               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0926n.06

                                            No. 11-5648

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                              FILED
JAMES ALLEN FRYE, on behalf of himself           )                         Aug 21, 2012
and all others similarly situated,               )                   LEONARD GREEN, Clerk
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
BAPTIST MEMORIAL HOSPITAL, INC.,                 )   WESTERN DISTRICT OF TENNESSEE
dba Baptist Memorial Hospital-Memphis, dba       )
Baptist Memorial Hospital-Collierville, dba      )
Baptist Memorial Hospital for Women,             )
                                                 )
       Defendant-Appellee.                       )


       Before: COOK and STRANCH, Circuit Judges; LAWSON, District Judge*


       COOK, Circuit Judge. Plaintiff-Appellant James Allen Frye appeals the district court’s

orders decertifying his collective action under the Fair Labor Standards Act (FLSA) and granting

summary judgment to his former employer due to Frye’s failure to file a written consent within the

FLSA’s statute of limitations. We affirm.


                                                I.


       Frye worked as an ICU Step Down nurse at a hospital run by Baptist Memorial Hospital, Inc.

from 2004 until his termination on April 19, 2007. Baptist Memorial operates three acute-care

       *
         The Honorable David M. Lawson, District Judge for the U.S. District Court for the Eastern
District of Michigan, sitting by designation.
No. 11-5648
Frye v. Baptist Mem’l Hosp., Inc.


hospitals in Tennessee: BMH-Collierville, BMH-Memphis, and Baptist Memorial Hospital for

Women. Although Baptist Memorial has a systemwide HR director, each Baptist Memorial hospital

operates independently, with separate administrators and HR functions. Collectively, Baptist

Memorial hospitals employ more than 4,000 employees, including 274 supervisors, to staff more

than 200 hospital departments. Following his termination, Frye filed a collective action against

Baptist Memorial alleging that its policy of automatically deducting pay for employees’ lunch breaks

(the “automatic-deduction policy”) violated the FLSA’s requirement that employees be paid for all

time worked.


        Though the district court initially granted conditional certification, following discovery it

decertified the collective action, finding that Frye failed to present substantial evidence that the

would-be plaintiffs were similarly situated. Frye v. Baptist Mem’l Hosp., No. 07-2708, 2010 WL

3862591 (W.D. Tenn. Sept. 27, 2010). In doing so, the court considered the factors addressed in

O’Brien v. Ed Donnelly Enterprises, Inc., namely: “the factual and employment settings of the

individual plaintiffs, the different defenses to which the plaintiffs may be subject on an individual

basis, and the degree of fairness and procedural impact of certifying the action as a collective action.”

575 F.3d 567, 584 (6th Cir. 2009) (internal quotation marks, alterations, and citations omitted).

Examining the record evidence, the court held that the first and third O’Brien factors weighed in

favor of decertification. First, the court noted the varied job duties of the opt-in plaintiffs, even

within a department, and the different “exception procedures” of varying formality used to ensure

compensation for work performed during meal breaks (e.g., exception logs, notes to supervisors).

                                                  -2-
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Frye v. Baptist Mem’l Hosp., Inc.


The court also found that Frye failed to rebut Baptist Memorial’s formal policy of compensating for

all time worked with evidence of a “de facto policy to the contrary.” Specifically, the court noted

that many of the opt-in plaintiffs testified that Baptist Memorial paid them for time claimed via the

exception procedures, and that it did not discourage them or retaliate against them for using the

exception procedures. On the whole, the district court concluded that Frye failed to present

substantial evidence of a common FLSA injury caused by Baptist Memorial’s automatic-deduction

pay policies. Frye, 2010 WL 3862591, at *3–6.


