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Oldershaw v. Davita Healthcare Partners, Inc.

United States District Court, D. Colorado

February 4, 2019

KELSEY OLDERSHAW, ELINA NAVARRO, JANE STANT, and JAYMIE STEVENS, individually and on behalf of others similarly situated, Plaintiff,


          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court pursuant to the Defendants' (collectively, “DaVita”) Motion for Decertification (# 198), the Plaintiffs' response (# 202), and DaVita's reply[1] (# 210); and DaVita's Motion for Summary Judgment (# 199), the Plaintiffs' response (# 203), and DaVita's reply (# 208). Also pending is a motion by DaVita to strike (# 209) certain exhibits tendered by the Plaintiffs in their summary judgment response, the Plaintiffs' response (# 212) , and DaVita's reply (# 215).


         DaVita operates a business performing kidney dialysis and related services for patients in numerous facilities around the country. The named Plaintiffs are four DaVita employees. They brought this action alleging, among other things, that DaVita failed to pay them and other employees overtime pay for hours they worked over 40 in a week, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

         The named Plaintiffs sought to pursue this action as a collective action under 29 U.S.C. § 216(b), which allows similarly-situated employees the opportunity to affirmatively opt-in to the litigation to assert similar claims. In April 2017, the Court authorized (# 119) the Plaintiffs to send a Hoffman-LaRoche notice[2] to “all non-exempt employees who worked at” DaVita clinics in certain specified cities in Colorado, as well as “non-exempt employees who worked for DaVita out of state in Great Falls, Montana and under the supervision of Dan Viaches in clinics in Indiana, Illinois, Georgia, and Tennessee.” At this point in time, the Court is advised that approximately 70 of the Plaintiffs' co-workers have filed opt-in notices.

         DaVita now moves (# 198) to “decertify” the collective that the Court allegedly “certified.” It contends that the various opt-in Plaintiffs were not subject to common employment policies or decisions, and that the causes of these employees' FLSA claims are so varied that a single trial of all opt-in Plaintiffs' claims is unwarranted. Separately, DaVita moves for summary judgment (# 199) on various aspects of the Plaintiffs' claims and DaVita's defenses, as explained in more detail below.


         A. “Decertification”

         1. Legal standards

         28 U.S.C. § 216(b) allows for an FLSA claim to be “maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, ” but provides that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”

         Courts have struggled with devising - and describing - the mechanisms to be used to implement the collective action process contemplated by Section 216(b). The seminal 10thCircuit case addressing the topic is Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). In Thiessen, the 10th Circuit approved (among several options) of the use of a two-stage process. First, the trial court makes a preliminary and substantially deferential “notice stage” assessment of similarity, binding together the collective for the limited purposes of giving affected co-workers notice of the suit and an opportunity to opt in. Later, the trial court conducts a “stricter” analysis to decide whether the collective it initially approved is indeed composed of similarly-situated individuals. This two-step process for defining the scope of the collective action has become a common, well-used mechanism in this circuit. See Deakin v. Magellan Health, Inc., 328 F.R.D. 427 (D.N.M. 2018) (collecting cases).

         Here, the Court is at the second stage of that process, obligated to conduct a more searching inquiry as to whether the various opt-in Plaintiffs are sufficiently “similarly situated” to the four named Plaintiffs herein. Thiessen indicates that this second-stage analysis[3] should consider three major factors: (i) any disparate factual and employment settings among the individual plaintiffs; (ii) the various defenses available to the defendant that might be individual as to each plaintiff; and (iii) “fairness and procedural considerations.”[4] 267 F.3d at 1103. Various other cases inside and outside the 10th Circuit have articulated additional elements to consider or described the process in slightly different terms. See e.g. Turner v. Chipotle Mexican Grill, 123 F.Supp.3d 1300 (D. Colo. 2015) (suggesting that courts view the first and second stage processes through the lens of the concept of joinder and that the similarity determination thus focus on whether the opt-in plaintiffs' claims “arise out of the same transaction, occurrence, or series of transactions and occurrences” as those of the named plaintiffs); see also Hipp v. Liberaty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001); Ruehl v. Viacom, Inc., 500 F.3d 375, 388 n. 17 (3d Cir. 2007) (suggesting that the “similarly situated” factors include whether the “plaintiffs are employed in the same corporate department, division and location; advanced similar claims [of FLSA violations]; sought substantially the same form of relief; and had similar salaries and circumstances of employment”). Ultimately, it appears to this Court that the differences among the various tests and analyses announced by these courts are largely semantic or abstract, and that the outcome of this matter is not dictated by whether the Court adopts one particular court's formulation of the analysis or another's. The fundamental question presented by the statute is whether the opt-in plaintiffs are “similarly situated” to the named plaintiffs, and it is with that central question in mind that this Court turns to the facts of this case.

