In the United States Court of Federal Claims
No. 19-371C
(Filed: October 21, 2019)
)
LINDA MICHALOVIC CRAWLEY, )
et al., ) Fair Labor Standards Act; 29 U.S.C. §
) 216(b); Nationwide Conditional
Plaintiffs, ) Certification; Common Policy or Plan
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
Daniel M. Rosenthal, Washington, D.C., with whom was Linda Lipsett, for plaintiffs.
Andrew Hunter, Civil Division, United States Department of Justice, Washington, D.C.,
with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Reginald T. Blades, Jr., Assistant Director, for defendant.
ORDER ON MOTION FOR CONDITIONAL CERTIFICATION
FIRESTONE, Senior Judge.
Plaintiffs, Linda Michalovic Crawley and eleven other individuals, work for the
Department of Veterans Affairs (VA) at Edward Hines, Jr. Hospital in Illinois as
Diagnostic Radiological Technologists. Am. Compl. ¶¶ 7-18, ECF No. 10. Plaintiffs
allege that they were wrongfully classified as “exempt” under the Fair Labor Standards
Act (FLSA), 29 U.S.C. §§ 201, et seq., and thus did not receive overtime pay under the
FLSA.1 Am. Compl. ¶¶ 22, 32. They bring suit on behalf of themselves and all others
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Plaintiffs also allege that the United States unlawfully failed to pay them night and
weekend premium pay under the premium pay provisions of Title 5 of the U.S. Code.
See Am. Compl. ¶¶ 20, 34. Plaintiffs do not currently seek certification of these claims.
Mot. at 1 n.1, ECF No. 14.
similarly situated, seeking back pay, liquidated damages, interest, and attorneys’ fees and
costs. Id. ¶ 36.
Pending before the court is the plaintiffs’ August 22, 2019 motion for conditional
certification under the FLSA of a nationwide class of non-supervisory Diagnostic
Radiological Technologists employed by the VA who were classified as FLSA exempt
between 2016 and the present. Plaintiffs also seek approval of their proposed notice to
this nationwide class and request equitable tolling of the statute of limitations during the
court’s consideration of their motion for conditional certification. The government does
not oppose conditional certification of a class of Diagnostic Radiological Technologists
at the particular VA facility where the named plaintiffs work but opposes any
certification that reaches beyond that facility.
For the reasons that follow, the court GRANTS plaintiffs’ alternative request for
conditional certification of a class limited to the Hines facility where the named plaintiffs
work. The court will also permit plaintiffs to conduct discovery on facts relevant to a
possible motion for nationwide certification. Plaintiffs’ motion for conditional
certification of a nationwide class is DENIED without prejudice, and plaintiffs’ request
for equitable tolling is also DENIED.
I. BACKGROUND
The VA operates a network of hospitals and other facilities providing healthcare to
veterans. According to data obtained from the VA by the plaintiffs, the accuracy of
which the government does not dispute for the purposes of resolving this conditional
certification motion, see Resp. at 8 n.1, ECF No. 17, the VA employs, nationwide,
approximately 4,000 Diagnostic Radiological Technologists, Mot. at 2. An Office of
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Personnel Management (OPM) document entitled “Position Classification Standard for
Diagnostic Radiologic Technologist Series, GS-0647,” provides a description of the
duties of a Diagnostic Radiological Technologist. Mot. at 2-3. These duties include
“perform[ing] procedures . . . to produce radiographic studies which are used in medical
diagnosis . . . .” Id. at 3 (internal quotation marks and citation omitted). The plaintiffs
further provided VA job postings advertising Diagnostic Radiological Technologist
positions in Ohio, North Carolina, and California, which describe duties that plaintiffs
argue are in accord with the OPM document. Id. at 3. The government, for its part,
provided an excerpt of a VA Handbook that also describes the duties of Diagnostic
Radiological Technologists based on varying levels of experience. Resp. at 10, Ex. 4.
Linda Michalovic Crawley and the other named plaintiffs work for the VA as
Diagnostic Radiological Technologists at Edward Hines, Jr. Hospital in Illinois. Mot. at
3-4. After learning that she was not being paid time-and-one-half for her overtime work,
Crawley discovered that some Diagnostic Radiological Technologists at Hines were
classified as “non-exempt” under the FLSA, meaning that they received overtime pay,
while others doing the same work – including herself and the named plaintiffs – were
classified as “exempt,” and thus did not receive overtime pay. Id. at 4. According to the
VA Handbook provided by the government, VA Human Resources policy delegates the
determination of FLSA exemption status to local facility Human Resources managers.
Resp. at 9-10, Exs. 2-3. After raising her concerns at Hines, Crawley was told by her
management that the disparate classification was a mistake, and that all Diagnostic
Radiological Technologists should be classified as “non-exempt.” Mot. at 4.