       Alternatively, Frye claimed a common injury from Baptist Memorial’s failure to monitor its

automatic-deduction policy for FLSA violations and its inadequate training of supervisors and

employees to prevent such violations from happening. Through these inadequacies, Frye claims

Baptist Memorial improperly placed its burden of FLSA compliance on employees. The district

court found that Frye failed to present substantial evidence that Baptist Memorial shirked its FLSA

responsibilities. The court noted that the FLSA did not categorically prohibit Baptist Memorial from

using an automatic-deduction policy with exception procedures. (See R. 373-16, Wage and Hour

Div., U.S. Dep’t of Labor Fact Sheet No. 53, The Health Care Industry and Hours Worked (July

2009) (“DOL Fact Sheet No. 53”).) Despite Frye’s evidence that Baptist Memorial offered little or

no training on the automatic-deduction policy after the employees’ initial training program, the court

noted that “[t]he vast majority of the Plaintiffs deposed by Baptist stated that they were aware of

Baptist’s procedures for reporting time worked during meal breaks.” Frye, 2010 WL 3862591, at

*7 (citing record evidence that 33 of the 39 proffered opt-in plaintiffs knew of Baptist Memorial’s

                                                -3-
No. 11-5648
Frye v. Baptist Mem’l Hosp., Inc.


exception procedures).) The court further dismissed Frye’s failure-to-monitor theory, finding no

evidence that Baptist Memorial knew of its exception procedures’ shortcomings. According to the

court, apart from isolated instances of nonpayment that Baptist Memorial promptly corrected, the

record supported Baptist Memorial’s claim that it paid employees for time claimed via the exception

procedures.


        Following decertification, the district court granted Baptist Memorial summary judgment on

Frye’s claim, finding that he failed to file written consent to join the action within the FLSA’s statute

of limitations. See 29 U.S.C. §§ 255–56.


        Frye challenges both judgments on appeal. With regard to decertification, Frye reiterates his

burden-shifting theory, arguing that he presented sufficient evidence of Baptist Memorial’s failure

to train and monitor employees in implementing the automatic-deduction policy.1 As for the statute

of limitations, Frye argues that the FLSA does not require him to file a written consent, or

alternatively that his attorney-services agreement and deposition effectively satisfies the FLSA’s

written-consent requirement. Frye also claims that Baptist Memorial’s failure to oppose the written-

consent filings of opt-in plaintiffs estops it from objecting to his failure to file a written consent.




        1
        Frye does not challenge the district court’s finding that he failed to show substantial
evidence of a Baptist Memorial policy denying compensation for work performed during lunch
breaks or discouraging use of the exception procedures.

                                                  -4-
No. 11-5648
Frye v. Baptist Mem’l Hosp., Inc.


                                                  II.


       We review the district court’s decertification order for abuse of discretion. O’Brien, 575 F.3d

at 584. “A court abuses its discretion when it commits a clear error of judgment, such as applying

the incorrect legal standard, misapplying the correct legal standard, or relying upon clearly erroneous

findings of fact.” In re Ferro Corp. Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008).


       Plaintiffs seeking to file a collective action under the FLSA must demonstrate that they

are “similarly situated.” 29 U.S.C. § 216(b). For FLSA collective actions, class certification

typically occurs in two stages: conditional and final certification. Although we have not discussed

a plaintiff’s FLSA burden for final certification in much detail, we recognize that the second stage

warrants “a stricter standard” than the conditional certification stage because it occurs near the end

of discovery. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006) (quoting Morisky

v. Public Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 497 (D.N.J. 2000)). Plaintiffs generally must

produce “more than just allegations and affidavits” demonstrating similarity in order to achieve final

certification. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008)

(citation and internal quotation marks omitted). Courts have recognized that “the similarities

necessary to maintain a collective action under § 216(b) must extend ‘beyond the mere facts of job

duties and pay provisions.’ Otherwise, ‘it is doubtful that § 216(b) would further the interests of

judicial economy, and it would undoubtedly present a ready opportunity for abuse.’” Anderson v.




                                                 -5-
No. 11-5648
Frye v. Baptist Mem’l Hosp., Inc.


Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007) (quoting White v. Osmose, Inc., 204 F. Supp. 2d

1309, 1314 (M.D. Ala. 2002)).


       In O’Brien, we tacitly approved the factors weighed by the district court in this case:

employment settings, individual defenses, and the fairness and procedural impact of certification.

575 F.3d at 584 (citing 7B Wright, Miller, & Kane, Federal Practice & Procedure § 1807 n.65). We

held that “[t]he lead plaintiffs bear the burden of showing that the opt-in plaintiffs are similarly

situated to the lead plaintiffs,” but cautioned that the FLSA’s “similarly situated” standard “is less

stringent” than the predominance inquiry typically applicable to class certification disputes under

Federal Rule of Civil Procedure 23(b). Id. (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1096

(11th Cir. 1996), and faulting the district court for implicitly applying Rule 23’s predominance

standard). We further opined that plaintiffs could demonstrate “similarly situated” circumstances

by showing a common theory of FLSA violation. Id. at 585 (noting, however, that the FLSA did not

necessarily require such a common theory).


