Bagoue v. Developmental Pathways, Inc.

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's Motion for Approval of Hoffman-LaRoche Notice [Docket No. 85]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND^[1]

         Defendants operate group homes focused on providing care for developmentally disabled adults. Docket No. 33 at 2, ¶ 6-7. For approximately ten years, plaintiff was employed by defendants as a “Life Skills Specialist.” Id. at 1-2, ¶¶ 5-6. By the end of her employment, plaintiff's work consisted almost entirely of 56-hour shifts at the Nevada Group Home, one of several facilities operated by defendants. Id. at 2, ¶¶ 6-9.

         While employed with defendant, plaintiff worked under the “Continuous Shift Policy, ” whereby an employee worked approximately fifty-six consecutive hours before being relieved by another employee. Id. at 3, ¶ 15. Plaintiff states that she was only paid for forty of the fifty-six hours she worked for each shift. Id. at 5, ¶ 30.

         Plaintiff alleges that defendants failed to adequately compensate plaintiff for certain categories of time including time spent communicating with other workers at the beginning and end of her shifts, id. at 5, ¶¶ 34-35; sleep time, which was regularly interrupted such that plaintiff did not usually get five hours of continuous and uninterrupted sleep, id. at 9, ¶ 59; and extra time worked as a result of the change to daylight savings time. Id., ¶¶ 60-61. Plaintiff also alleges that the sleeping facilities provided by defendants were inadequate because they were not private quarters, separated from the residents of the group home. Id. at 10, ¶ 66-67. Plaintiff claims that the staff room set aside for sleeping did not have amenities for recreation, offered little privacy, was illuminated by hallway lights, and that the residents of the group home would enter her sleeping quarters without permission. Id. at 10-12, ¶¶ 66-74. Plaintiff states that she never entered into a formal agreement with defendants to deduct sixteen hours of sleep time from her paychecks. Id. at 12, ¶ 76. Plaintiff alleges that, “on several occasions [she] objected to Defendants' failure to compensate her for the nighttime hours during her Continuous Shifts.” Id. at 13, ¶ 81.

         On July 14, 2016, plaintiff filed this action. Docket No. 1. Plaintiff seeks relief under the Colorado Minimum Wage Act, Colo. Rev. Stat. §§ 8-4-101, et seq., and Colorado Minimum Wage Order, 7 Colo. Code Regs. § 1103-1 (first claim for relief); under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. (second claim for relief); and equitable relief under Colorado law (third claim for relief). Docket No. 33 at 18-21, ¶¶ 114-35. Plaintiff brings her FLSA claim as a collective action pursuant to 29 U.S.C. § 216(b), alleging that members of the potential collective all suffered from defendants' policies of (1) not paying for night duty work, (2) not paying for an extra hour on the night of daylight savings, and (3) not paying for time at the beginning and end of each shift where employees were required to pass along information to workers on the next shift. Id. at 17-18, ¶¶ 110-13.

         On August 22, 2018, plaintiff moved for conditional collective certification on the FLSA claim. Docket No. 85. Plaintiff also requests that the Court approve her proposed notice plan. Docket Nos. 85-2 and 85-3. Defendants oppose the motion. Docket No. 93.

         II. ANALYSIS

         A. Conditional Certification

         Plaintiff asks the Court to conditionally certify this case as a collective action pursuant to § 216(b) of the FLSA, which provides in pertinent part:

Any employer who violates the provisions of . . . section 207 of this title shall be liable to the employee or employees affected in the amount of . . . their unpaid overtime compensation, . . . and in an additional equal amount as liquidated damages. . . . An action to recover the liability prescribed in [section 207] may be maintained against any employer . . . in any Federal . . . court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.

29 U.S.C. § 216(b) (emphasis added). There is a two-step approach for determining whether plaintiffs are “similarly situated” for purposes of FLSA collective action certification. Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001).^[2] A court's initial certification comes at the notice stage, where courts determine whether plaintiffs are similarly situated for purposes of sending notice to putative class members. Id. at 1102. Plaintiff is required to provide “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.” Id.; see also Stransky v. HealthONE of Denver, Inc., No. 11-cv-02888-WJM-MJW, 2012 WL 6548108, at *4 (D. Colo. Dec. 14, 2012). This is a “lenient” standard, Baldozier v. Am. Family Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005), “which typically results in conditional certification of a representative class.” Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 432 (D. Kan. 2007). The second stage, which comes at the conclusion of discovery, applies a stricter standard of “similarly situated, ” including application of at least four factors, to determine whether the case can proceed as a collective action. Thiessen, 267 F.3d at 1102-03.

         Plaintiff seeks to represent a class consisting of “[a]ll current and former employees who worked for either [d]efendant under the Continuous Shift Policy at any time from July 14, 2013 to present.” Docket No. 85 at 5. Plaintiff claims that, under the Continuous Shift Policy, defendants failed to pay her and other employees working under the Continuous Shift Policy for sixteen of the fifty-six hours worked on each shift. Docket No. 33 at 5, ¶ 30. Plaintiff further ...