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Poggi v. Humana At Home 1, Inc.

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

October 30, 2017

DAVID POGGI, on his own behalf and others similarly situated, Plaintiff,
v.
HUMANA AT HOME 1, INC. and HUMANA, INC., Defendants. HARRY CRUZ, individually and on behalf of all others similarly situated, Plaintiff,
v.
HUMANA AT HOME 1, INC. and HUMANA, INC., Defendants.

          ORDER

          SUSAN C. BUCKLEW, UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on Plaintiffs Motion for Conditional Certification and Facilitation of Court-Authorized Notice. (Doc. No. 51). Defendants oppose the motion (Doc. No. 57), and Plaintiff has filed a reply brief (Doc. No. 62). As explained below, the motion is denied.

         I. Background

         Plaintiff David Poggi brought this Fair Labor Standards Act ("FLSA") proposed collective action against Defendants Humana at Home 1, Inc. and Humana, Inc. (collectively referred to as "Humana").[1] Humana is a health insurance corporation. Humana offers healthcare management support to individuals who are managing chronic healthcare conditions or who are transitioning following discharge from a hospital. (Doc. No. 57-1, ¶ 4). In order to do so, Humana contacts members, evaluates their healthcare needs, develops care plans, and helps connect members with providers or services that can meet those needs. (Doc. No. 57-1, ¶ 5). Humana does this through its employees that are employed as "Healthcare Finders." (Doc. No. 57-1, ¶ 6). Poggi sometimes refers to "Healthcare Finders" as "Healthcare Coordinators" or "Personal Health Coaches, " and Humana appears to agree that all three labels describe the same position. (Doc. No. 57-1, ¶ 27).

         In his second amended complaint (Doc. No. 48), Poggi alleges the following: Poggi started working for Humana in September of 2015 as a Healthcare Coordinator, and he continued working until April of 2017. (¶ 90, 91, 98). His job duties involved contacting Humana's members, coordinating care, and documenting the calls. (¶ 92). Poggi contends that he was a non-exempt employee under the FLSA and worked more than forty hours during one or more weeks of his employment with Humana, yet Humana did not pay him for all of the overtime hours that he had worked. (¶ 93-97).

         Poggi contends that Humana's failure to pay him overtime was part of Humana's "Workforce Optimization Policy"-a policy that Poggi does not specifically define within the second amended complaint. (¶4, 139). Poggi contends that Humana utilized workforce optimization services from Verint Industries, Inc. ("Verint") in order to increase the productivity of Humana's employees. (¶ 3). According to Poggi, Humana utilized Verint's services in order to monitor, track, and optimize the productivity of Poggi and other similarly situated employees. (¶ 129, 138-40). One way Humana attempted to increase productivity was by requiring Poggi and other Healthcare Coordinators to meet daily and weekly quotas. (¶ 156).

         Verint's technology recorded the amount of time that Poggi and others were logged into Humana's system. Poggi contends that Verint's time records show that Poggi was logged in for 44 hours and 24 minutes during the week of February 14, 2016, yet Humana only paid Poggi for 40 hours of work that week. (¶ 143-45). Poggi contends that there were other weeks in which Verint's technology recorded overtime hours for which Poggi was not paid. (¶ 146). Based on this, Poggi makes the following allegations:

147. By virtue of its unlawful Workforce Optimization Policy, Defendants sought to increase productivity of Plaintiff(s) and other similarly-situated non-exempt workers, while failing to pay proper overtime wages.
148. At all times relevant, Defendants had actual or constructive knowledge (down to each electronically recorded minute) of the hours worked by Plaintiff Poggi and others similarly situated.
149. Defendants knew or should have known that Plaintiff(s) were not being paid for all of their hours worked because Defendants were in possession of detailed electronic records and Workforce Optimization data showing Plaintiff(s)' actual hours each week.
150. Defendants failed to ensure that its payroll records matched the electronic data collected under its Workforce Optimization Policy in violation of the FLS A's record keeping requirements.
151. Defendants paid Verint to help Humana maximize profits while not paying for all overtime hours worked.

(Doc. No. 48, ¶ 147-51).

         Thus, Poggi contends that Humana violated the FLSA's overtime provisions by not paying him for all hours worked in excess of forty each week. He filed this purported nationwide collective action on behalf of the following class:

[A]ll current and former non-exempt "Healthcare Coordinator" employees (including but not limited to Healthcare Coordinators, Personal Health Coaches, Home Visit Field Case Managers, and Wellness Coordinators[2]) who: (1) worked for Defendants within the three (3) years preceding the filing of this lawsuit; (2) were subject to Defendants' unlawful Workforce Optimization Policy and; (3) worked more than forty (40) hours per week without proper overtime compensation.

