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Taylor v. Pittsburgh Mercy Health System


July 7, 2009


The opinion of the court was delivered by: Magistrate Judge Bissoon


Plaintiffs‟ Motion for Court-facilitated notice to putative collective action members (Doc. 3) will be granted as described below.

The allegations and evidence submitted in connection with Plaintiffs‟ Motion are well known to the parties, and will not be repeated here. Also familiar to counsel are the decisions in Camesi v. University of Pittsburgh Medical Center, Civil Action No. 09-85J (W.D. Pa.) (Bissoon, M.J., presiding) and Kuznyetsov v. West Penn Allegheny Health Sys., Inc., Civil Action No. 09-379 (W.D. Pa.) (Ambrose, C.J.).

This Court will follow Chief Judge Ambrose‟s well-reasoned decision in Kuznyetsov, which held, among other things, as follows:

* At stage one of the conditional certification determination, Plaintiffs are required "to show a factual nexus between their situation and the situation of other current and former [employees] sufficient to determine that they are "similarly situated.‟"

See Doc. 81 in Civil Action No. 09-379 at 3-4 (hereinafter the "June 1st Order in Kuznyetsov") (citations and some internal quotations omitted). In other words, Plaintiffs must provide "a sufficient factual basis on which a reasonable inference could be made" that the putative collective action members are similarly situated. Id. at 4.

* The statements in Plaintiffs‟ affirmations regarding "other employees," which are materially similar to those in Kuznyetsov, are inadmissible hearsay, and they will not be considered for the purposes of conditional certification. See id. at 6.

* Like the opt-in consent forms presented in Kuznyetsov, the ones filed here are sufficiently vague and ambiguous that they lack probative value on the issue of similar situation. See id. Thus, the opt-in forms in this case will not be afforded evidentiary weight. See id.

* Like the affiants in Kuznyetsov, the affiants here do not claim that they were required or permitted to work during meal periods exclusively as a result of patient care needs. Compare id. to, e.g., Doc. 5-7 at ¶¶ 9, 16 (affiant was not "relieved by another employee" during her break, and employer‟s short-staffing required her to perform more work than could be accomplished if she took her meal break) and Doc. 5-8 at ¶¶ 9, 16 (stating same).

With these preliminary matters established, the Court now turns to the substance of Plaintiffs‟ Motion for conditional certification.

Plaintiffs have submitted the affirmations of eight former employees of the Mercy Hospital of Pittsburgh ("Mercy Hospital"), swearing that, during their employment, a computerized, automated meal break deduction of 30 minutes was applied to their pay records each workday. See, e.g., Doc. 5-8 at ¶¶ 4, 5.*fn1 The affiants also allege that Mercy Hospital was aware of, permitted and/or demanded that they work through meal breaks without compensation. See, e.g., id., at ¶¶ 24, 25. Under the circumstances, the automatic meal deduction policy alleged in this case is materially similar to those in Camesi and Kuznyetsov. See, e.g., June 1st Order in Kuznyetsov at 7-9 (application of automatic deduction policy potentially violated employer‟s duty "to ensure that [its] employees [we]re receiving the[ir] full meal break").

That Mercy Hospital‟s purported policy appears to have gone unwritten, unlike the ones in Camesi and Kuznyetsov, is not dispositive. See, e.g., Crawford v. Lexington-Fayette Urban County Gov‟t, 2008 WL 2885230, *7 n.6 (E.D. Ky. Jul. 22, 2008) (plaintiffs demonstrated similarly situation because they engaged in work activity during their meal breaks, and FLSA violation could be established through unwritten policy instructing that such work must be performed) (citation omitted); Musarra v. Digital Dish, Inc., 2008 WL 818692, *4-5 (S.D. Ohio Mar. 24, 2008) (granting conditional FLSA certification based on plaintiffs‟ allegations of employer‟s unwritten policy). Mercy Hospital does not expressly deny that such a policy existed,*fn2 and, even if Defendants did, this would not provide a basis for refusing certification. See Order in Camesi dated May 15, 2009 at 6 ("[a] plaintiff's burden at [the] preliminary stage is minimal," and "the court does not weigh the merits, resolve factual disputes, or make credibility determinations") (citation to quoted source omitted).

In sum, Plaintiffs have presented sufficient evidence to create a "reasonable inference" that workers at Mercy Hospital were similarly situated. See discussions supra. The same cannot be said of the other locations referenced in the Complaint.*fn3

All of Plaintiffs‟ affiants worked at Mercy Hospital. None of the affiants have demonstrated personal knowledge regarding the policies that are, or were, in effect at any other facility. Plaintiffs have offered only allegations in the Complaint, not evidence, regarding the other locations.

