Prise v. Alderwoods Grp., Inc., Civil Action No. 06–1641.

• Decision Date: 09 September 2011
• Docket Number: Civil Action No. 06–1641.
• Citation: 817 F.Supp.2d 651
• Parties: Deborah PRISE, Heather Rady on behalf of themselves and all employees similarly situated, Plaintiffs, v. ALDERWOODS GROUP, INC., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

817 F.Supp.2d 651

Deborah PRISE, Heather Rady on behalf of themselves and all employees similarly situated, Plaintiffs,

v.ALDERWOODS GROUP, INC., Defendant.

Civil Action No. 06–1641.

United States District Court, W.D. Pennsylvania.

Sept. 9, 2011.

Annette M. Gifford, Cristina A. Douglass, J. Nelson Thomas, Justin M. Cordello, Kimberly A. Glennon, Michael J. Lingle, Patrick J. Solomon, Sarah E. Cressman, Jessica L. Witenko, Thomas & Solomon LLP, Rochester, NY, Charles H. Saul, James S. Ehrman, Kyle T. McGee, Liberty J. Weyandt, Kevin S. Burger, Margolis Edelstein, Pittsburgh, PA, Christopher A. Tinari, Gregory D. Hanscom, Margolis Edelstein, Philadelphia, PA, for Plaintiffs.

Amy E. Dias, Jones Day, Washington, DC, Brent D. Knight, Jones Day, Chicago, IL, Christopher L. Farmer, Sheehy Ware & Pappas, Houston, TX, David M. Daniels, John A. Mason, Nicholas Pierre Forestiere, Steven H. Gurnee, Gurnee & Daniels LLP, Roseville, CA, Matthew W. Lampe, Tonya B. Braun, Jones Day, Columbus, OH, Michelle A. Morgan, Jones Day, Dallas, TX, Jennifer G. Betts, Kevin C. Meacham, Leon F. DeJulius, Jones Day, Pittsburgh, PA, for Defendant.

I. Introduction

CONTI, District Judge.

Pending before the court is a motion to decertify the conditionally certified collective action (ECF No. 1608). The motion was filed by defendant Alderwoods Group (“Alderwoods” or “defendant”) on January 31, 2011. Plaintiffs Deborah Prise and Heather Rady (together with opt-in plaintiffs, “plaintiffs”), on behalf of themselves and all employees similarly situated, moved to conditionally certify a collective action pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). Defendant asserts the conditionally certified class is ripe for decertification because, after years of litigation and extensive discovery, plaintiffs, who number in excess of seven hundred, did not meet their burden under the FLSA to demonstrate they are similarly situated. Because plaintiffs did not satisfy their burden to show they are similarly situated, the motion to decertify will be granted.

II. Procedural history

On December 8, 2006, plaintiffs instituted this lawsuit as a putative collective action. (ECF No. 1.) On May 18, 2007, the court initially conditionally certified the collective action to encompass seven employment positions and five employment policies. ( See Order on Collective Action (ECF No. 224) at 1.) On November 29, 2007, plaintiffs filed an amended complaint. (Am. Compl. (ECF No. 819).) On July 14, 2008, the court entered a second order that added two employment positions to the action (funeral services support–4 and location administrator). ( See Second Order on Collective Action (ECF No. 1148) at 1.) On July 22, 2008, the court issued a discovery order permitting the parties, inter alia, to take discovery relating to twenty-three individuals (including named plaintiffs) (“sample plaintiffs”). (Disc. Order (ECF No. 1155) at 3.) On December 20, 2010, the court held a motion hearing and included a sixth employment policy related to meal break compensation under the FLSA. ( See 12/20/2010 minute entry.) At the hearing, the parties stipulated that it was unnecessary to send further notice regarding the meal break policy. ( Id.)

On January 31, 2011, defendant filed the motion for decertification of the conditionally certified collective action. On June 13, 2011, the court held oral argument on the decertification motion and other outstanding miscellaneous motions. The court permitted the parties to conduct a one-hour supplemental deposition of Federal Rule of Civil Procedure 30(b)(6) witness Ron Collins (“Collins”), an Alderwoods' vice president of operations for the Northeast United States and Canada from 1999 to 2006 (Def.'s Reply (ECF No. 1616), Ex. I ¶ 2.), and requested supplemental briefing concerning the overlapping legal standards, if any, between class action certification under Rule 23 of the Federal Rules of Civil Procedure and collective action certification under § 216(b). The parties filed their supplemental briefing with the court and the decertification motion is ripe for consideration.