       The district court adhered to this guidance. After reviewing the record and the parties’

arguments, we determine that the district court properly exercised its discretion in weighing the

O’Brien factors and granting decertification.


       The district court recognized that an automatic-deduction policy, without more, does not

violate the FLSA. See, e.g., DOL Fact Sheet No. 53 at 3; Fengler v. Crouse Health Found., Inc., 595

F. Supp. 2d 189, 195 (N.D.N.Y. 2009). Frye does not dispute that point, but notes that the FLSA

                                                -6-
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Frye v. Baptist Mem’l Hosp., Inc.


requires employers to compensate employees for work “suffer[ed] or permit[ted],” see 29 U.S.C.

§§ 203(g), 207(a)(1), including voluntary work that the employer “knows or has reason to believe”

that the employee performs, see 29 C.F.R. §§ 785.11–785.12. Indeed, FLSA regulations recognize

that


       it is the duty of the management to exercise its control and see that the work is not
       performed if it does not want it to be performed. It cannot sit back and accept the
       benefits without compensating for them. The mere promulgation of a rule against
       such work is not enough. Management has the power to enforce the rule and must
       make every effort to do so.


29 C.F.R. § 785.13. Consistent with these principles, courts relax plaintiffs’ burden to show

damages under the FLSA if the employer fails to keep accurate records, allowing plaintiffs to rely

on an “inferential damage estimate.” O’Brien, 575 F.3d at 602–03 (citations omitted) (noting that

the relaxed burden only bears on damages and not the existence of an FLSA violation); see also

Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011). Though these rules matter to the

merits of plaintiffs’ FLSA claims—issues we do not address here—they do not relieve plaintiffs of

the FLSA’s “similarly situated” class-certification requirement.


       Addressing that requirement, Frye points to deposition testimony showing that some opt-in

plaintiffs did not know their compensation rights with regard to interrupted meal breaks, others

voluntarily declined to report work performed during their lunch breaks, and still others lunched at

their workstation without realizing that it entitled them to compensation. The lengthy string citation

he offers in support refers to a document excerpting various depositions, leaving for the court to

                                                -7-
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Frye v. Baptist Mem’l Hosp., Inc.


weave common factual threads. (See Appellants’ Br. at 44–45 (citing R.373-23).) We note

that some of the excerpted depositions appear to support his allegations, but others do not. One

employee claims that a coworker told her not to use the exception logs, but to take the lunch break

off. (R. 373-23, Dobbins Dep. at 39–40.) Another claimed that his department had no exception

log. (Id., Futrell Dep. at 17.) A third suggested that Baptist Memorial discouraged frequent use of

the exception logs, but admitted under questioning that he never experienced problems using

the exception logs and that he relied on office rumors. (Id., Harding Dep. at 35–36.) At least

one employee believed that interrupted meal breaks counted as non-work time. (Id., Campbell Dep.

at 70.) Others stated that they voluntarily avoided the exception-log procedures for convenience, or

because they simply forgot. At the same time, another employee claimed that her supervisors

permitted employees to report work in the exception log after-the-fact if they failed to do so

contemporaneously. (Id., Bates Dep. at 103; see also R. 373-4, Barbaree Dep. at 32–33 (stating that

Baptist Memorial accepts retroactive exception log entries).) Frye attempts to expand on this proffer

in his reply brief, asserting without citation that thirteen opt-ins misunderstood the compensation

requirements for interrupted lunches, and also claiming that six opt-ins lunched at their workstation

without pay. (Appellants’ Reply Br. at 12.)


       Frye’s evidence, while perhaps indicative of individual FLSA violations, fails to demonstrate

similarly situated plaintiffs experiencing a common FLSA injury. Apart from the handful of

deposition excerpts cited, Frye leaves unrebutted the district court’s quantitative finding that “the

vast majority” of the proffered opt-in plaintiffs knew of Baptist Memorial’s exception procedures,

                                                -8-
No. 11-5648
Frye v. Baptist Mem’l Hosp., Inc.


were paid for time reported via the exception procedures, and were not discouraged from reporting

work performed during lunch breaks. Notably, Frye does not claim that Baptist Memorial declined

to compensate employees who reported lunch-break work, and he does not quarrel with the district

court’s finding that Baptist Memorial “promptly corrected” isolated incidences of nonpayment. He

further fails to dispute Baptist Memorial’s evidence that it honors late-filed exception-log claims.

