Flynn v. Colonial Mgmt. Grp.

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VICKIE FLYNN, Individually and for Others Similarly Situated, Plaintiff, v. COLONIAL MANAGEMENT GROUP, doing business as New Season, Defendant.

No. 1:23-cv-00128-MIS-SCY

United States District Court, D. New Mexico

October 31, 2023

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF A COLLECTIVE ACTION AND ISSUANCE OF COURT-AUTHORIZED NOTICE PURSUANT TO 29 U.S.C. § 216(b) AND DENYING PLAINTIFF'S MOTION TO STRIKE OR EXCLUDE DEFENDANT'S NOTICE OF FILING SUPPLEMENTAL DECLARATIONS

MARGARET STRICKLAND UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Plaintiff Vickie Flynn's Motion for Conditional Certification of a Collective Action and Issuance of Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b) (“Motion for Conditional Certification”), filed July 24, 2023. ECF No. 29. Defendant Colonial Management Group, L.P., doing business as New Season, filed a Response on August 7, 2023 ECF No. 30, to which Plaintiff filed a Reply on August 11 2023, ECF No. 31.

Also before the Court is Plaintiff's Motion to Strike or Exclude Defendant's “Notice of Filing Supplemental Declarations” (“Motion to Strike”), filed August 16, 2023. ECF No. 34. Defendant filed a Response on August 20, 2023, ECF No. 35, to which Plaintiff filed a Reply on August 21, 2023, ECF No. 36.

Upon review of the Parties' submissions, the record, and the relevant law, the Court will GRANT Plaintiff's Motion for Conditional Certification and DENY Plaintiff's Motion to Strike.

I. Background

Defendant operates more than eighty addiction treatment centers specializing in the treatment of Opioid Use Disorder. Am. Compl., ECF No. 16 ¶ 32. Defendant “employs patient care workers . . . to provide patient care services and treat the patients in its various facilities across the country, including in New Mexico.” Id. ¶ 33. Defendant classifies these employees as “nonexempt” from overtime and pays them on an hourly basis. Id. ¶ 34.

Plaintiff, a Licensed Practical Nurse (“LPN”), is one of Defendant's non-exempt employees. Id. ¶¶ 12-13, 33. She has worked at one of Defendant's facilities in Albuquerque, New Mexico since September 2021. Id. ¶ 37. Throughout her employment, Defendant has paid Plaintiff on an hourly basis, plus overtime. Id. ¶¶ 13, 39.

On April 11, 2023, Plaintiff filed the operative Amended Complaint as a collective and class action seeking unpaid overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 207, 216, and the New Mexico Minimum Wage Act (“NMMWA”), N.M. Stat. Ann. § 50-4-22(D). Id. ¶¶ 91-110. The Amended Complaint alleges that Defendant “requires its hourly, non-exempt employees, including [Plaintiff] and the Putative Class Members, to record their hours worked using New Season's timeclock system.” Id. ¶ 44. The Amended Complaint alleges that Defendant “subjects its hourly, non-exempt employees, including [Plaintiff] and the Putative Class Members, to a common policy and practice of automatically deducting time from these employees' recorded hours worked for meal periods[,]” id. ¶ 45; specifically, Defendant “automatically deducts 30-minutes from [Plaintiff] and the Putative Class Members' time records each shift they work for meal periods, regardless of whether these employees actually receive a full, uninterrupted 30-minute meal period[,]” id. ¶ 46. The Amended Complaint alleges that Defendant does not provide Plaintiff and the Putative Class Members with a bona fide lunch break because it requires them “to remain on-duty and working throughout their shifts, continuously subjecting them to interruptions, including during their unpaid meal periods.” Id. ¶¶ 47-48. Consequently, Plaintiff and the Putative Class Members work in excess of forty hours in a typical workweek, but Defendant does “not pay them 1.5 times their regular hourly rate for all overtime hours worked due to [Defendant's] failure to include time these employees worked during meal periods in their total number of hours worked in a given workweek.” Id. ¶ 54. The Amended Complaint further alleges that Defendant's overtime wage violations are willful. Id. ¶¶ 57, 85.

On July 24, 2023, Plaintiff filed the instant Motion for Conditional Certification of a Collective Action. ECF No. 29. Plaintiff attached to the Motion, inter alia, the Declaration of Vickie Flynn (Plaintiff), ECF No. 29-1, and the Declarations of Sophia Harrison, ECF No. 29-2, and Fernando Sarabillo, ECF No. 29-3, who are LPNs formerly employed by Defendant. Plaintiff also filed a proposed Notice and Consent Form. ECF No. 29-7.

