UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

DANIEL WHALEY,

Plaintiff, Case No. 2:15-cv-12101

v. Hon. David Lawson

HENRY FORD HEALTH SYSTEM,

Defendant.

LANCE C. YOUNG (P51254) 

NEIL B. PIOCH (P67677) 

SOMMERS SCHWARTZ, P.C. 

Attorneys for Plaintiff 

One Towne Square, 17th Floor 

Southfield, MI 48076 

(248) 335-0300

BRIAN YALDOU (P70600)

THE LAW OFFICE OF BRIAN 

YALDOU

23000 Telegraph

Brownstown Twp., MI 48134

(734) 692-9200

TERRENCE J. MIGLIO (P30541)

BARBARA E. BUCHANAN (P55084)

VARNUM LLP

Attorneys for Defendant

39500 High Pointe Blvd., Ste. 350

Novi, MI 48375

(248) 567-7400

tjmiglio@varnumlaw.com

bebuchanan@varnumlaw.com

DEFENDANT'S BRIEF IN OPPOSITION TO 

MOTION FOR CONDITIONAL CLASS CERTIFICATION AND 

COURT SUPERVISED NOTICE PURSUANT TO 29 U.S.C. § 216(b)

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF QUESTIONS PRESENTED......................................................vi

I. INTRODUCTION ...........................................................................................1

II. FACTS.............................................................................................................1

A. HFHS Operates A Vast Network Of Medical Facilities.......................1

B. The HFHS General Appearance Standards...........................................3

C. Uniformed Employees Must Comply With Policies Established 

By Their Particular Business Units/Department...................................4

D. HFHS Maintains An Infection Control Program with Specific 

Infection Control Policies......................................................................6

E. Plaintiff's "Collective Action Complaint" Asserts Claims Based 

Misrepresentations of and Contrived Inferences From, The 

General Appearance Standards .............................................................7

F. Plaintiff's Claims Are Contradicted By Numerous Non-Exempt 

Employees In Various Job Classifications Who Provide Direct 

Patient Care As Well As Supervisors of Those Employees..................8

G. Plaintiff's Motion For Class Certification .............................................9

III. LAW AND ARGUMENT.............................................................................11

A. The Standard of Review......................................................................11

B. Plaintiff Has Not Demonstrated Any Interest By Other 

Employees To Show That A Collective Action Is Appropriate .........13

C. Plaintiff Has Not Shown He Is Similarly Situated To Other 

Employees In The Proposed Collective Class ....................................15

1. Plaintiff Is Not Similarly Situated With Other HFHS 

Employees By Virtue of a Common Policy or Plan .................16

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2. Plaintiff Has Not Shown That His Job Responsibilities 

Make Him Similarly Situated With Other HFHS 

Employees.................................................................................18

3. Plaintiff's Conclusory Assertions Are Irrelevant .....................19

4. Other Courts Agree That Similar "Uniform Maintenance" 

Claims Should Not Be Conditionally Certified ........................20

5. The Cases Cited By Plaintiff Are Inapposite............................22

D. The Proposed Notice Is Objectionable................................................23

IV. Conclusion .....................................................................................................25

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INDEX OF AUTHORITIES

Cases

Adams v. Inter-Con Sec. Sys., Inc., 

242 F.R.D. 530 (N.D. Cal. 2007) ..................................................................25

Arrington v. Michigan Bell Tel. Co., 

2011 WL 33119691 (E.D. Mich. August 1, 2011) (Lawson, J.) 13, 14, 15, 20

Bacon v. Eaton Aeroquip, LLC, 

2012 WL 4321712 (E.D. Mich. Sept. 12, 2012) ...........................................21

Boyd v. Jupiter Alum. Corp., 

2006 WL 1518987, (N.D. Ind. May 31, 2006)..............................................25

Cason v. Vibra Healthcare, 

2011 WL 1659381 (E.D. Mich. May 3, 2011)..............................................15

Chandler v. Heartland Employment Serv., 

2014 WL 1681989 (E.D. Pa. Apr. 28, 2014).......................................... 21, 22

Comer v. Wal-Mart Stores, 

454 F.3d 544 (6th Cir. 2006).................................................................. 12, 17

Dinkel v. Medstar Health, 

880 F.Supp.2d 49 (D.D.C. 2012)...................................................... 21, 23, 24

Dybach v. State of Florida Dep't of Corr., 

942 F.2d 1562 (11th Cir. 1991).....................................................................14

Fisher v. Michigan Bell Tel. Co., 

665 F.Supp.2d 819 (E.D. Mich 2009) .............................................. 12, 13, 14

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Frye v. Baptist Memorial Hosp., Inc., 

