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Cox v. Healthcare Services Group, Inc.

United States District Court, Sixth Circuit

June 4, 2013

Joshua Cox, Plaintiff,
Healthcare Services Group, Inc., Defendant.


JACK ZOUHARY, District Judge.


This is a Fair Labor Standards Act ("FLSA") wage and hour case. Pending before this Court is Plaintiff's Motion for Conditional Class Certification (Doc. 15) pursuant to 29 U.S.C. § 201, et seq. Defendant opposes (Doc. 27), and Plaintiff replied (Doc. 29). At a Status Phone Conference on May 30, 2013, this Court granted Plaintiff's Motion (Doc. 32), noting it would supplement that Order with a Memorandum Opinion.


Defendant Healthcare Services Group ("HSG") provides housekeeping and dietary management services in health care facilities across the country (Doc. 27 at 6). Since 2010, HSG has provided services to 178 different health care facilities in Ohio alone ( id. ). Plaintiff Joshua Cox is employed by Defendant as an Account Manager ("AM") (Doc. 15-2 at 7). AMs work at facilities with which HSG has contracted to provide services, and there is a dispute in this case over their regular duties - Defendant argues they generally are responsible for "recruiting, training, supervising and managing housekeepers, janitors and, in some facilities, laundry workers at their facility, as well as labor and procurement budget management, inventory, regulatory compliance, and quality control" (Doc. 27 at 7), while Plaintiff argues they primarily are engaged in "housekeeping, floor care and laundry duties" (Doc. 15-2 at 7-8). Many AMs go through a training program, during which time one is considered a Manager in Training ("MIT"). While in the program, MITs perform housekeeping, laundry, and floor care duties at various HSG-contracted facilities (Doc. 15-1 at 2-3).

Plaintiff alleges that AMs and MITs in Ohio perform non-exempt work under the FLSA, work in excess of forty hours per week, and are not paid overtime to which they are entitled under the FLSA ( id. ). He alleges specifically that (1) despite HSG's classification of MITs as non-exempt employees, it has a "uniform practice" of not paying MITs overtime; and (2) HSG misclassifies its AMs as exempt employees and fails to pay them overtime, despite the fact AMs primarily perform nonexempt work.


The FLSA provides a private cause of action against an 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). Collective actions brought by employees under the FLSA require putative class members to opt into the action, or generally termed, the "class." See 29 U.S.C. § 216(b) ("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."). The statutory standard for bringing a collective action under the FLSA is that the opt-in plaintiffs are "similarly situated." Id. "Similarly situated" does not mean plaintiffs need to be identical; however, it is the lead plaintiffs' burden to show the opt-in plaintiffs are similarly situated to the lead plaintiffs. O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009).

FLSA Certification Standard

Traditionally, courts in the Sixth Circuit follow a two-stage certification process to determine whether a proposed group of plaintiffs is "similarly situated" for purposes of the statute's requirements. The first, or "notice" stage, takes place at the beginning of discovery with a focus on determining whether there are plausible grounds for plaintiffs' claims. If so, plaintiffs are permitted to solicit opt-in notices, under court supervision, to potential plaintiffs such as current and former employees of defendant. The second stage occurs after "all of the opt-in forms have been received and discovery has concluded." Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (internal quotation and citation omitted).

The first stage is "fairly lenient, " requiring only that plaintiffs show a colorable basis for their claim that a class of similarly situated plaintiffs exists. Killion v. KeHE Distribs., 2012 WL 5385190, at *3 (N.D. Ohio 2012); Olivo v. GMAC Mortg. Corp., 374 F.Supp.2d 545, 548 (E.D. Mich. 2004). Some courts have held that this burden can be met solely upon allegations in the complaint, Belcher v. Shoney's, Inc., 927 F.Supp. 249, 251 (M.D. Tenn. 1996) (citation omitted), whereas others have required a "modest factual showing." Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 595-96 (S.D. Ohio 2002) (quotation and citation omitted). During the notice stage, courts "do not resolve factual disputes, decide substantive issues on the merits, or make credibility determinations." Shipes v. Amurcon Corp., 2012 WL 995362, at *5 (E.D. Mich. 2012) (citing Wlotkowski v. Mich. Bell Tel. Co., 267 F.R.D. 213, 219 (E.D. Mich. 2010)). Once plaintiffs meet their burden at this stage, "a defendant cannot overcome their showing by arguing that individual issues predominate." Id. at *7.

Second stage review, however, is understandably more stringent as it occurs after the receipt of opt-in notices and after the completion of discovery. At this point, the court considers all the evidence, in conjunction with the demographic data of the putative opt-in plaintiffs, to determine whether the assembled class is sufficiently "similarly situated" to continue as a collective action, whether the putative class should be "decertified, " leaving plaintiffs free to pursue their claims on an individualized basis, or some combination of the two. The primary factors considered in a secondstage analysis are: (1) the disparate factual and employment settings of the individual opt-in plaintiffs;

(2) the various defenses available to defendants with respect to individual plaintiffs; and (3) fairness and procedural considerations. Olivo, 374 F.Supp.2d at 548 n.2 (citing Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)).

This Motion was filed before any appreciable discovery has taken place. Therefore, Plaintiff's threshold showing of being "similarly situated" will be ...

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