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Andrew Kuznyetsov, et al v. West Penn Allegheny Health System

December 20, 2011


The opinion of the court was delivered by: Ambrose, Senior District Judge


Plaintiffs brought this collective action against their employers, Defendants, pursuant to §216(b) of the Fair Labor Standards Act, 29 U.S.C. §201, et seq. ("FLSA"), for unpaid overtime compensation for work performed during meal breaks. Pending before me is Defendants‟ Motion to Decertify the Collective Action (ECF No. 107), Plaintiffs‟ Motion to Certify the Collective Action (ECF No. 109), and Defendants‟ Motion to Strike the Expert Report of Gerald V. Barrett and Dennis Doverspike (ECF No. 98). For the reasons set forth below, Defendants‟ Motion to Decertify (ECF No. 107) is granted, Plaintiffs‟ Motion to Certify (ECF No. 109) is denied, and Defendants‟ Motion to Strike (ECF No. 98) is denied as moot.


Defendants require Plaintiffs to take daily, uncompensated meal breaks. To accomplish this, Defendants adopted a computerized timekeeping system, called Kronos, that automatically deducts a thirty minute meal period from nonexempt employees‟ time records when an employee has worked a shift of more than five or six hours. If an employee is unable to take an uninterrupted thirty minute meal break, the entire thirty minute automatic deduction may be cancelled so that the employee is paid for the entire meal break. The manner in which the deduction is cancelled, however, varied by location, department, shift, and supervisor. To cancel the automatic deduction, employees could send an e-mail, fill out a time edit form (each department uses their own specific form), speak with their supervisor, the payroll department, or with a timekeeper. (Docket #9-379 at ECF No. 68-4, ¶17 and Ex. 6). Managers or timekeepers assigned to specific departments had the authority to cancel the deduction. (ECF No. 68-4 Cirell Dec. Ex. 4 at 3 and Ex. 5 at 3) and (ECF No. 68-3, ¶5 and Ex. 2).

Plaintiffs filed a collective action asserting, inter alia, willful violations of the FLSA. (Docket #9-379 at ECF No. 324). The case was preliminarily certified under the "fairly lenient" standard on June 1, 2009. (Case No. 9-379 at ECF No. 81).

There are 824 Opt-In Plaintiffs who work in 1,174 different departments at 142 different locations with 312 different supervisors. Originally, the discovery sampling was to include 75 Plaintiffs. (Case No. 9-379 at ECF No. 192). Eventually, only 18 Plaintiffs participated in the sample discovery.*fn1 Of the 18 Plaintiffs deposed their positions consisted of, inter alia: registered nurse, transport associate, senior endoscopy technician, patient access representative, respiratory therapist, utility worker, environmental serviceman, lab specimen process, central supply technician, patient access representative, ultrasound technologist, ultra ethno technician, patient care associate, MRI technician, courier, materials management associate, technician aide, machine operator, surgical technician, unit secretary, and patient attendant. (ECF No. 108-6, pp. 73-74).

Plaintiffs now move to finally certify the collective action. (ECF No. 109). Defendants simultaneously move to decertify the collective action. (ECF No. 107). The motions have been fully briefed and are ripe for review.


A. Legal Standards

The FLSA mandates employers to pay employees at least the minimum wage for all hours worked. 29 U.S.C. § 201, et seq. The FLSA permits employees to maintain a collective action under 29 U.S.C. §216(b) on their own behalf and on behalf of all similarly situated employees. Plaintiffs seek to proceed collectively against Defendants for automatic meal break wage deductions that occurred when work was performed during that time under 29 U.S.C. §216(b). In relevant part, Section 216(b) authorizes collective actions against employers: by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). Thus, the two requirements for maintaining a §216(b) class action are that employees are similarly situated and each class member file individual consent to opt-in. Sperling v. Hoffman La-Roche, Inc., 862 F.2d 439, 444 (3d.Cir.1988).