2008 WL 6653632 (W.D. Tenn. Sept. 16, 2008) ..........................................14

Hall v. Guardsmark, 

2012 WL 3580086 (W.D. Pa. August 17, 2012).................................... 16, 23

Hoffman v. Securitas Sec. Serv., 

2008 WL 5054684 (D. Idaho Aug. 27, 2008) ...............................................25

Hoffmann-La Roche, Inc. v. Sperling, 

493 U.S. 165, 69 (1989) ................................................................................11

Holley v. Erickson Living, 

2012 WL 1835738 (E.D. Pa. May 21, 2012).................................................13

Moore v. PNC Bank, 

2013 WL 2338251 (W.D. Pa. May 29, 2013) ...............................................16

O'Brien v. Ed Donnelly Enterprises, 

575 F.3d 567 (6th Cir. 2009).................................................................. 12, 16

Olivio v. GMAC Mortgage Corp., 

374 F.Supp.2d 545 (E.D. Mich. 2004) ................................................... 12, 16

Outlaw v. Secure Health LP, 

2012 WL 3150582 (M.D. Pa. August 2, 2012) .............................................24

Pacheco v. Boar's Head Provisions Co., 

671 F.Supp.2d 957 (W.D. Mich. 2009).........................................................13

Parker v. Rowland Express, Inc., 

492 F.Supp.2d 1159, 1165 (D. Minn. 2007) .................................................14

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Robbins-Pagel v. Wm. F. Puckett, Inc., 

2006 WL 3393706 (M.D. Fla. Nov. 22, 2006)..............................................24

Swinney v. Amcomm, Tele., Inc., 

2013 WL 28063 (E.D. Mich. Jan. 2, 2013)...................................................15

Williams v. Securitas Sec. Serv.,

2011 WL 3629023 (E.D. Pa. Aug. 17, 2011)................................................23

Wright v. Lehigh Valley Hosp. and Health Network, 

2011 WL 221770 (E.D. Pa. Jan. 20, 2011)....................................................25

Statutes

29 U.S.C. § 216(b) ...................................................................................................14

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STATEMENT OF QUESTIONS PRESENTED

I. WHETHER THE COURT SHOULD DENY PLAINTIFF'S MOTION 

TO CONDITIONALLY CERTIFY A COLLECTIVE CLASS UNDER 

THE FLSA WHERE PLAINTIFF HAS NOT SHOWN SUFFICIENT 

INTEREST FROM POTENTIAL OPT-IN PLAINTIFFS

Henry Ford Health System answers: "Yes"

The Court should answer: "Yes"

II. WHETHER THE COURT SHOULD DENY PLAINTIFF'S MOTION 

TO CONDITIONALLY CERTIFY A COLLECTIVE CLASS 

BECAUSE PLAINTIFF IS NOT SIMILARLY SITUATED TO THE 

EMPLOYEES IN THE PUTATIVE CLASS 

Henry Ford Health System answers: "Yes"

The Court should answer: "Yes"

III. WHETHER THE COURT SHOULD REJECT PLAINTIFF'S 

PROPOSED NOTICE TO THE PUTATIVE CLASS FOR THE 

REASON THAT IT IS IMPROPER

Henry Ford Health System answers: "Yes"

The Court should answer: "Yes"

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I. INTRODUCTION

Plaintiff, a Henry Ford Health System ("HFHS") employee, claims that

general personal appearance standards, applicable to all HFHS employees

(uniformed, non-uniformed, custodial, executives, patient care providers, and nonpatient care providers alike) mandate that he iron his scrubs, even though the 

Standards contain no such requirement. His purported interpretation of the policy 

is irrational, contradicted by other HFHS policies and is not supported by other 

HFHS employees. Plaintiff claims the alleged "ironing" requirement, a pure 

fiction of this lawsuit, applies to the over 23,000 individuals employed by HFHS. 

Standing alone, with no other employees having joined him, Plaintiff asks this 

Court to conditionally certify a collective class of thousands of employees, in 

hundreds of different job classifications, at different facilities, in different 

departments, subject to different policies, and performing different job duties. 

Plaintiff falls woefully short of meeting his burden of establishing that his 

frivolous claim should be conditionally certified.

II. FACTS

A. HFHS Operates A Vast Network Of Medical Facilities

Henry Ford Health System ("HFHS") is a Michigan non-profit corporation, 

which owns and operates an extensive network of medical facilities across

Southeast Michigan, including hospitals, medical centers, emergency rooms, 

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pharmacies, walk-in labs, health centers, eye care centers and specialized medical 

facilities. Exhibit 1, Temrowski Decl., ¶¶ 4, 5, 10, 11, 16, 20, 29, 35.

