United States District Court, S.D. West Virginia, Charleston
PAMELA MAYHEW, BETSY FARNSWORTH, on behalf of themselves and others similarly situated, Plaintiffs,
LOVED ONES IN HOME CARE, LLC, and DONNA SKEEN, Defendants.
MEMORANDUM OPINON AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE
is the plaintiffs' motion for final collective action
certification under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., filed
December 12, 2018.
December 1, 2017, the court conditionally certified the
collective action in this case. ECF No. 23. Defendants
subsequently moved to limit the conditional collective action
certification on the grounds that it was too broad. ECF No.
27. After full briefing, the court ordered, on February 23,
2018, that the collective action be limited to employees who
worked for defendants in home health aide in two or more
programs during the course of the same pay period at any time
between July 28, 2014, and May 31, 2017. ECF No. 54, at 4.
their motion for final collective action certification, the
plaintiffs contend that inasmuch as the defendants were
successful on their motion to limit the conditional
collective action certification, they essentially conceded
that the following definition of the class applies in this
action: “only those individuals who serviced clients in
both the private care program and also the Medicaid waiver
program, i.e., employed as a ‘hybrid' aide.”
Pls.' Mot., ECF No. 240, at 4-5 (quoting ECF No. 27, at
December 4, 2018, the defendants filed a motion to dismiss
the second amended complaint. ECF No. 237. Subsequent to that
filing, the defendants responded to plaintiffs' motion
for final collective action certification, arguing that the
motion was premature inasmuch as defendants believed the case
should be dismissed. ECF No. 244.
the court denied defendants' motion to dismiss, ECF No.
258, defendants filed, on December 28, 2018, another response
to plaintiffs' motion for final collective action
certification in which they stated: “Defendants do not
oppose Final FLSA Class Certification to the extent that
those persons who have given consents to sue are actually
within the defined class and entitled to relief.” ECF
No. 259, at 1.
courts have utilized a two-step process for certification of
a collective action. First, after making a threshold
determination of whether the potential class is similarly
situated, the court may conditionally certify a class. See
Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 566
(D. Md. 2012). The next step follows the close of discovery
and requires a more “stringent inquiry to determine
whether the plaintiff class is [in fact] ‘similarly
situated, '” and typically begins when the
defendant files a motion for decertification. Syrja v.
Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md. 2010)
(quoting Rawls v. Augustine Home Health Care, Inc.,
244 F.R.D. 298, 300 (D. Md. 2007)).
Court of Appeals for the Second Circuit has noted: “At
the second stage, the district court will, on a fuller
record, determine whether a so-called ‘collective
action' may go forward by determining whether the
plaintiffs who have opted in are in fact ‘similarly
situated' to the named plaintiffs.” Myers v.
Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010). In
addition, the “burden is on the named plaintiff to
prove that the other employees are similarly situated.”
McGlone v. Contract Callers, Inc., 49 F.Supp.3d 364,
367 (S.D.N.Y. 2014) (quoting Zivali v. AT&T Mobility,
LLC, 784 F.Supp.2d 456, 460 (S.D.N.Y. 2011)). “If
the record shows all putative class members are
‘similarly situated,' the ‘conditional'
aspect is removed, the collective action is finally
certified, and the matter proceeds to trial.”
Id. (quoting Morano v. Intercontinental Capital
Grp., Inc., No. 10 CV 02192 KBF, 2012 WL 2952893, at *6
(S.D.N.Y. July 17, 2012)).
it appears that the plaintiffs believe that the only
pertinent part of the record regarding whether the class
members are similarly situated to the named plaintiffs is the
defendants' statement in a prior briefing which concedes
that there is a similarly situated group of employees.
Pls.' Mot., ECF No. 240, at 3-5. Noting the absence of a
motion to decertify the class or any substantive opposition
to the plaintiffs' motion by defendants, the court finds
plaintiffs' position persuasive.
reasons stated above, it is ORDERED that plaintiffs'
motion for final FLSA certification be, and hereby is,
granted. The class consists of current and former Loved Ones
home health aides who worked in both the private care program
and the Medicaid waiver program (“hybrid ...