The opinion of the court was delivered by: Magistrate Judge Bissoon
For the reasons that follow, Defendants‟ Motion for Summary Judgment (Doc. 173) regarding certain opt-in Plaintiffs ("opt-ins") is GRANTED IN PART and DENIED IN PART, as described below.*fn1
Defendants request the entry of summary judgment against 108 opt-ins who were not employed at Mercy Hospital during the collective action period; and dismissal of another twelve opt-ins who have failed to participate in discovery. See Defs.‟ Br. (Doc. 176) and Defs.‟ Reply Br. (Doc. 200). Since Defendants file their Motion, District Judge Donetta W. Ambrose issued a decision in Kuznyetsov v. West Penn Allegh. Health Sys., Inc., addressing materially similar circumstances and issues. See id., 2010 WL 3885158 (W.D. Pa. Sept. 28, 2010). To the extent applicable, the undersigned will follow Judge Ambrose‟s well-reasoned decision.*fn2
In Kuznyetsov, the defendants sought summary judgment regarding opt-ins who allegedly had not worked for the hospital system during the collective action period.
Judge Ambrose held that individuals who executed affidavits addressing the wheres and whens of their employment had identified issues of material fact, while those who did not execute affidavits had not. See generally id., 2010 WL 3885158 at *2-5. The rationale underlying Judge Ambrose‟s decision is well summarized in her ruling on the plaintiffs‟ request for additional discovery under Federal Rule 56(f):
[T]o the extent any [opt-in] has responded by affirmation[,] . . . summary judgment is not warranted and additional discovery may be necessary. Plaintiffs‟ request with regard to the other [opt-ins, however,] . . . is rejected. No additional discovery is necessary to oppose [the defendants‟ m]otion. Rather, the information needed to oppose the [m]otion can come from simple affirmations of [the opt-ins] themselves, just as the ones provided by some of the [other opt-ins]. Consequently, [the plaintiffs‟] request [for additional discovery is] denied in all respects, other than in those cases where [the opt-in] has responded by affirmation that he/she was employed [by the defendants] during a particular time . . . .
This reasoning is consistent with the standards applicable on summary judgment. Although the initial burden is on the movant to show the absence of a genuine issue of material fact, that burden "may be discharged by showing -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party‟s case." UPMC Health Sys. v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004) (citation to quoted sources omitted). Once the moving party has met its initial burden, "the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial." Lexington Ins. Co. v. Western Penn. Hosp., 423 F.3d 318, 322 n.2 (3d Cir. 2005) (citation omitted). Summary judgment cannot be avoided by speculation, nor may the nonmoving party rest on mere argument or the allegations in her complaint. See Walsh v. Krantz, 2010 WL 2724460, *3 (3d Cir. Jul. 12, 2010) (citation to binding authority omitted).
As in Kuznyetsov, Defendants have met their initial burden of showing the absence of evidence in support of Plaintiffs‟ FLSA claims. Specifically, Defendants have submitted affidavits from Mercy‟s information services department, and technical consultants, demonstrating that numerous opt-ins were not employed at Mercy Hospital during the relevant time frame. See Exs. B-D to Doc. 175. Plaintiffs have introduced affidavits from some of those opt-ins identifying issues of material fact. To the extent that affidavits have not been filed on behalf of the other opt-ins, however, the undersigned joins Judge Ambrose in concluding that Plaintiffs have failed to defeat Defendants‟ entitlement to summary judgment.
Of the 108 opt-ins regarding which Defendants seek summary judgment, 44 have filed affidavits indicating that they worked in the Mercy Health System either before or after the collective action period. See generally Defs.‟ Reply Br. at 2 (identifying affiant opt-ins).*fn3
For those affiants who worked in the Mercy Health System before the collective action period commenced, they have included statements sufficient to implicate the equitable tolling and/or estoppel theories advanced by Plaintiffs. See generally Kuznyetsov, 2010 WL 3885158 at *4 (discussing same, and holding that affidavits were sufficient to identify issues of material fact). Accordingly, the following opt-ins are not subject to the entry of summary judgment:
Behary Huber Maimone Rutledge Biddle Hughes, Shirley Mains-Coll Schutter Boardman Karbowski Maloberti Semenko Burns Kelly Marnik Slepski Campbell, Joyce Kendrew Mautz Slifkey Capets Kish McLaughlin Smeltzer Dimond-Zellers Lemanski Miller Steele Gregg Leonard Myers Sucevic Hale Lester Peitzman Ungerman Harvey, Rosemarie Livingston Pilkington Welsh Holfelder Mack Ripepi Winsor
Summary judgment will be granted regarding the 64 opt-ins who have not filed affidavits: Armenini Fekete Layhew Roolf Bakor Franks Lebak Ross Bartoli Gardner Magdic Rozier Baselj Goldstrom Maloy Seiling Bissontz Gratton Martinac Sherer Bizon Hartz McCalla Shipton Braswell Harvey, Nancy Montileone Simon Brink James Morado Smith Brown Jefferson Morris Soergel Bush Kaib Mosley Spencer Campbell, Dean Karolewski Neuner Sperling Carney Kasey Nickles Tierney Carson Kennedy Opyrchal Trecathan Chestnut Klein Prince Turner, Robert Davis Kremen Reid Turner, Taneika Dilley Largent Riley Wilburn
To the extent that Plaintiffs‟ arguments in opposition to summary judgment address non-affiant opt-ins, nearly all of them fail for the reasons stated, directly or by implication, in Kuznyetsov. Two of ...