United States District Court, N.D. Mississippi, Oxford Division
CHRISTOPHER ELLIS, ROBERT SCHMITZ, and GREGORY SUBECK, on behalf of themselves and all others similarly situated PLAINTIFFS
BAPTIST MEMORIAL HEALTH CARE CORPORATION DEFENDANT
SHARION AYCOCK, UNITED STATES DISTRICT JUDGE.
Ellis, Robert Schmitz, and Gregory Subeck, on behalf of
themselves and all others similarly situated, filed their
Complaint  against Baptist Memorial Health Care
Corporation in this Court on March 26, 2018, alleging
violations of the Fair Labor Standards Act. Now before the
Court is the Plaintiffs' Motion  to conditionally
certify a collective action under the Fair Labor Standards
Act (“FLSA”) as provided for by 29 U.S.C. §
and Procedural Background
Plaintiffs were employed at the Defendant's Oxford,
Mississippi location from January 1, 2015, through November
2017. The Plaintiffs operated as emergency
medical teams which consisted of a combination of emergency
medical service drivers, emergency medical technicians, and
paramedics. Throughout their employment, the Plaintiffs were
employed for workweeks in excess of forty hours. During this
time, the Plaintiffs worked either, two twenty-four hour
shifts a workweek, or, four twelve-hour shifts a workweek
resulting in the Plaintiffs working either two or six hours
of overtime in a given workweek, depending on their scheduled
shift. The Plaintiffs allege that the Defendant did not
compensate them for the total overtime worked during the
relevant time period.
April 5, 2018, the Plaintiffs' filed a Motion  for
conditional certification of the collective action. The
Plaintiffs assert that the Defendant maintains a policy that
it will not compensate the Plaintiffs for unpaid overtime
hours unless the Plaintiffs show they were out on a call, in
the ambulance, or performing some other job duty described by
the Defendant because the Defendant characterizes the unpaid
hours as “downtime.” Due to this policy, the
Plaintiffs claim that they were often discouraged from
challenging or requesting the payment of unpaid hours. The
Plaintiffs now request that the Court conditionally certify
this FLSA action as a collective action and provide notice to
potential plaintiffs, indicating that potential plaintiffs
may be found at the Defendant's Oxford, New Albany,
Calhoun City, and/or Columbus locations.
§ 207(a) of the FLSA, covered employers are required to
pay nonexempt employees an overtime rate of one and one-half
times their regular pay rate for hours worked over forty
hours in a workweek. 29 U.S.C. § 207(a). Section 216(b)
“provides that an employee may bring an action to
recover damages for specified violations of the Act on behalf
of himself and other ‘similarly situated'
employees.” Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 69, 133 S.Ct. 1523, 185 L.Ed.2d
636 (2013). While the Fifth Circuit has declined to set a
standard for certifying a collective action, it has affirmed
district court decisions utilizing the two-stage
certification process set forth in Lusardi v. Xerox
Corp., 118 F. R. D. 351 (D.N.J. 1987). Portillo v.
Permanent Workers, L.L.C., 662 Fed.Appx. 277, 280 (5th
Cir. 2016). Lusardi advises a two-step certification
analysis: (1) the notice stage and (2) the merits, or
“opt in, ” stage.
notice stage, the Court determines whether a conditional
class should be certified. This first step requires a
plaintiff to show that (1) there is a reasonable basis for
crediting the assertions that aggrieved individuals exits,
(2) those aggrieved individuals are similarly situated to the
plaintiff in relevant respects given the claims and defenses
asserted, and (3) those individuals want to opt in to the
lawsuit. Heeg v. Adams Harris, Inc., 907 F.Supp.2d
856, 861 (S.D. Tex. Oct. 31, 2012). While District Courts
have broad discretion to certify a class and issue orders
authorizing notice to potential plaintiffs, because
“the court's decision at this stage is based only
on the pleadings and affidavits, the standard is lenient and
typically results in conditional certification.”
Id.; see also Birdie v. Brandi's Hope
Community Services, LLC, No. 5:17-CV-21-DCB, 2017 WL
2588089, *1 (S.D.Miss. Jun. 14, 2017) (citing Hoffman-La
Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989));
Burke v. Management & Training Corp., No.
3:16-CV-152-NBB, 2017 WL 316684, *2 (N.D. Miss. Jul. 25,
2017) (citing Harris v. Hinds County, Miss., No.
3:12-CV-542-CWR, 2014 WL 457913, *2 (S.D.Miss. Feb. 4, 2014).
the notice stage of litigation, it is “not the role of
this Court to resolve factual disputes over the merits of the
claims.” Huaman v. Ojos Locos Sports Cantina
LLC, No. 3:13-CV-4938, 2014 WL 4081554, *4 (N.D. Tex.
Aug. 19, 2014). Indeed, at this stage, “courts
appear to require nothing more than substantial allegations
that the putative class members were together the victims of
a single decision, policy, or plan infected by
discrimination.” Tzib v. Moore Feed Store,
Inc., No. 3:14-CV-65-MPM, 2015 WL 2415530, *3 (N.D.
Miss. May 21, 2015) (citing Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1214, n. 8 (5th Cir. 1995) (internal
quotations omitted). In support thereof, “[a] factual
basis for the allegations must be presented, and there must
be a showing of some identifiable facts or legal nexus that
binds the claims so that hearing the cases together promotes
judicial efficiency.” Tolentino v. C & J
Spec-Rent Services Inc., 716 F.Supp.2d 642, 647 (S.D.
Tex. May 26, 2010). If the Plaintiffs make such a showing,
“the Court may certify the class and facilitate notice
to potential class members.” Birdie, 2017 WL
2588089, at *2 (citing Hoffman-La Roche, Inc. v.
Sperling, 493 U.S. 165, 169 (1989)).
Plaintiffs request that the Court conditionally certify a
representational class, described as:
Persons who are, or were, employed by Defendant and who are,
or were, performing the duties of emergency medical service
drivers, emergency medical technicians, or paramedics at its
Oxford, New Albany, Calhoun City, or Columbus locations in
Mississippi from January 1, 2015, to the date of this
collective action certification.
Defendants oppose this Motion  for conditional
certification on two grounds. First, the Defendant argues
that Baptist Memorial Health Care Corporation did not employ
the Plaintiffs or emergency services personnel at the
identified facilities, as BMHCC provided only payroll
processing services to the related entities. The Defendant
asserts that because the Plaintiffs were employed by Baptist
Memorial Heath - North Mississippi, and not BMHCC, the Motion
for conditional certification must be denied.
the Defendant argues that the Plaintiffs failed to present
evidence of a decision, policy or plan that applied across
the class they seek to represent. Instead of presenting
substantial allegations that the Plaintiffs were together
victims of a single decision, policy, or plan, as required
for conditional certification, the Defendant argues that the
Plaintiffs provide mere speculation that any employee at
other locations were not compensated properly. See
Tzib, 2015 WL 2415530, at *3 (citing Mooney, 54