On August 7, 2023, Defendant filed a Response, ECF No. 30, to which it attached the Declaration of Jerry Shelton, Defendant's Director of Human Resources. ECF No. 30-1. In the Response, Defendant referenced the Declarations of three of Defendant's current employees- Valerie Arevalo, Shreya Wigh, and Darlene Mirabel-and designated those Declarations as Exhibits E, F, and G. ECF No. 30 at 8. However, Defendant failed to attach those Declarations to its Response.

On August 11, 2023, Plaintiff filed a Reply noting that Defendant failed to attach the referenced Declarations to the Response. ECF No. 31 at 6 n.2.

On August 14, 2023, Plaintiff filed a Notice of Completion of Briefing pursuant to Local Rule 7.4(e). ECF No. 32.

On August 15, 2023, Defendant filed a Notice of Filing Supplemental Declarations, ECF No. 33, to which it attached the Declarations of Darlene Mirabel, ECF No. 33-1, Shreya Wigh, ECF No. 33-2, and Valerie Arevalo, ECF No. 33-3.

On August 16, 2023, Plaintiff filed the instant Motion to Strike Defendant's “Notice of Filing Supplemental Declarations.” ECF No. 34. Defendant filed a Response, ECF No. 35, to which Plaintiff filed a Reply, ECF No. 36.

II. Legal Standards

A. Fair Labor Standards Act

The Fair Labor Standards Act (“FLSA”) requires employers to pay covered employees who work longer than forty hours in a given workweek “at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. § 207(a)(1). As the Tenth Circuit has recognized, “[t]he purpose of FLSA overtime is ‘to compensate those who labored in excess of the statutory maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours because of the pressure of extra cost.'” Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th Cir. 2011) (quoting Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460 (1948)).

Under the FLSA, an employee may bring a collective action on behalf of similarly situated employees as a remedy for violation of the FLSA. 29 U.S.C. § 216(b). The purpose of a collective action is to lower costs for individual plaintiffs but nonetheless “vindicate rights by the pooling of resources.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). It also benefits the judicial system “by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged . . . activity.” Id. Unlike Federal Rule of Civil Procedure 23 class actions, putative collective members under the FLSA must opt into the collective rather than opting out. Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1102 (10th Cir. 2001); 29 U.S.C. § 216(b) (“No 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.”). To obtain these consents, after the court finds that members of the proposed collective are sufficiently similarly situated, parties may send notice of the opportunity to opt into the collective action. See, e.g., Deakin v. Magellan Health, Inc., 328 F.R.D. 427, 431 (D.N.M. 2018).

Under the ad hoc approach endorsed-but not mandated-by the Tenth Circuit, “a court typically makes an initial ‘notice stage' determination of whether plaintiffs are ‘similarly situated.'” Thiessen, 267 F.3d at 1102. A court's initial determination “decides whether a collective action should be certified for purposes of notifying potential class members.” Bustillos v. Bd. of Cnty. Comm'rs of Hidalgo Cnty., 310 F.R.D. 631, 662-63 (D.N.M. 2015). In this initial stage, “the court does not decide the merits of the underlying claims or resolve factual disputes.” Id. at 647.

While the plaintiff bears the burden of proving she is “similarly situated” to other potential collective members, the burden is “not great.” Id. at 663. The plaintiff “‘need only describe the potential class within reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.'” Id. (quoting Schwed v. Gen. Elec. Co., 159 F.R.D. 373, 375-76 (N.D.N.Y. 1995)). At this stage, a court “‘requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.'” Thiessen, 267 F.3d at 1102 (quoting Bayles v Am. Med. Response of Colo., Inc., 950 F.Supp. 1053, 1066 (D. Colo. 1996), modified on recon., 962 F.Supp. 1346 (D. Colo. 1997)). “The court must determine whether the named and potential plaintiffs are ‘similarly situated' based on the allegations in the complaint, which may be supported by sworn statements.” Deakin, 328 F.R.D. at 432; see also Landry v. Swire Oilfield Servs, L.L.C., 252 F.Supp.3d 1079, 1114-15 (D.N.M. 2017) (stating that a plaintiff “need only describe the potential class within reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist.”). If the plaintiff carries her burden, the Court may conditionally certify a collective action and facilitate notice to the potential opt-in plaintiffs...