IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

MARISSA D. HERMSEN, Plaintiff, v. CITY OF KANSAS CITY, MISSOURI, et al, Defendants.

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Case No. 11-00753-CV-W-BP

ORDER This matter comes before the Court on Plaintiff Marissa D. Hermsen’s Motion for Conditional Certification. (Doc. 37). Hermsen moves on behalf of herself and the putative class pursuant to the Fair Labor Standards Act (“FLSA”) under 29 U.S.C. § 216(b). For the following reasons, the Motion is GRANTED in part and DENIED in part. I. BACKGROUND Hermsen, a Missouri citizen, brings this action on behalf of herself and all others similarly situated against Defendant City of Kansas City, Missouri (“the City”). Hermsen and the putative class are or were employed as emergency medical technicians (“EMTs”) and/or paramedics for the City. Each person is a former employee of Municipal Ambulance Services Trust (“MAST”). As employees of MAST, EMTs and paramedics were paid on an hourly basis. When an EMT and/or paramedic worked more than 40 hours in a workweek, he or she received an hourly rate of one-and-one-half times his/her regular rate. As employees of MAST, EMTs provided basic life support, were responsible for driving ambulances, and worked under the direction of a paramedic. MAST paramedics served as the primary care providers for patients in the pre-

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hospital setting. EMTs and paramedics generally worked 8-hour shifts, and were not involved in any fire suppression activities otherwise handled by the Kansas City Fire Department. On April 25, 2010, the City merged the MAST operations into the Kansas City Fire Department to operate as one municipal entity covering fire suppression and ambulance-related services. Most of the employees who were working as EMTs or paramedics were integrated into the Fire Department and became regular City employees. Kansas City firefighters who are assigned to fire suppression in the Department’s Emergency Operations Bureau work 24-hour shifts. Following the integration, City employees working as paramedics and EMTs initially continued to work 40-hour workweeks. Most of the EMTs and paramedics then took part in a training program at the Kansas City Fire Academy to be able to assist in fire suppression. Currently, the City has EMTs and paramedics assigned to either “static” or “dynamic” units. EMTs and paramedics assigned to dynamic units work 10-hour shifts for four days, are paid overtime after working 40 hours per week, and are not assigned to assist with fire suppression. EMTs and paramedics on static units work 24-hour shifts, are typically scheduled for two to three shifts per week, are paid overtime after working 212 hours in a 28-day period, and assist other personnel with fire suppression activities. In areas where there are few fires, EMTs and paramedics assigned to static units have general duties similar to those assigned to dynamic units and to duties that had been performed by EMTs and paramedics working for MAST. However, EMTs and paramedics assigned to static units have the additional duty of assisting with fire suppression whenever necessary. The City treats its EMTs and paramedics with fire suppression training on static units as exempt from being paid overtime compensation after working 40 hours under § 207(k) of the FLSA. That section provides:

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No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if—(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975 . . . compensation at a rate not less than one and one-half times the regular rate at which he is employed. Section 203(y) defines “[e]mployee in fire protection activities” as: an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who—(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property or the environment are at risk. In this action, Hermsen and the putative class contend that the City’s policy to not compensate EMTs and paramedics in static units for hours worked in excess of 40 violates the FLSA. As such, Hermsen and the putative class seek: declaratory relief; unpaid straight time compensation; overtime premiums for all overtime work required, suffered, or permitted by the City; compensation for wages wrongfully withheld or deducted; liquidated and/or other damages as permitted by applicable law; and attorneys’ fees, costs, and expenses incurred in this action. Hermsen now moves for conditional certification of the proposed subclasses and an order requiring that the proposed notice filed with her Motion be issued to the putative class members. II. CLASS CERTIFICATION UNDER THE FLSA The FLSA was enacted to eliminate unfair labor practices by barring “customs and contracts which allow an employer to claim all of an employee’s time, while compensating him for only part of it.” 29 U.S.C. § 201 et seq.; Tenn. Coal Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602 (1944). Sections 206 and 207 of the FLSA require employers to pay employees a 3 Case 4:11-cv-00753-BP Document 53 Filed 09/24/12 Page 3 of 11

