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Connie Titchenell. v. Apria Healthcare Inc.

November 8, 2011

CONNIE TITCHENELL.
PLAINTIFF,
v.
APRIA HEALTHCARE INC. DEFENDANT.



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

MEMORANDUM

I. Introduction

Plaintiff Connie Titchenell filed this action against her former employer, defendant Apria Healthcare, Inc. ("Apria"), alleging that defendant violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. She contends that, as a Customer Service Specialist, she worked ten to fifteen hours per week "off the clock" without compensation to meet defendant‟s productivity demands. According to plaintiff, defendant had a company-wide policy or pattern of requiring Customer Service Specialists to work in excess of forty hours per week without overtime pay.

Presently before the Court is Plaintiff‟s Amended Motion for Conditional Certification of Collective Class and to Facilitate Notice Pursuant to 29 U.S.C. § 216(b) ("Pl.‟s Am. Mot."). For the reasons stated below, the Court grants plaintiff‟s motion.

II. Background

Defendant, which provides "home respiratory therapy and home medical equipment services," has 12,300 employees in approximately 500 offices across the country. (Pl.‟s Am. Mot. 5.) Between January 1, 2008, and July 2011, defendant employed 2,087 Customer Service Specialists in all offices. (Id.) Plaintiff, who had worked for defendant since 1996, was a Customer Service Specialist in defendant‟s Sharon Hill, Pennsylvania, office from May 2007 until defendant terminated her on September 22, 2010. (Am. Compl. ¶¶ 11-12.) The parties agree that Customer Service Specialists are hourly employees who are not exempt from FLSA and are subject to an Overtime Pay Policy requiring advance management approval for work in excess of forty hours per week. (Customer Service Specialist Job Description, Pl.‟s Am. Mot. Ex. D, at 1; Apria Overtime Pay Policy, Pl.‟s Am. Mot. Ex. E, at 1.)

Plaintiff avers that, starting around March 2009, she routinely had to work ten to fifteen extra hours per week after clocking out at 5:00 p.m. "in order to service the number of customers demanded by [Customer Service Specialist Lead Susan Dix]*fn1 and [Sharon Hill Branch Manager John] Dorais." (Am. Compl. ¶¶ 14-16.)*fn2 According to plaintiff, defendant only paid her for forty hours of on-the-clock time per week and did not pay her for work she did after clocking out. (Id. ¶ 18.) Plaintiff further alleges that Dix and Dorais were "fully aware" of her unpaid time and that defendant had a "consistent pattern and practice of requiring its Customer Service Specialists to work "off-the-clock,‟ either before or after scheduled working hours, without properly compensating them." (Pl.‟s Am. Mot. 5.)

Pursuant to the June 7, 2011, Scheduling Order, the parties engaged in initial discovery concerning conditional certification. In the motion presently before the Court, plaintiff asks the Court to conditionally certify a class consisting of All non-exempt Customer Service Specialists employed by Apria who have worked and/or are still working in any branch office of Apria anywhere in the United States during the liability period and who were not paid regular or overtime wages as required by the FLSA. (Pl.‟s Am. Mot. 10.) Plaintiff also asks the Court to approve issuance of a proposed notice and opt-in consent form to all potential class members and to order defendant to provide a data file with the contact information for all potential opt-in members. (Id. at15-16.)

In support of her motion, plaintiff has presented the following evidence:

(a) An affidavit from her attorney, Frank Schwartz, Esq., who reached nine out of a sample of approximately 400 former Customer Service Specialists for whom defendant provided contact information. (Schwartz Aff., Pl.‟s Am. Mot. Ex. A, ¶¶ 4-6.)

(b) The affidavits of Peter Graziano and Amy Armstrong, who worked as Customer Service Specialists for defendant during at least part of the relevant period. (Graziano Aff., Pl.‟s Am. Mot. Ex. B; Armstrong Aff., Pl.‟s Am. Mot. Ex. C.)

(c) Defendant‟s Customer Service Specialist job description, (Job Description, Pl.‟s Am. Mot. Ex. D), and Overtime Pay Policy (Overtime Pay Policy, Pl.‟s Am. Mot. Ex. E).

Defendant argues that plaintiff‟s claim "is based on individual facts and circumstances that are not encountered or experienced by Apria Customer Service Specialists nationwide" and that class certification is "unwarranted and infeasible." (Def.‟s Resp. Opp‟n Pl.‟s Am. ...


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