It is Plaintiffs‟ burden "to show a modest factual nexus between their situation and that of the proposed class members." See June 1st Order in Kuznyetsov at 3 (citations omitted). Although Plaintiffs ask the Court to shift their burden to the other side, requiring Defendants to identify those locations where the automatic deduction policy was not in effect, Plaintiffs‟ position would require an application of the "mere allegation" standard rejected by Chief Judge Ambrose in Kuznyetsov. Compare Pls.‟ Supp. Br. (Doc. 55) at 2 (complaining of Defendants‟ "refusal to identify which employees were subject" to alleged policy) with June 1st Order in Kuznyetsov at 3-4 ("mere allegation" standard is inconsistent with "the design of the FLSA‟s opt-in requirement to limit the size of collective actions").

This case is distinguishable from Camesi and Kuznyetsov, where the defendants admitted the existence of policies affecting all non-exempt employees at their various locations.

See May 15th Order in Camesi at 1 ("Defendants have confirmed that all of UPMC‟s approximately 30,000 non-exempt employees have thirty minutes automatically deducted for meal breaks"); June 1st Order in Kuznyetsov at 6 ("Defendants implemented a system called KRONOS which automatically deduct[ed] thirty minutes of time from each non-exempt employee‟s pay"). A more analogous, and therefore persuasive, decision is found in Colozzi v. St. Joseph‟s Hospital Health Center, 595 F. Supp.2d 200 (N.D.N.Y. 2009).

As is the case here, the record in Colozzi was "wholly devoid of any evidence from which [one] could conclude, even applying the modest threshold applicable at step one . . ., that hourly workers at [another facility we]re similarly situated to those at the [plaintiffs‟ facility]. No affidavits [we]re given from employees at the [other] facility, nor [did] the affirmations provided by the plaintiffs state that they [had] personal knowledge that health care workers [at the other facility we]re subject to [the same policies]." Id. at 209 (citations omitted). The Colozzi Court held that the plaintiffs had failed to sustain their burden at stage one regarding the other facility, see id., and this Court reaches the same conclusion here.*fn4

Having concluded that conditional certification and notice should be limited to employees at Mercy Hospital, the Court must address Defendants‟ requests to further restrict the notice pool. See Defs.‟ Supp. Br. (Doc. 52) at 3 (arguing, in anticipation of conditional certification regarding Mercy Hospital, that putative members should be limited to employees acting "in a direct care giving role," "in the same departments" as Plaintiffs‟ affiants, who worked "more than 40 hours in a week that . . . allegedly contained an improper meal deduction").

In Kuznyetsov, Chief Judge Ambrose rejected the defendants‟ argument that notice should be limited to employees with patient care responsibilities. See June 1st Order at 9.

In reaching her decision, Judge Ambrose noted that the plaintiffs‟ affidavits did not restrict the reasons for their working through meal breaks to patient care. See id. at 5; see also generally discussion supra (noting that affiants in this case also identified staffing shortfalls as reason for working through meal breaks). As suggested in Camesi, Plaintiffs‟ evidence is sufficient to create a reasonable inference that, for all hourly employees of Mercy Hospital subjected to the automatic meal break deduction, Defendants abandoned their duty "to ensure that non-qualifying meal breaks [were] not deducted from [employees‟] pay." See May 15th Order at 6-7.

Judge Ambrose echoed this sentiment in Kuznyetsov, and "[a]ny dissimilarities" regarding the putative collective action members "may be reevaluated in the second stage of . . . certification." See June 1st Order at 9.

Defendants next request that notice be limited to those employees who have worked in the same departments as Plaintiffs‟ affiants. This is too fine a distinction.

None of the court decisions cited by Defendants restricted notice to intra-facility departments. See Defs.‟ Supp. Br. at 9 (citing cases limiting notice to those workers employed "at [the] same facility" or "work location" as plaintiffs). Plaintiffs have submitted affirmations from employees working in multiple departments at Mercy Hospital, and this is sufficient to create a reasonable inference of similar situation. See discussions supra (Plaintiffs must make only "a modest factual [showing]" at stage one). Notice therefore will issue to all hourly employees at Mercy Hospital (employed before March 1, 2008, see discussion infra), irrespective of where in the Hospital they worked.

Defendants also ask that notice be restricted to non-exempt employees who worked more than 40 hours in a week that allegedly contained an improper meal deduction. See discussion supra. An equivalent argument was rejected in Camesi, and it is no more convincing here.

