United States District Court, D. Colorado
MYRNA HARRIS, individually and on behalf of others similarly situated, Plaintiff,
v.
DAVITA HEALTHCARE PARTNERS, INC., and TOTAL RENAL CARE, Defendants. and LILYBETH COPE, individually and on behalf of others similarly situated, Plaintiff,
v.
DAVITA HEALTHCARE PARTNERS, INC., and TOTAL RENAL CARE, Defendants.
OPINION AND ORDER GRANTING IN PART MOTIONS FOR
JUDICIAL NOTICE AND TOLLING
Marcia
S. Krieger Chief United States District Judge
THESE
MATTERS come before the Court pursuant to the
Plaintiffs' Motions to Grant Judicial Notice and Tolling
of the Statute of Limitations (# 44 in the
-2141 case, # 45 in the -2744 case), and
their associated responses and replies; and the
Defendants' (collectively, “DaVita”) Motions
for Leave to File Surreplies (# 90 in the
-2741 case, # 88 in the -2744 case) in
response to the substantive motions, and their corresponding
responses and replies.
The
Court assumes the reader's familiarity not only with the
proceedings to date in these cases, but also the proceedings
in several related cases including Oldershaw v. DaVita
Healthcare Partners, D.C. Colo. Case No.
15-cv-01964-MSK-NYW. The named Plaintiffs in the cases
herein, Ms. Harris and Ms. Cope, [1] are employees of DaVita. Ms.
Harris worked as an administrative assistant in DaVita
facilities in Colorado Springs, which is located in what
DaVita refers to as the “Apex Palmer” region,
encompassing all DaVita facilities in Montana, Kansas,
Missouri, and parts of Wyoming, Utah, Colorado, Nebraska,
Oklahoma, Iowa, Illinois, Arkansas, and Texas. Ms. Cope
worked as a registered nurse in DaVita facilities in San
Diego, California, which is located in the “Dream Team
Palmer” region, encompassing Arizona, California, and
Nevada. Both allege that they worked more than 40 hours in a
week for DaVita without being paid overtime and assert (among
others) claims for unpaid overtime under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207.
Both
Plaintiffs seek to pursue their FLSA claims under the
collective action procedures of 29 U.S.C. § 216(b),
which provides that such claims may be maintained “for
and in behalf of [the plaintiff employee] and other employees
similarly situated.” However, the same statute also
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.”
In
implementing the FLSA's collective action procedures, the
10th Circuit has endorsed a two-stage process. In
the first stage, the court makes a preliminary and
deferential finding as to the potential scope of those
co-workers who could be described as
“similarly-situated” to the named plaintiffs.
That preliminary designation of the collective allows the
plaintiffs to send Hoffman-LaRoche[2] notices to
the affected co-workers and invite them to file forms opting
into the litigation. After discovery and further proceedings,
the court undertakes a second, more searching inquiry into
whether the plaintiffs opting into the litigation are indeed
similarly-situated to the named plaintiffs. If they are not,
the court has broad latitude as to how to dispose of the
claims of the opt-in plaintiffs. See generally Thiessen
v. General Electric Capital Corp., 267 F.3d 1095, 1102
(10th Cir. 2001).
These
cases are at the first stage, seeking designation of
appropriate collectives for the issuance of
Hoffman-LaRoche notices. The consequences of the
Court's determination at this stage are limited to the
issuance of notices. Genesis Healthcare Copr. v.
Symczyk, 569 U.S. 66, 75 (2013). Thus, courts making
such first-stage determinations generally apply a
“lenient” standard, requiring the plaintiffs to
make “nothing more than substantial allegations that
the putative class members were together the victims of a
single decision, policy, or plan.”[3]Thiessen,
267 F.3d at 1102-03.
With
these standards in mind, the Court turns to the record before
it. Both named Plaintiffs allege, in virtually identical
declarations, that “the number of hours allocated per
shift and the work expected to be accomplished per shift are
determined and set by corporate DaVita for the entire
[applicable] region.” The Plaintiffs go on to state
that “the number of hours allotted per shift were not
enough to accomplish the work expected per shift and I was
unable to complete my job duties within the allotted
time.” Thus, the Plaintiffs allege that they were
“often required to work off the clock and [were] not
paid for all hours worked, including overtime.” They
acknowledge that they were instructed that they could obtain
authorization from their supervisor, but that they
“were dissuaded from reporting overtime worked because
of the possibility of disciplinary action.” Based on
these facts, the Plaintiffs request approval of notice to be
sent to all hourly employees in all DaVita clinics in their
respective regions.