regular hourly rate for up to 40 hours a week and overtime compensation at a rate of one-andone-half times the regular rate for hours worked in excess of 40. 29 U.S.C. §§ 206, 207(a)(1). The FLSA provides a private right of action to recover damages for violations of the Act’s overtime provisions. 29 U.S.C. § 216(b). Employers are liable for the amount of unpaid wages, plus an equal amount in liquidated damages, for violations of §§ 206 and 207. 29 U.S.C. § 216(b). Hermsen and the putative class seek to collectively pursue their claims against Kansas City pursuant to § 216(b), which provides that: An action to recover the liability prescribed in [§§ 206 or 207] may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. A court may certify a case as a collective action only if members of the class are “similarly situated” or raise similar legal issues regarding coverage, exemption, or nonpayment of wages or benefits. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 168-71 (1989). Plaintiffs bear the burden of establishing that they are similarly situated to other members of the proposed class. Young v. Cerner Corp., 503 F. Supp. 2d 1226, 1229 (W.D. Mo. 2007). Unlike Rule 23 class action requirements where potential plaintiffs are included in a class if they fail to “opt out,” plaintiffs in a collective action must “opt-in” to participate. Davis v. NovaStar Mortg., Inc., 408 F. Supp. 2d 811, 815 (W.D. Mo. 2005). The FLSA does not define the term “similarly situated,” so in order to determine whether plaintiffs are “similarly situated” for purposes of conditional certification, federal district courts use a variety of standards. Id. The Eighth Circuit has yet to articulate a standard for conditionally certifying FLSA cases. However, a majority of the district courts in the Eighth Circuit use a two-step analysis. See, e.g., Kautsch v. Premier Commc’n, 504 F. Supp. 2d 685, 688 (W.D. Mo. 2007); Chankin v. Tihen Commc’ns, Inc., No. 4:08CV196HEA, 4 Case 4:11-cv-00753-BP Document 53 Filed 09/24/12 Page 4 of 11

2009 WL 775588 (E.D. Mo. Mar. 20, 2009); McClean v. Health Systems, Inc., No. 11-CV03037-DGK, 2011 WL 6153091, at *3 (W.D. Mo. Dec. 12, 2011). At the first step of conditional certification (the “notice stage”), which occurs prior to the completion of discovery, plaintiffs may move for conditional certification of the class for notice purposes. Davis, 408 F. Supp. 2d at 815. For purposes of conditional certification, the court applies a lenient evaluation standard which “is considerably less stringent than Rule 23(b)(3) class action standards.” Grayson v. K Mart, 79 F.3d 1086, 1096 (11th Cir. 1996). At this early stage, the court should not consider the merits of the plaintiffs’ claims; rather, plaintiffs must show only that there are “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Davis, 408 F. Supp. 2d at 815. Plaintiffs can meet this requirement with only a modest factual showing. Kautsch, 504 F. Supp. 2d at 688. If a court conditionally certifies a class, potential class members are sent notice and given an opportunity to “opt-in.” Id. The second step of the conditional certification process occurs after discovery is complete and the parties and the court have full information. Id. At that point, the defendant may move to decertify the class. Id. The FLSA should be given a broad reading in favor of coverage, as it is a remedial statute that “has been construed liberally to apply to the furthest reaches consistent with congressional direction.” Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211 (1959). A generous reading, in favor of those whom Congress intended to benefit from the law, is also appropriate when considering issues of time limits and deadlines. Kelley v. Alamo, 964 F.2d 747, 749-50 (8th Cir. 1992).