See May 15th Order at 7-8 (demanding evidence of overtime or minimum wage violations in FLSA meal break cases would entail "delving too deeply into the merits of Plaintiffs‟ claims").

The same evidence found sufficient in Camesi has been presented here, and the Court‟s conclusion is no different.*fn5

Finally, Defendants argue that notice to Mercy Hospital employees should be restricted to those workers who commenced employment at the Hospital before March 1, 2008. Cf. Defs.‟ Supp. Br. at 3, 10, 23. In this regard, Defendants are correct.

In Camesi, the undersigned entered an Order clarifying Mercy Hospital‟s obligation to identify employees subject to UPMC‟s compensation policies. See Doc. 140 in Camesi.

The Court required Mercy Hospital to identify those hourly employees who worked at the Hospital after March 2008, given the clear indication that UPMC‟s policies first went into effect at that time. See generally id. Conversely, Mercy Hospital was not required to identify those employees who worked at the Hospital before March 2008. See id.

In a subsequent Order, denying Mercy Hospital‟s request for dismissal in Camesi, the Court stated:

In [Camesi], Mercy Hospital is identified as one of many entities operating within the UPMC health system. . . . Plaintiffs have pursued a collective action against Defendants, alleging that UPMC instituted uniform policies in violation of the FLSA.

In [Taylor, i.e., this case], Mercy Hospital is identified as part of the Pittsburgh Mercy Health System . . . . Although the purported FLSA violations in Taylor are similar to the ones alleged [in Camesi], Taylor addresses a different health system, with different defendants, save a single overlapping entity, Mercy Hospital. . . .

The reason Mercy Hospital has been named in both lawsuits is clear: in early 2008, the Hospital switched from pre-existing Mercy compensation policies to the compensation policies of UPMC. . . . As this litigation proceeds, the Court and parties will be in a better position to identify a reasoned approach for dealing with Mercy Hospital . . . .

See Order in Camesi (Doc. 141) at 2-4 (citations omitted).

As should now be obvious, potential liability for employees at Mercy Hospital must flow from the policies to which those employees were subject. There has been no meaningful dispute that, effective March 1, 2008, Mercy Hospital switched over to UPMC‟s compensation policies. To the extent Mercy Hospital, or any other Defendant, may be liable in Camesi, that liability is restricted to the time when UPMC‟s policies were in effect.

The other side of the coin applies here. In this case, no Defendant can be liable for FLSA violations occurring under UPMC‟s policies, and notice should be restricted to those workers who commenced employment at Mercy Hospital before March 1, 2008.

It seems possible, if not highly likely, that certain workers were employed at Mercy Hospital both before UPMC‟s compensation policies went into effect and after. Under the circumstances, those employees will, and should, receive notice in both cases. As these related cases proceed, the Court and parties again will be better suited to address the aforementioned scenario, although the undersigned currently sees no reason why such employees should be excluded from either action.

The only matters that remain are: the parties‟ arguments relating, directly or indirectly, to Plaintiff counsel‟s pre- and post-litigation solicitation practices; and disputes over the proper form and content of the Court-approved notice. See Defs.‟ Supp. Br. at 11-23; Pls.‟ Supp. Br. at 11-24.

As for the solicitation-related issues, none of them need to be addressed to resolve the Motion now before the Court. Defendants, moreover, may not properly utilize their briefing to move for affirmative relief. See Patterson v. World Wrestling Entm‟t, Inc., 2006 WL 273527, *19 n.37 (E.D. Wis. Jan. 31, 2006) (under Federal Rule 7, "[a]n application to the court for an order shall be by motion," and "[a] brief is not a motion and will not be treated as such").

As for matters regarding notice, the parties are hereby directed to meet and confer to determine whether agreement can be reached regarding the parameters, form, and/or substance of the notice. As counsel surely are aware, rulings regarding notice have issued in both Camesi and Kuznyetsov. While all three of these lawsuits are different, the parties would seem hard-pressed to explain why certain global parameters, consistently applied by the Court, should now be abandoned in this case.

For all of these reasons, the Court GRANTS Plaintiffs‟ Motion (Doc. 3) for conditional certification, and notice shall issue to all non-exempt employees who, within the last three years,*fn6 worked at the Mercy Hospital of Pittsburgh and whose employment commenced before March 1, 2008.

It is further ORDERED that Defendants shall supply Plaintiffs with information*fn7 regarding the putative collective action members, consistent with the discussions above, within 30 days of this Order; and, within 45 days, the parties shall either file a stipulated notice form for judicial approval, or they shall cross-file proposed notice forms, and memoranda of law not exceeding ten pages, in support of their competing proposals.


Cathy Bissoon United States Magistrate Judge

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