Specifically, HFHS operates seven business units involved in direct patient care: 

Henry Ford Hospital, Henry Ford Medical Group, Henry Ford Wyandotte Hospital, 

Henry Ford Macomb Hospital, Henry Ford West Bloomfield Hospital, Henry Ford 

Behavioral Health and Community Care Services. See id. at ¶ 5. Within these 

business units, there are currently (i) hundreds of different departments; (ii) 

hundreds of different job classifications; (iii) hundreds of supervisors; and (iv) 

thousands of non-exempt employees involved in direct patient care:1

Business Unit Number of

Departments

Number of Job 

Classifications

Number of 

Supervisors

Current Number of 

Non-Exempt 

Employees in Direct 

Patient Care

Henry Ford 

Hospital

At least 216 At least 64 At least 271 1,010

Henry Ford 

Medical Group (41 

Medical Centers)

At least 3 per 

Medical 

Center

At least 3 per 

Medical Center

At least 460 1,190

Henry Ford 

Wyandotte Hospital

At least 113 At least 50 At least 86 322

Henry Ford 

Macomb

At least 121 At least 57 At least 115 403

Henry Ford West 

Bloomfield 

Hospital

At least 57 At least 50 At least 52 274

Henry Ford 

Behavioral Health 

(9 locations)

At least 1 per 

location

At least 3 per 

location

At least 33 103

Community Care 

Services 

(55 locations)

At least 1 per 

location

At least 3 per 

location

At least 114 388

 

1

See Temrowski Decl., attached as Exhibit 1.

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B. The HFHS General Appearance Standards

HFHS maintains general Personal Appearance Standards ("General 

Appearance Standards") as one of its Human Resources policies, No. 5.06. See 

Complaint [Doc #1], ¶1. The General Appearance Standards (Exhibit 2), were

implemented by HFHS on January 1, 1999 and apply to all HFHS employees, 

students, volunteers, contractors and vendors at all HFHS facilities. See Gen. 

Appearance Standards, Section 2.0. 

Section 4.0 of General Appearance Standards contains the actual "Policy:"

HFHS employees are expected to maintain proper hygiene and 

observe standards of appropriate business attire. All HFHS employees 

shall present themselves well-groomed, and appropriately dressed at 

all times while on premises. Although the general minimum 

standards of this system-wide policy must be adhered to at each 

business unit, a business unit or department (i.e. patient care areas) 

can choose to implement more restrictive requirements based on 

infection control and other regulatory requirements.

General Appearance Standards, Section 4.0 (emphasis added). 

Section 5.0 provides guidance to employees in the form of "examples" of

what constitutes "Acceptable" and "Unacceptable" personal grooming and 

appearance. General Appearance Standards, Section 5.0. According to the General 

Appearance Standards, it is "Unacceptable" for an employee's clothing to be 

"[s]oiled, wrinkled, torn, noticeably worn, too tight or too loose" or to be "[s]eethrough or revealing." Id. On the other hand, it is "Acceptable" for clothing to be 

"[c]lean, neat, pressed, in good repair and appropriate size." Id. Plaintiff claims that 

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because the General Appearance Standards indicate it is "acceptable" to wear

"pressed" clothing, that means he, and thousands of other HFHS employees, are 

required to use a hot iron on their uniforms before coming to work. Nothing in the 

General Appearance Standards, however, requires employees to iron their clothes

or even mentions "ironing".

C. Uniformed Employees Must Comply With Policies Established By 

Their Particular Business Units/Department

The General Appearance Standards also identify the colored uniforms to be 

worn by some employees. Id. They also incorporate by reference, policies 

regarding uniforms established by local business unit/departments: "Employees 

who are required to wear a uniform must comply with their approved policy as 

established by their local business unit/department." Id. at Section 2.0 (emphasis 

added). 

For example, the HFHS Radiology department, in which Plaintiff works as 

an MRI Technologist (Complaint, ¶ 6), maintains its own Personal Appearance 

Standards Exhibit 3, ("Radiology Appearance Standards"); Exhibit 4, P. Wenzel 

Decl., ¶ 5. The Radiology Appearance Standards specifically adopt only certain 

sections of the General Appearance Standards:

The Radiology Department Personnel will follow the HFHS Policy 

No: 5.06 regarding Philosophy/Purpose [Section 1.0], Scope [Section 

2.0], Responsibility Policy [Section 3.0], and the Uniform 

Standardization Color Chart.

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See Radiology Appearance Standards, p. 1 (section numbers added). 

