 


                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


PEGGY DINKEL, VALARIE GADSON, and
DEIDRE BECKFORD, for themselves and all
others similarly situated,

            Plaintiffs,
                                                           Civil Action No. 11-00998 (CKK)
       v.

MEDSTAR HEALTH, INC., and
WASHINGTON HOSPITAL CENTER,

            Defendants.


                          MEMORANDUM OPINION AND ORDER
                                  (July 29, 2012)

       Plaintiffs bring this action against Defendants MedStar Health, Inc. (“MedStar”) and

Washington Hospital Center (“WHC”), claiming that Defendants violated the Fair Labor

Standards Act (“FLSA”) and the District of Columbia Minimum Wage Act (“DC-MWA”) by

failing to compensate them for “meal break” and “uniform maintenance” work. Currently before

the Court is Plaintiffs’ [23] Motion for Order Authorizing Notice to Similarly Situated Persons

Pursuant to 29 U.S.C. § 216(b) (“Motion for Conditional Certification”). Plaintiffs ask the Court

to conditionally certify this case as a “collective action” and to allow notice of the case to be sent

to all non-exempt, hourly employees working in nine MedStar hospitals during any workweek

from May 26, 2008 to the present. Upon careful consideration of the parties’ submissions, the




 
 


relevant authorities, and the record as a whole,1 Plaintiffs’ Motion for Conditional Certification

shall be GRANTED IN PART and DENIED IN PART. Specifically, with respect to Plaintiffs’

meal break claim, the Court shall conditionally certify this case as a collective action and allow

notice to be sent to all non-exempt, hourly employees working in the two specific departments

within WHC where Plaintiffs claim to have worked during the relevant time period. With

respect to Plaintiffs’ uniform maintenance claim, the Court shall conditionally certify this case as

a collective action and allow notice to be sent to all non-exempt, hourly employees at all nine

hospitals during the relevant time period.

                                                               I. BACKGROUND

              MedStar owns nine hospitals in the District of Columbia and Maryland.2 See Pls.’ [23]

Mem. Ex. A at 1. The District of Columbia hospitals are Georgetown University Hospital

(“GUH”), the National Rehabilitation Hospital (“NRH”), and WHC. The Maryland hospitals are

Franklin Square Medical Center (“FSMC”), Good Samaritan Hospital (“GSH”), Harbor Hospital

(“HH”), Montgomery Medical Center (“MMC”), St. Mary’s Hospital (“SMH”), and Union

Memorial Hospital (“UMH”).

              Plaintiffs Peggy Dinkel, Valarie Gadson, and Deidre Beckford commenced this action on

May 26, 2011 on behalf of themselves and similarly situated employees. See Pls.’ [1] Compl.

Subsequently, Plaintiffs Marlene Barber, Adama Gibateh, Jovita Ike, Donna Lawrence, Rajini
                                                            
1
  In an exercise of its discretion, the Court finds that holding oral argument would not be of
assistance in rendering a decision. See LCvR 7(f). Furthermore, while the Court bases its
decision on the record as a whole, its consideration has focused on the parties’ memoranda and
accompanying materials. See ECF Nos. [23, 25, 30, 31, 32, 37]. When citing to memoranda or
other papers, the Court shall simply identify the party and docket number and provide a brief
document descriptor (e.g., “Defs.’ [21] Mem.”).
2
  MedStar concedes that it owns all nine hospitals but denies that it exercises sufficient control
over each facility to be considered an “employer” for purposes of the FLSA and DC-MWA. See
Defs.’ [25] Mem. at 4 n.1. That presents a merits-based question unsuitable for resolution
through a motion for conditional certification. Plaintiffs’ allegations suffice at this early stage.

