United States District Court, D. Arizona
Decided: December 17, 2014.
[Copyrighted Material Omitted]
For Christine Villarreal, individually and on behalf of all others similarly situated, Plaintiff: Daniel Solomon Brome, Matthew C Helland, LEAD ATTORNEYS, Nichols Kaster LLP, San Francisco, CA; David Einer Schlesinger, LEAD ATTORNEY, Nichols Kaster PLLP, Minneapolis, MN; Tim C Selander, LEAD ATTORNEY, Nichols Kaster & Anderson PLLP, Minneapolis, MN.
For Caremark LLC, Defendant: Dana Lauren Hooper, LEAD ATTORNEY, Greenberg Traurig LLP, Phoenix, AZ; James N Boudreau, LEAD ATTORNEY, Greenberg Traurig LLP - Philadelphia, PA, Philadelphia, PA.
Honorable Diane J. Humetewa, United States District Judge.
The named plaintiff, Christine Villarreal, alleges, on behalf of herself and all others similarly situated, that defendant Caremark LLC willfully violated the Fair Labor Standards Act of 1983, as amended, 29 U.S.C. § 201 et seq. (" FSLA" ), by failing to pay overtime to certain of its employees. Pending before the Court is plaintiff Villarreal's " Motion for Conditional Certification and Distribution of Judicial Notice" (Doc. 36). Defendant Caremark has filed a Response (Doc. 42) and plaintiff Villarreal has filed a Reply (Doc. 44).
Caremark " provides pharmaceutical health care services and products to consumers nationwide[,]" with employees in 45 states within the United States. First Amended Complaint (" FAC" ) (Doc. 26) at 2, ¶ ¶ 5- 6). Plaintiff Villarreal is a Caremark employee at its Scottsdale, Arizona office. ( Id. at 3, ¶ ¶ 7-8). Prior to the end of 2013, Caremark had variously referred to Ms. Villarreal as a " Client Benefits Analyst" and " Benefits Specialist." ( Id. at 3, ¶ 7). At the end of 2013, however, Caremark changed her job title to " Coding Consultant[.]" ( Id.). Regardless of her title, according to Ms. Villarreal, her " job duties have remained consistent" during the relevant time frame. ( Id.)
Ms. Villarreal alleges that Caremark informed her that effective March 30, 2014, " it reclassified [her] position to non-exempt[.]" ( Id. at 4, ¶ 15). After being reclassified as non-exempt, Caremark informed Ms. Villarreal that it would pay her overtime for working more than 40 hours in a workweek. ( Id.) Prior to that reclassification, plaintiff Villarreal alleges that Caremark " improperly classified" her and " uniformly misrepresented to" her that she was an exempt employee under the FLSA, and thus ineligible for overtime compensation. ( Id. at 4, ¶ 14; and 5, ¶ ¶ 20 and 25). While classified as an exempt employee, Ms. Villarreal " routinely worked over . . . 40 hours in a workweek[,]" but was " not compensated by [Caremark] with overtime pay for the overtime hours [she] worked." (Id. at 4, ¶ 16).
Plaintiff Villarreal is moving for conditional certification of a collective class consisting of " all persons who worked as Coding Consultants, Client Benefits Analysts, Benefits Specialists and in other positions with a similar job title and/or job duties for Defendant, in the Employer Group or Health Plan Client Services Team, at any time from three years prior to the issuance of notice until March 30, 2014." Mot. (Doc. 36 at 5:8-12) (emphasis omitted) (footnote added). Caremark opposes such certification essentially because from its
perspective, plaintiff Villarreal and the putative opt-in plaintiffs are not similarly situated.
II. Conditional Class Certification
A. Legal Standard
An individual may bring a suit under the FLSA. See 29 U.S.C. § 216(b), ruled unconstitutional on other grounds by Alden v. Maine, 527 U.S. 706, 712, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). In addition, " [a] party may bring a collective action under the FLSA on behalf of other 'similarly situated' employees" to recover, among other things, unpaid overtime wages. See Colson v. Avnet, Inc., 687 F.Supp.2d 914, 924 (D.Ariz. 2010) (citing, inter alia, 29 U.S.C. § 216(b); Hoffmann--La Roche v. Sperling, 493 U.S. 165, 168-69, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). " 'The district court has discretion to determine whether a collective action is appropriate.'" Id. at 925 (quoting Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 481 (E.D. Cal. 2006) (citing Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004)). " The sole consequence of conditional certification is the 'sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court, § 216(b).'" Benedict v. Hewlett-Packard Co., 2014 WL 587135, at *5 n. 8 (N.D.Cal. Feb. 13, 2014) (quoting Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013)). " 'The action [then] proceeds as a representative action throughout discovery.'" Juvera v. Salcido, 294 F.R.D. 516, 519-520 (D.Ariz. 2013) (quoting Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001)).