(Doc. No. 48, ¶ 153).

         In addition to Poggi, eight other current or former employees of Humana have opted into this case: Celine Daniel (Doc. No. 10-1), Heather Teppe (Doc. No. 13-1), Tharius Bethel (Doc. No. 16-1), Chimere Ford (Case 8:17-cv-1234, Doc. No. 7), Sashana Nixon (Case 8:17-cv-1234, Doc. No. 8), Vontrice Wilson (Doc. No. 64-1), Cherilyn Marrero (Doc. No. 65-1), and Carolyn Stubbins-Mayes (Doc. No. 63-1). Additionally, Harry Cruz filed an FLSA lawsuit against Humana, and his case was consolidated into this case. (Doc. No. 44; Case 8:17-cv-1234, Doc. No. 12).

         II. Motion for Conditional Certification and Court-Authorized Notice

         Pursuant to 29 U.S.C. § 216(b), Poggi moves the Court to conditionally certify a collective action. Within his motion, he gives a little more information about the Workforce Optimization Policy alleged in the second amended complaint. Specifically, he contends that: (1) Humana imposes daily and weekly quotas that cannot be met without working overtime; (2) Humana uses the Verint software to track and increase productivity with respect to the quotas; (3) the Verint software provides reports to Humana that show that employees are working in excess of forty hours per work; (4) the Verint data is not used to determine the number of hours that employees should be paid for working;[3] and (5) Humana has a policy of not paying overtime, despite its knowledge of the overtime hours being worked, as shown by the Verint reports. Thus, Poggi contends that this Workforce Optimization Policy of setting quotas that could not be met without working overtime while not paying overtime violated the overtime provisions of the FLSA.

         Poggi submits the declarations of several opt-in plaintiffs, including Heather Teppe (Doc. No. 51-4), to corroborate his allegations about Humana's practices. Teppe describes an environment wherein she regularly worked more than forty hours each week and was threatened with termination if she did not meet her daily and weekly quotas. (¶ 11). She contends that she and others complained to management about the fact that the quota system required them to work outside of their scheduled shifts in order to complete their work. (¶ 14). She contends that management responded that they should carry any extra hours worked over to the following day.[4] (¶ 14). Additionally, she states that the quota system caused a vicious cycle-employees were not allowed to work overtime, but they were threatened with termination if they did not meet their quotas, which required them to work overtime. (¶ 15). She contends that everyone worked extra hours because they did not want to get fired. (¶ 24). She alleges that there were departmental meetings where employees were told not to leave until they met their quotas, yet they were not paid for all of the hours that they had worked. (¶ 20, 33). She points out that Humana used Verint's technology to track their productivity, which allowed Humana to know the exact amount of time employees were working. (¶ 21, 25, 26, 29). Thus, Teppe confirmed Poggi's description of a workplace where quotas had to be met, which required more than 40 hours of work per week to meet, and an employer who refused to pay overtime, despite having information that employees worked more than 40 hours per week.

         Based on the above, Poggi contends that he has shown that he and others similarly situated were victims of a common policy or plan that violated the FLSA, which makes a collective action a suitable vehicle to pursue their claims. In his motion, Poggi has changed the description of the putative nationwide class to the following:

[A]ll non-exempt Healthcare Coordinators, Personal Health Coaches, Home Visit Field Case Managers, Wellness Coordinators and other similarly-situated customer contact employees who worked for Defendant from February 2014 to the present, who worked more than forty (40) hours per week, and who, by virtue of Defendant's unlawful "Workforce Optimization Policy, " were not paid for: (a) all time spent working outside their regularly-scheduled shifts to complete their daily and/or weekly quota requirements; and/or (b) all electronically recorded rest periods of short duration (less than 20 minutes) as defined by 29 C.F.R. § 785.18, et seq.

(Doc. No. 51, p. 3). A notable difference between the class description in the motion and the class description in the second amended complaint is that Poggi has now inserted the issue of electronically recorded rest periods of short duration.[5]

         A. Framework for Analyzing Motions for Conditional Certification and Notice

         Pursuant to 29 U.S.C. § 216(b), an action to recover for violations of the FLSA may be brought by one or more employees on their own behalf and on behalf of other similarly situated employees. If an employee-plaintiff wants to maintain an opt-in collective action against his employer for FLSA violations, the plaintiff must demonstrate that he is similarly situated to the proposed members of the collective class and that there is a desire by them to join the lawsuit. See Hipp v. Liberty National Life Insurance Company. 252 F.3d 1208, 1217(11th Cir. 2001); Dvbach v. State of Florida Dept. of Corrections. 942 F.2d 1562, 1567-68 (11th ...


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