         2. Factual background

         DaVita's operations consist primarily of numerous dialysis clinics located in various communities. Most employees have a “home” facility where they are typically assigned, but it is not uncommon for employees to perform work at several facilities in the same workweek. Each facility is staffed by employees who provide direct patient care (e.g. dialysis technicians and nurses), employees who provide indirect services (e.g. social workers, coordinators of various types), and administrative staff. Facility staff are given day-to-day direction and supervision by the facility administrator in each clinic. The upper half of DaVita's organizational chart - that is, the levels above facility administrator - is largely unclear from the record. The Plaintiffs have not meaningfully identified who supervises the various facility administrators, nor who in the corporate structure sets policies for the facilities or controls their operational budgets.

         During the time period at issue, DaVita had an express policy that prohibited employees from working off the clock and there is some evidence in the record that at least employees were occasionally disciplined for doing so. DaVita also required employees to obtain their facility administrator's (or equivalent supervisor) approval for overtime work. The record reflects that these policies were communicated to all employees in an employee handbook and most Plaintiffs testified to having at least a general awareness of the policies. With the exception of situations in which supervisors made “adjustments” to employees' timesheets for lunch breaks (discussed below), it appears to be undisputed that employees were typically paid overtime if their reported timecards or timesheets reflected more than 40 hours in a workweek. During their depositions, many Plaintiffs acknowledged various pay records that showed them receiving certain amounts of overtime pay. The issue here primarily concerns hours that employees worked but did not report on their timecards/timesheets - that is, “off-the-clock” work.[5]

         Turning to the named Plaintiffs' roles in the organization and the nature of their complaints, the record reflects the following:

Ms. Oldershaw worked as an executive assistant from approximately September 2014 until late 2015. She did not work out of any clinic facility; rather, she worked out of DaVita's corporate headquarters in downtown Denver, supporting high-ranking DaVita officials. Her duties included maintaining her boss' calendar, e-mail correspondence, travel and meeting planning, preparing expense reports, and other administrative tasks. She recorded her own working time on an electronic timesheet. Ms. Oldershaw frequently reported and was paid various amounts of overtime. However, because her bosses would text or e-mail her at all hours of the day or night, there are additional hours that she worked, such as responding to those texts or e-mails, but did not report. She did not report these additional hours because her then-supervisor, Maggie Anderson, “had a conversation” with her in 2014 in which Ms. Anderson mentioned that “you're working a lot of overtime.” Ms. Oldershaw testified that Ms. Anderson “never told me not to put it [overtime] in, ” but Ms. Oldershaw understood Ms. Anderson's comment to be a “kind of a pressure” to not report more overtime hours. Ms. Oldershaw felt that this was “contradictory because . . . she was texting me literally at all hours of the night and day and then she made a comment about how much overtime I had.” She testified that the comment made her “nervous about [reporting] all the little bits and pieces type stuff for the rest of my job there.” Shortly thereafter, Ms. Oldershaw began reporting to a different supervisor than Ms. Anderson, but continued to not report some of her work hours.
Ms. Oldershaw contends that her time records also have unexplained reductions in the number of hours she worked. The record is somewhat underdeveloped on this point. It is possible that this complaint correlates with a contention by Ms. Oldershaw that she routinely worked through her lunch break on most days. As the Court understands it, Ms. Oldershaw was expected to take an off-the-clock lunch break each day, and she believes that unspecified persons nevertheless adjusted her reported hours to deduct lunch breaks without her knowledge or approval.
Ms. Navarro was employed by DaVita for 13 years. Near the end of that time period, she was employed in a management role, first as an assistant facility administrator and later as facility administrator at the Westminster facility. In these capacities, she had no on-site supervisor and was, effectively, in charge of directing the other employees at the Westminster clinic. As discussed in more detail below the parties agree that Ms. Navarro was exempt from the FLSA's requirements when performing work as a facility administrator, but Ms. Navarro contends that she had some non-managerial duties as well and that DaVita also classified Ms. Navarro as an administrative assistant for some of her weekly hours. Given her dual role as both manager and employee, the precise nature of Ms. Navarro's claims for unpaid overtime are somewhat ill-defined. Unsurprisingly, Ms. Navarro does not report that her supervisor - that is, herself - instructed or encouraged her to not report overtime hours, and the record is somewhat unclear as to what overtime hours Ms. Navarro worked and why she did not report them. It is clear that Ms. Navarro knew that she should not be performing off-the-clock work. Indeed, Ms. Navarro testified that she contacted DaVita's Human Resources office to ask what to do about some of her employees who were working off the clock and she was told that “it is your decision on what you want to do.” (Ms. Navarro instructed the employees not to work off-the-clock.) • Ms. Stant worked as a clinical educator during the times pertinent to this case.[6] Her home clinic was in Aurora, but she traveled to many other facilities as part of her weekly duties. Because of her itinerant duties, she did not clock in and out at a single clinic like normal employees would. Instead, she maintained her own time records that she entered on DaVita's computer system and she billed portions of her weekly time to the budgets of each of the facilities she visited in the week. Ms. Stant's FLSA claim seems to relate to time she spent setting up classrooms before her scheduled training programs; she did not report those hours to DaVita.[7] (Ms. Stant may also have a claim not being paid correctly for travel time.) Ms. Stant indicates that she “was only allowed to put in for 40 hours. It was very specific. There was to be no overtime for the clinical educator; 40 hours.” She states that that instruction came from Tamyara Warmack. Ms. Warmack's title or role in DaVita is not specified, although she does not appear to be a facility administrator.
Ms. Stevens has had a long career with DaVita, working in “every DaVita location in Denver” at some point in time. During the pertinent time period, she worked as a clinical educator alongside Ms. Stant and also as a centralized trainer.[8] Ms. Stevens' testimony was similar to that of Ms. Stant's, although Ms. Stevens merely stated that 40 hours per week is “all I'm allotted.” She did not testify that anyone told her not to report overtime hours; she merely stated that there is “an expectation [by] DaVita . . . when you are in a position and you are given tasks, you have to complete your tasks.” She testified that an employee who reported working too many overtime hours might affect the bonuses that are paid to successful facilities.

         Few of the opt-in Plaintiffs have the same job titles or responsibilities as Ms. Oldershaw, Ms. Navarro, Ms. Stant, and Ms. Stevens. Most of the opt-in Plaintiffs are perform work in clinic facilities; only two, opt-in Plaintiffs, Denise Landin and Georgia Harmen, are executive assistants like Ms. Oldershaw at DaVita's headquarters. None of the opt-in Plaintiffs are full- or part-time administrators like Ms. Navarro. A relatively small number of opt-in Plaintiffs have training duties like Ms. Stant and Ms. Stevens. Most of the opt-in Plaintiffs are involved directly or indirectly in patient care, as technicians or nurses, or work as administrative assistants in individual facilities. The opt-in Plaintiffs typically clock themselves in and out at the start and end of their shifts. Unlike any of the named Plaintiffs, these employees are subject to the direction of a particular facility administrator where they work.

