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Crane v. J & M Communications, Inc.

United States District Court, N.D. Texas, Dallas Division

July 6, 2017

PAMELA CRANE, individually and on behalf of all others similarly situated, Plaintiff,
v.
J & M COMMUNICATIONS, INC., d/b/a ULTIMATE HOME HEALTH CARE, Defendant.

          MEMORANDUM OPINION AND ORDER

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         Pursuant to the order of reference dated February 22, 2017, this case has been referred for full case management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions. Before the Court is Plaintiff's Motion to Conditionally Certify FLSA Collective Action, Approve Notice, and Expedited Consideration, filed February 7, 2017 (doc. 10). Based on the relevant filings, evidence, and applicable law, the motion is DENIED.

         I. BACKGROUND

         On October 11, 2016, Pamela Crane (Plaintiff) brought this collective action to recover unpaid overtime wages under the Fair Labor Standards Act (FLSA) on behalf of herself and all current or former home healthcare workers employed by J & M Communications, Inc. d/b/a Ultimate Home Health Care (Defendant) from January 1, 2015 to the present. (doc. 1 at 1.)[1]

         Plaintiff alleges that Defendant violated 29 U.S.C. §§ 207 & 215(a)(2) of the FLSA by failing to comply with new regulations from the Department of Labor (DOL) that require third-party employers to pay overtime compensation to employees “who provided companionship and other services to individuals who were unable to care for themselves.” (Id. at 5-6.) Plaintiff claims that she and other similarly situated employees regularly worked more than 40 hours per week but were not compensated with overtime wages for those additional hours. (Id. at 5-7.) She further alleges that “Defendant's practice and policy of not paying overtime effective January 1, 2015 uniformly affects Plaintiff [and similarly situated employees] and is a willful violation of the FLSA.” (Id. at 6.) She seeks unpaid overtime wages, liquidated damages, and attorney fees. (See Id. at 7-8.)

         Plaintiff moves for conditional certification of a collective action class comprised of “[a]ll current and former home healthcare workers employed by J & M Communications, Inc. d/b/a Ultimate Home Health Care and/or any of its or their affiliated entities, who were paid hourly and who were not paid overtime for all hours worked over 40 in a work week since January 1, 2015.” (doc. 10-1 at 7.) She provides a company brochure and an administrative policy manual from Defendant, as well as her own declaration and payroll records. (See docs. 10-3, 10-4, 10-5.) She also moves for authorization to provide written and electronic notice of the action to potential plaintiffs. (doc. 10-1 at 14-22.)

         II. OBJECTIONS

         Defendant objects and moves to strike certain paragraphs from Plaintiff's declaration (Declaration) because she “lacks personal knowledge and personal observation” to make those statements. (doc. 15 at 12.) It also objects and moves to strike three other exhibits because they are not authenticated. (Id. at 16-17.)

         A. Plaintiff's Declaration

         Defendant objects to paragraphs 7, 8, 10, 11, 12, 15, and 16 of the Declaration because Plaintiff lacks personal knowledge and is making conclusory statements as to the employment of Defendant's other home healthcare workers. (Id. at 12.)

         Because the “factual support necessary for certification of a collective action is modest, ” federal courts in this district apply “a lenient evidentiary standard.” Nguyen v. Versacom, LLC, No. 3:13-CV-4689, 2015 WL 1400564, at *3 (N.D. Tex. Mar. 27, 2015). This means “that affidavits or declarations offered in support of motions for conditional certification need not be based on evidence that would be admissible at trial.” Parker v. Silverleaf Resorts, Inc., No. 3:14-CV-2075-B, 2017 WL 1550522, at *6 (N.D. Tex. May 1, 2017) (citing Lee v. Metrocare Servs., 980 F.Supp.2d 754, 759-61 (N.D. Tex. 2013) (“Plaintiffs need not present evidence in a form admissible at trial at the notice stage.”)). However, the contents of affidavits and declarations must still be based on personal knowledge. See Lee, 980 F.Supp.2d at 762 (citation omitted).

         The Fifth Circuit has noted that “a declarant may satisfy the personal knowledge requirement based on his position” as an employee within the company. Id. at 763 (citing Villarreal v. St. Luke's Episcopal Hosp., 751 F.Supp.2d 902, 912 (S.D. Tex. 2010) (“By virtue of his position, [declarant] has properly stated a basis upon which he may have gained personal knowledge of the organization by way of his day-to-day work and interaction with other employees . . . during his tenure with [d]efendant.”)). A declaration can also overcome evidentiary objections to a declarant's personal knowledge when the declaration contains a statement that it is based on personal knowledge. See Parker, 2017 WL 1550522, at *6 (citing Perez v. Alcoa Fujikura, Ltd., 969 F.Supp. 991, 998 (W.D. Tex. 1997)).

         1. Statements on the Duties of Other Home Healthcare Workers

         Paragraphs 7, 8, 10, 11, and 12 of the Declaration all describe the work activities and job responsibilities of the “other home ...


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