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According to data obtained by plaintiffs from the VA, approximately 3,000
Diagnostic Radiological Technologists at VA facilities across the country are classified
as non-exempt, and approximately 1,000 are classified as exempt. Id. at 5. However,
plaintiffs did not provide specific evidence, in the form of affidavits or otherwise, from
any Diagnostic Radiological Technologists at VA facilities other than the Hines facility,
nor did plaintiffs provide specific evidence as to how FLSA exemption status is
determined at these other VA facilities.
II. LEGAL STANDARDS
Section 216(b) of the FLSA permits plaintiffs to bring an action on behalf of
themselves and other “similarly situated” employees. 29 U.S.C. § 216(b). Plaintiffs in
an FLSA collective action must affirmatively opt into the class to become party plaintiffs.
See, e.g., Boggs v. United States, 139 Fed. Cl. 375, 377 (2018).
The mechanism by which a collective action is certified is not specified in the
FLSA. See Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 170-72 (1989). Different
courts have adopted varying procedures to govern collective actions, but over the past
several decades, most courts, including this court, have adopted a “two-step” approach to
certification. See Boggs, 139 Fed. Cl. at 378 (listing cases); Barry v. United States, 117
Fed. Cl. 518, 520 (2014). Under the “two-step” approach, the court first makes a
“preliminary determination of whether the plaintiffs were subject to a common
employment policy or plan.” Boggs, 139 Fed. Cl. at 378. After discovery, the defendant
may move to decertify the conditionally-certified class. Id.; Gayle v. United States, 85
Fed. Cl. 72, 77 (2008). Here, the named plaintiffs and government accept the
applicability of the “two-step” approach.
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“The first step, which plaintiffs ask the [c]ourt to undertake here, is known as
conditional certification, and it facilitates the opt-in process by requiring the defendant to
produce the names and addresses of employees in the proposed class and by settling the
form of the notice distributed to the class.” Barry, 117 Fed. Cl. at 520-21 (citation
omitted). At this initial stage, “[p]laintiffs’ burden . . . is low.” Id. at 521. Plaintiffs
must make a “modest factual showing” that the potential class members are “similarly
situated.” Id. (internal citation and quotation omitted). The Supreme Court has indicated
that potential class members are similarly situated if they share “common issues of law
and fact arising from the same alleged [prohibited] activity.” Hoffman-LaRoche, 493
U.S. at 170. “Plaintiffs may satisfy their evidentiary burden by demonstrating that ‘the
pleadings, affidavits, and other available evidence support the conclusion that potential
class members are similarly situated.’” Whalen v. United States, 85 Fed. Cl. 380, 384
(2009) (quoting Gayle, 85 Fed. Cl. at 77). If this “modest factual showing” has been
made, then the court may conditionally certify the collective action. Boggs, 139 Fed. Cl.
at 379 (internal citation omitted). At this stage, the court does not resolve factual
disputes or make credibility determinations. Gayle, 85 Fed. Cl. at 79.
After the court has found that putative collective action members are similarly
situated, the court has “discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) .
. . by facilitating notice to potential plaintiffs.” Hoffmann-La Roche, 493 U.S. at 169.
The purpose of issuing notice in the context of an action under 29 U.S.C. § 216(b) is to
provide potentially affected employees the opportunity to “make informed decisions
about whether to participate,” which benefits the judicial system by promoting efficient
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resolution of “common issues of law and fact arising from the same alleged
discriminatory activity.” Id. at 170; Whalen, 85 Fed. Cl. at 387.
III. DISCUSSION
In support of their motion for nationwide conditional certification, plaintiffs argue
that they have made the “modest factual showing” that there are “common issues of law
and fact” for VA Diagnostic Radiological Technologists nationwide “arising from the
same alleged [prohibited] activity.” Mot. at 6 (internal quotation marks and citation
omitted). First, plaintiffs argue that they have shown that they are part of a group of
approximately 1,000 Diagnostic Radiological Technologists at the VA who were
classified as exempt. Id. Second, they contend that all 1,000 of these Diagnostic
Radiological Technologists are similarly situated in terms of the work they perform
because their duties fall under the OPM description of the Diagnostic Radiological
Technologist series. Id. at 6-7. In further support, plaintiffs provide three VA job
postings in that series from Ohio, North Carolina, and California, which plaintiffs
contend are consistent with the OPM description. Id. at 3, 6-7.
