, rather than by e-mailing those forms or otherwise transmitting
them electronically. The Court also notes that requiring these forms to be mailed would not be a
significant burden on the opt-in Plaintiffs, nor would it substantially delay the prosecution of this
action. Therefore, even if the Court is subsequently persuaded to allow distribution of the notice
and opt-in form via e-mail to some or all collective members, the Court will not permit the opt-in
plaintiffs to return those forms by e-mail.
The parties shall confer regarding these remaining issues in an attempt to resolve them
and, at a minimum, to narrow the areas of disagreement. They shall file a Joint Status Report
regarding the notice, identifying any areas of disagreement that remain, as specified below. In
addition, the Defendants shall include, in the Joint Status Report, an estimate of the number of
members of the approved collectives who would receive notice, in order to aid the Court in
determining the final form of the notice and the method for delivery. In light of the remaining
10
Such methods may include the use of Adobe Acrobat Portable Document Format, as well as
the use of security settings within Adobe Acrobat.
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issues, the Court will not set a deadline, today, for Defendants to deliver the data regarding the
employees in the “conditionally certified” collectives. However, Defendants shall prepare to do
so promptly after the parties file their Joint Status Report and after the Court approves the final
form and methodology of notice to the “conditionally certified” collectives.
IV. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ [75] Revised Motion
for Order Authorizing Notice to Similarly Situated Persons Pursuant to 29 U.S.C. § 216(b) is
GRANTED-IN-PART and DENIED-IN-PART.
It is further ORDERED that the Court conditionally certifies the following nine
collectives, and authorizes the sending of notices to all employees who worked in any of the
following nine departments within three years of the date of this Order:
1. MedStar Franklin Square Medical Center, Intensive Care Unit
2. MedStar Franklin Square Medical Center, Pharmacy Department
3. MedStar Harbor Hospital, Oncology Department
4. MedStar Harbor Hospital, Orthopedic Department
5. MedStar Harbor Hospital, Pediatric Department
6. MedStar Harbor Hospital, Telemetry Department
7. MedStar Washington Hospital Center, Cardiac Arrhythmia Center
8. MedStar Washington Hospital Center, Unit 4D
9. MedStar Washington Hospital Center, Trauma Department
It is further ORDERED that the [75] Revised Motion is DENIED as to all proposed
collectives other than the nine collectives enumerated immediately above.
It is further ORDERED that parties shall confer regarding the remaining issues
pertaining to the notice, as explained above, and shall file a Joint Status Report regarding the
parties’ attempt to resolve those issues jointly by no later than June 3, 2016. As explained above,
the Joint Status Report shall include an estimate of the number of members of nine approved
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collectives who will be sent notice. The Court will specify the content of the notices and the
methodology for distributing those notices upon reviewing the Joint Status Report.
It is further ORDERED that Defendants’ [82] Motion for Leave To File a Sur-Reply in
Further Opposition To Plaintiffs’ Revised Motion for Order Authorizing Notice to Similarly
Situated Persons Pursuant to 29 U.S.C. § 216(B) is GRANTED.
Dated: May 20, 2016
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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