In a
recent decision making a second-stage determination in the
Oldershaw case, this Court emphasized that one of
the important considerations in defining the scope of
similarly-situated employees is identifying “the locus
of decisionmaking” - that is, identify the person or
persons who bear the most direct responsibility for the
alleged overtime violation. The Plaintiffs' arguments
here attempt to fix the locus of decisionmaking about
overtime at a high corporate level. They point to the
deposition of Justin Searle, one of DaVita's high-ranking
officials, who testified extensively about DaVita's
practices of fixing budgets for its facilities (including
labor budgets) and rewarding facilities that stay within
those budgets. The Plaintiffs posit that DaVita's
budgeting is too aggressive, leaving employees unable to
complete all of their tasks in the amount of time that Mr.
Searle sets, and requiring them to have to work
off-the-clock. But there is also substantial evidence in the
record - submitted by the Plaintiffs themselves - that also
show that, at a corporate level, DaVita takes considerable
steps to prohibit employees from performing the very
off-the-clock work that the Plaintiffs claim to have done.
DaVita's employee handbook makes clear that workers
“are prohibited from conducting any DaVita business
outside their normal work hours, ” and that they may
seek approval of their supervisors to “work during
normal off-duty hours.”
In a
recent decision in Olderhsaw, this Court found
evidence that, DaVita's budgeting notwithstanding, the
actual locus of decisionmaking regarding whether employees
were refused overtime or encouraged to work off-the-clock was
at the individual facility level with individual facility
administrators. Admittedly, the record before this Court in
Oldershaw is not the same record before it here, and
the stricter standard being applied in that case is different
than the lenient standard this Court considers here. But
Oldershaw suggests that this Court consider the
possibility that, on the instant record, the locus of
decisionmaking is lower in the organizational chart than the
Plaintiffs contend. It is notable that both DaVita's
handbook and the Plaintiffs' own affidavits posit that
individual facility administrators have the discretion to
approve employee overtime. This would seem to suggest that it
is an individual administrator's judgment, rather than an
inflexible DaVita budget, that determines whether overtime is
approved or, conversely, whether an employee must work
off-the-clock.
Looking
more closely at the deposition testimony of each named
Plaintiff, Ms. Cope's first supervisor at the College
clinic was an individual named Tony Humphrey. Ms. Cope asked
Mr. Humphrey to make adjustments to some of her time records
to reflect training time she incurred while off-the-clock,
and Mr. Humphrey did so. Ms. Cope testified that during the
time Mr. Humphrey was her administrator, she got paid for all
the time she worked. Later, David Butera became Ms.
Cope's administrator, and Ms. Cope began working shifts
that called upon her to open and close the facility. The
timing on these shifts was particularly tight, as she was
scheduled to start her shift at 4:30 a.m., but Mr. Butera
also wanted patients to begin their dialysis treatments by
4:30 a.m. Ms. Cope initially attempted to accommodate those
conflicts by clocking in early and performing her initial
patient assessments before 4:30, but Mr. Butera lectured her
about doing so (citing to the need to comply with the labor
budget). Ms, Cope protested that it was impossible to both
follow her shift schedule and accommodate Mr. Butera's
instructions about patient timing, and Mr. Butera instructed
her to do so anyway, presumably by performing assessments
while the patients were already beginning treatments. Citing
to patient safety concerns, Ms. Cope refused to do so and
informed Mr. Butera that she would continue to do patient
assessments before 4:30 a.m., and Mr. Butera responded
“do whatever you need to do but clock in at
4:30.” (Ms. Cope describes a functionally similar
problem with closing shifts and working off-the-clock after
clocking out at the end of her shift.) Mr. Butera
did, however, adjust Ms. Cope's time records
when she asked him to do so to accommodate training lessons
she undertook while off the clock and he would approve
adjustments to her time records when she forgot to clock back
in after a meal period. Ms. Cope also had an administrator
named Anne Rupp. Like Mr. Butera, Ms. Rupp learned that Ms.