The HFHS Radiology department did not adopt Section 5.0 (Practice and 

Procedure) of the General Appearance Standards. Instead, the Radiology 

Appearance Standards contain a different description of what is "Unacceptable" for 

clothing. See id. ("Not acceptable: Shirts with inappropriate sayings, logos, or 

advertising. No low cut or cropped shirts, tee-shirts, tank, tube or camouflage tops 

or sleeveless tops without a jacket."). As with the General Appearance Standards, 

there is nothing in the Radiology Appearance Standards which require any 

employee to iron his or her uniform. The Radiology Standards do not even refer to 

"pressing" clothes.

Certain departments within the Henry Ford Health System, such as those 

involved in providing critical care or surgery services, provide hospital laundered 

scrubs for employees. See, e.g., Exhibit 5, Henry Ford Hospital Central Sterile 

Reprocessing Attire Policy ("Hospital laundered surgical scrubs are available for 

Surgical Services staff.")(emphasis added); Exhibit 6, HFHS Surgical Attire, 

("Facility approved, clean and freshly hospital laundered surgical attire should be 

donned in a designated dressing area . . . .")(emphasis added); Exhibit 7, Henry 

Ford Wyandotte Hospital Attire for the Surgery Department ("All reusable attire 

will be laundered after each use in a laundry facility approved and monitored by 

the hospital."). Some surgical departments within HFHS permit home laundry of 

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surgical scrubs under certain conditions. See Exhibit 5, Henry Ford Hospital 

Central Sterile Reprocessing Attire Policy, ("Home laundering of surgical scrubs is 

permitted" but "[s]crub attire must be laundered in adherence to [Infection Control 

Manual Policy] 8.16")2. Other HFHS surgical departments prohibit home 

laundering of surgical scrubs. See, e.g., Exhibit 7, Henry Ford Wyandotte Hospital 

Attire for the Surgery Department ("Home laundering of department issued 

surgical attire is prohibited."). 

D. HFHS Maintains An Infection Control Program with Specific 

Infection Control Policies

While Plaintiff asserts that the General Appearance Standards constitute an 

"infection control" policy (Complaint ¶¶ 8, 11, 46). HFHS maintains a specific 

system-wide "Infection Prevention and Control Program". The Program is 

comprised of extensive policies and procedures set forth in the HFHS "Infection 

Control Policy Manual." Exhibit 8, Infection Control Policy Manual ("ICPM").3

Policy No. 1.01 of the ICPM identifies the "objective, authority, scope, 

organization and components" of the HFHS Infection Prevention and Control 

Program. Id., ICPM Policy No. 1.01. Section VI.d of Policy No. 1.01 sets forth the 

process of revising current, and adding new, infection control policies to the 

 

2 Policy 8.16 of the ICPM specifically requires that certain laundry items be 

washed at certain temperatures for a designated period of time. See Exhibit 8.

3 The ICPM is available to all HFHS employees on the HFHS Intranet. See 

Exhibit 1, Temrowski Decl, ¶ 43.

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Program. Once they are approved, such policies are added to the Infection 

Prevention and Control Manual. Id., Section VI.d.i-iv. Absent from the Infection 

Prevention and Control Manual are the General Appearance Standards (Human 

Resources Policy 5.06, Exhibit 2), upon which Plaintiff bases his Complaint, as 

the General Appearance Standards are not an infection control policy. Exhibit 8, 

Infection Control Policy Manual.

E. Plaintiff's "Collective Action Complaint" Asserts Claims Based 

On Misrepresentations of and Contrived Inferences From, The 

General Appearance Standards

Plaintiff filed his "Collective Action Complaint" ("Complaint")[Doc.#1] on

June 9, 2015. Plaintiff alleges he has been employed by HFHS as an MRI 

Technologist since 2003 and has regularly worked at least 40 hours per week. See 

id. ¶¶ 6, 47. Plaintiff alleges that HFHS failed to pay overtime to him and other 

HFHS employees for time allegedly spent at home on "uniform maintenance." See 

Counts I-II, Prayer for Relief, ¶ (d). Plaintiff alleges that "the only option for 

Defendant's employees was to spend several 'off-the-clock' hours each week, either 

at home or in a laundromat, properly maintaining their work uniform." See id. ¶18. 

Plaintiff claims that he usually spends about three hours each week "washing and 

ironing his uniforms." See id. ¶51. He "believes" that "all of Defendant's 

uniformed employees routinely spent two to three hours of 'off-the-clock' time 

each week maintaining their uniforms . . . ." See id. ¶57. Plaintiff claims that HFHS 

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knew the employees were allegedly performing the work "off-the-clock" and is 

required to pay him, and all other HFHS non-exempt direct patient care employees, 

for the time allegedly spent "maintaining" uniforms. See id. ¶¶42, 53-54, 58, 83-84, 

92. The Complaint is based entirely on unfounded beliefs and contrived inferences 

purportedly drawn from the General Appearance Standards. 