                                                                     2
 
 


Raj, Vilasini Sarang, and Barbara Townsend each filed a written consent to join in this action as

a party-plaintiff. See Pls.’ [16] Consents. Plaintiffs assert two basic claims. Plaintiffs’ “meal

break” claim asserts that Defendants violated the FLSA and DC-MWA by failing to compensate

them for the time they allegedly spent working during meal breaks. See Pls.’ [1] Compl. ¶¶ 42-

52. Plaintiffs’ “uniform maintenance” claim asserts that Defendants violated the FLSA and DC-

MWA by failing to compensate them for “off-the-clock” uniform maintenance work. See id.

       Once Defendants appeared and answered the Complaint, the parties agreed to a discovery

period lasting well over three months focusing on whether this case should be conditionally

certified as a collective action. See [14] Order at 5. The Court authorized each party to take up

to ten depositions and to serve up to twenty-five document requests, interrogatories, and requests

for admission. See id. The discovery period concluded without any meaningful disputes arising.

Defendants produced approximately 2,700 pages of documents and answered Plaintiffs’

interrogatories. See Pls.’ [23] Mem. at 12, Ex. S. Although Plaintiffs periodically complain

about Defendants’ discovery responses, Plaintiffs never filed a motion to compel.

                                    II. LEGAL STANDARD

       The FLSA and DC-MWA require employers to pay minimum wage for compensable

working time and an overtime premium for compensable hours worked in excess of forty hours

per week. See 29 U.S.C. §§ 206, 207; D.C. CODE § 32-1003. Both statutes contemplate what is

commonly referred to as a “collective action,” in which plaintiffs bring claims on behalf of

“similarly situated” employees but those employees do not become part of the action unless and

until they “opt-in” by filing a written consent to join as party-plaintiffs. Under the FLSA:

               An action . . . may be maintained against any employer . . . by any
               one or more employees for and [o]n 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

                                                 3
 
 


                 consent in writing to become such a party and such consent is filed
                 in the court in which such action is brought.

29 U.S.C. § 216(b). Similarly, under the DC-MWA:

                 [An] [a]ction to recover damages . . . may be maintained . . . by
                 any 1 or more employees for and on behalf of the employee and
                 other employees who are similarly situated. No employee shall be
                 a party plaintiff to any action . . . unless the employee gives written
                 consent to become a party and the written consent is filed in the
                 court in which the action is brought.

    D.C. CODE § 32-1012(b).

          With collective actions, district courts have considerable discretion in managing the

process of joining similarly situated employees in a manner that is both orderly and sensible. See

Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); Alvarez v. City of Chicago, 605

F.3d 445, 449 (7th Cir. 2010). Courts in this Circuit and others have settled on a two-stage

inquiry for determining when a collective action is appropriate:

                 The first [stage] involves the court making an initial determination
                 to send notice to potential opt-in plaintiffs who may be “similarly
                 situated” to the named plaintiffs with respect to whether a[n] FLSA
                 violation has occurred. The court may send this notice after
                 plaintiffs make a “modest factual showing” that they and potential
                 opt-in plaintiffs together were victims of a common policy or plan
                 that violated the law. * * * The “modest factual showing” cannot
                 be satisfied simply by unsupported assertions, but it should remain
                 a low standard of proof because the purpose of this first stage is
                 merely to determine whether “similarly situated” plaintiffs do in
                 fact exist. At the second stage, the district court will, on a fuller
                 record, determine whether a so-called “collective action” may go
                 forward by determining whether the plaintiffs who have opted in
                 are in fact “similarly situated” to the named plaintiffs. The action
                 may be “de-certified” if the record reveals that they are not, and
                 the opt-in plaintiffs’ claims may be dismissed . . . .

Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (citations, quotation marks, and

emphasis omitted), cert. denied, 132 S. Ct. 368 (2011); accord Symczyk v. Genesis HealthCare

Corp., 656 F.3d 189, 192-93 (3d Cir. 2011), cert. granted on other grounds, No. 11-1059, 2012


                                                   4
 
 


WL 609478 (June 25, 2012); Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th Cir.

