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Bamgbose v. Delta-T Group

February 8, 2010

TEMI BAMGBOSE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
DELTA-T GROUP, INC., ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

The plaintiff, Temi Bamgbose, brought suit individually and on behalf of others similarly situated against the defendant, Delta-T Group, Inc. ("Delta-T"),*fn1 alleging that Delta-T maliciously misclassified him and other healthcare workers as "independent contractors" rather than "employees." He argues that the misclassification allows Delta-T to evade overtime compensation requirements under the Fair Labor Standards Act ("FLSA" or "Act"). The plaintiff moves for conditional collective action certification under the FLSA. The Court will deny the plaintiff's motion without prejudice.

I. Background

A. Procedural History

The plaintiff brought suit against the defendant on February 17, 2009, and he amended his complaint on April 1, 2009, alleging violations of the FLSA and the Employee Retirement Income Security Act (ERISA). On July 6, 2009, the Court dismissed the plaintiff's ERISA claims, finding that the claims were not brought within the applicable statute of limitations periods.

Before the Court set a discovery schedule, both parties began class-related discovery. They contacted putative class members,*fn2 took depositions, exchanged 6700 pages of documents, and gathered declarations. On July 27, 2009, the plaintiff moved for FLSA conditional collective action certification and notice. He attached to his motion twenty-three declarations from Delta-T healthcare workers; the transcripts from two depositions of Scott McAndrews, an Executive Vice President of Delta-T; a declaration from a former Delta-T employee; and several Delta-T documents, including interoffice memorandums and letters from Delta-T to the Department of Labor ("DOL") and the Internal Revenue Service ("IRS"). He also filed notices of consent from people choosing to opt into the collective action.

The defendant opposed the plaintiff's motion, arguing that the putative class is not similarly situated.*fn3 It attached eighty-three declarations from Delta-T healthcare workers, two declarations from Delta-T personnel, six depositions, and two expert reports. The defendant also moved to strike certain portions of the plaintiff's motion exhibits. The Court held an oral argument on October 22, 2009, on the parties' motions.

During the oral argument, the Court held that it would not consider the defendant's expert reports when deciding the plaintiff's motion because of the plaintiff's inability to depose the defendant's experts. In an Order on November 3, 2009, the Court granted in part and denied in part the defendant's motion to strike. It held that it would not consider legal conclusions in the plaintiff's attached declarations and that it would strike the declaration of the former Delta-T employee.

B. Factual Record*fn4

Delta-T is a "temporary staffing agency"*fn5 that hires healthcare workers*fn6 and places them in various healthcare facilities when such facilities require staffing. Its headquarters are located in Pennsylvania, and it commonly owns twelve affiliates with active operations in Maryland, New Jersey, Massachusetts, Illinois, Virginia, Connecticut, Michigan, California, and Arizona. Each affiliate is separately incorporated and has its own management and organizational structure. Declaration of Scott McAndrews, Executive Vice President of Delta-T Group, Inc. ("McAndrews Decl.") ¶¶ 1, 3, Ex. D-1 to Def.'s Opp.; Part One of Deposition of Scott McAndrews ("1 McAndrews Dep.") 40:9-41:13, 47:1-23, Ex. 5 to Pl.'s M. for Conditional Collective Action Certification("Pl.'s M.").

The healthcare facilities that contract with Delta-T, known as Delta-T's "clients," operate in a variety of settings: outpatient clinics, hospitals, psychiatric inpatient facilities, residential treatment facilities, correctional facilities, individual family homes, community centers, long-term care facilities, shelters, drug and alcohol rehabilitation facilities, schools, military institutions, foster care homes, child care centers, and independent living centers. Client opportunities within these settings arise from seven different fields: (1) psychiatry/psychology, (2) nursing, (3) counseling, (4) child and family treatment, (5) special education, (6) behavioral health, and (7) therapy. Within any one of these fields, there are dozens of different job titles and functions. Client needs vary from state to state. McAndrews Decl. ¶¶ 4, 5, and Ex. D-3; see Declaration of Lori Calcaterra, Senior Operations Manager of Delta-T Group North Jersey, Inc. and Delta-T Group Maryland, Inc. ("Calcaterra Decl.") ¶¶ 4-5, Ex. D-2 to Def.'s Opp.

The healthcare workers who register with Delta-T have a variety of educational backgrounds and skill sets, which makes them qualified for different client opportunities. Some workers have doctorates and other advanced degrees. Others have a degree no higher than a high school diploma. Delta-T connects the healthcare workers to the client opportunities based on the workers' credentials. Def.'s Opp. Ex. G-1, Index § A;*fn7 see Calcaterra Decl. ¶ 12.

According to the active registry population since 2005, there are approximately 11,000 active, registered healthcare workers with Delta-T.*fn8 Regardless of the differences among these healthcare workers, Delta-T categorizes all of them as independent contractors for tax and compensation purposes. All healthcare workers complete an Independent Contractor Broker Agreement and Services Agreement to register with Delta-T. Declaration of Dr. Ali Saad, Labor Economist, ¶ 1 n.1, Ex. C-2 to Def.'s Opp.; Calcaterra Decl. ¶ 18; Part Two of Deposition of Scott McAndrews ("2 McAndrews Dep.") 170:24-171:8, Ex. 6 to Pl.'s M.; 1 McAndrews Dep. 116:5-117:8; IC Broker Agreement, Ex. 9 to Pl.'s M.; Services Agreement, Ex. A to Def.'s Opp.

1. Delta-T's Operations

Although Delta-T's affiliate offices are independent corporations, they share some services, such as an interoffice phone system and an intranet. All of the affiliates employ staffing coordinators who are responsible for matching healthcare workers with clients. The staffing coordinators inform the healthcare workers about client opportunities, when and where to appear for work, and what the work will be. Workers are then free to accept or reject the opportunities, and they may hire others to fulfill the client opportunities on their ...


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