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Molina v. Ace Homecare LLC

United States District Court, M.D. Florida, Tampa Division

August 21, 2017

TOM MOLINA, et al., Plaintiffs,
v.
ACE HOMECARE LLC, BRL INVESTMENTS, LLC, ARTHUR BARLAAN and JOCELYN BARLAAN, Defendants.

          ORDER

          JAMES D. WHITTEMORE, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b) (Dkt 34), and Defendants' response (Dkt. 46). Upon consideration, the motion is GRANTED.

         I. BACKGROUND

         Defendant Ace Homecare was a home health agency that had several locations in the State of Florida and employed hundreds of employees. The seven named plaintiffs were employed by Ace Homecare at its Sebring, Florida location (also referred to as the Avon Park facility) until their termination when all of Ace Homecare's facilities were shut down. Six were employed as nurses and one as a home health aid. (See Plaintiffs' Declarations, Dkts. 25-29). During the last two weeks of Plaintiffs' employment, from February 29, 2016 to March 13, 2016, Plaintiffs and the purported similarly situated employees received no compensation. Plaintiffs seek conditional certification of a FLSA collective action and judicial notice to two putative classes of employees who were allegedly denied minimum wage pay while working for Ace Homecare during the last three years. The first proposed putative FLS A class includes "[a]ll nurses who worked for Defendants within the last three years" and the second proposed putative class includes "[a]ll other employees who worked for Defendants within the last three years." (Dkt. 34 at 3).

         II. STANDARD

         Pursuant to 29 U.S.C. § 216(b), certification of collective actions in FLS A cases is based on a theory of judicial economy, by which "[t]he judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170(1989). Courts utilize a two-tiered approach in making collective action certification determinations under the FLSA:

The first determination is made at the so-called "notice stage." At the notice stage, the district court makes a decision - usually based only on the pleadings and any affidavits which have been submitted - whether notice of the action should be given to potential class members. Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in "conditional certification" of a representative class. If the district court "conditionally certifies" the class, putative class members are given notice and the opportunity to "opt-in." The action proceeds as a representative action throughout discovery.
The second determination is typically precipitated by a motion for "decertification" by the defendant usually filed after discovery is largely complete and the matter is ready for trial. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question.

Hipp v. Liberty Nat'l Life Ins. Ca, 252F.3d 1208, 1218 (11th Cir. 2001); see also Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 n.2 (11th Cir. 2003).

         At the notice stage, the court must initially determine: 1) whether there are other employees who desire to opt in to the action; and 2) whether the employees who desire to opt in are "similarly situated." Dybach v. State of Fla. Dep't of Corrs., 942F.2d 1562, 1567-68 (11thCir. 1991). This determination is made using a fairly lenient standard. Cameron-Grant, 347 F.3d at 1243 n.2. However, the plaintiff must offer "detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary." Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996) (internal quotations and citation omitted). Ultimately, the court must satisfy itself that there are other employees who are similarly situated and who desire to opt in. Dybach, 942 F.2d at 1567-68.

         III. DISCUSSION

         A. Other Opt-in Plaintiffs

         "[P]laintiffs have the burden of demonstrating a reasonable basis for crediting their assertions that aggrieved individuals exist[] in the broad class that they proposed." Haynes v. Singer Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983). Evidence of other employees who desire to opt in may be based on affidavits, consents to join the lawsuit, or expert evidence on the existence of other similarly-situated employees. Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp. 2d. 1272, 1277 (M.D. Ala. 2004).

         In support of their argument that there are other employees who desire to opt in to this action, the seven Plaintiffs have submitted declarations in which they attest that they, "along with hundreds of other people, [were] terminated as part of a mass shutdown by Defendant." (See, e.g., Dkt. 29 ¶ 8, 10). As such, Plaintiffs have demonstrated a reasonable basis for crediting the assertion that other aggrieved employees exist in the classes they propose. See Haynes, 696 F.2d at 887; see also Bell v. Mynt Entm't, LLC,223 F.R.D. 680, 683 (S.D. Fla. 2004) (affidavits from seven plaintiffs indicating others desired to opt in and detailing allegations of wage violations were ...


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