Bergman v. Kindred Healthcare, Inc.

• Decision Date: 11 June 2013
• Docket Number: No. 10 C 191.,10 C 191.
• Citation: 949 F.Supp.2d 852
• Parties: Peter BERGMAN, et al., etc., Plaintiffs, v. KINDRED HEALTHCARE, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

949 F.Supp.2d 852

Peter BERGMAN, et al., etc., Plaintiffs,

v.KINDRED HEALTHCARE, INC., et al., Defendants.

No. 10 C 191.

United States District Court,

N.D. Illinois,

Eastern Division.

June 11, 2013.

Gary F. Lynch, Carlson Lynch Ltd., New Castle, PA, Fran Lisa Rudich, Michael John Palitz, Seth R. Lesser, Klafter Olsen & Lesser LLP, Rye Brook, NY, Gerald D. Wells, III, Faruqi & Faruqi, LLP, Jenkintown, PA, Marvin Alan Miller, Matthew E. Van Tine, Miller Law LLC, Stacy Michelle Bardo, The Consumer Advocacy Center, P.C., Chicago, IL, for Plaintiffs.

Ben Philip Ginsberg, pro se.

Amelia Wesseh, pro se.

Lisa Pigecella, pro se.

Camille Annette Olson, Richard Burk Lapp, Scott Andrew Schaefers, Timothy F. Haley, Seyfarth Shaw LLP, Suzanne Michele Courtheoux, Chicago, IL, for Defendants.

OPINION AND ORDER

WILLIAM T. HART, District Judge.

This is a nationwide collective action alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and an Illinois state law putative class action based on the application of an automatic 30–minute meal break deduction policy without ensuring that employees do not work through all or part of their meal break. This court has original jurisdiction over plaintiffs' FLSA claims pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. Jurisdiction over the state law claims purportedly exists pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(2), because the Illinois plaintiffs and members of the purported classes include citizens of a state different than one or more defendants and the matter in controversy exceeds the sum or value of $5,000,000. However, it would appear that jurisdiction under CAFA is excluded because more than two-thirds of the class members are citizens of Illinois,¹ defendant Kindred Chicago Lakeshore is a citizen of Illinois, and the principal injuries and related conduct occurred in Illinois. 28 U.S.C. § 1332(d)(4)(A). But even if that exclusion applies, this court would have supplemental jurisdiction of the state law claims pursuant to 28 U.S.C. § 1367(a). Daprizio v. Harrah's Las Vegas, Inc., 2010 WL 3259920 *2 (D.Nev. Aug. 17, 2010). But compare Beye v. Horizon Blue Cross Blue Shield of N.J., 568 F.Supp.2d 556, 572 n. 22 (D.N.J.2008) ( dictum ).²

Plaintiff Peter Bergman (“Bergman”) filed this action against Kindred Healthcare, Inc., Kindred Chicago Lakeshore, and Doe defendants 1–10. Subsequently two other actions (one filed in this court and one transferred from the Eastern District of Michigan) were consolidated with this action adding plaintiffs Bobbie Cason (“Cason”) and Lisa Smith (“Smith”). See Docket Entry 35, 45. Thereafter leave to file an amended complaint was granted adding defendant Kindred Healthcare Operating, Inc. (“KHOI”). As a result of the consolidations and amendments the defendants named in the Third Amended Complaint are Kindred Healthcare, Inc. (“KHI”); Kindred Healthcare Operating, Inc. (“KHOI”); Kindred Chicago Lakeshore (“Lakeshore”), a subsidiary of KHOI; and Kindred Hospitals East, LLC (“KHE”), which operates Kindred–Detroit. (For convenience the defendants will be referred to collectively as “Kindred.”) Mira Bhuiyan, Jennifer Cabulong, Kenya Hawk, Ben Philip Ginsberg, Amelia Wesseh, and Lisa Pigecella subsequently consented to join the case. See Docket Entry 75, 76, 80, 89, 103. In 2012, Cason withdrew her personal claims without prejudice.

Kindred has approximately 55,000 employees in the United States. On January 12, 2007, there were approximately 10,000 hourly employees working at 74 Kindred facilities in 23 different states. Kindred Healthcare is the largest diversified provider of post-acute care services in the United States. Entities owned by KHOI are divided into three divisions: the Hospital Division, the Nursing Center, and the Rehabilitation Division.

It is alleged that this action is filed on behalf of phlebotomists, business office managers, admission coordinators and officers, receptionists, secretaries, housekeepers, custodians, clerks, porters, registered nurses, licensed practical nurses, nurses' aides, administrative assistants, anesthetists, clinicians, medical coders, medical underwriters, nurse case managers, nurse interns, nurse practitioners, practice supervisors, professional staff nurses, quality coordinators, resource pool nurses, respiratory therapists, senior research associates, operating room coordinators, surgical specialists, admission officers, student nurse technicians, trainers, transcriptionists, and all other non-exempt individuals who are employed at any of defendants' facilities and subject to the automatic meal break deduction policy.