The FLSA does not define the term "similarly situated" and neither the United States Supreme Court nor the Court of Appeals for the Third Circuit provide direct guidance on determining whether potential class members are similarly situated. In the absence of definitive precedent, district courts in the Third Circuit have developed a two-stage test. Kuznyetsov v. West Penn Allegheny Health Sys., No. 09-CV-379, 2009 WL 1515175, at *1 (W.D. Pa. June 1, 2009). During the initial or "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. Id. (citing cases). In so doing, the court preliminarily determines whether the proposed class consists of similarly situated employees. Id. (citing Smith v. Sovereign Bancorp, Inc., No. 03-2420, 2003 WL 22701017, at *2 (E.D. Pa. Nov. 13, 2003)). Courts generally examine the pleadings and affidavits of the parties to decide whether the proposed class members are similarly situated, see Aquilino v. Home Depot, Inc., No. 04-4100, 2006 WL 2583563 at *1 (D.N.J. Sept. 7, 2006), and utilize a "fairly lenient" standard in rendering such a determination. Pontius v. Delta Fin. Corp., No. 04-1737, 2005 WL 6103189, at *3 (W.D. Pa. June 24, 2005); see also Kuznyetsov, 2009 WL 1515175, at *1; DeAsencio v. Tyson Foods, Inc., 130 F. Supp. 2d 660, 663 (E.D. Pa. 2001) (at first tier, plaintiffs have "fairly low burden" to prove similarly situated requirement). If the plaintiff meets the requisite showing, the class is conditionally certified for the purpose of notice and discovery. Kuznyetsov, 2009 WL 1515175, at *1. Once the class is conditionally certified, notice is given to the potential plaintiffs so that they may elect whether to opt-in to the action. Id.

In the second stage of class certification, after putative class members have filed their consents to opt-in to the collective action and after the court is more fully informed through discovery, the defendant may move to decertify the class on the basis that the "similarly situated" standard has not been met and the court makes its final certification decision. Sperling, 862 F.2d at 444; Kuznyetsov, 2009 WL 1515175, at *2; Pontius, 2005 WL 6103189, at *3. The burden of demonstrating that class members are "similarly situated" is significantly higher at the decertification stage. See Moss v. Crawford & Co., 201 F.R.D. 398, 409 (W.D. Pa. 2000). This stricter standard is used to exam whether the putative members of the action are, in fact, similarly situated. Despite this higher burden, however, similarly situated does not mean "identically" situated. Wilks v. Pep Boys, No. 3:02-0837, 2006 WL 2821700, at *3 (M.D. Tenn. Sep. 26, 2006) (citing Moss, 201 F.R.D. at 409). As all parties agree here, determining whether class members are similarly situated at the decertification stage generally requires consideration of three factors: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant; and (3) fairness and procedural considerations. See Prise v. Alderwoods Group, Inc., No. 06-1641, 2011 U.S. Dist. LEXIS 101817 (W.D. Pa. Sept. 9, 2011); Moss, 201 F.R.D. at 409; Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987), mandamus granted in part, appeal dismissed, 855 F.2d 1062 (3d Cir. 1988), vacated in part, modified in part, 122 F.R.D. 463 (D.N.J. 1988), aff'd in part, appeal dismissed, 975 F.2d 964 (3d Cir. 1992).

The first factor assesses the opt-in plaintiffs‟ job duties, geographical location, supervision, and salary. Moss, 201 F.R.D. at 409. "The similarities between the named and potential plaintiffs under the first prong "must extend beyond the mere facts of job duties and pay provisions.‟" Prise v. Alderwoods Group, Inc., No. 06-1641, 2011 U.S. Dist. LEXIS 101817, at *56 (W.D. Pa. Sept. 9, 2011) (quoting Zavala v. Wal-Mart Stores, Inc., No. 03-5309, 2010 WL 2652510 , at *3 (D.N.J June 25, 2010).

The second factor concerns whether potential defenses apply to the opt-in class as a whole or whether many different defenses will be raised with respect to each individual opt-in plaintiff. Id. at 410. "Individualized defenses prevent efficient representative proceedings and courts have not hesitated to grant decertification on that basis. The court may exercise its discretion to determine whether individual defenses make a collective action unmanageable." Prise, at 57 (citing, Moss, 201 F.R.D. at 409-410).

The third factor -- fairness and procedural considerations -- requires me to consider whether I can analyze the potential opt-in class with a "broad scale approach." Moss, 201 F.R.D. at 410 (quoting Lusardi, 118 F.R.D. at 360). In evaluating this factor, I must consider "that the primary objectives of a ยง 216(b) collective action are: (1) to lower costs to the plaintiffs through the pooling of resources; and (2) to limit the controversy to one proceeding which efficiently resolves common issues of law and fact that arose from the same ...

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