Cope was arriving and beginning work at 4:15 a.m., but not
clocking in until 4:30. Ms. Rupp instructed Ms. Cope
“not to do that, ” but Ms. Cope testified that
she continued to do it anyway.
From
this testimony, certain aspects of Ms. Cope's affidavit
become sharpened. It is somewhat misleading for Ms. Cope to
state categorically that “I was unable to complete my
job duties within the allotted time.” The record
reflects that when Mr. Humphrey was her administrator, she
was either able to complete her work during her shifts or
that Mr. Humphrey allowed her to clock in and out beyond her
scheduled shift times. This, in turn, suggests that only
some jobs - e.g. opening and closing shifts
- were arguably underbudgeted by DaVita. Her testimony also
introduces some ambiguity into Ms. Cope's statement that
all employees were “dissuaded from reporting overtime
worked, ” as there is evidence that some of
her unreported time was accepted when she notified her
administrator of it.
Turning
to Ms. Harris' deposition, she was an administrative
assistant in in several facilities. She has several claims
for unpaid overtime. As to her time at the Fountain clinic,
she testified that she was not paid for time she spent going
to Safeway before her shifts to pick up birthday cakes or
balloons for patients a few times her week. She did not
report this time to her administrator, but did not
particularly elaborate as to why not. (She also has some
unique claims relating to uncompensated time helping to pack
up and move items when the Fountain clinic closed and
relocated.) At the Printers Place clinic, she worked
unrecorded time when she was called off of her lunch break
“to stock supplies, take in the inventory, help with a
patient, [or] answer a phone call.” She did not clock
in for these events because her administrator told her it was
“mandatory” that she take a half-hour
off-the-clock lunch break. She acknowledged that she did not
ask her administrator to correct her time entries in these
circumstances because the lunch break was required. (Ms.
Harris seemed to acknowledge that she could have complained
to her administrator's superiors about the issue, but did
not do so “for fear I would lose my job.”) She
also testified that if a delivery came late, she would work
off-the-clock to put the supplies away, and would not ask to
have her time adjusted because her administrator would state,
in weekly meetings, that no overtime would be allowed (again,
due to budget concerns). She acknowledged that she did not
specifically ask her administrator Andrew Gonzales, to adjust
her time in these circumstances (she mentioned having done
the work and he thanked her, but she did not specifically ask
him for a time adjustment), partly because another
administrator, Geri Steck, would repeatedly tell employees
that no overtime would be permitted.
Ms.
Harris' testimony also colors the interpretation the
Court should give to her affidavit. None of the incidents
that Ms. Harris discussed entailed her being unable to
complete all of the duties of her shift because the hours
allocated to her by DaVita's budgeting system “were
not enough to accomplish the work expected per shift.”
Rather, the record reflects that her unpaid overtime
generally arose when exigencies called for her to perform
work during her unpaid lunch break and that no adjustments
were made because lunch breaks were “mandatory.”
Likewise, the fact that late deliveries sometimes required
her to stay past her shift end time does not suggest that
DaVita somehow mis-budgeted the time it took for her to
complete her regular duties. Nor did Ms. Harris testify that
she, personally, was dissuaded from asking Mr. Gonzales to
adjust her time records when she worked overtime (although it
appears that she never did). She testified that she
was dissuaded from asking Ms. Steck to adjust her
time because Ms. Steck frequently told employees that no
overtime would be permitted.
Based
on this record, the Court finds that the Plaintiffs have not
come forward with substantial evidence that places the locus
of decisionmaking for their unpaid overtime anywhere above
the level of their individual facility administrators, and
certainly not at a level that would suggest that DaVita
encouraged off-the-clock work on a regional basis. Although
the record supports a suggestion that DaVita provided
administrators with a labor budget and incentives to comply
with it, the record reflects that it was the individual
facility administrators' decisions as to how (or
even if) to comply with those budgets that
determined whether or not an employee would be discouraged
from claiming overtime or encouraged to work off-the-clock.
Because, at best, the “single decision, policy, or
plan” that predicted whether they would be deprived of
overtime is limited to the identity of the particular
...