KAREN CAMESI; ERIN O'CONNELL; LORI SHAFFER; DINAH BAKER, on behalf of themselves and all other employees similarly situated, Appellants in Case No. 12-1446
UNIVERSITY OF PITTSBURGH MEDICAL CENTER; UPMC; UPMC HEALTH SYSTEM; UPMC BEDFORD MEMORIAL HOSPITAL; UPMC BRADDOCK; UPMC MCKEESPORT; UPMC NORTHWEST; UPMC PASSAVANT; UPMC PRESBYTERIAN; UPMC PRESBYTERIAN SHADYSIDE; UPMC SHADYSIDE; UPMC SOUTHSIDE; UPMC ST. MARGARET; MAGEE WOMEN'S HOSPITAL OF UPMC; MERCY HOSPITAL OF PITTSBURGH; MONTEFIORE HOSPITAL; MONTEFIORE UNIVERSITY HOSPITAL; WESTERN PSYCHIATRIC INSTITUTE AND CLINIC; CHILDREN'S HOSPITAL OF PITTSBURGH OF THE UPMC HEALTH SYSTEM; UPMC LEE; UPMC HORIZON; UPMC HOLDING COMPANY, INC.;UPMC HEALTH NETWORK, INC.; JEFFREY A. RAMOFF; GREGORY PEASLEE; UPMC 401A RETIREMENT SAVINGS PLAN; UPMC 403B RETIREMENT SAVINGS PLAN; UPMC BASIC RETIREMENT PLAN ANDREW KUZNYETSOV; CHARLES BOAL; MARTHANN HEILMAN, Appellants in Case No. 12-1903 v.
Argued March 6, 2013
Appeal from the United States District Court for the Western District of Pennsylvania (District Court Nos. 3-09-cv-00085 and 2-10-cv-00948) District Judges: Honorable Cathy Bisson and Honorable Donetta W. Ambrose.
Jared K. Cook, Esquire Justin M. Cordello, Esquire Michael J. Lingle, Esquire Patrick Solomon, Esquire J. Nelson Thomas, Esquire (Argued) Thomas & Solomon Counsel for appellants in case 12-1446 and case 12-1903
Wendy W. Feinstein, Esquire Mariah L. Klinefelter, Esquire John J. Myers, Esquire (Argued) Andrew T. Quesnelle, Esquire Mark A. Willard, Esquire Eckert, Seamans, Cherin & Mellot 600 Grant Street Counsel for appellees in case 12-1446.
Alexandra Bak-Boychuk, Esquire David S. Fryman, Esquire (Argued) William K. Kennedy, II, Esquire John B. Langel, Esquire Ballard Spahr Robert B. Cottington, Esquire Cohen & Grigsby Counsel for appellees in case 12-1903.
Before: RENDELL, AMBRO and VANASKIE, Circuit Judges.
RENDELL, Circuit Judge
In this consolidated appeal we consider whether named plaintiffs may appeal a district court order denying final certification of a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. (2007). The named plaintiffs voluntarily dismissed their individual claims with prejudice but seek to pursue an appeal on behalf of others who opted into the litigation before the District Court. We conclude that the named plaintiffs lack final orders appealable under 28 U.S.C. § 1291. Thus, we will dismiss these appeals for lack of jurisdiction.
"The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract." Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1527 (2013). Under Section 16(b) of the FLSA, 29 U.S.C. § 216(b), an employee may bring an action against his employer individually, on his own behalf, and collectively, on behalf of other "similarly situated" employees. Id. In order to become parties to a collective action under Section 16(b), employees must affirmatively opt-in by filing written consents with the court. 29 U.S.C. § 216(b). This feature distinguishes the collective-action mechanism under Section 16(b) from the class-action mechanism under Federal Rule of Civil Procedure 23, where, once the class is certified, those not wishing to be included in the class must affirmatively opt-out.
Courts in our Circuit follow a two-step process for deciding whether an action may properly proceed as a collective action under the FLSA. Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 535 (3d Cir. 2012). Applying a "fairly lenient standard" at the first step, the court makes a preliminary determination as to whether the named plaintiffs have made a "modest factual showing" that the employees identified in their complaint are "similarly situated." Id. at 536 & n.4. If the plaintiffs have satisfied their burden, the court will "conditionally certify" the collective action for the purpose of facilitating notice to potential opt-in plaintiffs and conducting pre-trial discovery. Id. at 536. At the second stage, with the benefit of discovery, "a court following this approach then makes a conclusive determination as to whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff." Genesis Healthcare Corp. v. Symczyk, 656 F.3d 189, 193 (3d Cir. 2011), rev'd on other grounds, Symczyk, 133 S.Ct. at 1526. This step may be triggered by the plaintiffs' motion for "final certification, " by the defendants' motion for "decertification, " or, commonly, by both. If the plaintiffs succeed in carrying their heavier burden at this stage, the case may proceed on the merits as a collective action. Id.
It is under this framework that Appellants brought their actions.
The first consolidated action was commenced on April 2, 2009, by Karen Camesi, Erin O'Connell, Dinah Baker, and Lori Shaffer (the "Camesi Named Plaintiffs") against UPMC and multiple related entities (collectively, "UPMC") in the United States District Court for the Western District of Pennsylvania on behalf of themselves and "similarly situated" individuals. (Camesi J.A. at A-40). They alleged that their employer, UPMC, violated the FLSA by failing to ensure that they were paid for time worked during meal breaks. Upon filing their complaint, the Camesi Named Plaintiffs moved for expedited conditional certification. (Id.) The motion was granted in May 2009, notice was directed to potential collective-action members, and 3, 115 individuals opted into the lawsuit. (Camesi Br. Appellee at 5). After preliminary discovery, UPMC filed a motion to decertify the collective action and the Camesi Named Plaintiffs filed a motion for final certification. (Camesi J.A. at A-114-16). The District Court granted UPMC's motion and denied the Camesi Named Plaintiffs' motion on December 20, 2011, and dismissed the claims of the opt-in plaintiffs without prejudice. (Id. at A-1). The Camesi Named Plaintiffs did not ask the District Court to certify its interlocutory December 20, 2011 order for appeal, but, instead, moved under Federal Rule of Civil Procedure 41(a) for "voluntary dismissal of their claims with ...