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III. ANALYSIS Hermsen argues she has substantially alleged that the City systematically fails to pay overtime compensation to former MAST EMTs and paramedics as required by the FLSA. She argues she has met her burden of a minimal showing that the putative class members performed the same duties and were together the victims of a single decision, policy, or plan. In support, Hermsen cites her Complaint, the City’s Answer, sworn statements of EMTs and paramedics she filed, and paystubs produced in conjunction with the minimal discovery conducted to date. The City does not dispute that conditional certification is appropriate at this time; rather, it contends that: 1) the proposed class definitions contained in Hermsen’s Suggestions in Support are overbroad; 2) the statute of limitations applicable to the class definitions is two instead of three years; 3) Hermsen’s proposed class notice is deficient; 4) some of Hermsen’s proposed methods of disseminating the class notice are inappropriate. In agreeing with the City that MAST employees who never worked 24-hour shifts were therefore not subject to the pay practice in contention, Hermsen proposed new definitions in her Reply Suggestions, which the Court accepts below. The parties next dispute which statute of limitations under the FLSA is applicable in this case. The FLSA’s statute of limitations bars actions commenced more than two years after the cause of action accrued unless the cause of action arose out of a willful violation, in which case an action may be commenced within three years after the cause of action accrued. 29 U.S.C. § 255(a). In the case of a collective or class action instituted under the FLSA, the action shall be considered to be commenced in the case of any individual claimant— (a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or

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(b) if such written consent was not so filed or if his name did not so appear—on the subsequent date on which such written consent is filed in the court in which the action was commenced. 29 U.S.C. § 256. The standard courts use for determining whether an employer’s violation was “willful” is whether “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988); Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1082 (8th Cir. 2000). The plaintiff in an action has the burden of making this showing. See McLaughlin, 486 U.S. at 135. Hermsen asserts that the City’s wage and hour violations are willful because the City failed to ensure that employees were properly compensated for the entire statutory period. The City rebuts Hermsen’s argument by stating that its decision to utilize EMTs and paramedics with fire suppression training in 24-hour shifts was made after a careful review of the FLSA and in an attempt to comply with its requirements. The City states it came to the conclusion that the FLSA allows for 24-hour shifts because ambulance workers can fall within the “fire protection activities” exemption in 29 U.S.C. § 207(k). Hermsen responds that because discovery pertaining to the merits of this matter has not commenced, she should not have to provide full proof that a three-year statute of limitations period applies. However, Hermsen states she expects there will be a substantial amount of evidence that the City fully researched and intentionally decided to evade the FLSA’s requirements. Hermsen also argues that limiting the notice period goes against the policies of § 216(b). Because class members’ statutes of limitations “die” on a daily basis until the individual files his/her consent to join this action, the two-stage certification process is in place to preserve putative class members’ claims.

Hermsen further argues that if the Court grants class

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certification on a three-year basis at this time, but later evidence fails to substantiate her claim of the City’s willful violation, the City can then address the issue through motions or at trial. While the Court recognizes that Hermsen has not put forth proof that the City willfully violated the FLSA, the City has admitted that it knew of the FLSA and specifically studied it when structuring its current pay policies. Further, the City will not be prejudiced by a three-year notice period at this time, whereas if the Court limits the statutory period now, putative class members may suffer prejudice as their claims expire. Moreover, a generous reading in favor of those whom Congress intended to benefit from the law is appropriate when considering issues of time limits and deadlines. Kelley v. Alamo, 964 F.2d 747, 749-50 (8th Cir. 1992). As such, the Court will allow the three-year statute of limitations at this point. See Robertson v. LTS Mgmt. Servs. LLC, 642 F. Supp. 2d 922, 927 (W.D. Mo. 2008). If Hermsen is later unable to prove willful violations of the FLSA by the City, employees with claims outside the two-year statute of limitations will be excluded. The City next argues that Hermsen’s proposed notice is deficient because the model notice attached to her Motion includes a deadline for opting in to this lawsuit, but this deadline is missing from Hermsen’s proposed notice itself. Hermsen agrees that specifying a 60-day opt-in period on the notice, which will begin to toll on the date of the notice’s issuance, is appropriate. The Court includes this issue below. Finally, the parties dispute some of Hermsen’s proposed methods of distributing the notice. Hermsen’s plan includes the following forms of dissemination: Hermsen will first-class mail notice and consent forms to all employees who were subject to the pay policy in contention; notice will be posted where employees are stationed and in conspicuous locations at places of employment; and notices will be placed in three separate paychecks for each former MAST EMT

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and paramedic. Hermsen requests that within 30 days of this Order the City turn over the names, telephone numbers, last known addresses, and social security numbers of the potential opt-ins to facilitate notice by mailing. The City argues that providing Hermsen with private social security numbers is inappropriate because the majority of employees in the proposed class are still employed by the City.