        At bottom, Frye’s common theory of injury reduces to a critique of Baptist Memorial’s use

of an automatic-deduction policy. But, as we observed, an automatic-deduction policy by itself

comports with the FLSA (see DOL Fact Sheet No. 53 at 3), and thus cannot serve as the lone point

of similarity supporting class certification. And his remaining variations—differing exception logs,

minimal training, lack of oversight—rely on employees’ unique experiences. The absence of a

common theory of FLSA violation, though not fatal to certification in O’Brien, see 575 F.3d at 584,

weighs against certification here because of the dissimilarities in plaintiffs’ work experiences. Frye

accedes to the district court’s findings under the first O’Brien factor that the opt-in plaintiffs had

different jobs, even within a department, and that different departments used different exception

procedures to ensure compensation for work performed during meal breaks. These differences

overwhelm Frye’s alleged similarities, which do not “extend ‘beyond the mere facts of job duties and

pay provisions.’” See Anderson, 488 F.3d at 953 (quoting White, 204 F. Supp. 2d at 1314); see also

O’Brien, 575 F.3d at 586 (affirming decertification where the only opt-in plaintiff who could benefit

from recertification failed to allege that she suffered from the same unlawful practices claimed by

other plaintiffs).


                                                -9-
No. 11-5648
Frye v. Baptist Mem’l Hosp., Inc.


       Next, Frye argues that the voluntary failure of some employees to report work supports his

failure-to-monitor theory. The district court rejected this argument on the evidence, citing Wood v.

Mid-America Management Corp. for the proposition that “an employer cannot suffer or permit an

employee to perform services about which the employer knows nothing.” 192 F. App’x 378, 380

(6th Cir. 2006) (quoting Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2d Cir. 1998)). In

Wood, we affirmed the district court’s grant of summary judgment against an employee’s FLSA

claim, when the self-reporting employee failed to log overtime hours despite knowing that he needed

to report those hours to receive compensation. Id. at 380–82. We explained that “[a]n employer

cannot satisfy an obligation that it has no reason to think exists. And an employee cannot undermine

his employer’s efforts to comply with the FLSA by consciously omitting overtime hours for which

he knew he could be paid.” Id. at 381. Frye dismisses this principle as not bearing on this case

because Baptist Memorial had reason to know that employees worked without pay during their lunch

breaks. We cannot agree.


       Frye relies on four employee declarations—all of them abandoned in his opposition to Baptist

Memorial’s motion for decertification—to show Baptist Memorial’s knowledge of deficiencies with

its lunch-break pay policies. Because Frye abandoned his only evidence on this point, we may treat

the argument as unfounded. See O’Brien, 575 F.3d at 584 (noting that plaintiffs bear the burden of

showing similarly situated opt-in plaintiffs); cf. Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.

2008) (explaining, in the summary judgment context, that the district court need not canvass the



                                               - 10 -
No. 11-5648
Frye v. Baptist Mem’l Hosp., Inc.


record to find evidence helpful to the party bearing the burden of production). The district court did

not abuse its discretion by failing to consider evidence ignored by the interested party.


        Despite the gaps in his similarity showing, Frye might have saved a portion of his collective

action by proposing a subset of similarly situated Baptist Memorial employees to the district court.

Cf. O’Brien, 575 F.3d at 585–86 (suggesting that a subset of plaintiffs in that case could provide

representative testimony of the FLSA violations, and instructing district courts to consider partial

decertification). When presented with the chance, he failed to do so, deeming representative

testimony and partial decertification unnecessary. (See R. 373 at 33–34.) Likewise, he makes no

such effort now. The district court therefore did not err in declining partial certification.


        Finally, Frye argues that cases support his burden-shifting theory, citing Kuebel v. Black &

Decker Inc., 643 F.3d 352 (2d Cir. 2011), and Brennan v. Qwest Communications International,

Inc., 727 F. Supp. 2d 751 (D. Minn. 2010). These cases render no aid because they concerned

summary judgment motions, not the “similarly situated” analysis applicable to class certification.