While Plaintiff references "patient safety, infection control, dress code and 

appearance policies at issue" in his Complaint, he fails to identify or attach any 

such policies to the Complaint or the instant motion. See id. ¶ 46. 

F. Plaintiff's Claims Are Contradicted By Numerous Non-Exempt 

Employees In Various Job Classifications Who Provide Direct 

Patient Care As Well As Supervisors of Those Employees

In stark contrast to Plaintiff's assertions, many non-exempt employees who 

provide direct patient care in various job classifications and departments do not 

iron their scrubs or uniforms. See Employee Decls., attached as Exhibit 9.

4

 

 At least 20 HFHS non-exempt, direct patient care employees in 

various classifications attest that they do not iron their uniforms and 

they have not been disciplined for failing to do so. See id. 

 At least 19 HFHS non-exempt, direct patient care employees in 

various classifications, attest that they simply wash their scrubs and 

uniforms with their other clothes. See id. 

 

4 Numerous non-exempt employees (also subject to the General Appearance 

Standards) in various departments but not in direct patient care positions, also 

attest that they do not iron their uniforms. See Exhibit 14, Non-Direct Employee 

Decls.

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 At least 14 non-exempt, direct patient care employees in various 

classifications, attests that they wash their scrubs and uniforms and 

take them out of the dryer before they wrinkle. See id. 

 Some non-exempt employees do not launder their scrubs or uniforms; 

but confirm that someone else, such as a spouse or a significant other, 

does it for them. See id.

 And still another non-exempt, direct patient care employee receives 

scrubs laundered by the hospital. See id.

Eleven supervisors across HFHS' facilities who supervise non-exempt 

employees, have provided declarations confirming that they are not aware of any 

of their employees ironing their uniforms. See Supervisor Decls., Exhibit 10.

Those supervisors also confirm that they do not instruct their employees to iron 

their uniforms. See id. In addition, the supervisors have not disciplined any 

employees for not ironing their uniforms. See id. None of these supervisors iron 

their own scrubs or uniform. See id. Similar to the non-exempt direct patient care 

employees, all of the supervisors wash their uniforms with their other clothes, 

seven of the supervisors remove their uniforms from the dryer before they become 

wrinkled and others launder the uniforms for at least two of the supervisors. See id.

G. Plaintiff's Motion For Class Certification5

 

5 HFHS filed a motion to dismiss Plaintiff's Complaint on July 27, 2015 [Doc. 

#16]. Plaintiff's Motion For Conditional Certification and HFHS' Motion To 

Dismiss are scheduled for hearing on September 22, 2015. See ECF Docket Text 

Re-Setting Deadlines, August 7, 2015.

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Plaintiff executed the "Consent to Join" on April 3, 2015. See Complaint, 

Exhibit B, "Consent to Join" [Doc. #1]. Plaintiff filed the pending motion for 

conditional certification on June 9, 2015 [Doc. # 5]. In his motion, Plaintiff seeks 

conditional certification of thousands of HFHS's employees:

All people who have worked as full-time, hourly, uniformed 

employees for Defendant in any workweek in the past three years who 

had direct patient care responsibilities and spent unpaid “off-theclock” time maintaining their uniforms pursuant to Defendant’s 

Personal Appearance Standards Policy.

Pl. Motion for Cond. Cert., p. 5 of 29 [Doc. #5]. This description includes almost 

3,700 employees. See Temrowski Decl., attached as Exhibit 1.

Although Plaintiff claims to bring this case on behalf of himself and other 

similarly situated HFHS employees, (Complaint, ¶61), he is leaving employment 

with HFHS and moving to Arkansas as of September 10, 2015, a mere 90 days 

after filing this lawsuit. Exhibit 12, Bankruptcy Motion To Approve Sale.

Over four months have passed since Plaintiff signed his "Consent to Join," 

and yet, no potential "opt-in" plaintiffs have filed any "Consents to Join." In 

addition, Plaintiff has not identified any potential "opt-in" plaintiffs in his 

pleadings. Similarly, the motion for conditional certification is not supported by 

affidavits from any employee other than Plaintiff. This is true despite the fact that 

Plaintiff's attorneys have been advertising and soliciting potential plaintiffs on their 

website and Facebook page since at least June 8, 2015. Exhibit 13.

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III. LAW AND ARGUMENT

A. The Standard of Review

The Fair Labor Standards Act ("FLSA") provides that a private cause of 

action may be brought against an employer "by any one or more employees for and 

in behalf of himself or themselves and other employees similarly situated." 29 

U.S.C. § 216(b) (emphasis added). District courts have discretion to authorize 

notice to the putative class, but only in "appropriate cases." See Hoffmann-La 

Roche, Inc. v. Sperling, 493 U.S. 165, 69 (1989).