         The opt-in Plaintiffs describe several vectors for their lack of overtime pay: (i) being unexpectedly called upon to address an exigent circumstance or answer a co-worker question before clocking in for their shift or after clocking out, and forgetting (or choosing not) to thereafter ask their supervisor to adjust their time records accordingly; (ii) clocking in and out as scheduled, but performing additional work from home after hours (such as making reminder calls to patients, responding to e-mails, or preparing work materials for the next day) and forgetting or choosing not to report that time; (iii) being unable to complete their assigned in-clinic tasks during their shift and choosing to complete those tasks off-the-clock, sometimes at the specific direction of their administrator and sometimes simply because the employee chose not to ask the administrator about obtaining approval for overtime; (iv) being summoned to address an exigent circumstance during an off-the-clock lunch break and forgetting to clock back in before addressing the situation; (v) being unable to take any lunch break due to workloads, yet having an administrator or other person manually manipulate time records to falsely reflect the employee taking their mandatory unpaid 30-minute lunch break each day; and (vi) a variety of idiosyncratic complaints about unpaid travel time or relocation expenses, unreported training time, and other work time that employees did not report for various reasons.

         The Plaintiffs' briefing struggles somewhat to articulate the “single decision, policy, or plan” by DaVita that unifies all of their claims. Thiessen, 267 F.3d at 1103. At best, the Plaintiffs' theory is that DaVita's “practice of allocating a certain number of hours per employee shift during which each hourly employee was to complete their work” that was the common cause of each Plaintiff performing off-the-clock work. The Plaintiffs explain that “they cannot complete their work within the number of hours that [DaVita] allocated to their shift, ” and that they were “encouraged by their supervisors to perform these duties off-the-clock.” The Court pauses here to note that this theory might describe the claims of Ms. Stant and Ms. Stevents, but does not explain the circumstances that result in Ms. Oldershaw or Ms. Navarro not reporting their overtime.

         Some components of the Plaintiffs' theory find support in the record. Several of the opt-in Plaintiffs testified that they were simply unable to perform all of their required job duties within their scheduled shift times. Fewer, however, testified that they were expressly instructed or encouraged by their supervisors to work off-the-clock to complete those tasks - only a few described situations in which a supervisor specifically instructed them to complete their work without being clocked in. Most of the Plaintiffs who testified, including Ms. Stant and Ms. Oldershaw, simply assumed or inferred that they should not report overtime hours, often relying on their own interpretation of ambiguous statements by a supervisor. Often, the statements the Plaintiffs relate simply direct the employees to get their work done within the time allotted, an instruction that could just as easily be understood as a directive to work harder, faster, or more efficiently during their scheduled shifts.[9]

         Other components of the Plaintiffs' theory have little or no support in the record. The Plaintiffs argue that DaVita had a “practice of allocating a certain number of hours per employee shift during which each hourly employee was to complete their work, ” but offer only a skeletal description of this process. Joshua Martinez supplied an affidavit that described unspecified persons at DaVita setting a “Direct Patient Care budget” for each facility, setting a fixed number of labor hours based on the number of patients the clinic served. Mr. Martinez testified that these budget amounts were insufficient to complete all of a facility's required work. But the record seems to suggest that the budget addressed a total number of hours allocated to the entire facility (or, at least, to the facility's entire scope of patient care services), and were thereafter subject to individual allocation decisions by each facility's administrator as they saw fit. The fact that individual administrators made significant employment decisions might explain why Plaintiffs frequently reported that a particular administrator at a facility might instruct them to work off-the-clock or refuse to approve overtime, but acknowledged that other administrators at the same facility did not do so. For example, employees testified that certain administrators, such as Michelle Pritzel at the Englewood facility and Kenneth French at the Sable facility, discouraged the reporting of overtime, but those same employees acknowledged that other administrators at those same facilities, such as Roger Bachelor or Joshua Kim at Englewood or Calum White and Erica Campos at Sable, did not. It thus appears that some administrators managed their budget or their staff poorly and they chose to conceal that fact by encouraging employees to underreport ...

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