United States District Court, M.D. Florida, Tampa Division
DAVID POGGI, on his own behalf and others similarly situated, Plaintiff,
HUMANA AT HOME 1, INC. and HUMANA, INC., Defendants. HARRY CRUZ, individually and on behalf of all others similarly situated, Plaintiff,
HUMANA AT HOME 1, INC. and HUMANA, INC., Defendants.
C. BUCKLEW, UNITED STATES DISTRICT JUDGE.
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.
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"). 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).
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).
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).
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
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
151. Defendants paid Verint to help Humana maximize profits
while not paying for all overtime hours worked.
(Doc. No. 48, ¶ 147-51).
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) 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
(Doc. No. 48, ¶ 153).
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).
Motion for Conditional Certification and Court-Authorized
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; 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
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
(¶ 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
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
Framework for Analyzing Motions for Conditional Certification
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 ...