The opinion of the court was delivered by: Judge Cathy Bissoon
Defendants‟ Motion (Doc. 451) to decertify this FLSA collective action will be granted, and Plaintiffs‟ Motion (Doc. 452) to finally certify the collective action will be denied.
In addition: Plaintiffs‟ Motion (Doc. 469) to strike Defendants‟ manager declarations will be denied; Plaintiffs‟ Motion (Doc. 472) to strike the opinions of expert Elaine Reardon will be granted; Plaintiffs‟ Motion (Doc. 475) to strike Defendants‟ statements of material fact will be denied; and Plaintiffs‟ Motion (Doc. 477) to strike the declaration of Charles Donina will be denied as moot. Finally, a telephonic status conference will be scheduled to address how this case will proceed.
Plaintiffs have brought this collective action alleging, among other things, that Defendants (at times collectively, "UPMC") violated the FLSA. See generally Compl. (Doc. 1). The only other remaining claims are asserted under RICO. See Am. Compl. (Doc. 266) at Count IV; Order dated Jan. 11, 2010 (Doc. 345) (dismissing all other claims).
This case involves UPMC‟s practice of automatically deducting thirty-minute meal breaks from the pay of non-exempt employees whose shifts lasted five or more hours. This was accomplished through UPMC‟s use of a computerized time tracking system, Kronos. UPMC‟s meal break deductions are actionable under the FLSA only to the extent that employees worked in excess of 40 hours in a given week, either before or after accounting for disputed meal breaks. See Pls.‟ Br. (Doc. 482) at 17 (agreeing that, "[i]f a specific employee did not work over 40 hours in any one week, . . . that employee does not have a bona fide claim in this lawsuit for that week"); Defs.‟ Br. (Doc. 456) at 15 (correctly observing that, assuming employee had five automatic meal break deductions during given week, he or she otherwise must have worked at least 37 1/2 hours to be eligible for FLSA relief).
At the conditional certification stage, the Court found that UPMC‟s uniform, written policies regarding meal break deductions, coupled with the named Plaintiffs‟ and other affiants‟ sworn statements, were sufficient to meet the "fairly lenient" standards of similar situation at stage I. See Order dated May 14, 2009 (Doc. 104) at 4-9. The Court found that, although UPMC‟s policies directed employees to cancel the automatic deductions when they were required to work through meals, this approach "arguably shift[ed] the burden from Defendants to their employees to ensure that non-qualifying meal breaks [we]re not deducted from their pay." Id. at 6. In addition, the Court questioned whether UPMC‟s assessment of meal break deductions for employees receiving more than 20 minutes of uninterrupted time, but less than 30 minutes, was consistent with the FLSA. See id. at 4-6. The Court did not resolve these issues, however, but instead held that the determinations could not properly be made at the conditional certification stage. Id. at 6-7.
After notice to putative collective action members was issued, the parties embarked on a long and contentious course of discovery in support of certification/decertification. The parties eventually submitted, and the Court adopted, a Consent Order and Stipulation staying any outstanding discovery pending the submission and adjudication of motions for certification/decertification. See Consent Order (Doc. 442). The Consent Order stated:
Given the limited nature of discovery provided, it is possible that [the] Court may determine that additional discovery could assist a [final] certification determination, and, if so, such additional discovery will be permitted[,] to be followed by a second round of . . . certification motions. Alternatively, the Court may determine that no amount of discovery would permit [final] certification, or that . . . certification is warranted based on the information discovered.
With respect to opt-in Plaintiffs ("opt-ins"), the parties agreed to conduct discovery regarding 75 former/current employees, with Defendants choosing the participants. See Defs.‟ Statement of Facts (Doc. 455) at ¶ 13.*fn1 Opt-in discovery consisted of 10 depositions and the completion of agreed-upon written questionnaires.