2006); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260-62 (11th Cir. 2008), cert.

denied, 130 S. Ct. 59 (2009); McKinney v. United Stor-All Ctrs., Inc., 585 F. Supp. 2d 6, 7-8

(D.D.C. 2008); Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C. 2004).3

              At the first stage, often loosely referred to as “conditional certification,” the named

plaintiffs must present “some evidence, beyond pure speculation, of a factual nexus between the

manner in which the employer’s alleged policy affected [them] and the manner in which it

affected other employees.” Symczyk, 656 F.3d at 193 (quotation marks omitted). This factual

showing has been described as “‘not particularly stringent,’ ‘fairly lenient,’ ‘flexible,’ [and] ‘not

heavy.’” Morgan, 551 F.3d at 1261 (citations and notations omitted). At this stage, district

courts should ordinarily refrain from resolving factual disputes and deciding matters going to the

merits. See Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007);

Camper v. Home Quality Mgmt. Inc., 200 F.R.D. 516, 520 (D. Md. 2000).

              If a class is conditionally certified, similarly situated employees are provided notice of

the action and an opportunity to join as party-plaintiffs. After conducting discovery, the parties

then proceed to the second stage of analysis, at which point the question is “whether each

plaintiff who has opted in to the collective action is in fact similarly situated to the named

plaintiff[s].” Symczyk, 656 F.3d at 193.




                                                            
3
 The parties agree that conditional certification is governed by the same standard under the
FLSA and DC-MWA. The Court need not and does not question this assumption.

                                                               5
 
 


                                        III. DISCUSSION

       Plaintiffs ask the Court to conditionally certify this case as a “collective action” and to

allow notice of the case to be sent to all non-exempt, hourly employees working in nine MedStar

hospitals during any workweek from May 26, 2008 to the present. Here, the Court first

addresses conditional certification of Plaintiffs’ meal break claim, see infra Part III.A, and then

turns to Plaintiffs’ uniform maintenance claim, see infra Part III.B.

       A.      Plaintiffs’ Meal Break Claim

       With respect to their meal break claim, Plaintiffs ask the Court to conditionally certify

this case as a collective action and to allow notice to be sent to all non-exempt, hourly employees

working in nine hospitals during any workweek from May 26, 2008 to the present. For the

reasons set forth below, the Court finds that Plaintiffs have not shown that their broad proposed

case is both eligible and suitable for conditional certification, but the Court shall conditionally

certify a more narrowly tailored collective action.

               1.      The Court Shall Exclude GUH and NRH
                       Employees from Plaintiffs’ Meal Break Claim

       One of the essential factual underpinnings of Plaintiffs’ meal break claim, as it has been

framed by Plaintiffs themselves, is that the nine MedStar hospitals at issue share a common

policy of automatically deducting thirty minutes from associates’ total work time for each day to

reflect a thirty-minute unpaid meal break. See Pls.’ [23] Mem. at 4, 13, Pls.’ [30] Mem. at 2-3, 8,

10. But in making this assertion, Plaintiffs cite only to evidence specifically relating to three

hospitals (MMC, UMH, and WHC). See Pls.’ [23] Mem. at 4 n.3 (citing Pls.’ [23] Ex. N at M-

W 000497 (MMC); Pls.’ [23] Ex. I at M-W 000512 (UMH); Pls.’ [23] Ex. B ¶¶ 2, 5, Ex. C ¶¶ 2,

5, Ex. D ¶¶ 2, 5, Ex. T at M-W 001000 (WHC)). Moreover, of these three hospitals, the

evidence Plaintiffs cite relating to one (UMH) does not actually stand for the proposition


                                                  6
 
 


asserted. See Pls.’ [23] Ex. I at M-W 000512 (UMH). As a result, Plaintiffs have not directed

this Court to any evidence suggesting that seven hospitals (FSMC, GSH, GUH, HH, NRH, SMH,

and UMH) follow an “auto-deduct” policy. Nor has the Court gleaned anything to that effect

from Plaintiffs’ exhibits. But see Potter v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir.

