Jon Campisi Aug. 31, 2012, 10:14am

A federal judge in Philadelphia has granted a request by a plaintiff in an employment case

to add similarly situated persons to the conditionally certified class action suit, although the jurist simultaneously denied a request to equitably toll the statute of limitations as to those persons.

The case arose out of a complaint filed by Connie Titchenell, a former Apria Healthcare employee, who alleges that the company violated the federal Fair Labor Standards Act by requiring her to work off the clock without compensation to meet productivity demands.

Titchenell claims that Apria has a companywide policy or pattern of requiring employees to work more than 40 hours per week without overtime pay.

Background information on the case shows that Titchenell worked as a customer service specialist in Apria’s Sharon Hill, Pa. office from May 2007 until her termination in September 2010.

The company provides home respiratory therapy and home medical equipment services, and has 12,300 employees in about 500 offices across the country.

In her complaint against the agency, Titchenell claims that during her employment, she routinely worked 10 to 15 extra hours per week after clocking out at 5 p.m., without overtime pay, to meet the productivity demands of her supervisors.

The court docket shows that Titchenell filed her lawsuit against Apria in late January of last year.

The parties soon engaged in initial discovery limited to conditional certification issues.

The court subsequently granted a plaintiff’s motion for conditional certification of a collective class, with the class consisting of all non-overtime-exempt customer service specialists employed by the defendant who have worked, or are still working, in any branch office of Apria anywhere in the country during the liability period and who have not been given overtime pay for work in excess of 40 hours per week.

On review of the motion to add persons, U.S. District Judge Jan E. Dubois wrote in his Aug. 29 memorandum that the court had to address two issues: whether the two disputed job positions, that of a senior customer service specialist and that of a customer service specialist team leader, are sufficiently similar to the position Titchenell held such that individuals who held those positions should be included in the conditionally certified collective action, and whether the court should equitably toll the statute of limitations as to the additional class members.

On the first point, DuBois ruled that the job descriptions are, in fact, similar to the plaintiff’s former position because senior customer service specialists and customer service specialist team leaders, like customer service specialists, are hourly, non-exempt employees.

DuBois shot down an argument by the defendant, which asserted that the two positions come with varying responsibilities and duties.

The judge wrote that the argument fails for two reasons, first, because there is substantial overlap between the two job titles the defendant contests and the four job titles the defendants concedes are similarly situated to the plaintiff’s, and second, because all six of the job titles the plaintiff seeks to add to the conditionally certified class have essentially the same job functions as the plaintiff’s to the extent that all are non-management customer service positions.

“Importantly, these six job titles do not encompass authority to approve overtime,” DuBois wrote. “To the contrary, plaintiff’s claim is based on the allegation that branch managers were ‘paid more if the number of labor hours used is limited,’ and thus ‘tacitly encouraged [conditional class members] to work off the clock by setting unattainable productivity goals while severely limiting or refusing overtime.’”

In granting the plaintiff’s motion to add class members, DuBois also rejected a defense argument that there was no single corporate-wide decision, policy or plan applicable to the disputed additional class members.

When the court conditionally certified the class, the memorandum states, the court rejected two similar arguments by the defendant.

On the basis of affidavits from two employees, the court concluded that the plaintiff produced evidence that the defendant had a nationwide policy of requiring customer service specialists to do more work than they could perform in their normal workweek and not get approval for overtime outside the normal hours.

The court had also rejected the defendant’s argument that the proposed collective class be limited to the branch office where the plaintiff worked because the class’s claims would be too individualized for collective treatment.

“Defendant has offered no reason for the Court to reconsider its prior determination,” DuBois wrote. “To the contrary, the evidence in favor of collective certification is stronger than it was originally.”

On the issue of whether the statute of limitations should be tolled for persons added to the class, DuBois determined that it should not, writing that the criteria for equitable tolling wasn’t met in this particular case.

The court will address equitable tolling at a later stage of the litigation if the case warrants it, DuBois wrote.

DuBois further wrote that the court defers ruling on the size and scope of any class until discovery is complete and the issue of final certification is before the court.

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