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Case: 1:12-cv-02600-CAB Doc #: 54 Filed: 10/09/13 1 of 7. PageID #: 769











CASE NO.1:12CV2600



This matter is before the Court on Plaintiff Jasmine Lawrence’s Motion for

Conditional Class Certification, Court Supervised Notice to Potential Opt-In Plaintiffs

Pursuant to 29 U.S.C. 216(b), and Expedited Discovery (ECF # 43). For the following

reasons, the Court grants Plaintiff’s Motion, in part.

Plaintiff was employed by Defendant as an in-home health aide and alleges Defendant

denied her overtime pay at a rate of one and one half times her hourly rate, in violation of the

Fair Labor Standards Act (“FLSA”) of 1938. Plaintiff seeks conditional certification for an

opt-in class defined as: “all hourly in-home health care workers employed by Defendant at

any time in the past three years.” Plaintiff alleges Defendant denied her and those similarly

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situated to her overtime pay and alleges her collective action claim depends on a factual

question -i.e.- “whether they were employed by Defendant to work in the clients’ homes to

provide companionship services, or instead, were employed by Defendant to perform general

household work for their clients in the clients’ homes for more than 20 percent of the total

weekly hours worked.” Plaintiff offers as evidence her declaration wherein she states she was

regularly required to work more than forty hours a week but was not compensated for her

overtime at the required rate of one and one half times her regular hourly pay rate. Plaintiff

attaches the declarations of opt-in Plaintiffs Mary Darr and Esmeralda Garcia, both home

health aides who performed the same duties as Plaintiff. These Plaintiffs declare they were

not paid the statutory overtime rate of one and one half times their regular hourly rate. All

three declarants state they performed the following duties: “meal preparation and service;

cleaning the kitchen and other room; shopping for groceries and other items; making beds;

washing clothes; washing dishes; mopping/vacuuming floors; dusting; taking out trash;

errands outside of the home; medical and other appointments; personal hygiene care; and

mobility exercises.” Each declarant further states they are aware of other similarly situated

employees who were also denied overtime compensation. According to Plaintiff, it was

Defendant’s policy not to pay overtime to home healthcare workers.

Defendant contends Plaintiff has failed to meet her burden to show she is similarly

situated to members of the proposed class because home health aides’ duties vary from patient

to patient as does the time spent on those duties. Each patient’s care plan is highly

individualized and depends on a number of factors including: the patients functional

limitations, illness, the state where they reside, treating physicians care plan, and the patient’s


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care provider’s (insurance, government health plan, workers compensation, etc...) approved

care requirements. Therefore, Plaintiff and those similarly situated require highly

individualized inquiry not suitable for a collective action. While the definition of the FLSA

claim is broadly worded, Defendant contends Plaintiff has only offered evidence to support

FLSA violations on behalf of home health aides in Ohio. Additional factors such as the

number of patients assigned to an HHA, the program or policy governing that patients care,

the work schedules of the HHA’s and the patient’s environment all impact the nature of the

duties and the time spent by an HHA on a patient and present highly individualized schedules

not suitable for a collective action. Defendant also contends Plaintiff’s are exempt employees

under the companionship services exemption.


An employee may bring an action on behalf of himself and other “similarly situated”

employees pursuant to 29 U.S.C. § 216(b). Unlike typical class actions, each employee

wishing to join the collective action must affirmatively “opt-in” by filing written consent. 29

U.S.C. § 216(b). District courts have discretion to facilitate notice to potential plaintiffs.

Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). Before facilitating notice,

courts must determine whether the potential class members are similarly situated under

Section 216(b) of the FLSA.

The Sixth Circuit expressed approval for the two-phase test developed by the district

courts in the Sixth Circuit. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir.

2006). The first phase takes place at the beginning of discovery when the court has minimal

evidence. Id. at 546. In the first phase, courts may grant conditional class certification upon a


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modest factual showing sufficient to demonstrate that the putative class members were the

victims of a single decision, policy or plan. Comer, 454 F.3d at 547; Goldman v. RadioShack

Corp., No. 03-0032, 2003 U.S. Dist. LEXIS 7611, at *20 (E.D. Pa. Apr. 16, 2003). Plaintiffs

must show that their “position is similar, not identical, to the positions held by the putative

class members.” Id. at 546-47. Plaintiffs must only establish some “factual nexus” between

the Plaintiffs and the potential class members. Harrison v. McDonald’s Corp., 411 F. Supp.

2d 862, 868 (S.D. Ohio 2005) (citing Jackson v. New York Tel. Co., 163 F.R.D. 429, 432

(S.D.N.Y. 1995)).

The second phase occurs once “all of the opt-in forms have been received and

discovery has concluded.” Comer, 454 F.3d at 546. During the second phase, courts have

discretion to make a more thorough finding regarding the “similarly situated” requirement.

Id. at 547. “If the claimants are similarly situated, the district court allows the representative

action to proceed to trial. If the claimants are not similarly situated, the district court

decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.” Douglas v.