2009) (“Judges are not like pigs, hunting for truffles buried in briefs or the record.”) (quotation

marks and citation omitted).

              Were it not for the concessions made by Defendants in opposition, this might have

spelled the end of Plaintiffs’ efforts to secure conditional certification for their meal break claim

insofar as it relates to those seven specific hospitals. But Defendants have conceded that seven

hospitals (FSMC, GSH, HH, MMC, SMH, UMH, and WHC) follow an auto-deduct policy. See

Defs.’ [25] Mem. at 16. Indeed, Defendants submit evidence to this effect. See Defs.’ [25] Ex.

33 ¶ 8, Ex. 40 ¶ 7, Ex. 44 ¶ 7, Ex. 46 ¶ 7, Ex. 57 ¶ 7 (FSMC); Defs.’ [25] Ex. 31 ¶ 7, Ex. 32 ¶ 7,

Ex. 42 ¶ 10, Ex. 53 ¶ 7 (GSH);4 Defs.’ [25] Ex. 28 ¶ 8, Ex. 37 ¶ 7, Ex. 43 ¶ 7, Ex. 48 ¶ 8 (HH);

Defs.’ [25] Ex. 30 ¶ 7, Ex. 38 ¶ 7, Ex. 39 ¶ 7 (MMC); Defs.’ [25] Ex. 36 ¶ 7, Ex. 45 ¶ 8, Ex. 47 ¶

7, Ex. 52 ¶ 7 (SMH); Defs.’ [25] Ex. 26 ¶ 7, Ex. 54 ¶ 7, Ex. 56 ¶ 7 (UMH); Defs.’ [25] Ex. 2 ¶ 9

(WHC). Therefore, despite the clear shortcomings in Plaintiffs’ factual showing, the Court is

satisfied that seven hospitals (FSMC, GSH, HH, MMC, SMH, UMH, and WHC) share the auto-

deduct policy.




                                                            
4
   Defendants’ Exhibit 35 also pertains to GSH, but the exhibit filed with the Court appears to be
missing at least one page. See LCvR 5.4(c)(2) (“A person filing a document by electronic means
is responsible for insuring the accuracy of the official docket entry generated by the CM/ECF
software.”).

                                                               7
 
 


              Nonetheless, Plaintiffs have failed to direct this Court to any evidence to suggest that two

hospitals (GUH and NRH) follow an auto-deduct policy.5 Because the existence of an auto-

deduct policy is an essential ingredient of Plaintiffs’ meal break claim, Plaintiffs have not shown

that there is a factual nexus between the manner in which Defendants’ meal break policies

affected them and the manner in which those policies affected employees at GUH and NRH. In

the absence of any evidence that GUH and NRH follow an auto-deduct policy, it is clear that no

matter how lenient the factual showing for conditional certification may be, Plaintiffs have fallen

short. The Court shall therefore exclude employees at GUH and NRH from any collective action

relating to Plaintiffs’ meal break claim.

                             2.             The Court Shall Exclude FSMC, GSH, HH, MMC,
                                            SMH, and UMH Employees from Plaintiffs’ Meal Break Claim

              With the foregoing limitation in mind, the Court now turns to the seven remaining

hospitals (FSMC, GSH, HH, MMC, SMH, UMH, and WHC).6 In this regard, another essential

factual underpinning of Plaintiffs’ meal break claim—again, as it has been framed by

Plaintiffs—is that Defendants’ auto-deduct policy “was coupled with a common practice of

imposing limitations on, discouraging, and ignoring efforts to recover pay for missed meal

breaks.” Pls.’ [30] Mem. at 3-4; see also Pls.’ [23] Mem. at 5, 13. Even though Plaintiffs

themselves characterize this assertion as “critical[],” Pls.’ [30] Mem. at 3, they support the

assertion by citing to evidence specifically relating only to a single hospital (WHC). See Pls.’

