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Kaiser v. Revival Home Healthcare Services, Inc.

United States District Court, E.D. Texas, Sherman Division

April 22, 2019

RYAN KAISER, on behalf of himself and others similarly-situated, Plaintiff,
v.
REVIVAL HOME HEALTHCARE SERVICES, INC. and SYLVESTER C. UDEZE, Defendants

          Craven Judge

          ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         The above-entitled and numbered civil action was heretofore referred to United States Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. On March 12, 2019, the Magistrate Judge issued a Report and Recommendation, recommending Plaintiff's First Stage Motion for Notice to Potential Plaintiffs and Conditional Certification (Dkt. # 11) be granted.

         Defendants Revival Home Healthcare Services, Inc. and Sylvester C. Udeze (“Defendants”) filed objections to the Report and Recommendation. The Court conducts a de novo review of the Magistrate Judge's findings and conclusions.

         FACTUAL BACKGROUND

         This is a collective action for alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201 et. seq. Plaintiff Ryan Kaiser (“Plaintiff”) and potential opt-in plaintiffs are current and former home health aides employed by Defendants. Plaintiff alleges Plaintiff and potential opt-in plaintiffs were (1) compensated on an hourly basis for on-the-clock hours worked, (2) required to work in excess of 40 hours in certain workweeks between September 1, 2015, and the present, and (3) not paid overtime premiums for on-the-clock overtime hours worked. According to Plaintiff, these similarly situated employees and former employees of Defendants worked overtime but did not receive overtime compensation for their overtime work. (Dkt. # 1, ¶¶ 1-2, 17-31).

         According to the complaint, Plaintiff was employed by Defendant as a home health aide, providing companionship services, from February 2016 to November 2017, and he regularly worked more than forty hours a week during that time. Id., ¶ 4. Plaintiff alleges the “precise size and the identity of the Putative Class Members should be ascertainable from the business records, tax records and/or employee or personnel records of Defendants.” Id., ¶ 7. Under the “Collective Action Allegations” section of the complaint, Plaintiff alleges the “number and identity of other plaintiffs yet to opt-in and consent to be party plaintiffs may be determined from the records of Defendants, and potential class members may be easily and quickly notified of the pendency of this action. These employees are victims of Defendants' unlawful compensation practices and are similarly situated to Plaintiff in terms of job duties, pay, and employment practices.” Id., ¶ 36.

         According to the complaint, potential collective action members may be informed of this pendency of this collective action through direct mail, email, and office posting. Id., ¶ 37. Plaintiff states he is aware of current and former employees of the Defendants that have been affected by the Defendants' policies and practices complained of in this action. Id. Plaintiff alleges Defendants' failure to pay overtime compensation as required by the FLSA results from a generally applicable, systematic policy and practice and is not dependent on the personal circumstances of any individual employee. Id., ¶ 38. Thus, according to the complaint, Plaintiff and the other home health aides are similarly situated employees. Id. Plaintiff alleges the specific job titles or precise job requirements of the similarly situated employees do not prevent collective treatment; all employees, regardless of their precise job requirements or rates of pay, are entitled to be properly compensated for all hours worked in excess of 40 hours per week at the overtime rate; and, although the issue of damages may be individual in character, “there is no detraction from the common nucleus of liability facts.” Id.

         Plaintiff further alleges there are questions of fact and law common to the class that predominate over any questions affecting only individual members. Id., ¶ 39. According to the complaint, the questions of fact and law common to the class arising from Defendants' actions include, without limitation, the following: (1) whether Plaintiffs were covered non-exempt hourly employees; (2) whether Plaintiffs were compensated for all hours worked; (3) whether Plaintiffs worked more than 40 hours per week; (4)whether Plaintiffs were compensated at 150% of their regular rate for all hours worked in excess of 40 hours in any and all weeks; (5) whether Defendants' practices accurately account for the time Plaintiffs actually were working; (6) whether Defendants' compensation policy and practice is illegal; and (7) whether Defendants had a policy and practice of willfully failing to compensate employees for overtime. Id. Plaintiff alleges these common questions “predominate over any questions affecting only individual persons, and a collective action is superior, with respect to considerations of consistency, economy, efficiency, fairness, and equity, to other available methods for the fair and efficient adjudication of the federal law claims.” Id., ¶ 40.

         Plaintiff further alleges his claims are “typical of those of the similarly situated employees in that these employees have been employed in the same or similar positions as the Collective Action Representative and were subject to the same or similar unlawful practices as the Collective Action Representative and reported to the same managers.” Id., ¶ 41. Plaintiff alleges a collective action is the appropriate method for the fair and efficient adjudication of this controversy because the presentation of separate actions by individual similarly situated current or former employees could create a risk of inconsistent and varying adjudications, establish incompatible standards of conduct for Defendants, and/or substantially impair or impede the ability of collective action members to protect their interests. Id., ¶ 42. In addition, Plaintiff alleges the maintenance of separate actions would place a substantial and unnecessary burden on the courts and could result in inconsistent adjudications, whereas a single collective action can determine, with judicial economy, the rights of all collective action members. Id., ¶ 43.

         PROCEDURAL BACKGROUND

         On September 28, 2018, Plaintiff served his First Set of Requests for Admission to Defendants (“Plaintiff's Requests for Admission”). Defendants' response was due on October 29, 2018, but no response was provided. Plaintiff filed his First Stage Motion for Notice to Potential Plaintiffs and Conditional Certification on November 2, 2018, relying solely on the deemed admissions. Plaintiff's motion seeks conditional certification of and supervised notice to home health aides who worked for Defendants over the last three years and who worked overtime hours for which they were not compensated at the rate of time and one-half their regular hourly rate.

         Defendants filed a motion to withdraw admissions on November 15, 2018. On January 2, 2019, the Magistrate Judge denied Defendants' motion, finding the unanswered admissions were deemed admitted. (Dkt. # 17). The Magistrate Judge held a hearing on Plaintiff's motion for notice and conditional certification on February 27, 2019.

         REPORT AND ...


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