Of the first 75 opt-ins selected, 40 participated in discovery, and 35 elected to opt out rather than participate or were dismissed for refusal to participate. Id. at ¶ 18. An additional 35 opt-ins were selected, two of them participated, and 33 opted out or were dismissed for non-participation. Id. at ¶ 19. Thus, another 33 were selected. Id. at ¶ 21. In the end, only 52 opt-in members completed questionnaires, and ten of those respondents, including the four named Plaintiffs, were deposed.*fn2
Although Plaintiffs‟ counsel likely would hasten to disagree, the facts revealed through opt-in discovery, especially regarding the named Plaintiffs, are not supportive of a finding of similar situation.
Lead Plaintiff Karen Camesi submitted an affidavit in support of conditional certification stating, among other things: that she "often" worked more than 40 hours a week; that her direct supervisor observed her working through unpaid meal breaks; that UPMC "permit[ted]" and "expect[ed]" her to work during meal breaks; and that UPMC‟s practice was "to not ensure that employees who missed their meal break were paid." See Camesi Aff. (Doc. 6-7) at ¶¶ 2, 18, 23, 39. Discovery has revealed, however, that Ms. Camesi worked more than 37.5 hours per week in only 24% of her workweeks. See Defs.‟ Br. (Doc. 481) at 23 (citing record evidence).
Ms. Camesi received training regarding UPMC‟s meal break cancellation policies, and pursuant to those policies, she was paid for working through meal breaks at least five times. See Defs.‟ Facts at ¶¶ 264, 276, 280; Defs.‟ Br. (Doc. 456) at 14 (Ms. Camesi would cancel deductions by marking "no lunch" on weekly time sheets) (citing record evidence). Her prior affidavit notwithstanding, Ms. Camesi testified that her supervisor would not have been aware of whether she had worked through unpaid meal breaks, and she never complained to any superior about working through meal breaks and not being paid. Defs.‟ Facts at ¶¶ 278, 283.
The evidence regarding the other named Plaintiffs, whose materially similar affidavits were relied upon by the Court in granting conditional certification, likewise present an incongruous picture. Named Plaintiff Dina Baker "rarely" missed a full meal break; she had seen UPMC‟s meal break policies in written form; she was never told by management not to cancel meal breaks; she was paid for working through a meal break at least once; and she admitted that her supervisors would have had no way of knowing whether she worked through an unpaid meal break. See Defs.‟ Facts at ¶¶ 249, 253, 256, 257; Defs.‟ Br. (Doc. 456) at 34 (citing record evidence). Named Plaintiff Erin O‟Connell worked over 37 1/2 hours per week only 50 percent of the time, and she cancelled her meal break deductions on 174 occasions. See Defs.‟ Facts at ¶¶ 228; Defs.‟ Br. (Doc. 481) at 23. Named Plaintiff Lori Shaffer worked over 37 1/2 hours per week only 40 percent of the time, and her meal break deduction was automatically overridden by a "work rule" in Kronos on 43 of her total 84 shifts at UPMC, or 51.2 percent of the time. See Defs.‟ Facts at ¶¶ 238-39; Defs.‟ Br. (Doc. 481) at 23.*fn3
In sum, the evidence regarding the named Plaintiffs is far less satisfying than their allegations in support of conditional certification. The other affiants on which the Court relied do not appear to have fared much better. See Defs.‟ Br. (Doc. 456) at 9 n.6 (affiant Lea Ferguson cancelled her meal break deduction for vast majority of her shifts, or 180 times in 1 & 1/2 years); Order dated Oct. 15, 2010 (Doc. 421) (granting summary judgment against affiant Patricia Gratton because she failed to rebut Defendants‟ evidence that she was FLSA-exempt); Order dated May 24, 2010 (Doc. 382) at 20 n.9 (dismissing affiant Maria Mazzarini based on her desire to opt out of collective action); Doc. 459-2 at pg. 3 of 4 (indicating that affiant Christina Updegraff‟s meal break deductions were automatically overridden by "work rules" on four occasions, and cancelled on six).
Even had Plaintiffs fared better, their burden is significantly higher at stage II.