[23] Mem. at 5 (citing Pls.’ [23] Ex. B ¶ 9, Ex. C ¶ 9, Ex. D ¶ 9); Pls.’ [30] Mem. at 3-4 (citing

                                                            
5
  In fact, the record suggests, if anything, that these hospitals do not have an auto-deduct policy
and instead manually record meal breaks or require employees to clock-out and clock-in during
meal breaks. See Defs.’ [25] Ex. 27 ¶¶ 7-8, Ex. 34 ¶¶ 3, 7-8, Ex. 41, ¶¶ 3, 8, Ex. 49 ¶¶ 3, 7-9,
Ex. 51 ¶¶ 3, 8 (GUH); Defs.’ [25] Ex. 29 ¶¶ 3, 7-8, Ex. 40 ¶¶ 3, 7-8, Ex. 55 ¶¶ 3, 7 (NRH).
6
  The Court’s analysis here would also apply to GUH and NRH if those hospitals had an auto-
deduct policy.

                                                                  8
 
 


Pls.’ [23] Ex. B ¶ 9, Ex. C ¶ 9, Ex. D ¶ 9; Pls.’ [30] Ex. 1 ¶ 7). Indeed, even though Plaintiffs

concede that the other six remaining hospitals (FSMC, GSH, HH, MMC, SMH, and UMH)

“maintained policies that allowed their employees to request payment for missed meal breaks,”

Pls.’ [23] Mem. at 5; see also Pls.’ [30] Mem. at 4, Plaintiffs do not present any evidence that

there was a common practice at those six hospitals of imposing limitations on, discouraging, or

ignoring efforts to recover pay for missed meal breaks.

       In the final analysis, Plaintiffs’ factual showing for these six specific hospitals (FSMC,

GSH, HH, MMC, SMH, and UMH) is limited to the bare existence of an auto-deduct policy,

which is not by itself the least bit unlawful. See White v. Baptist Mem’l Health Care Corp., No.

08-2478, 2011 WL 1883959, at *8 (W.D. Tenn. May 17, 2011) (“Standing alone, an employer

policy providing automatic deductions for meal breaks does not violate the FLSA. Therefore,

[an employer’s] mere adoption of a system that, by default, deducts meal breaks from its

employees’ compensation does not constitute a unified policy of FLSA violations capable of

binding together [a collective action].”); see also Blaney v. Charlotte-Mecklenburg Hosp. Auth.,

No. 3:10-CV-592-FDW-DSC, 2011 WL 4351631, at *6 (W.D.N.C. Sept. 16, 2011); McClean v.

Health Sys., Inc., No. 11-03037-CV-S-DGK, 2012 WL 607217, at *6 (W.D. Mo. Feb. 23, 2012).

Again, no matter how lenient the factual showing for conditional certification may be, Plaintiffs

have fallen short by failing to produce any evidence that there was a common practice at these

six hospitals of imposing limitations on, discouraging, or ignoring efforts to recover pay for

missed meal breaks. The Court, left only with Plaintiffs’ unadorned speculation and unsupported

assertions, can only conclude that Plaintiffs have not met their burden of producing some

evidence of a factual nexus between the manner in which Defendants’ meal break policies

affected them and the manner in which those policies affected employees at these six specific



                                                 9
 
 


hospitals. Accordingly, the Court shall exclude employees of FSMC, GSH, HH, MMC, SMH,

and UMH from any collective action relating to Plaintiffs’ meal break claim.

               3.      The Court Shall Exclude WHC Employees Outside
                       Plaintiffs’ Departments From Plaintiffs’ Meal Break Claim

       The question that remains is whether conditional certification is appropriate with respect

to WHC. Plaintiffs seek conditional certification of a collective action that would cover all non-

exempt, hourly employees at WHC during the relevant time period. At any given moment of

time, there are over four thousand non-exempt, hourly employees working at WHC and they

hold over two hundred and fifty job titles and work in over two hundred departments. See Pls.’