In resolving this class certification issue, we have no occasion to consider the merits of the different

plaintiffs’ FLSA claims against Baptist Memorial. Moreover, Baptist Memorial concedes the

principle Frye draws from those cases—that an employer may not evade FLSA liability by using

burden-shifting reporting techniques. See Kuebel, 643 F.3d at 363 (“[O]nce an employer knows or

has reason to know that an employee is working overtime, it cannot deny compensation simply

because the employee failed to properly record or claim his overtime hours.”); Brennan, 727 F. Supp.


                                                 - 11 -
No. 11-5648
Frye v. Baptist Mem’l Hosp., Inc.


2d at 762 (“The burden to maintain accurate records falls on the employer regardless of whether the

employee is responsible for recording his own hours on a time sheet.”).


        We need not decide today whether a burden-shifting theory may ever support FLSA class

certification. On the record presented, the district court acted well within its discretion in concluding

that Frye fell short of the FLSA’s similarly-situated-plaintiffs requirement.


                                                   III.


        Turning to review de novo the summary judgment order, we agree with the district court that

Frye did not file the necessary written consent within the FLSA’s statute of limitations. An FLSA

plaintiff generally has two years to file suit, but the statute of limitations increases to three years if

the claim consists of a “willful violation.” 29 U.S.C. § 255(a); Hughes v. Region VII Area Agency

on Aging, 542 F.3d 169, 187 (6th Cir. 2008). An FLSA cause of action accrues “at each regular

payday immediately following the work period during which the services were rendered for which

the wage or overtime compensation is claimed.” Hughes, 542 F.3d at 187 (citations omitted). To

bring a collective FLSA action, a plaintiff must file a written consent to opt-in to the collective

action. 29 U.S.C. § 216(b) (allowing an aggrieved employee to bring a collective FLSA action

against the employer, provided that “[n]o 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”), abrogated on other grounds by Alden v. Maine, 527 U.S. 706, 759–60



                                                  - 12 -
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Frye v. Baptist Mem’l Hosp., Inc.


(1999). For purposes of the statute of limitations, the filing of the written consent “commences” an

FLSA collective action:


        [I]n the case of a collective or class action instituted under the [FLSA], it 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
                (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.


        Here, the parties agree that Frye received his last paycheck from Baptist Memorial on April

27, 2007, but he failed to file a written consent to collective action. Frye argues that the FLSA does

not require named plaintiffs, such as himself, to file written consents. But the plain language of

§ 256(a) does. That provision unambiguously provides that collective actions “shall be considered

to be commenced” for statute-of-limitations purposes “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.” Id. § 256(a) (emphasis added). If any doubt remains, subsection (b)

confirms the written-consent requirement by providing that an FLSA collective action commences

“on the subsequent date on which such written consent is filed.” Id. § 256(b). Accordingly, courts

construe the above language to do what it says: require a named plaintiff in a collective action to file

a written consent to join the collective action. E.g., In re Food Lion, Inc., Nos. 94-2360 et al., 151



                                                 - 13 -
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Frye v. Baptist Mem’l Hosp., Inc.


F.3d 1029, 1998 WL 322682, at *13 (4th Cir. June 4, 1998) (per curiam, unpublished table decision);

Songu-Mbriwa v. Davis Mem’l Goodwill Indus., 144 F.R.D. 1, 2 (D.D.C. 1992).


        Frye resists the statutory language, citing a district court decision holding that named

plaintiffs need not follow the FLSA’s written-consent requirement. See Arias v. U.S. Serv. Indus.,

Inc., No. 93-2261, 1994 WL 193901, at *1 (D.D.C. May 4, 1994). That case, which did not involve

a statute-of-limitations issue under § 256, cited only one authority in concluding that 29 U.S.C.

§ 216(b) did not require named plaintiffs to file written consents: Allen v. Atlantic Richfield Co., 724

F.2d 1131 (5th Cir. 1984). Yet Allen involved plaintiffs asserting individual claims—subject to

different FLSA commencement rules—rather than joining a collective action. Id. at 1135 (“This

suit consists of a number of individual actions, not a collective or class action subject to sections

[216(b)] and 256.”); see 29 U.S.C. § 256 (providing that an individual action “shall be considered

to be commenced on the date when the complaint is filed”); Morelock v. NCR Corp., 586 F.2d 1096,

1103 (6th Cir. 1978) (explaining that the written-consent requirements of §§ 216(b) and 256 apply

only to representative actions). Arias thus does not persuade us to depart from § 256’s express

written-consent requirement for collective actions.