GE Energy Reuter Stokes, No. 07-077, 2007 U.S. Dist. LEXIS 32449, at *14 (N.D. Ohio Apr.

30, 2007) (quoting Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)).

The Court finds Plaintiff has met her “slight burden” under the Sixth Circuit-approved

two phase test and grants conditional certification. Defendant contends Plaintiff cannot show

she is similarly situated to others in the proposed class because of the varying job duties and

requirements of in-home health workers. However, the Sixth Circuit has held that a Plaintiff,

at the first phase, need only demonstrate the proposed FLSA collective class suffered from a

common FLSA violating policy. See O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567,


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585 (6th Cir. 2009) (“[I]t is clear that plaintiffs are similarly situated when they suffer from a

single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with

that policy proves a violation as to all the plaintiffs.” In O’Brien, the Sixth Circuit examined

what constitutes “similarly situated” at the conditional certification stage of an FLSA

collective action. The Sixth Circuit concluded “the plaintiffs were similarly situated, because

their claims were unified by common theories of defendants' statutory violations, even if the

proofs of these theories are inevitably individualized and distinct.” Id. Thus, at this stage of

the proceedings, the similarity of Plaintiff and the collective classes’ job descriptions and

duties are not dispositive on whether to conditionally certify the collective action. The Sixth

Circuit further determined that it did not matter at this stage of the litigation if the employees

held different job titles. “Defendants note that some of the plaintiffs were managers and

therefore could not be “similarly situated.” This is not a compelling argument, because

managers could also have been cheated by defendants.” Id. Thus, the Court, in applying Sixth

Circuit precedent, concludes that, at the opt-in stage of proceedings, the Court must consider

whether Plaintiffs can demonstrate that the alleged putative collective class suffered from

single FLSA violating policy. That is all that is required at the opt-in stage. Furthermore,

under Comer, it only requires a “modest factual showing.”

Here, Plaintiff offers her own declaration and the declaration of two opt-in Plaintiffs,

all asserting that throughout their employment they were not paid overtime compensation at a

rate of one and one-half times their hourly rate and that they were aware of other employees

of Maxim who performed the same duties who were not paid overtime. She also offers her

pay stub and Weekly Notes evidencing that she worked more than forty hours in a week


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without receiving time and a half pay. Therefore, Plaintiff has met her modest factual

showing sufficient to warrant conditional certification. Any contention that the collective

classes’ job duties are not similarly situated is addressed at phase two of the proceedings after

notice and discovery.

Defendant also contends home health workers are exempt under the companionship

services exemption. However, the Sixth Circuit has expressly determined that Plaintiffs need

only show a common policy or conduct by Defendants that deprives Plaintiffs of rights under

the FLSA. Plaintiffs’ declarations and supporting materials present sufficient evidence of

such policies to support conditional certification. Defendant offers more than a dozen

declarations of Maxim employees attesting to the different programs, job functions and duties

of Maxim home health workers. However, it is inappropriate for the Court at the notice

stage to resolve factual disputes or determine the merits of the claims or defenses. “At the

notice stage, district courts within the Sixth Circuit typically do not consider the merits of the

plaintiff's claims, resolve factual disputes, make credibility determinations, or decide

substantive issues.” Swigart v. Fifth Third Bank 276 F.R.D. 210, 214 (S.D. Ohio, 2011). This

also includes arguments on possible exemptions under the FLSA. See Heibel v. U.S. Bank

Nat’l Assoc., No.2:11cv593 2012 WL 4463771 *5 (S.D. Ohio Sept. 27, 2012). In light of

applicable Sixth Circuit precedent, the Court finds Plaintiff has met her burden and grants her

motion for conditional certification of her FLSA collective action.

Therefore, the Court grants Plaintiff’s Motion for Conditional Class Certification of

her FLSA claim. The Class is defined as:

All hourly in-home health care workers employed by Maxim healthcare
Services at any time in the past three years.


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Courts may supervise the issuance of notice in FLSA collective actions. See

Hoffmann–La Roche, Inc., v. Sperling, 493 U.S. 165, 169 (1989). The FLSA “grant[s] the

court the requisite procedural authority to manage the process of joining multiple parties in a

manner that is orderly, sensible, and not otherwise contrary to statutory commands or the

provisions of the Federal Rules of Civil Procedure.” Id. at 170. The Court approves

Plaintiff’s Proposed Notice however, the Court agrees with Defendant that notice need only

be sent by first class mail. Plaintiff motions the Court to compel Defendant to answer

Plaintiff’s interrogatories within fourteen days. However, given the potential size and scope

of the class the Court orders Defendant to file with the Court, no later than three days from

the date of this Order, a proposed time schedule to provide Plaintiff the requested discovery.

Upon receipt, the Court will order expedited discovery and will set an opt-in period.


Dated: October 9, 2013

s/ Christopher A. Boyko
United States District Judge