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Joni Wright, et al. v. Lehigh Valley Hospital

January 20, 2011


The opinion of the court was delivered by: Arnold C. Rapoport United States Magistrate Judge



Presently pending before me in this action under the Fair Labor Standards Act ("FLSA") is Plaintiff Joni Wright's Second Motion to Proceed as a Collective Action and Facilitate Notice Under 29 U.S.C. § 216(b). Wright's first motion seeking such relief was denied by Judge Schiller in a Memorandum and Order dated August 24, 2010 ("August Memorandum"). Judge Schiller reasoned that Wright, a registered nurse who claimed that she was not paid for time she was required to work before and after her scheduled shifts, had failed to proffer any admissible evidence that would allow the Court to infer that other current or former registered nurses employed by Lehigh Valley Hospital and Health Network ("the Network") and its constituent hospitals endured deprivations similar to those Wright allegedly experienced. August Memorandum at 6. Judge Schiller permitted Wright the opportunity to re-file the motion to cure the defects he outlined.*fn1 For the reasons that follow, I find that Wright has now proffered sufficient evidence to demonstrate that a collective action is proper.

II. FLSA COLLECTIVE ACTIONS In the August Memorandum, Judge Schiller ably set forth the law applicable to certifying a collective action under the FLSA*fn2

The FLSA requires employers to compensate their employees at one and one-half times the employees' hourly wage for hours worked in excess of forty hours per week. 29 U.S.C. §§ 206-07. "Additionally, the FLSA requires employers to keep wage and hour records, and creates a right of action for covered employees." Walker v. Washbasket Wash & Dry, Civ. A. No. 99-4878, 2001 WL 770804, at *6 (E.D. Pa. July 5, 2001) (citations omitted). The FLSA permits "one or more employees to pursue an action in representative capacity for 'other employees similarly situated.'" Aquilino v. Home Depot, Inc., Civ. A. No. 04-4100, 2006 WL 2583563, at* 1 (D.N.J. Sept. 7, 2006) (quoting Mortisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 496 (D.N.J. 2000)). Wright must demonstrate that the proposed class satisfies two requirements: "(1) class members are 'similarly situated,' and (2) class members affirmatively opt into the action." Bamgbose v. Delta-T Group, Inc., 684 F. Supp. 2d 660, 667 (E.D.Pa. 2010) (citations omitted).

Courts employ two stages of analysis when deciding whether to certify an FLSA collective action. During the initial notice stage, "the court determines whether a class should be conditionally certified for the purpose of notice to potential opt-in plaintiffs and for pretrial discovery regarding their individual claims." Kuznyetsov v. W. Penn Allegheny Health Sys., Inc., Civ. A. No. 09-379, 2009 WL 1515175, at *1 (W.D.Pa. June 1, 2009). At the notice stage, the court should review the pleadings and affidavits of the parties to decide if the proposed class consists of similarly situated employees. Id.

If the plaintiff carries her burden, the court will conditionally certify the class for the purpose of notice and discovery. Id. (citing Armstrong v. Weichert Realtors, Civ. A. No. 05-3120, 2006 WL 1455781, at *2 (D.N.J. May 19, 2006)). The second stage or "decertification" stage occurs at the close of class-related discovery, when the defendant may move to decertify the class. Bamgbose, 684 F. Supp. 2d at 668.

