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Connie Titchenell. v. Apria Healthcare Inc.

August 29, 2012

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



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

MEMORANDUM

I. INTRODUCTION

This is a collective action under the Fair Labor Standards Act ("FLSA"). Plaintiff Connie Titchenell alleges in her Second Amended Complaint that her former employer, defendant Apria Healthcare, Inc., violated the FLSA by requiring her to work "off the clock" without compensation to meet productivity demands. According to plaintiff, defendant had a company-wide policy or pattern of requiring plaintiff and other similarly situated employees to work more than forty hours per week without overtime pay.

By Memorandum and Order dated November 8, 2011, the Court conditionally certified a collective class. See Titchenell v. Apria Healthcare, Inc., No. 11-563, 2011 WL 5428559 (E.D. Pa. Nov. 8, 2011). Presently before the Court is Plaintiff's Motion to Add Similarly Situated Persons to Conditionally Certified Collective Class and to Facilitate Notice Pursuant to 29 U.S.C. § 216(b) ("Motion to Add Persons"). For the reasons set forth below, the Court grants plaintiff's request to add persons to the collective class and denies plaintiff's request to equitably toll the statute of limitations as to those persons.

II. BACKGROUND

A detailed background of this case is set forth in the Court's prior Memorandum and is repeated here only as necessary to explain the Court's ruling on the Motion to Add Persons.

A. Factual and Procedural Background

Defendant provides "home respiratory therapy and home medical equipment services" and has 12,300 employees in approximately 500 offices across the country. Titchenell, 2011 WL 5428559, at *1. Plaintiff worked as a Customer Service Specialist in defendant's Sharon Hill, Pennsylvania, office from May 2007 until defendant terminated her on September 22, 2010. Id. Plaintiff alleges that she "routinely had to work ten to fifteen extra hours per week after clocking out at 5:00 p.m.," without overtime pay, to meet the productivity demands of her supervisors. Id. She further avers that her supervisors were "fully aware" of the unpaid overtime and that it was a "consistent pattern and practice" for supervisors to demand that Customer Service Specialists work overtime after clocking out without compensation because branch managers are paid more if they minimize the "labor hours" used by their branches. See id.; Pl. Mem. 8--9.

The parties engaged in initial discovery limited to conditional certification issues. Plaintiff then moved for conditional certification of a collective class. On November 8, 2011, the Court granted plaintiff's motion as to a conditional 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 have not been paid overtime by Apria for work in excess of forty hours per week.

Titchenell, 2011 WL 5428559, at *8.

On December 2, 2011, the parties sent a Court-approved Notice of Collective Action Lawsuit ("Notice") to all individuals who worked as Customer Service Specialists for defendant on or after December 2, 2008 ("Liability Period"). The Notice directed individuals who wished to join in the lawsuit to complete and return an Opt-In Consent Form to plaintiff's counsel on or before January 16, 2012.

Forty-four additional plaintiffs opted in. The opt-in plaintiffs worked in several of defendant's locations across the country, although none worked in the same office as plaintiff.

B. Statute of Limitations Under FLSA and Liability Period

The FLSA statute of limitations, which plays an important role in the Motion to Add Persons, operates as follows: The statute of limitations on an FLSA action is either two years or, if a plaintiff alleges a willful violation, three years. See 29 U.S.C. § 255(a). In contrast to class actions under Federal Rule of Civil Procedure 23, the statute of limitations for opt-in plaintiffs- i.e., those individuals who "opt in" to the FLSA collective action after receiving court-approved notice-is tolled as to each individual plaintiff only "upon filing of a written consent."*fn1

Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 200 (3d Cir. 2011) (citing 29 U.S.C. § 256(b)). Thus, after the Court conditionally certified the collective action, the Notice was sent on December 2, 2011, to persons who worked as Customer Service Specialists on or after December 2, 2008-that is, no more than three years before the first date on which opt-in plaintiffs could have filed written consent,. See Doucoure v. Matlyn Food, Inc., 554 F. Supp. 2d 369, 373 (E.D.N.Y. 2008) (holding that the appropriate liability period is "three years prior to the date of the notice itself").

C. Additional Opt-In Plaintiffs

Plaintiff asserts that in March 2012 her counsel began receiving "telephone calls from persons who said they worked as Customer Service Specialists [for defendant], [and] had not received notice, but wanted to participate in the class action because they, too, had worked off the clock." (Mem. Supp. Mot. Add Persons 4 (citing Aff. of Frank Schwartz, Esquire ("Schwartz Aff."), Ex. to Mot. Add Persons, ¶ 4).) After discussing the matter with defendant's counsel, plaintiff's counsel learned that the individuals who contacted him "were not included in the Original Employee List because they had job descriptions different from that of Plaintiff." (Id. ¶ 7.) Plaintiff served additional interrogatories on defendant, requesting, inter alia, that defendant identify any employee who held "a job title with the words 'customer service specialist' anywhere in their written job description" during the Liability Period. (Def.'s Answers Pl.'s 2d. Set Interrogs., Mot. Add Persons Ex. B, at 4.) Defendant identified nineteen such job positions.

Plaintiff argues that six of the additional positions are "so sufficiently similar to that of [plaintiff Titchenell] that the persons in those positions during the Liability Period should be added to the existing collective class." (Mem. Supp. Mot. Add Persons ("Pl. Mem.") 6.) Defendant agrees to the addition of four of those positions for the purposes of conditional certification and opposes two others. (Mem. L. Supp. Def.'s Opp'n Mot. Add Persons ("Def. Mem.") 4.) The four agreed-upon positions are (1) Customer Service Associate; (2) Senior Customer Service Associate; (3) Customer Service Associate Team ...


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