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Sommers v. UPMC & UPMC Presbyterian Shadyside

Superior Court of Pennsylvania

May 2, 2018

MISTY M. SOMMERS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,
v.
UPMC AND UPMC PRESBYTERIAN SHADYSIDE, APPEAL OF MISTY M. SOMMERS

          Appeal from the Order Entered, July 21, 2017, in the Court of Common Pleas of Allegheny County, Civil Division at No(s): GD-12-012901.

          BEFORE: BOWES, OLSON, and KUNSELMAN, JJ.

          OPINION

          KUNSELMAN, J.

         Before us is an interlocutory appeal from an order decertifying part of a class of nurses, who are suing their employer for unpaid wages. Because there were no later evidentiary developments in the litigation and common issues predominate over individual ones, we reverse and restore the class to its original composition.

         I. Facts and Procedural Background

         Class Representative Misty Sommers sued the University of Pittsburgh Medical Center (UPMC) and its subsidiaries for unpaid wages nearly six years ago. The class alleged that UPMC owes nurses a shift differential of $1.00 per hour in "Urban and Community Hospitals" and $0.50 per hour in "Regional Hospitals, "[1] if they have a Bachelor's of Science in Nursing (BSN) Degree. The nurses asserted claims for breach of contract; violation of the Wage Payment and Collection Law (WPCL), 43 P.S. § 206.1, et seq.; promissory estoppel; and quantum meruit.

         Ms. Sommers began working for UPMC in 1998 when it acquired her then-employer, Presbyterian Hospital. Several years later, she learned of the BSN differential and that she and other nurses should have been receiving it. For example, UPMC Human Resources Manager Laura Zaspel emailed her, stating, "As you are aware, in July 2011, the differential for RNs in eligible positions who possess BSNs was increased from $.50 to $1.00." R.R. at 82a.

         UPMC began correcting its payroll data to fix prior oversights of certain BSN nurses, to whom it owed the differential. Ms. Sommers testified:

I just waited. Other co-workers were talking to human resources here and there, and I would hear back from them. And then it got to the point where it had been a couple of months, and that's when I called human resources myself.
Q: What happened in that call?
A: I was told that they were working on it, it was gonna take some time and there were thousands of nurses that were affected by this…

Deposition of Misty Sommers at 11-12, R.R. at 338a-339a.

         Ms. Zaspel's email also indicated widespread underpayments. "Over the course of the last several months, steps have been taken to accurately, consistently and comprehensively determine the appropriate rate at which you, and others who may have been affected by this circumstance, should be paid." R.R. at 82a. Human resources described a "time and labor intensive" process that involved "leaders and staff from a number of departments, including Payroll Compensation, Retirement, HR and Legal working together to resolve this issue so that all impacted RNs will be appropriately compensated for the attainment of their BSN." Id. She assured Ms. Sommers that "executives in the HR and Legal departments are reviewing the data" and "[o]nce any salary adjustments and retroactive pay amounts are finalized and approved, you will be notified." Id. Those notifications of retroactive pay came via email three months later; they were identical in form and substance. R.R. at 362a, 363a.

         Ten days later, UPMC sent a spreadsheet to Ms. Sommers calling the retroactive differential a "Back Wage Payment." R.R. at 343a. UPMC's wage repayment to Ms. Sommers ran from February 24, 2009 to February 25, 2012, and the spreadsheet reflected the standardized July 3, 2011 increase from $.50 to $1.00, described by Ms. Zaspel in her previous email. The total restitution from UPMC to Ms. Sommers was $4, 397.73. Id. UPMC's computations included no interest or liquidated damages as mandated under the WPCL. Id. UPMC's Legal Department sent a substantially similar spreadsheet to another nurse, Danielle Gregory, which also called the differential a "Back Wage Payment;" ran from February 24, 2009 to February 25, 2012; reflected the standardized July 3, 2011 increase; and included no interest or liquidated damages. R.R. at 364a.

         Ms. Sommers thought that UPMC's retroactive payments were legally insufficient, so, in July of 2012, she filed this class action.

         Originally, the case was assigned to Allegheny County Court of Common Pleas Judge R. Stanton Wettick, Jr. In response to interrogatories, UPMC produced the names of 91 nurses at Magee-Women's Hospital of UPMC "who were retroactively paid the BSN differential effective July 3, 2011" and "eleven BSNs who UPMC Presbyterian Shadyside identified as having not received the BSN differential and who were ultimately paid retroactively in March 2012." R.R. at 351a.

         After pleadings closed, Ms. Sommers moved for class certification. The trial court declined to certify a class action as to UPMC Presbyterian Shadyside for lack of numerosity, because only eleven of its nurses had claims similar to Ms. Sommers'. Wettick Opinion, 3/2/15 at 2, R.R. at 394a. However, Judge Wettick found that UPMC itself was an "employer" under the WPCL, and he certified Ms. Sommers' representation as to UPMC for a class consisting "of all individuals employed by any UPMC subsidiary and/or business unit at any time on or after February 23, 2006 who should have received but did not receive all or any portion of the regular or overtime BSN Differential from February 23, 2006 to present."[2] Wettick Order, 3/2/15 at 2. He held that Ms. Sommers and other nurses at UPMC Presbyterian Shadyside had commonality with their UMPC-wide colleagues, because UPMC set the compensation plans for all of its subsidiaries. Judge Wettick explained:

UPMC contends that the evidence offered by the plaintiffs does not show a corporate-wide response to unpaid differentials. I disagree. The record shows that it is the practice of UPMC to adopt system-wide corporate policies for personnel matters impacting more than one subsidiary. Thus, if there were numerous nurses with BSN degrees employed by other subsidiaries who also received a three-year retroactive payment, this would support a finding that the three-year payment was a corporate-wide policy.

Wettick Opinion at 6.

         He ordered UPMC to identify all class members. UPMC then identified a class of "at least 330 nurses 'who should have, but did not, receive a BSN Wage Differential' during the time frame relevant to this matter." R.R. at 417a.

         When confronted with lists of 337 nurses, UPMC Compensation Director Gary DuJordan acknowledged that UPMC owed them the differential and that UPMC made retroactive payments to some of them because of the suit.

Q: But the calculation that's reflected here of the amount owed is based on hours she worked; is that right?
A: Yes.
Q: That she wasn't paid for; is that right?
A: Hours worked that she wasn't paid for when she had the BSN - she should have had the BSN differential.
Q: I understand.
You had mentioned a minute ago in your answer that it was based on - nurses who had payout is what you said; what do you mean, a payout?
A: We actually audited our nurses to see if there were any nurses beyond the original 11 in the lawsuit that didn't have payment for the BSN differential, and through this audit process we discovered that they didn't.
We then went back three years and made payments to them based on that.
Q: And it was the filing of the Sommers' lawsuit that caused you to undertake that analysis; is ...

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