To determine whether it is "appropriate" for a case to proceed as a collective 

action, courts within the Sixth Circuit generally apply "a two-stage certification 

process . . . to determine whether the opt-in plaintiffs and lead plaintiffs were 

similarly situated." See O'Brien v. Ed Donnelly Enterprises, 575 F.3d 567, 583 (6th 

Cir. 2009). The first stage, or conditional certification, takes place at the beginning 

of discovery. See Comer v. Wal-Mart Stores, 454 F.3d 544, 546 (6th Cir. 2006). At 

this stage, the court determines whether the lawsuit can be conditionally certified

as a collective action so that potential opt-in plaintiffs can be notified of the suit's 

existence and of their right to participate. See Fisher v. Michigan Bell Tel. Co., 665 

F.Supp.2d 819, 825 (E.D. Mich 2009); Olivio v. GMAC Mortgage Corp., 374 

F.Supp.2d 545, 547-48 (E.D. Mich. 2004). If the court grants conditional 

certification at the first stage, then the parties proceed with the costly and time2:15-cv-12101-DML-DRG Doc # 24 Filed 08/27/15 Pg 18 of 33 Pg ID 576
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consuming process of conducting discovery with respect to any opt-in plaintiffs, as 

well as a likely motion to decertify the class. 

Before the parties incur the time and expense required following conditional 

certification, "[t]he lead plaintiffs bear the burden of showing that the opt-in 

plaintiffs are similarly situated to the lead plaintiffs." O'Brien, 575 F.3d at 584. 

The FLSA does not define "similarly situated" and it does not provide a method for 

certifying a collective action. See O'Brien, 575 F.3d at 584. Plaintiff must "submit 

evidence establishing at least a colorable basis for their claims that a class of 

similarly situated plaintiffs exists." See Fisher, 665 F.Supp.2d at 825. As Plaintiff

acknowledges in his brief, he must present evidence that his position is similar to 

those HFHS employees in the putative class and that they were subject to a 

common plan or policy that violated the law. See Pl. Brief at 12.

While the standard for conditional certification may be "lenient," it is not a 

mere formality. See, e.g., Pacheco v. Boar's Head Provisions Co., 671 F.Supp.2d 

957, 960 (W.D. Mich. 2009) (noting that the court has "a responsibility to assure 

that there is some factual basis for plaintiffs' claims of class-wide discrimination 

before judicial approval of the sending of notice is granted") (internal quotations 

and citations omitted). At the first stage, the court does not "resolve factual 

disputes, decide substantive issues going to the ultimate merits, or make credibility 

determinations." Fisher, 665 F.Supp.2d at 825. "The Court does not, however, 

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review Plaintiff's evidence in a vacuum. It reviews Plaintiff's evidence in light of 

the evidence submitted by Defendants." Holley v. Erickson Living, 2012 WL 

1835738, *4 (E.D. Pa. May 21, 2012) (citations omitted). Indeed, a plaintiff's 

"conclusory allegations are insufficient to support conditional certification." 

Arrington v. Michigan Bell Tel. Co., 2011 WL 33119691 *4 (E.D. Mich. August 1, 

2011) (Lawson, J.) (unpublished).6

B. Plaintiff Has Not Demonstrated Any Interest By Other Employees 

To Show That A Collective Action Is Appropriate

The "first question a court should consider when deciding whether to 

conditionally certify a class and issue court supervised notice is whether 'there are 

other employees . . . who desire to opt-in.'" Frye v. Baptist Memorial Hosp., Inc., 

2008 WL 6653632, *6 (W.D. Tenn. Sept. 16, 2008) (quoting Dybach v. State of 

Florida Dep't of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991). "Others' interest in 

joining the litigation is relevant to whether or not to put a defendant employer to 

the expense and effort of a notice to a conditionally certified class of claimants." 

Parker v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1165 (D. Minn. 2007)

(citation omitted). In the present case, Plaintiff has provided no evidence that any 

other HFHS employees are interested in opting-in. This Court has considered the 

same issue in Arrington v. Michigan Bell Tel. Co., 2011 WL 33119691 *4 (E.D. 

 

6 Copies of all unpublished cases are included in alphabetical order in the 

unpublished case appendix attached as Exhibit 11.

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Mich. August 1, 2011) (Lawson, J.) (unpublished). In Arrington, there was a 

single named plaintiff and five opt-in plaintiffs at the time the plaintiff sought 

conditional certification of the class under the FLSA. See id. at *1. The Court 

noted that in other cases where conditional certification was granted, there were far 

more named plaintiffs and opt-ins. See id. at *5 ("For instance, Wlotkowski

involved five plaintiffs and 60 opt-ins, and Fisher had 104 opt-ins at the time of 

conditional certification. Likewise, Perkins involved five plaintiffs and 60 optins."). This Court went on to hold that "[i]f none other than the named plaintiffs 

assert an FLSA violation, there is no need to employ the procedural device of a 

collective action to adjudicate their disputes." Id. The Court subsequently denied 

the motion for conditional certification, relying in part on this factor.