III. Background

A. The conditionally certified collective action and the five classes

The conditionally certified collective action consists of individuals from nine employment positions maintaining claims for five “policies” concerning alleged nonpayment of overtime, in violation of the FLSA.¹ ( Id. at 4.) The nine funeral home positions are: (1) apprentice funeral director/embalmer; (2) arranger; (3) assistant funeral director; (4) community relations director; (5) funeral director/embalmer; (6) funeral director; (7) location manager; (8) funeral services support–4; and (9) location administrator.² ( See Pls.' Status Report (ECF No. 1628), Ex. 1 (“Job Chart”) at 2.) The five policies implicated in this action are: (a) community work; (b) on-call work; (c) overtime preapproval; (d) training for insurance licenses; and (e) meal break work. Plaintiffs contend that defendant's motion should be denied because the record evidence demonstrates they satisfied the “similarly situated” requirement of the FLSA. (Pls.' Resp. (ECF No. 1611) at 1.) Plaintiffs maintain that Alderwoods' pay policies were implemented on a national level and were systematically enforced at each funeral home location. ( Id. at 1–2; see Ex. 64 (“Leahy Decl.”) ¶ 4.)

1. Characteristics of the conditionally certified collective action

Alderwoods is a national corporation engaged in the funeral home business. (Am. Compl. at 2.) Generally, the 721 opt-in plaintiffs are nonexempt employees or former employees of Alderwoods who allege they were suffered or permitted to work by Alderwoods and not paid their regular or statutorily required rate of pay for all hours worked. ( Id. at 3; Def.'s Mot. at 4.) Sample plaintiffs are representative of Alderwoods' national presence, hailing from states such as Pennsylvania, Georgia, California, Oklahoma, Louisiana, Alaska, Kansas, Texas, Arizona, Indiana and Washington.

a. Community work

Plaintiffs allege that Alderwoods maintained a corporate-wide policy of encouraging or requiring employees to perform community work for Alderwoods' benefit without compensating employees for performing such work when it occurred outside their regular work hours.³

Plaintiffs contend that, at a minimum, Alderwoods expected or encouraged employees to be involved in community work. ( See Pls.' Resp. at 7; see generally Pls.' App. (ECF No. 1612), Ex. 74 (“Pls.' Collins Dep.”).) Plaintiffs argue that Alderwoods required them to perform community work for the benefit of the company, and that time was compensable under the applicable caselaw. See, e.g., Dade Cnty., Fla. v. Alvarez, 124 F.3d 1380, 1384 (11th Cir.1997) (courts construe work under the FLSA to include all activities controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and its business). Notably, the applicable federal regulation provides that

[t]ime spent in work for public or charitable purposes at the employer's request, or under his direction or control or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee's normal working hours is not hours worked.

29 C.F.R. § 785.44; see Falcon v. Starbucks Corp., 580 F.Supp.2d 528, 540 (S.D.Tex.2008) (triable issue existed concerning whether plaintiffs performed required or voluntary community work under 29 C.F.R. § 785.44). Plaintiffs contend that, at a minimum, Alderwoods requested employees to perform public or charitable work, and its failure to compensate employees for that work violated the FLSA.

Plaintiffs direct the court to various discovery materials to show that opt-in plaintiffs are similarly situated to each other and the named plaintiffs. First, plaintiffs assert that the job descriptions of apprentice funeral director/embalmer, arranger, assistant funeral director, funeral director, funeral director/embalmer, community relations director and location manager detailed that employees in those positions were responsible for “retain [ing] heritage and grow[ing] market share through active involvement with community, religious and other organizations.” (Pls.' App., Ex. 13.) ⁴

Second, plaintiffs argue that Alderwoods' mandatory community leadership program (“CLP”) emphasized and supported employee involvement in community activities. ( See generally Pls.' App. Exs. 17–22.) Third, plaintiffs rely upon, inter alia, the deposition testimony of sample plaintiffs and Collins to support their position that Alderwoods required nonexempt hourly employees to perform community work after-hours and failed to compensate them for that work.

Collins testified that it was Alderwoods' policy to “encourage[ ] support of civic organizations and employee involvement in worthwhile causes.” (Pls.' Collins Dep. at 137.) Collins opined that, hypothetically, all things being equal between two applicants for a location manager position, the applicant with more community involvement could be more likely to receive the job offer. ( Id. at 217–18.)

Plaintiffs provided an email dated October 18, 2004, from Gary Toye (“Toye”), a market general manager in the Carolinas, to Rick Scully, the senior vice president of marketing for Alderwoods, and carbon copied to Katie Leahy, a regional general manager for the Carolinas, Kim Whitehead, a human resources specialist for Alderwoods in Toronto, Canada, and Leanne Sersun, a geographic human resource specialist, stating that community work performed during the work day was considered mandatory and therefore compensated at the employee's normal rate of pay. (Pls.' App., Ex. 30 (“Toye email”); Collins Supp. Dep. (ECF No. 1631), Ex. C at 317–21.) If, however, the community work occurred after hours, it was strongly encouraged and recognized in a nonmonetary way. ( Id.) ⁵

Shane Carswell (“Carswell”),...