Harwell-Payne v. Cudahy Place Senior Living LLC
| Decision Date | 30 September 2022 |
| Docket Number | 21-cv-328-pp |
| Parties | CHARLETTA HARWELL-PAYNE, Plaintiff, v. CUDAHY PLACE SENIOR LIVING LLC, and 41 MANAGEMENT LLC, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
CHARLETTA HARWELL-PAYNE, Plaintiff,
v.
CUDAHY PLACE SENIOR LIVING LLC, and 41 MANAGEMENT LLC, Defendants.
No. 21-cv-328-pp
United States District Court, E.D. Wisconsin
September 30, 2022
ORDER DENYING WITHOUT PREJUDICE DEFENDANTS' THIRD MOTION TO DISMISS (DKT. NO. 90), GRANTING PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION (DKT. NO. 94) AND DENYING WITHOUT PREJUDICE PLAINTIFFS' MOTION TO CERTIFY CLASS (DKT. NO. 96)
HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE
The plaintiff, a former employee of Cudahy Place Senior Living, LLC (Cudahy Place), a memory care facility, filed an individual, collective and class action in the Western District of Wisconsin under the Fair Labor Standards Act (FLSA), Wisconsin law and Federal Rule of Civil Procedure 23. Dkt. No. 1. In her first complaint, she alleged that defendants Cudahy Place and Matthews Senior Housing LLC, failed to properly compensate her for the time spent completing a temperature check and COVID-19 symptoms questionnaire at the beginning of her shift. Id. In addition, she alleged that she should have been compensated for any time she worked through all-or part-of her lunch break. Id. The defendants filed a motion to transfer to the Eastern District of Wisconsin, dkt. no. 5, and a partial motion to dismiss, dkt. no. 10, arguing that the temperature check and questionnaire were not intrinsic elements of
the defendants' principal activities and that any time spent on those activities was de minimis, dkt. no. 11 at 2.
The plaintiff filed an amended complaint on January 7, 2021, dkt. no. 23, then filed a motion for leave to amend the amended complaint, dkt. no. 25. Chief Judge Peterson of the Western District of Wisconsin granted the motion to amend by text only order dated January 13, 2021, dkt. no. 27; the second amended complaint appears at dkt. no. 28. On January 27, 2021, defendant Cudahy Place filed a second partial motion to dismiss, dkt. no. 29, an answer to the second amended complaint, dkt. no. 31, and another motion to transfer venue, dkt. no. 32. On March 15, 2021, Chief Judge Peterson granted the motion to transfer venue but did not rule on the second partial motion to dismiss. Dkt. No. 48. At the time of transfer, the Clerk of Court in the Western District closed the case and terminated all pending motions (including the undecided partial motion to dismiss, Dkt. No. 29).
The clerk's office in this district assigned the case to this court after one or more of the parties refused to consent to a magistrate judge's authority to issue a final decision. The plaintiff filed three motions: (1) a motion for leave to file a second amended complaint naming 41 Management LLC as a defendant, Dkt. No. 53; (2) a motion to determine the adequacy of the responses to the requests to admit, Dkt. No. 54; and (3) and a motion to certify the class, Dkt. No. 55. The parties briefed those motions, and the plaintiff filed a fourth motion, an expedited motion to submit supplemental authority. Dkt. No. 70. A
month later, the plaintiff filed a fifth motion-another motion to certify class. Dkt. No. 73.
On December 7, 2021, the court held a hearing and denied without prejudice the defendant's second partial motion to dismiss because defendant Cudahy Place had brought the motion on behalf of defendants who had not appeared or otherwise responded to the complaint. Dkt. Nos. 86, 89. The court also granted the plaintiff's motion for leave to file a second amended complaint (really a third amended complaint), denied without prejudice the plaintiff's motion to determine adequacy of responses to request to admit and denied the plaintiff's Rule 7(h) motion to submit supplemental authority. Id. With respect to the plaintiff's first and second motions to certify a class, the court explained that the plaintiff continued to “put the cart before the horse” by asking to certify a class against a defendant-41 Management-that had not appeared in the litigation. Id.
On December 8, 2021, the plaintiff filed its third amended complaint, adding 41 Management as a defendant. Dkt. No. 87. Two weeks later, defendants Cudahy Place Senior Living and 41 Management filed a third partial motion to dismiss, dkt. no. 90, and an answer to the third amended complaint, dkt. no. 92. On January 20, 2022, the plaintiff filed a motion for conditional certification, dkt. no. 94, and a motion to certify the class, dkt. no. 96. Because the plaintiff has stated a plausible claim, the court will deny without prejudice the motion to dismiss. As to the motions to certify the collective and Rule 23 classes, the standards for a motion for conditional certification and for a Rule
23 certification are not the same, and while the plaintiff has made the modest showing necessary for conditional certification, she has not satisfied the Rule 23 requirements by a preponderance of the evidence.