Here, the facts are even clearer than in Arrington that a collective action is 

not the proper procedural device to adjudicate Plaintiff's FLSA claim. There is 

only one plaintiff in this matter (who is in the process of moving out of state). 

Plaintiff signed his "Consent to Join" on April 3, 2015. Over the course of the past 

five months, there have been no opt-in plaintiffs despite advertising by Plaintiff's 

attorneys. In Arrington, the plaintiffs anticipated that the putative class would have 

at least 150 members. See id. In this matter, Plaintiff is seeking a collective action 

of almost 3,700 employees. The fact that Plaintiff has been unable to obtain any 

opt-in plaintiffs, or even obtain any affidavits to support his claim from any of the 

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thousands of other HFHS employees, forcefully indicates that a collective action is 

inappropriate. See also, Swinney v. Amcomm, Tele., Inc., 2013 WL 28063 *8 (E.D. 

Mich. Jan. 2, 2013) (denying motion for conditional certification where the named 

plaintiff was the only individual who submitted an affidavit in support of the 

motion) (unpublished); Cason v. Vibra Healthcare, 2011 WL 1659381, *5-6 (E.D. 

Mich. May 3, 2011) (denying motion for conditional class certification and noting 

that while the plaintiff's failure to identify any other employees who claimed that 

their FLSA rights were violated was not dispositive, "it counsels against certifying 

the extremely broad class of employees plaintiff had identified") (unpublished); 

Moore v. PNC Bank, 2013 WL 2338251 (W.D. Pa. May 29, 2013) (denying 

conditional certification of FLSA claim in case involving one named plaintiff and 

potential class of over 2,000 employees) (unpublished); Hall v. Guardsmark, 2012 

WL 3580086 (W.D. Pa. August 17, 2012) (holding that absence of affidavits from 

other potential opt-in plaintiffs "weakens" plaintiff's request for conditional 

certification).

C. Plaintiff Has Not Shown He Is Similarly Situated To Other 

Employees In The Proposed Collective Class

Plaintiff has the burden of establishing that he is "similarly situated" to the 

other employees in the collective class for which he seeks conditional certification. 

O'Brien, 575 F.3d at 584. In order to establish that he is similarly situated, a 

named plaintiff can demonstrate that he is similarly situated with the potential 

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plaintiffs if they were "victims of a common policy or plan that violated the law" 

and "when proof of that policy or of conduct in conformity with that policy proves 

a violation as to all of the plaintiffs." Olivio v. GMAC Mortgage Corp., 374 

F.Supp.2d 545, 548 (E.D. Mich. 2004); O'Brien, 575 F.3d at 585. Alternatively, 

the named plaintiff must show that "his position is similar, not identical, to the 

positions held by the putative class members." Comer v. Wal-Mart Stores, Inc., 

454 F.3d 544, 546-47 (6th. Cir. 2006) (citations omitted). 

Plaintiff falls well short of sustaining his burden in this matter. Plaintiff has 

not demonstrated, and quite frankly cannot demonstrate, that he and other HFHS 

employees were victims of a common plan or policy which could prove an FLSA 

violation as to all plaintiffs (or to any, for that matter). Moreover, Plaintiff has not 

made any attempt to demonstrate how his position and his job duties are similarly 

situated to the other HFHS employees he seeks to include in the collective class. 

Plaintiff's conclusory allegations in his motion are insufficient to meet his burden 

for conditional certification. Therefore, Plaintiff's motion should be denied. 

1. Plaintiff Is Not Similarly Situated With Other HFHS 

Employees By Virtue of a Common Policy or Plan

While Plaintiff makes a passing reference to other HFHS policies in his 

Complaint (¶46), he does not attach the policies or identify them in his motion. A 

review of just a few of these policies confirms that Plaintiff is not similarly situated 

with other HFHS employees by virtue of a common plan or policy. 

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The General Appearance Standards require uniformed employees to comply 

with the requirements of their local business units or departments. See Exhibit 2, 

General Appearance Standards, Section 2.0. The Radiology Appearance Standards, 

with which Plaintiff must comply, do not adopt Section 5.0 of the General 

Appearance Standards, upon which Plaintiff bases his claim. Contrast this with the 

Infection Control Policy Manual and various surgical department attire policies, 

which mandate that any employees who work in the surgical department must wear 

attire laundered by the hospital. See Exhibits 5-7.