[T]he Court will require Plaintiffs to make a basic or modest factual showing that the proposed recipients of opt-in notices are similarly situated to the named Plaintiff. [Smith v. Sovereign Bancorp, Inc. Civ. A. No. 03-2420, 2003 WL 22701017, at *3 (E.D.Pa. Nov. 13, 2003).] This conclusion is in line with the bulk of courts in this Circuit that have considered the issue. See, e.g., Krstic v. J.R. Contracting & Envtl. Consulting, Civ. A. No. 09-2459, 2010 WL 395953, at *2 (D.N.J. Feb.4, 2010) (citing Patton v. Thomson Corp., 364 F. Supp. 2d 263, 267 (E.D.N.Y. 2005)) (requiring a "modest factual showing"); Burkhart-Deal v. Citifinancial, Inc., No. 07-1747, 2010 WL 457127, at *1 (W.D.Pa. Feb.4, 2010) (quoting Williams v. Owens & Minor, Inc., Civ. A. No. 09-742, 2009 WL 5812596, at *2 (E.D.Pa. Oct. 9, 2009)) (same); Abercrombie v. Ridge, Civ. A. No. 09-468,2009 WL 3668112, at *4 (W.D.Pa. Nov. 4, 2009) (same); Andrako v. U.S. Steel Corp., Civ. A. No. 07-1629, 2009 WL 2855662, at *3 (W.D.Pa. Sept.2, 2009) (citations omitted) (same); Kuznyetsov, 2009 WL 1515175, at *2 (citations omitted) (same); Harris v. Healthcare Servs. Group, Inc., Civ. A. No. 06-2903, 2007 WL 2221411, at *3 (E.D.Pa. July 31, 2007) (citations omitted) (same). This is a lenient standard but requires some evidence beyond mere speculation that the defendant's policy affected other employees. See Anyere v. Wells Fargo Co., Civ. A. No. 09-2769, 2010 WL 1542180, at *2 (N.D.Ill. Apr. 12, 2010) ("A 'modest factual showing' . . . cannot be founded solely on allegations in the complaint; some factual support must be provided, such as in the form of affidavits, declarations, deposition testimony, or other documents." (quoting Molina v. First Line Solutions LLC, 566 F. Supp. 2d 770, 786 (N.D.Ill. 2007))); Burkhart-Deal, 2010 WL 457127, at *1 (quoting Kuznyetsov, 2009 WL 1515175, at *2); Bishop v. AT&T Corp., 256 F.R.D. 503, 507 (W.D.Pa. 2009).

August Memorandum at 3-6.


In her second attempt at seeking certification to proceed as a collective action, Wright has provided the Court with "Opt-In Consent Forms" from three registered nurses who worked as hourly employees (i.e., non-exempt employees under the FLSA) in the Patient Care Services Division at the Network's Lehigh Valley Hospital - Muhlenberg ("LVH-M") and who seek to participate in this collective action. She asserts that these three nurses are similarly situated to herself because all were subject to the same unlawful payroll practices and treatment, namely that Defendants uniformly failed to accurately track and record hours actually worked by Wright and similarly situated non-exempt registered nurses, and failed to pay compensation and overtime compensation in accordance with the mandates of FLSA for compensable work performed before and after scheduled shifts.*fn3

(Pl. Mem. at 19.)

As previously detailed by Judge Schiller, Wright alleges that the Network requires its non-exempt nurses to arrive at work at least fifteen minutes in advance of their scheduled shift and stay at least fifteen minutes following the conclusion of their scheduled shift in order to attend meetings called "Report," during which the outgoing shift briefs the incoming shift on patients' status. (Compl.¶¶ 25, 26, 40.) In some cases, Wright and her fellow registered nurses were required to stay in excess of two hours after their shifts concluded. (Id. ¶¶ 27, 41.) She alleges that registered nurses are not compensated for the work performed during this overtime. (Compl. ¶¶ 28-29, 42-43.) Wright's payroll checks from the Network allegedly fail to accurately state the number of hours she worked and instead compensate her on a "per shift" basis rather than for all hours worked as the FLSA requires. (Compl. ¶ 46; Wright Decl. 10.) Wright's Declaration notes that throughout her employment she worked alongside other registered nurses who similarly worked before and after their shifts without being properly paid. (Wright Decl. ¶ 15.)

The fault identified by Judge Schiller in the August Memorandum is that Wright failed to provide any admissible evidence to support this last assertion, which is key to her attempt to certify a collective action. The only submission she provided with her first motion was the hearsay declaration of counsel asserting that he had a phone conversation with ...

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