CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff's motion for class certification came on regularly for hearing on January 20, 2016. Brian Crone and Erick Turner appeared for plaintiff. Alden Parker appeared for defendants. The parties have consented to magistrate judge jurisdiction pursuant to Title 28, United States Code Section 636(c)(1). Upon review of the documents in support
In this action, plaintiff alleges she was not paid minimum wage for all hours worked, was not paid for overtime, was not provided meal and rest breaks, and was not provided proper itemized wage statements.
Plaintiff's proposed class comprises all employees of defendants from November 18, 2010 to the present who are currently or formerly employed as a clinician/provider and who are/were paid pursuant to a "Piece Meal Employment Agreement" or a "Participation Agreement." In the moving papers, plaintiffs proposed eleven subclasses based on the various claims raised in the complaint, e.g. "minimum wage" subclass, "overtime wage" subclass, "missed meal" subclass, etc. In the reply brief and at the hearing, plaintiff now proposes just one subclass comprising "all members of the proposed plaintiff class who were regularly denied meal breaks as a result of defendants' policies and practices."
To certify a class, plaintiff must demonstrate that the class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the class, the claims or defenses of the representative parties are typical of the claims or defenses of the class, and the representative parties will fairly and adequately protect the interests of the class.
With respect to the first cause of action for failure to pay minimum wages, individualized determinations will need to be made as to each class member to evaluate whether the compensation paid under defendants' policies resulted in payment of less than the minimum wage. The declarations submitted by plaintiff from various employees all claim different amounts of allegedly uncompensated time and for different kinds of tasks, none of which were recorded. Thus individual inquiries will have to be made regarding the employees' weekly scheduled appointments and the estimated unrecorded time worked. In addition, each employee was paid different hourly rates, again requiring an individuated analysis to determine whether minimum wage was paid.
Plaintiff also alleges a claim for failure to pay overtime wages. The employer is not liable for overtime pay where the employee fails to notify the employer of the overtime work. As with the minimum wage claim, to show liability each class member will have to prove the amount of overtime worked and that the employer had knowledge of such.
With respect to plaintiff's claim for meal and rest period violations, plaintiff must prove that defendants effectively precluded class members from taking these breaks. The declarations submitted by plaintiff do not support a claim that there existed a uniform policy or practice that prohibited class members from taking the meal or rest breaks, and such a claim is directly contradicted by defendants' Employee Handbook of Personnel Policies and Procedures, which authorized employees to take meal and rest breaks. As with plaintiff's other claims, individualized analysis of each member's claims regarding missed breaks would be required in order to assess the employer's liability.
Plaintiff's other claims, for waiting time penalties,
Plaintiff also makes a claim for breach of contract. Plaintiff alleges defendant LPG (Linder Psychiatric Group, Inc.) breached the contract by failing to afford a minimum of 35 hours of work per week, failing to pay the contractually specified rate of pay for each worked hour per pay period, and failing to afford plaintiff and the class members employee benefits. The employee agreements submitted by plaintiff show the lack of commonality with respect to the claim for breach of contract insofar as the number of hours a particular clinician was required to be available for work varied from 20 hours per week, to 32 hours per week, to 35 hours per week, depending on the terms of the specific contract for that individual. Whether defendant LPG breached its obligation to "afford" each class member the number of hours specified in the individual contracts will require an analysis with respect to each employee of the efforts undertaken by defendant LPG to schedule appointments for each clinician and other factors which may have restricted the availability of each clinician. As discussed above, the issue of whether defendants failed to pay the contractually specified rate of pay for each hour worked lacks commonality. With respect to benefits, the employee contracts submitted in connection with the motion vary in whether benefits are even included in the contractual obligation. For these reasons, plaintiff fails to demonstrate commonality of her claims and the motion for class certification will be denied.
Accordingly, IT IS HEREBY ORDERED that:
1. Arguments raised in the reply which were not addressed in plaintiff's opening brief are hereby stricken as is the evidence submitted in connection therewith. Defendants' objections on the basis of hearsay are sustained.
2. Plaintiff's motion for class certification (ECF No. 25) is denied.
Plaintiff also fails to show typicality. Defendants here have made a counterclaim against plaintiff alleging that she breached her employment agreement by terminating her employment prior to the end of the agreed-upon term of employment and that plaintiff further breached her employment agreement by transferring defendants' patients to her private practice after termination of her employment. Although plaintiff contends this counterclaim is spurious, it is apparent that significant time and effort on the part of class counsel will be spent defending the counterclaim. Plaintiff makes no showing that such a counterclaim and the defenses thereto are typical to the class.