[23] Ex. T at M-W 000986-1000; Defs.’ [25] Ex. 2 ¶¶ 6-7. As a result, the proposed collective

action would cover “individuals who work in different units . . . , work different shifts and

schedules, have different supervisors, are entitled to different rates of pay according to divergent

schemes, and hold vastly different job positions and functions spanning the health care

occupational gamut.” Manning v. Boston Med. Ctr. Corp., Civil Action No. 09-11463-RWZ,

2012 WL 1355673, at *3 (D. Mass. Apr. 18, 2012). The Court declines to grant conditional

certification for a collective action of this breadth for two independent reasons.

                       i.      Plaintiffs’ Factual Showing is Inadequate

       Despite the breadth of the proposed action, Plaintiffs offer a decidedly narrow factual

showing. Plaintiffs worked in one of two departments at WHC: the Emergency Department or

the 4NE Medical Cardiology Unit. See Pls.’ [26] Decls. ¶ 1; Pls.’ [31] Decls. ¶ 1. Plaintiffs

admit they were able to request compensation for missed meal breaks, but contend that they were

subject to a common practice of imposing limitations on, discouraging, or ignoring efforts to

recover pay for missed meal breaks. See Pls.’ [23] Ex. A ¶ 9, Ex. B ¶ 9, Ex. C ¶ 9; Pls.’ [31]




                                                 10
 
 


Decls. ¶ 7. However, Plaintiffs do not present any evidence that there was a similar practice at

departments other than the two in which they work or worked.

       Plaintiffs try to make an end-run around the requisite factual showing simply by averring

that “[t]hrough their personal observations of, and discussions with, their co-workers during the

relevant period, Plaintiffs believe that Defendants’ Hospital Employees were subjected to the

same meal break work policies and practices and [were] affected the same way by them.” Pls.’

[23] Mem. at 5 (citing Pls.’ [23] Ex. B ¶ 10, Ex. C. ¶ 10, Ex. D. ¶ 10); see also Pls.’ [31] Decls.

¶¶ 1, 8. These unsupported assertions are made in such a conclusory fashion as to be devoid of

meaning. Plaintiffs’ declarations lack the sort of factual content that would allow the Court to

conclude that Plaintiffs have any personal knowledge of practices or policies outside their

specific departments and, if so, which departments.

       Once again, no matter how lenient the factual showing for conditional certification may

be, Plaintiffs have fallen short by failing to produce any evidence that there was a practice at

other departments of imposing limitations on, discouraging, or ignoring efforts to recover pay for

missed meal breaks. Plaintiffs’ unsupported assertions are insufficient to discharge their burden

of producing some evidence of a factual nexus between the manner in which Defendants’ meal

break policies affected them and the manner in which those policies affected employees in other

departments. Accordingly, the Court shall exclude employees outside the Emergency

Department and the 4NE Medical Cardiology Unit from Plaintiffs’ meal break claim.

                       ii.     Plaintiffs Have Not Shown the
                               Proposed Action Would Be Manageable

       Even absent this complete gap in Plaintiffs’ factual showing, the Court would still decline

to conditionally certify a class covering departments outside those in which Plaintiffs claim to

have worked because Plaintiffs have not shown that the proposed action would be manageable.

                                                 11
 
 


This Court has the responsibility to ensure that the action proceeds in a manner that is both

“orderly” and “sensible,” Hoffman-La Roche, 493 U.S. at 170, and in discharging this role, it is

appropriate for the Court to take into account the “manageability and efficiency” of proceeding

as a collective action, Chase v. AIMCO Props., L.P., 374 F. Supp. 2d 196, 200 (D.D.C. 2005);

see also Bouthner v. Cleveland Constr., Inc., Civil Action No. RDB-11-0244, 2012 WL 738578,

at *4 (D. Md. Mar. 5, 2012) (“[C]onsideration of issues relating to the manageability of a

proposed collective action is appropriate at the notice stage of a[n] FLSA action.”); Severtson v.