Because of the represented magnitude of this case and the expenses it will and could impose, plaintiffs were granted more than 11 months to take discovery with respect to the certification issue. They have taken three Rule 30(b)(6) depositions and served two sets of interrogatories and requests for the production of documents. Defendants have produced over 5,800 pages of documents. Three requests for the extension of discovery have been granted. See Docket Entry 26, 40, 57, 88. Defendants have submitted 34 declarations of putative class members who represent 25% of the employees at Lakeshore. The parties have also submitted opposing charts analyzing the information gathered. All of this has been accompanied by over-sized briefs.³

The case is now before the court on plaintiffs' motion for conditional certification of a collective action in order to issue a notice to opt-ins pursuant to the FLSA and for certification of classes, pursuant to Fed.R.Civ.P. 23, for their state law claims. The state law claims are under the Illinois Minimum Wage Law (“IMWL”), 820 ILCS 105, and the Illinois Wage Payment Collection Act (“IWPCA”), 820 ILCS 115, or, alternatively, under Illinois common law for unjust enrichment. Plaintiffs have also moved for equitable tolling of the FLSA statute of limitations applicable to opt-ins. Defendants moved for summary judgment, but briefing on that motion was held in abeyance.

Plaintiffs propose an IMWL Class defined as:

All persons employed by Defendants at any of their Illinois facilities at any time since January 12, 2007, who worked in excess of forty (40) hours in any individual workweek, whose pay was subject to an automatic 30–minute meal period deduction even when they performed compensable work during the unpaid “meal break,” and who were not paid for all overtime worked, including such uncompensated meal break time, at a rate of one and one-half times their regular rate of pay.

Plaintiffs' proposed IWPCA Class definition is:

All persons employed by Defendants at any of their Illinois facilities at any time since January 12, 2000, who worked fewer than forty (40) hours in any individual workweek, whose pay was subject to an automatic 30–minute meal period deduction even when they performed compensable work during the unpaid “meal break,” and who were not paid for all time worked, including such uncompensated meal break time.

Alternatively, plaintiffs move for certification of a common law unjust enrichment claim class.

Today's ruling will only resolve FLSA collective action issues.

The FLSA provides that an action may be maintained against an employer by any one or more employees in behalf of himself and other employees similarly situated. Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 580 (7th Cir.1982); Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir.2010). The conditional certification process is a procedure used in an FLSA collective action to determine whether there is sufficient merit in the charges to warrant that notice of eligibility to participate be sent to similarly situated employees in order that they be given an opportunity to opt into a collective action. Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 974 (7th Cir.2011). At this stage of the proceedings, plaintiffs must make a modest factual showing of common, unlawful conduct and provide some indication of harm to employees. Gibbs v. New Ashley Stewart, Inc., 2013 WL 1858561 *1 (N.D.Ill. May 2, 2013); Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 345 (N.D.Ill.2012).

The certification of an FLSA collective action typically proceeds in two stages. The first stage, which is now before the court, involves conditionally certifying a class for notice purposes. There is a low standard of proof. Myers v. Hertz, Corp., 624 F.3d 537, 555 (2d Cir.2010); Carter v. Ind. State Fair Comm'n, 2012 WL 4481348 *4 (S.D.Ind. Sept. 28, 2012); Curless v. Great Am. Real Food Fast, Inc., 280 F.R.D. 429, 433 (S.D.Ill.2012). Adair v. Wis. Bell, Inc., 2008 WL 4224360 *3 (E.D.Wis. Sept. 11, 2008). The court does not make merits determinations, weigh evidence, determine credibility, or specificallyconsider opposing evidence presented by a defendant. Curless, 280 F.R.D. at 433. The lenient interpretation standard, however, has sometimes been supplanted by a more rigorous examination standard if there has been more extensive discovery allowed the plaintiff. See Creely v. HCR ManorCare, Inc., 789 F.Supp.2d 819, 823–26 (N.D.Ohio 2011) (surveying cases). ⁴ The second stage in a collective proceeding comes after any opt-ins have appeared and discovery has been finished. Then the defendant is given an opportunity to move for decertification. At that stage, if requested to do so, the court makes a more rigorous examination of the facts relating to whether or not the case may appropriately continue as a collective action. See Curless, 280 F.R.D. at 433. At the present stage of this proceeding, “this Court will consider the evidence submitted by both parties but, because the cases have not yet progressed to stage two and the Court only has an incomplete factual record, it is appropriate to require Plaintiffs to make a modest ‘plus' factual showing that there is a group of potentially similarly situated plaintiffs that may be...