Because the City has those employees’ current addresses, further

identification of those individuals is unnecessary. Hermsen responds that the social security numbers enable her to track and notify employees who have since moved. A district court may permit discovery of the names and addresses of affected employees in collective actions. Hoffmann-La Roche Inc., 493 U.S. at 170; Davis, 408 F. Supp. 2d at 818 (defendant must produce to plaintiff a list of all potential class members, including their last known mailing address and telephone numbers (if known) within 30 days of the date of this Order); Greenwald, 2009 WL 259744 at *7. Consistent with this case law, the Court finds that providing Hermsen with the private social security numbers of employees is unnecessary, and will not require the City to do so. The City also takes issue with Hermsen’s request that it include the proposed notice with employees’ paychecks for three consecutive pay periods. The City argues that this would be burdensome because the City’s payroll is first processed by its Finance Department and then paychecks are routed to the Fire Department for disbursal. The City contends that it would require a City employee to go through all paychecks issued to members of the Fire Department, locate the paychecks issued to members of the proposed classes, and attach the notices. The City argues that this process would significantly delay the release of the paychecks to all personnel, and, moreover, is unnecessary since Hermsen will be provided employee addresses. Hermsen does not dispute this argument, so the Court finds that the City has shown it will be unduly

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burdened by having to provide notice to class members in this fashion, and is therefore not required to do so. Finally, the City disputes Hermsen’s request that notices be placed in all locations where members of the proposed class are assigned. The City argues that the decision by the City Council to integrate the ambulance services into the fire department has been met with continued resistance by some former MAST employees, so posting notice may create discord at these locations. The City further argues that this request is unnecessary if Hermsen has the current addresses of these employees. Hermsen responds that posting notice at the employees’ work sites is reasonable, especially in light of the fact that many EMTs and paramedics are unaware of the distinction between collective actions, which require affirmative steps in order to participate, and class actions, which require no affirmative steps to be taken. Hermsen argues that such confusion is common in FLSA actions, and as such broad and varied distribution of notice to class members is important. The Court finds that Hermsen’s request is reasonable and places a minimal burden on the City. IV. CONCLUSION Accordingly, it is ORDERED that Plaintiff Marissa D. Hermsen’s Motion to Certify Class, (Doc. 37), is GRANTED in part and DENIED in part. It is further ORDERED that: 1) The following separate classes are conditionally certified in this collective action: a) all former MAST EMTs who have worked for the City of Kansas City as an EMT at any time since July 29, 2008, and worked more than 40 hours in a workweek without being paid overtime compensation at 1.5 times their regular rate of pay; and b) all former MAST Paramedics who have worked for the City of Kansas City as Paramedic at any time since July 29, 2008, and worked more than 40 hours in a

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workweek without being paid overtime compensation at 1.5 times their regular rate of pay; 2) Marissa Hermsen is designated as class representative for the paramedic class and Andrea Armilio is designated as class representative for the EMT class; 3) Plaintiffs’ counsel is approved to act as class counsel in this matter; 4) Within 30 days of this Order, Defendant City of Kansas City, Missouri is to provide to Plaintiffs’ counsel a list of all individuals who meet the above class descriptions, including their current or last-known addresses and telephone numbers; 5) The proposed notice, (Doc. 38-14), is to include a 60-day opt-in deadline from the date of issuance of the notice and is to be expediently distributed to class members; 6) Defendant is to post the amended notice at time clocks and bulletin boards at all locations where its employees meeting the above class descriptions work for a period of 90 days from the date of this Order. IT IS SO ORDERED. /s/ Beth Phillips BETH PHILLIPS, JUDGE UNITED STATES DISTRICT COURT DATED: September 24, 2012

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