Phillips Beverage Co., 137 F.R.D. 264, 266 (D. Minn. 1991) (“[A]s a matter of sound case

management, a court should . . . make a preliminary inquiry as to whether a manageable class

exists.”). In this particular instance, Plaintiffs’ meager factual showing has left the Court

unconvinced that a collective action covering at least four thousand non-exempt hourly

employees holding over two hundred and fifty job titles and working in over two hundred

departments would be manageable.

       Plaintiffs concede that WHC “maintained policies that allowed their employees to request

payment for missed meal breaks.” Pls.’ [23] Mem. at 5; see also Pls.’ [30] Mem. at 4. As

aforementioned, the mere existence of an auto-deduct policy is not by itself unlawful. Therefore,

Plaintiffs seek to couple WHC’s auto-deduct policy with a “practice of imposing limitations on,

discouraging, and ignoring efforts to recover pay for missed meal breaks.” Pls.’ [30] Mem. at 3-

4. Even at this early stage of the proceedings, the Court cannot turn a blind eye to the fact that

such a practice will ultimately turn on the way in which individual supervisors and managers

exercised their discretion to manage employees’ meal breaks. Plaintiffs have not suggested, let

alone made a factual showing, that there is a workable across-the-board approach for such a

determination. Cf. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2554 (2011) (faulting



                                                 12
 
 


plaintiffs seeking certification of a class under FED. R. CIV. P. 23 for failing to identify “a

common mode of exercising discretion”). The Court would therefore be left to make

individualized determinations for each party-plaintiff. See Blaney v. Charlotte-Mcklenburg

Hosp. Auth., No. 3:10-CV-492-FDW-DSC, 2011 WL 4351631, at *4-11 (W.D.N.C. Sept. 16,

2011). Plaintiffs have not persuaded the Court that such an approach is manageable. See

Alvarez, 605 F.3d at 449 (providing that a collective action may be inappropriate if “determining

whether any given plaintiff ha[s] a viable claim depend[s] on a detailed, fact-specific inquiry”).

Accordingly, the Court shall exclude employees outside the Emergency Department and the 4NE

Medical Cardiology Unit from Plaintiffs’ meal break claim.

                                               * * *

       With respect to Plaintiffs’ meal break claim, the Court finds that Plaintiffs have failed to

make the requisite showing that their broad proposed case is both eligible and suitable for

conditional certification as a collective action. However, the Court finds that Plaintiffs’ factual

showing is sufficient to warrant conditional certification of a more circumscribed collective

action. Specifically, with respect to Plaintiff’s meal break claim, the Court shall conditionally

certify a collective action covering all non-exempt hourly employees who work or worked in

WHC’s Emergency Department or 4NE Medical Cardiology Unit in any workweek from May

26, 2008 to the present.

       B.      Plaintiffs’ Uniform Maintenance Claim

       For their uniform maintenance claim, Plaintiffs similarly ask the Court to conditionally

certify this case as a collective action and to allow notice to be sent to all non-exempt, hourly

employees working at all nine hospitals (FSMC, GSH, GUH, HH, MMC, NRH, SMH, UMH,

and WHC) during any workweek from May 26, 2008 to the present. In this regard, Plaintiffs



                                                  13
 
 


point the Court to a set of analogous dress and appearance policies that appear to be common

across all nine hospitals. See Pls.’ [23] Mem. at 5-6; Pls.’ [30] Mem. at 4-5. Meanwhile,

Defendants’ opposition barely acknowledges the existence of Plaintiffs’ uniform maintenance

claim, let alone provides any meaningful argument why the Court should deny conditional

certification as to this specific claim.7

              Defendants were warned that “where a party fails to respond to arguments in opposition

papers, the Court may treat those specific arguments as conceded.” [14] Order at 3; see also

Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003),

aff’d, 98 F. App’x 8 (D.C. Cir. 2004); Lewis v. District of Columbia, No. 10-5275, 2011 WL

321711, at *1 (D.C. Cir. Feb. 2, 2011) (per curiam). Furthermore, “[i]t is not enough to mention

a possible argument in the most skeletal way, leaving the [C]ourt to do counsel’s work, create the

ossature for the argument, and put flesh on its bones. * * * [A] litigant has the obligation to

spell out its arguments squarely and distinctly, or else forever hold its peace.” Schneider v.

Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (citation omitted), cert. denied, 547 U.S. 1069

(2006). In the absence of a meaningful opposition from Defendants, the Court exercises its

                                                            
7
  Defendants note that “[t]he validity of Plaintiffs’ uniform maintenance claim is currently the
subject of MedStar and WHC’s motion for partial summary judgment,” Defs.’ [25] Mem. at 4
n.2, but the Court has now denied that motion. See Dinkel v. MedStar Health, Inc., Civil Action
No. 11-00998 (CKK), 2012 WL 3027391 (D.D.C. July 25, 2012). The Court observes that
Defendants argued in support of that motion that “if the Court concludes that Plaintiffs have
created a genuine issue of material fact, then Plaintiffs have demonstrated that they are not
similarly situated to the other individuals they seek to represent in this case.” Defs.’ [29] Mem.
at 17. But that argument is not properly before the Court in connection with the pending motion
because it was not presented in Defendants’ opposition memorandum, depriving Plaintiffs of the
opportunity to respond meaningfully. In any event, in resolving Defendants’ motion for
summary judgment, the Court did not conclude that a genuine dispute existed, only that Plaintiffs
were entitled to discovery before having to defend against a motion for summary judgment.
Moreover, the premise of Defendants’ argument is mistaken: unlike a motion for summary
judgment, courts ordinarily do not address disputed factual matters when presented with a
motion for conditional certification.

                                                               14
 
 


discretion to treat the matter as conceded. To the extent Defendants have arguments counseling

against certification, they must present them at the second stage of the certification analysis

though a motion for decertification.

       Accordingly, with respect to Plaintiffs’ uniform maintenance claim, the Court shall

conditionally certify this case as a collective action and allow notice to be sent to all non-exempt,

hourly employees working at all nine hospitals during any workweek from May 26, 2008 to the

present. However, the Court shall divide the action into two subclasses, one covering employees

at MedStar’s District of Columbia hospitals (GUH, NRH, and WHC) and a second covering

employees at MedStar’s Maryland hospitals (FSMC, GSH, HH, MMC, SMH, and UMH)

because Maryland employees are not similarly situated for purposes of applying the DC-MWA.

                               IV. CONCLUSION AND ORDER

       Accordingly, it is, this 29th day of July, 2012, hereby

       ORDERED that Plaintiffs’ [25] Motion for Conditional Certification is GRANTED IN

PART and DENIED IN PART. The motion is GRANTED insofar as Plaintiffs seek conditional

certification of this case as a collective action and authorization to send notices to the following:

(1) with respect to Plaintiffs’ meal break claim, all non-exempt, hourly employees who work or

worked in WHC’s Emergency Department or 4NE Medical Cardiology Unit in any workweek

from May 26, 2008 to today’s date; and (2) with respect to Plaintiffs’ uniform maintenance

claim, all non-exempt, hourly employees who work or worked at any of the nine MedStar

hospitals at issue during any workweek from May 26, 2008 to today’s date, with subclasses for

the District of Columbia hospitals (GUH, NRH, and WHC) and the Maryland hospitals (FSMC,

GSH, HH, MMC, SMH, and UMH). Plaintiffs’ Motion for Conditional Certification is

otherwise DENIED.



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       It is FURTHER ORDERED that the parties shall promptly meet and confer to discuss

what information about potential party-plaintiffs should be gathered and to craft appropriate

written notices. By no later than August 15, 2012, the parties shall file a Joint Status Report

advising the Court of the status of their efforts and attaching jointly proposed notices. The Court

shall hold a Status Hearing on August 23, 2012, at 9:00 a.m., to discuss further proceedings.

       SO ORDERED.
                                                      _____/s/______________________
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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