Prise v. Alderwoods Group, Inc., -- F. Supp.2d --, 2011 WL 4101145, *17 (W.D. Pa. Sept. 9, 2011) (Conti, J.) (citations omitted). Although putative collective action members need not be "identically" situated, the requirements of similar situation are more rigorous given the parties‟ opportunity to take discovery. Andrako v. U.S. Steel Corp., 788 F. Supp.2d 372, 378 (W.D. Pa. Mar. 9, 2011) (citations omitted). In evaluating similar situation at stage II, the Court considers:
(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant that appear to be individual to each plaintiff; and (3) fairness and procedural considerations. Prise at *17 (citations omitted).
Plaintiffs‟ legal positions have advanced little since the time of conditional certification. See generally Pls.‟ Br. (Doc. 453). Essentially, Plaintiffs ask the Court to focus narrowly on UPMC‟s "common polic[ies]" of making automatic deductions where employees received more than twenty minutes of uninterrupted meal breaks. In Plaintiffs‟ view, UPMC‟s common policies override all of the various dissimilarities between collective action members identified by Defendants. To the extent that disparate circumstances have proven opt-ins ineligible for FLSA recovery, Plaintiffs disregard them as falling outside the collective action. See, e.g., id. at 2 n.1 (releasing claims of opt-ins for union members who were not subject to deduction, opt-ins who did not work at UPMC and for opt-ins whose deductions were automatically cancelled every shift). When opt-ins have proven ineligible for recovery for certain shifts/workweeks, Plaintiffs assure that these issues can be sorted out after a grant final certification. See, e.g., Pls.‟ Br. (Doc. 482) at 17 (arguing that opt-ins who worked less than 40 hours per week can be addressed on summary judgment)*fn4 ; compare also Defs.‟ Br. (Doc. 456) at 7-8 (highlighting opt-ins whose deductions were automatically cancelled by Kronos "work rule[s]") with, e.g., Pls.‟ Br. (Doc. 482) at 21-22 (arguing that questions of whether opt-ins were, in fact, paid for meal breaks is matter of damages that can resolved through representative testimony).
In sum, Plaintiffs take the position that final certification is warranted based on a small number of legal questions that, in essence, have not changed since the filing of the Complaint. Although Plaintiffs have used discovery to shore up largely undisputed aspects of Defendants‟ meal break policies, their arguments for final certification, if accepted, would beg the question, why should the Court not have finally certified a collective action at the conditional certification stage?
To be fair, the Court‟s Order of conditional certification did find Plaintiffs‟ theories of common policy sufficient under the relatively lenient standards then applicable. At that point, however, the Court took the Plaintiff-affiants‟ statements at face value, and fewer of the significant factual dissimilarities between opt-ins were apparent. The decision also was made without the benefit of the recent jurisprudential developments in the realm of FLSA meal-break litigation.
Since the undersigned‟s grant of conditional certification, a growing consensus of federal courts has rejected the notion that collective action treatment of automatic deductions is warranted under an FLSA "burden-shifting" theory. As the court in White observed:
[T]wo courts [in the Western District of Pennsylvania] have conditionally certified collective actions based on "shifting the burden‟ theories . . . . In both cases, however, the courts spoke at the lenient first stage of the similarly situated analysis, which they recognized in granting conditional certification. . . . [When an] action is at the second stage, the burden is higher.
White v. Baptist Mem. Health Care Corp., 2011 WL 1883959, *10 (W.D. Tenn. May 17, 2011) (citations and some internal quotations omitted). The White Court then held:
To bind together otherwise differently situated employees, an alleged common policy must potentially violate the FLSA. . . . Standing alone, an employer policy providing automatic deductions for meal breaks does not violate the FLSA. . . . Therefore, [an employer‟s] mere adoption of a system that, by default, deducts meal breaks from its employees‟ compensation does not constitute a unified policy of FLSA violations capable of binding together [a collective action].
Id. at *8-9 (citations omitted). Since the instant action was conditionally certified, the conclusions in White have become the prevailing view. See, e.g., Blaney v. Charlotte-Mecklenburg Hosp. Auth., 2011 WL 4351631, *6 (W.D.N.C. Sept. 16, 2011); Zivali v. AT & T Mobility, LLC, 784 F. Supp.2d 456, 462-63 (S.D.N.Y. May 12, 2011); Cason v. Vibra Healthcare, 2011 WL 1659381, *3 ...