        Alternatively, Frye claims that we should excuse his claim from the written-consent

requirement, see 29 U.S.C. § 256, because the district court decertified the action. Frye contends that

the district court’s decertification order acted as an amended pleading, converting this action into an

individual claim. Noting that Frye filed the action as a “collective action” under the FLSA


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Frye v. Baptist Mem’l Hosp., Inc.


(elsewhere referring to his claim as a “Representative Action” for FLSA violations “on behalf of

[named plaintiffs] and all others similarly situated”), the district court rejected this theory. (See

Compl. caption and preamble, ¶¶ 1, 15.) Frye’s Complaint unambiguously signaled his intent to

pursue a collective action under the FLSA; he needed to comply with the FLSA’s written-consent

requirement within the statute of limitations.


        Anticipating as much, Frye submits that certain conduct discharged his written-consent

obligation: (1) hiring counsel to file a collective action on his behalf; (2) filing a complaint as a class

representative; and (3) appearing for a deposition. After all, Frye notes, the FLSA does not specify

the form of written consent. See, e.g., Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728,

736 n.11 (1981) (noting that, if § 216(b) applied to a nonclass action, individually signed

interrogatories satisfied the written consent requirement); Brown v. Dunbar & Sullivan Dredging

Co., 189 F.2d 871, 873–74 (2d Cir. 1951) (finding that retainer agreements, titled “consents of

employees to become party plaintiffs” and filed with the amended complaint, satisfied the written-

consent requirement). But even allowing latitude of form, the requirement remains a filed written

consent. First, even if it could be considered his filing, the unsigned deposition testimony filed by

Baptist Memorial does not constitute Frye’s written consent. Second, he filed the retainer agreement

well after the expiration of the FLSA’s two- and three-year statutes of limitations. (R. 400-2 (filed

December 10, 2010).) Because paragraphs (a) and (b) of § 256 base the “commencement” of an

FLSA collective action on the filing of written consent, subsequent written consents do not relate

back to the filing of a complaint for purposes of the statute of limitations. Lee v. Vance Exec. Prot.,

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Frye v. Baptist Mem’l Hosp., Inc.


Inc., 7 F. App’x 160, 167 (4th Cir. 2001); Songu-Mbriwa, 144 F.R.D. at 2; Kuhn v. Phila. Elec. Co.,

487 F. Supp. 974, 975–77 (E.D. Pa. 1980), aff’d, 745 F.2d 47 (3d Cir. 1984). And third, the filing

of a collective action complaint signed by his attorney cannot satisfy the FLSA’s written-consent

requirement. See Kulik v. Superior Pipe Specialties Co., 203 F. Supp. 938, 941 (N.D. Ill. 1962)

(concluding that an FLSA written consent “is a document signed by the person whose consent it

purports to be”).


       Finally, Frye argues that Baptist Memorial should be equitably estopped from asserting a

statute-of-limitations defense because it did not object to the written consents filed by the opt-in

plaintiffs and it did not oppose Frye’s attempt to serve as a class representative. He presents no

authority for this position. The record reflects that Baptist Memorial properly pleaded this

affirmative defense in its answer and raised it in a motion for summary judgment. We find no

grounds for estoppel.


       “Redundant though it may seem to require consents from the named plaintiffs in a class

action,” the FLSA’s mandate is clear. In re Food Lion, Inc., 1998 WL 322682, at *13. Frye did not

file a written consent within the FLSA’s two- and three-year statutes of limitations.2




       2
         Even if Frye had filed his written consent during the time Baptist’s summary judgment
motion was stayed, which would fall within the three-year statute of limitations, we agree with the
district court’s conclusion that Frye has not presented a willful violation of the FLSA. Frye v.
Baptist Mem’l Hosp., Inc., No. 07-2708, 2011 WL 1595458, at *8–11 (W.D. Tenn. Apr. 27, 2011).


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                                     IV.


       We affirm.




                                    - 17 -