The government responds that plaintiffs have failed to put forth evidence that
demonstrates that they and all other FLSA-exempt Diagnostic Radiological
Technologists were subject to a “common policy or plan” by the VA that violated the
law. Resp. at 1. Rather, the government argues, the plaintiffs have alleged, at most,
“scattershot error.” Id. at 8. The government contends that plaintiffs have made
allegations specific to the Hines facility only, but do not provide any detailed allegations
of FLSA violations beyond the Hines facility. Id. at 5-9, 11-12. The government further
argues that the plaintiffs cannot allege a nationwide VA policy because the VA’s Human
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Resources policy explicitly delegates the determination of FLSA exemption status to
local facility Human Resources managers. Id. at 9.
Notwithstanding plaintiffs’ “low” burden, Barry, 117 Fed. Cl. at 521, the court
finds that conditional certification of a nationwide class is currently not appropriate in
this case. To support a nationwide conditional collective action certification, the
plaintiffs must demonstrate that the proposed collective action plaintiffs were subject to a
“common employment policy or plan” that allegedly violates the FLSA. See, e.g., Boggs,
139 Fed. Cl. at 378. Plaintiffs, however, have not provided any evidence of a nationwide
VA employment policy or plan. Although plaintiffs have provided data to show that
approximately 25 percent of Diagnostic Radiological Technologists are classified by the
VA as FLSA-exempt, they have not shown that treating these 25 percent as exempt is
part of a unified VA policy. Rather, the exemption decisions reflected in the data
provided by plaintiffs appear to be random, even when broken down by experience level.
See Mot., Ex. 1 ¶ 6. In addition, the government has provided evidence that local Human
Resources managers, not the VA at the national level, make FLSA exemption
determinations. Although the plaintiffs argue that this evidence does not “exclude the
possibility” of a “coordinated” policy, see Reply at 8 n.6, ECF No. 21, it is plaintiffs’
burden to produce “affirmative evidence” of a common policy to show that conditional
certification of a nationwide collective is warranted, see Gayle, 85 Fed. Cl. at 77-78.
Moreover, for conditional certification of nationwide claims, this court has
required evidence of alleged FLSA violations beyond a single facility. See Gayle, 85
Fed. Cl. at 78 (“The experience of these three individuals at one Veterans Affairs’
medical center is not sufficient to conclude that the agency has a nationwide policy of not
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paying overtime to per diem nurses’ assistants.”); Briggs v. United States, 54 Fed. Cl.
205, 207 (2002) (“Mr. Crain’s allegation that he was aware of workers in as many as five
states who had failed to receive overtime pay is insufficient to support a ‘national notice
of action’ because it offers no specific support for the allegations of a violation (e.g.,
names, dates, places, types of unlawful action, etc.).”). Plaintiffs here have failed to
provide any specific evidence, through pleadings, affidavits, or otherwise, of FLSA
violations beyond those alleged at the Hines facility. See Whalen, 85 Fed. Cl. at 384
(“Plaintiffs may satisfy their evidentiary burden by demonstrating that ‘the pleadings,
affidavits, and other available evidence support the conclusion that potential class
members are similarly situated.’” (quoting Gayle, 85 Fed. Cl. at 77)). Instead, plaintiffs
have provided generalized FLSA classification data and specific allegations as to only the
Hines employees. This evidence is insufficient.2 See Briggs, 54 Fed. Cl. at 207.
2
Plaintiffs in reply argue that a “common policy” is not necessary because other cases,
outside of this circuit, have “recognized that conditional certification is appropriate for
employees who are similarly situated in terms of their duties and who suffered a common
denial of overtime pay.” Reply at 9. This contention is not well supported, as the
plaintiffs in the cited cases relied on by the plaintiffs here presented specific evidence of
a common policy. See Nicks v. Koch Meat Co., 265 F. Supp. 3d 841, 853 (N.D. Ill. 2017)
(“[p]laintiffs here have submitted multiple declarations from workers who worked at
multiple locations in which they averred that they were regularly required to work more
than 40 hours per week without being paid overtime,” establishing a “de facto practice at
more than one Complex of not paying for overtime hours”); Smith v. Generations
Healthcare Servs. LLC, 2017 BL 238125, at 5 (S.D. Ohio July 11, 2017) (attached at
Reply, Ex. D) (providing deposition testimony from defendants’ corporate representative
“conced[ing] that Defendants’ payment policy of paying no overtime premium applies
uniformly to all of the companies’ [home health aids]”); Casarotto v. Exploration
Drilling, Inc., 2015 BL 346085, at 5 (D. Mont. Oct. 15, 2015) (attached at Reply, Ex. E )
(“[Plaintiff], however, provides declarations [from six declarants that worked at
numerous sites] that go beyond merely asserting conditional certification should be based
on an exemption designation.”).
