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Miller v. ThedaCare Inc.

United States District Court, E.D. Wisconsin

January 17, 2018

JUELAINE MILLER et al., Plaintiffs,
v.
THEDACARE INC., Defendant.

          ORDER DENYING CLASS CERTIFICATION AND DECERTIFYING THE COLLECTIVE FLSA CLASS

          William C. Griesbach, Chief Judge United States District Court.

         This is a wage-and-hour collective and putative class action alleging that ThedaCare, Inc., a major health care provider in northeast Wisconsin, failed to pay hourly employees for time spent working during meal breaks. As a result of such failure, ThedaCare is alleged to have violated its employees' rights to regular and overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., and the Wisconsin wage law, Wis.Stat. § 109.01, et seq. The court has jurisdiction over the FLSA claims pursuant to 28 U.S.C. § 1331 and over the state law claims pursuant to 28 U.S.C. § 1367.

         The court previously granted Plaintiffs' motion for conditional certification of a collective class under the FLSA pursuant to 29 U.S.C. § 216(b) consisting of those individuals employed at ThedaCare's hospitals, now known as Regional Medical Centers, in Appleton and Neenah. The class is defined as:

All persons who have been or are employed by ThedaCare at the Appleton Medical Center or Theda Clark Medical Center hospitals on an hourly basis as direct patient care providers, administrative associates, unit resource associates and employees of the Staffing Resources department at any time three years prior to the commencement of this lawsuit to the present whose scheduled hours included an automatic deduction for unpaid meal breaks and who were denied minimum wage or overtime wages for hours for compensable “oncall” time and/or hours performing work during unpaid meal periods.

ECF No. 60 at 18. The entire class totals approximately 2, 400 employees, most of whom are nurses, paramedics, certified nursing assistants (“CNAs”), and other hourly employees who provide direct patient care at its hospitals (“direct care providers”). It also includes a smaller number of employees who work as registrars/administrative associates, unit resource associates, or hourly employees within the Staffing Resources department (“staffing employees”). The case is now before the court on Plaintiffs' motion for final certification of their FLSA collective action and for certification of their state law claims under Federal Rule of Civil Procedure 23. ECF No. 83. Also before the court is ThedaCare's motion to decertify Plaintiffs' FLSA conditional collective action. ECF No. 111. For the reasons below, Plaintiffs' motion to certify the class is denied and ThedaCare's motion to decertify the conditional FLSA collective is granted.

         I. BACKGROUND

         ThedaCare operates a healthcare system of seven hospitals and approximately thirty-seven medical clinics in northeast Wisconsin. In ThedaCare's hospitals, employees work in dozens of different departments (e.g., emergency medicine, surgery, oncology, behavioral health, inpatient/outpatient rehabilitation, birthing, and many more). Over the past three years, hundreds of individuals have managed and supervised those departments. ThedaCare employs approximately 3, 000 nurses, paramedics, certified nursing assistants (“CNAs”), and other hourly employees who provide direct patient care at its hospitals (“direct care providers”). In addition, it employs approximately 100 hourly employees who work as registrars/administrative associates, unit resource associates, or hourly employees within the Staffing Resources department (“staffing employees”).

         The three named plaintiffs in this case include Juelaine Miller, Kathleen Albers and Linda Auler. Miller worked as a paramedic at Theda Clark (ThedaCare's Neenah hospital) and Appleton Medical Center (“AMC”) (ThedaCare's Appleton hospital). Albers worked as a Unit Resource Associate (“URA”), which required her to manage patient flow, ensure Emergency Department (“ED”) patients are placed in the proper room, coordinate with physicians and nurses and place orders for medical imaging or other treatment requested by the physicians. Auler worked as a Registrar, which required her to greet patients who came to the ED, gather information about them and input that information into a computer system. In addition to these three, approximately 165 employees have consented to join as FLSA opt-ins. Most of the opt-ins are employees who work as nurses or in nurse-like roles, but some opt-ins are office workers. The named and opt-in plaintiffs all work or have worked at either AMC, Theda Clark, or both.

         ThedaCare pays its non-exempt direct care providers and staffing employees on an hourly basis. During the three years prior to the filing of this lawsuit, ThedaCare employed uniform employee pay and break policies for employees across each of its hospitals. One of ThedaCare's uniform policies is entitled: “Pay: General Information And Employee Responsibilities” and is applicable at “All Locations.” ECF No. 33-4 at 10. This general policy includes a “Breaks and Lunches” section, which states:

As a general practice, employees are scheduled for a half hour lunch. Breaks are discretionary and are subject to the pressures of the daily workload. Managers and supervisors are responsible for the scheduling of breaks and lunches. See the separate policy on Breaks and Lunches for more information.

