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Ortiz v. HF Management Services, LLC

United States District Court, S.D. New York

November 21, 2017

JUANA ORTIZ, on behalf of herself and all others similarly-situated, Plaintiff,
v.
HF MANAGEMENT SERVICES, LLC, d/b/a HEALTHFIRST, Defendant.

          OPINION AND ORDER

          LORNA G. SCHOFIELD, DISTRICT JUDGE

         Named Plaintiff Juana Ortiz, on behalf of herself and others similarly situated, sues Defendant HF Management Services (“Defendant” or “Healthfirst”) for alleged violations of the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). Defendant moves to dismiss the Second Amended Complaint (the “Complaint”) based on Named Plaintiff's alleged failure to comply with this Court's December 9, 2016, Order granting leave to amend the Amended Complaint under specific conditions. Named Plaintiff opposes the motion. Defendant's motion is granted and the Complaint is dismissed.[1]

         I. BACKGROUND

         A. Procedural History Preceding This Action

         Kanwarpreet Thind initiated this putative collective and class action on December 3, 2014. He filed the First Amended Complaint on February 20, 2015 (the “FAC”). The FAC alleged that Thind worked for Healthfirst as a Facilitated Enroller (“FE”) from August 24, 2009, to January 24, 2012, and as a Manager for Sales (“Manager”) from January 25, 2012, to August 21, 2014. The FAC alleged six causes of action based on violations of FLSA and NYLL. In an Opinion and Order dated July 29, 2015, the Court dismissed the FAC's causes of action based on Healthfirst's alleged failure to pay the minimum wage and to pay wages in accordance with the agreed terms of employment under NYLL.

         On July 31, 2015, the Court granted Thind's motion for conditional certification of two FLSA collectives -- Collective A and Collective B -- as to the FAC's FLSA overtime claim only. Collective A included all current and former Healthfirst employees who worked as managers in the Facilitated Enrollment Department in the three years before the filing of the initial complaint and who did not receive overtime pay. Collective B included all current and former Healthfirst employees who worked as FEs in the three years before the filing of the initial complaint and who did not receive overtime pay.

         Ortiz and others joined this litigation in the fall of 2015, after receiving notice of the Thind collective action. On January 5, 2016, as an opt-in plaintiff, Ortiz responded to Defendant's First Set of Interrogatories, stating that she “does not recall specific dates, days, or hours worked, ” and that Mildres Ramos was the only Healthfirst Manager who directed Ortiz to work off-the-clock.

         On May 12, 2016, Defendant moved to decertify Collective B, arguing that Thind and the Opt-In Plaintiffs were not similarly situated. Thind opposed the decertification motion, cross-moved for leave to file what now is the operative pleading and for final certification of a redefined Collective B consisting of Collective B1 and Collective B2. Proposed Collective B1 included all current and former Healthfirst employees who worked as FEs, worked off-the-clock with express instruction from managers and did not receive overtime pay. Proposed Collective B2 included all current and former Healthfirst employees who worked as FEs, worked off-the-clock without express instruction from managers and did not receive overtime pay.

         In an Opinion and Order dated December 9, 2016 (the “December 9 Opinion”), the Court decertified Collective B, holding that “Thind cannot demonstrate that Healthfirst employed a single, uniform policy of explicitly directing Facilitated Enrollers to work off the clock in violation of its clear written policy.” The Court identified “two discrete groups” of Collective B opt-in plaintiffs -- “those who were explicitly told to work off the clock and those who were not.” Based on this observation, the Court granted in part Thind's cross-motion for leave to amend, allowing him to file an amended complaint replacing Collective B with the above-described Collective B1 -- FEs who received express instructions to work off-the-clock. The Court denied Thind's motion to amend with respect to Collective B2, explaining that “to prove a violation [of FLSA], the B2 plaintiffs would need to establish that Healthfirst had ‘actual or constructive knowledge' that they were working without pay, ” which would require individualized inquiry. Each of the B2 plaintiffs also would need to show individually the circumstances that gave rise to his or her understanding that he or she had been directed, implicitly, to work overtime without pay. The December 9 Opinion stated, “Plaintiff may file a Second Amended Complaint that is consistent with this Opinion and the information that has come out in discovery . . . .” In other words, as relevant here, the B1 Collective would need to consist of FEs whom Defendant expressly instructed to work off-the-clock and would require a lead plaintiff who, according to previously filed discovery responses, had received express instructions to work overtime without pay.

         Since the December 9 Opinion, the claims on behalf of Collectives A and B1 have proceeded as separate actions, with Thind continuing to represent Collective A on behalf of managers in Thind v. Healthfirst, Inc., et al., No. 14 Civ. 9539.

         B. This Action and Plaintiff Ortiz

         After the claims on behalf of Collective B1 were severed from the Thind action, Ortiz was named lead plaintiff in this new action on June 16, 2017. The Complaint (i.e., the Second Amended Complaint) asserted claims on behalf of Ortiz and a collective defined in relevant part as FEs who “worked off-the-clock hours to meet Defendant's productivity requirement with instruction from managers.” Sixteen opt-in plaintiffs have consented to join this action.

         The Complaint alleges that Ortiz was employed by Healthfirst as a FE from March 9, 2007, to January 22, 2013, and that, during her employment, she regularly worked from 8:30 a.m. to 6:30 p.m., Monday through Friday, every week, and often for four hours on Saturday. The Complaint further alleges that she was compensated at her regular rate of pay for most hours worked, except most of those in excess of forty hours per week, which were “off-the-clock.” The Complaint also alleges that Ortiz was told that there was “no budget for her to work overtime, ” and she was paid overtime compensation only during weeks when she met certain performance goals.

         The Complaint alleges that Ortiz worked these “excess hours in order to meet Defendant's weekly productivity requirement.” The Complaint further alleges that “[a]t all times, Defendant was aware of Plaintiff's off-the-clock work, as all Facilitated Enrollers were required to communicate with their managers and advise them of their daily schedules, progress towards meeting their productivity requirements ...


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