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The court therefore concludes that plaintiffs have not yet demonstrated that
nationwide certification is appropriate in this case. However, the specific evidence
presented by plaintiffs does demonstrate that conditional certification is warranted for
non-supervisory FLSA-exempt Diagnostic Radiological Technologists employed by the
VA at the Hines facility where the named plaintiffs work. Moreover, the government
does not oppose conditional certification limited to the Hines facility. Resp. at 2. The
court therefore grants the plaintiffs’ alternative request for conditional certification
limited to that facility. Mot. at 2, 12-13.
Upon finding that conditional certification is appropriate, the court may exercise
its discretion to facilitate the notice process. Hoffman-La Roche, 493 U.S. at 169;
Whalen, 85 Fed. Cl. at 387. The plaintiffs are therefore directed to submit to the court a
revised proposed notice for authorization, consistent with this opinion, by the date set
forth below.
Having granted plaintiffs’ alternative request for conditional certification limited
to the Hines facility, the court next turns to whether equitable tolling of the statute of
limitations for that limited class is appropriate. Plaintiffs argue, in the context of their
motion for nationwide certification, that the statute of limitations should be tolled during
the consideration of their motion to “avoid any prejudice to the class from any delay
between the filing of this motion and transmission of notice.” Mot. at 11. The
government does not directly address plaintiffs’ request but does object to the time period
in plaintiffs’ original proposed notice, which runs from the date the notice was filed
(presuming equitable tolling), rather than the date the notice is issued. Resp. at 12-13.
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Equitable tolling of the statute of limitations should be applied “sparingly.” Irwin
v. Dep’t of Veterans Affairs, 498 U.S. 89, 90 (1990); see also Menominee Indian Tribe of
Wis. v. United States, 136 S. Ct. 750, 755 (2016) (requiring that for equitable tolling to
apply, a plaintiff must show that “some extraordinary circumstance stood in his way and
prevented timely filing”) (citation omitted). Assuming that the FLSA’s statute of
limitations can be equitably tolled, this court has recognized that equitable tolling may be
justified in three circumstances: (1) a defective pleading was filed during the statutory
period; (2) plaintiff was induced or tricked by defendant’s misconduct into allowing the
filing deadline to pass; or (3) plaintiff’s injury was inherently unknowable. Martin v.
United States, No. 13-834C, 2015 WL 12791601, at *3 (Fed. Cl. Oct. 15, 2015) (citing
Christofferson v. United States, 64 Fed. Cl. 316, 326 (2005)). Plaintiffs have not shown
that any of these circumstances apply for a class limited to the Hines facility, where the
named plaintiffs currently work. Moreover, although plaintiffs cite some instances where
courts outside of this circuit have held that equitable tolling may be appropriate during
the time it takes the court to consider a motion for conditional certification, see Mot. at
11-12, the delays in those cases were relatively lengthy, see, e.g., Viriri v. White Plains
Hosp. Med. Ctr., 320 F.R.D. 344, 355 (S.D.N.Y. 2017) (citing cases declining to apply
equitable tolling for periods up to eleven months). Here, the time between the filing of
plaintiffs’ August 22, 2019 motion and the court’s decision has been two months. For
these reasons, the court denies plaintiffs’ motion for equitable tolling at this time. Any
argument for equitable tolling relative to a possible nationwide class may be heard at a
future date, should plaintiffs move for nationwide certification.
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Finally, the court will permit plaintiffs to conduct discovery on facts relevant to
whether a purported class of non-supervisory VA Diagnostic Radiological Technologists
was “subject to a common employment policy or plan,” to support a possible nationwide
certification. Boggs, 139 Fed. Cl. at 378. The parties are directed to submit to the court a
revised proposed discovery plan, by the date set forth below.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS plaintiffs’ alternative request for
conditional certification of a class of all individuals employed by the VA as Diagnostic
Radiological Technologists (occupational series 0647) in a non-supervisory capacity at
the Edward Hines, Jr. Hospital located in Hines, Illinois and who were classified as
FLSA exempt. Because the court has denied plaintiffs’ request for equitable tolling, the
individuals in this class must have been employed, as set forth above, at any point within
three years prior to the date of the issuance of notice.
The court DENIES without prejudice plaintiffs’ motion for nationwide
conditional certification and DENIES plaintiffs’ request for equitable tolling at this time.
Any request for equitable tolling of the statute of limitations related to a possible
nationwide certification will be considered at a later date.
The plaintiffs are directed to submit to the court a revised proposed notice for the
class of individuals limited to the Hines facility by November 1, 2019. The parties are
encouraged to submit a joint proposed notice.
The court is in receipt of the parties’ original discovery plan, submitted in their
September 25, 2019 joint preliminary status report, which requests that most discovery
deadlines be set after resolution of the motion for conditional certification. Joint Prelim.
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Status Report at 4, ECF No. 20. Because the court has now ruled on that motion, the
parties are directed to submit a revised proposed discovery plan by November 1, 2019.
Thereafter, the court will schedule a status conference.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
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