Id. at 11. The separate “Breaks and Lunches” policy referenced above also applies to “All Locations” and provides additional detail about ThedaCare's policy on lunches and breaks. Wilcox Exs. 3 & 4, ECF No. 33-5. Regarding lunches, the policy states:

As a general practice, employees who work at least a 6 hour shift are scheduled for a half-hour unpaid lunch. This half-hour will be deducted by the time and attendance system . . . . If employees' shift length qualifies them for an unpaid lunch break that they are required to forego, employees must record a “no lunch” entry[1] in accordance with the site's timekeeping procedures. Managers or their designee are responsible for oversight and approval of “no lunch” situations.

Id. The policy then discusses 15 minute paid breaks, which are “discretionary and are subject to the pressures of the daily workload.” Id. The policy specifically states that “[e]mployees may not leave the premises during a break.” Id.

         After explaining break rules, the policy proceeds to discuss breaks and lunches generally:

The employee should exercise discretion in taking breaks and lunches in such a way that both the needs of the employee and the needs of the organization are met. In some work areas, managers or their designees may designate breaks. However, patient load along with professional practice and team collaboration, generally determines the practicality of breaks.

Id. The policy proscribes combining a break with lunch, with another break, or at the beginning or close of the work day. Though the policy specifically prohibits going off the premises during breaks, it allows employees to leave the premises for lunches so long as they properly record the time away: “Generally, employees are not required to record the lunch period if they remain on the premises. However, if an employee leaves the premises, the lunch period must be recorded using the appropriate record keeping method for the site (i.e., time clock, manual timecard, etc.).” Id. Finally, the policy states that conflicts regarding breaks should be brought to the employee's manager, along with any questions or concerns regarding the overall policy. Id.

         In its order granting Plaintiffs' motion for conditional certification, the court held that ThedaCare's lunch and breaks policy was lawful on its face:

ThedaCare's lunch and breaks policy is not unlawful on its face. As other courts have found, automatic deduction policies are legal and insufficient, standing alone, to permit a collective action. Fengler v. Crouse Health Found., Inc., 595 F.Supp.2d 189 (N.D.N.Y. 2009); see Brabazon v. Aurora Health Care, Inc., 2011 WL 1131097, at *3 (E.D. Wis. Mar. 28, 2011) (“The court agrees that simple allegations of the existence and implementation of a practice of making automatic deductions for scheduled meal breaks in and of itself is not ‘sufficient as a common denominator to permit a collective action.'”) (quoting Fengler, 595 F.Supp.2d at 195). A policy such as ThedaCare's, which allows employees to use the “no lunch” punch when they are unable to take a full 30 minute lunch break, provides a mechanism to prevent employees from having pay automatically deducted for time they were really working. Though ThedaCare managers have the right to cancel a “no lunch” punch, such a safeguard is reasonably oriented to ensuring that employees do not abuse the “no lunch” punch system and does not render the whole system unlawful. See White v. Baptist Mem'l Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012) (“Under the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process.”).

ECF No. 60 at 8.

         Notwithstanding the fact that ThedaCare's written policy may be lawful on its face, Plaintiffs contend that ThedaCare's application of the policy violates their rights under federal and state wage and hours laws. They claim that “ThedaCare, by uniform policies, failed to compensate members of the class where it required them to perform work duties during the unpaid lunch periods where they were subject to interruption during the unpaid periods, required to respond to patient and hospital needs, require[d] to remain on the employer's property during their unpaid breaks, and where they were not able to effectively cancel the automatic deduction through a procedure of ‘punching ‘no lunch.''” Pls.' Br. in Supp. of Final Certification, ECF No. 130 at 4. Plaintiffs contend that “ThedaCare, at its Neenah and Appleton hospital campuses, maintains a culture . . . of strongly encouraging its clinical staff and schedulers to work through their unpaid lunch breaks while, at the same time, automatically deducting a half-hour from the employees' pay.” Id. at 5. When combined with its practice of discouraging, if not prohibiting, employees from recording a no-lunch entry in its timekeeping systems, Plaintiffs contend that ThedaCare's violations of state and federal wage and hour laws warrant relief on a collective and class-wide basis.

         II. MOTION TO CERTIFY ...


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