I. Defendants' Third Partial Motion to Dismiss (Dkt. No. 90)
A. Third Amended Complaint
The plaintiff worked as a Med Aide at Cudahy Place, where she was responsible for caring for patients in the facility. Dkt. No. 87 at ¶5. Defendant 41 Management LLC operated Cudahy Place along with other assisted living facilities throughout Wisconsin. ¶7.
The plaintiff alleges that 41 Management hired the employees, including the Associate Administrator for Cudahy Place (who, in turn, was responsible for hiring hourly employees at each Wisconsin facility that 41 Management administers). Id. at ¶8. Prospective employees can apply to any of the facilities operated by 41 Management by submitting applications through the Encore Senior Living website (maintained by 41 Management). Id. at 9. 41 Management required each of its Wisconsin facilities to distribute a Matthews Senior Living handbook to all employees; the individual facilities had no right to make changes to the handbook prior to distribution. Id. at ¶10. 41 Management further required its facilities to distribute other policies to hourly employees without modification, including records retention policies, position descriptions, mandatory policies and procedures and a COVID screening policy. Id. at ¶11. Position descriptions prepared by 41 Management laid out the qualifications and work duties for hourly employees. Id. at ¶12.
41 Management performed human resources functions for all hourly employees, including the approval of discharges and wage rate increases. Id. at ¶13. It also dictated which paperwork must be used for discharge. Id. 41 Management set the minimum and maximum starting wages, id. at ¶14, set up and ran the payroll software, id. at ¶15, maintained the records for hours worked and amounts paid, ¶16, and referred to each of its facilities as one of “our communities” on the Encore Senior Living website id. at ¶17. The plaintiff alleges that Encore Management & Development and Encore Senior Living are “doing business as names for 41 Management LLC.” Id. at ¶18. Every member of the “leadership team” on the Encore Senior Living website is an owner and/or employee of 41 Management. Id. at ¶19. According to the plaintiff, all defendants are employers within the meaning of Wis.Stat. §109.03(1), all engage in interstate commerce and each had annual gross volume of business at or above $500,000. Id. at ¶20.
The plaintiff alleges that 41 Management set up its payroll software to deduct meal breaks of thirty minutes or sixty minutes from the hours worked, or it rounded meal punch out and punch in times to the nearest quarter hour and deducted the time in between from the hours worked. Id. at ¶20. If the plaintiff punched back in after her meal break less than thirty or sixty minutes after she punched out, the defendants nonetheless deducted the full duration of the break. Id. at ¶21. 41 Management set up the payroll software to deduct meal breaks that were fifteen minutes or less in duration so long as the nearest quarter hour to the punch in “was different from, and later than the nearest
quarter hour to the punch out time.” Id. at ¶22. There was no policy requiring the plaintiff, or any other employees at 41 Management's Wisconsin facilities, to take a full thirty minutes for a meal break. Id. at ¶23.
Sometimes the plaintiff did not receive an uninterrupted thirty-minute break because she was called back to work. Id. at ¶24. Even though she was allowed to submit a form documenting the unpaid meal break, the time nonetheless was deducted from her worktime. Id. The plaintiff was supposed to obtain relief coverage for her section of the facility while she took her lunch break, but she often had to remain at Cudahy Place during her meal break because there was no relief coverage. Id. at ¶25.
The plaintiff complains that several times a week a manager would tell her to perform work either before she punched in or after she punched out. Id. at ¶26. In addition, she says 41 Management didn't pay her a promised commission for recruiting new clients, id. at ¶28, and didn't pay her training pay even though she trained new employees, id. at ¶30.
In the spring of 2020, 41 Management developed a new policy requiring all employees to complete a screening checklist and a temperature check before they could enter the facility and punch in on the time clock. Id. at ¶31. They implemented the policy because of the unique features of COVID-19, the fact that COVID-19 is lethal for nursing home residents and that caregivers could pass COVID-19 to residents even if they did not exhibit symptoms. Id. The plaintiff alleges that the screening checklist and temperature check were “integral and indispensable” to her principal activity of providing care to the
residents and that she would not be able to perform her responsibilities if there was a risk that she could transmit COVID-19 to her patients. Id. at ¶32. 41 Management believes that it was “required by the Wisconsin Department of Health Services” to require...
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