To certify an FLSA class action, a court must determine whether plaintiffs and the potential opt-in members are " similarly situated." 29 U.S.C. § 216(b). " The FLSA does not define 'similarly situated' and the Ninth Circuit Court of Appeals has not construed it." Id. at 519; see also Sliger v. Prospect Mortg., LLC, 2011 WL 3747947, at *2 (E.D.Cal. Aug. 24, 2011) (" The FLS does not define 'similarly situated,' and the Supreme Court and the Ninth Circuit still have not interpreted the term." ) " Courts have taken three approaches to determine whether plaintiffs are 'similarly situated' for purposes of FLSA collective actions: (1) a two-tiered case-by-case approach, (2) the incorporation of the requirements of Rule 23 of the current Federal Rules of Civil Procedure, or (3) the incorporation of the requirements of the pre-1966 version of Rule 23 for 'spurious' class actions." Id. (internal quotation marks and citation omitted). As earlier noted by this Court, " " [t]he majority of courts,' including those within the District of Arizona, have 'adopted the two-tiered approach[ ]' in deciding whether to grant FSLA collection action status." Villarreal v. Caremark LLC, 2014 WL 4247730, at *3 (D.Ariz. Aug. 21, 2014) (citing Anderson v. Ziprealty, Inc., 2013 WL 1882370, at *2 (D.Ariz. May 3, 2013) (citing cases)); Barrera v. U.S. Airways Group, Inc., 2013 WL 4654567, at *2 (D.Ariz. Aug. 30, 2013) (same); Stickle [ v. SCI Western Market Support Center, L.P., 2009 WL 3241790, at *2 [(D.Ariz. Sept. 30, 2009)] (same). Now, when squarely confronted
with the issue of whether to conditionally certify a class in this case, the Court, as it previously indicated, will employ that two-tiered approach. See Id. at *4.
" 'At this first stage, the court require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'" Villarreal, 2014 WL 4247730, at *3 (quoting Stickle, 2009 WL 3241790, at *2 (internal quotation marks and citations omitted). " Plaintiffs' allegations need neither be strong [n]or conclusive." Colson, 687 F.Supp.2d at 926 (internal quotation marks and citation omitted). " 'All that need be shown by the plaintiff is that some identifiable factual or legal nexus binds together the various claims of the class members in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA.'" Hart v. U.S. Bank NA, 2013 WL 5965637, at *2 (D.Ariz. Nov. 8, 2013) (quoting Wertheim v. State of Arizona, 1993 WL 603552, at * 1 (D.Ariz. Sept. 30, 1993) (citing In re Wells Fargo Home Mortgage Overtime Pay Litig., 527 F.Supp.2d 1053, 1071 (N.D.Cal. 2007)). What is more, " '[p]laintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members.'" Juvera, 294 F.R.D. at 520 (quoting Hipp, 252 F.3d at 1217). Likewise, " [t]he court must only be satisfied that a 'reasonable basis' exists for plaintiffs' claims of class wide injury." Bollinger v. Residential Capital, LLC, 761 F.Supp.2d 1114, 1119 (W.D.Wash. 2011) (quoting Khadera v. ABM Industries Incorporated, 701 F.Supp.2d 1190, 1194 (W.D.Wash.2010) (citing Hipp, 252 F.3d at 1218)).
As can be seen, at this initial, so-called notice stage, a plaintiff's burden " is low." Villarreal, 2014 WL 4247730, at *3 (citing, inter alia, Wellens v. Daiichi Sankyo Inc., 2014 WL 1422979, at *2 (N.D.Cal. April 11, 2014) (internal quotation marks and citations omitted) (" [S]ome court have held that the plaintiff bears a very light burden in substantiating allegations at this [notice] stage." )) " The Court uses a fairly lenient standard because the Court does not have much evidence" in that ordinarily, as here, no discovery has been conducted yet. See Juvera, 294 F.R.D. at 520 (citing Hipp, 252 F.3d at 1217-1218) (other citation omitted); see also Colson, 687 F.Supp.2d at 926 (citations omitted) (" Courts recognize that collective action notification normally occurs before the Parties have had the chance to engage in extensive fact discovery." ) That it why the Court's role is fairly circumscribed at this juncture. " 'It is not the Court's role to resolve factual disputes . . . or . . . decide substantive issues going to the ultimate merits . . . at the preliminary certification stage of an FLSA collective action." Colson, 687 F.Supp.2d at 926 (internal quotation marks and citations omitted). Thus, " [w]hile conditional certification at the first stage is by no means automatic, . . . '[g]iven this light burden, motions to conditionally certify a class for notification purposes are typically granted." Id. at 925 (internal quotation marks and citations omitted).
At the second-tier, " once discovery has produced sufficient information regarding the nature of the claims, . . . the Court then reevaluates, usually prompted by a motion for decertification, the 'similarly situated' question[.]" J ...