Moreover the manner in which HFHS employees comply with any HFHS 

appearance requirements confirms that Plaintiff is not similarly situated with the 

putative class. The declarations from numerous non-exempt employees involved in 

direct patient care establish that the employees do not engage in "uniform 

maintenance" as alleged by Plaintiff. Those employees: do not iron their scrubs or 

uniforms; have not been instructed to do so; and have not been disciplined for not 

ironing their scrubs or uniforms. Some of the employees: wash their scrubs or 

uniforms with their other clothes; remove their scrubs or uniforms from the dryer 

before they wrinkle; do not wash their scrubs or uniforms; rather, someone else, 

like a spouse or significant other, does it for them and one of these employees 

receives laundered scrubs from the hospital. See Employee Decls., Exhibit 9.

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In addition, declarations from eleven supervisors confirm that they do not 

instruct their employees to iron their uniforms and employees are not disciplined 

for not ironing their uniforms. See Supervisor Decl., Exhibit 10. In addition, none 

of the eleven supervisors iron their uniforms and none of the eleven supervisors are 

aware of any employees in their department who iron their uniforms. See id. It is 

these significant and material differences, both with the policies themselves and 

the manner in which employees comply with them, which compel the conclusion 

that Plaintiff is not similarly situated to the other employees in the proposed class.

2. Plaintiff Has Not Shown That His Job Responsibilities 

Make Him Similarly Situated With Other HFHS Employees

Aside from the fact that Plaintiff is not similarly situated with other HFHS 

employees with respect to a "common policy or plan" or the manner in which 

HFHS employees comply with those various policies, Plaintiff has not established 

that he is similarly situated by way of his job responsibilities. Indeed, Plaintiff has 

not provided any evidence of how his job responsibilities are similarly situated 

with any HFHS employees who work in each of the various job classifications

involved with direct patient care. 

As set forth in HFHS's Motion to Dismiss, the Court must ultimately 

determine whether the claimed task – wearing a non-wrinkled uniform – is 

"integral and indispensable" to each of the various 230 job classifications held by 

employees in the putative class. It is for this reason that it is critical that Plaintiff 

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establish that his responsibilities are similarly situated to other HFHS employees. 

Otherwise, a collective action would not be appropriate because it would not assist 

the Court in conducting the "integral and indispensable" analysis under the FLSA. 

Here, Plaintiff failed to present any evidence, or even argument, of how his job 

responsibilities are similarly situated to other HFHS employees. For this reason 

alone, Plaintiff's motion for conditional certification must be denied.

3. Plaintiff's Conclusory Assertions Are Irrelevant

Instead of presenting the Court with evidence that he is similarly situated, 

Plaintiff relies on his declaration and asserts his belief that all HFHS employees are 

required to iron their uniforms based on the "face" of the General Appearance 

Standards, "his discussions with managers and co-workers, and his observation of 

Defendant's other uniformed employees during the relevant period." See 

Complaint, ¶ 56; Pl. Brief at p. 10. This is precisely the type of conclusory 

statement this Court found to be insufficient to support a motion for conditional 

certification. See Arrington, supra. Another district court also held, in a similar 

case involving Plaintiff's counsel, that the virtually identical conclusory assertions 

cannot support a motion for conditional certification:

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.” These unsupported assertions are 

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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.

Dinkel v. Medstar Health, 880 F.Supp.2d 49, 56 (D.D.C. 2012) (internal citations 

omitted) (emphasis added). See also, Bacon v. Eaton Aeroquip, LLC, 2012 WL 

4321712 (E.D. Mich. Sept. 12, 2012) (denying motion for conditional class 

certification where plaintiffs failed to show they had personal knowledge of 

alleged violation covering larger class).

4. Other Courts Agree That Similar "Uniform Maintenance" 

Claims Should Not Be Conditionally Certified

Other courts have agreed that, under substantially the same circumstances,

conditional certification of FLSA claims for "uniform maintenance" is 

inappropriate. For example, in Chandler v. Heartland Employment Serv., 2014 

WL 1681989 (E.D. Pa. Apr. 28, 2014), the plaintiff worked as a dietary aide for the 

defendant-employer. The plaintiff claimed, in part, that she spent at least two 

hours per week ironing her uniform pursuant to a company policy which required 

her uniform to be "free from wrinkles." In support of their motion for conditional 

certification, the named plaintiff and two opt-in employees provided testimony that 

their supervisors told them to iron their uniforms. In addition, the plaintiffs 

asserted they were told in training sessions that they had to iron their uniforms.

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The court noted that the plaintiffs identified only one policy that applied to 

all of the defendant's facilities – "the requirement that employees' clothing be 'free 

from wrinkles' and that uniforms be kept 'clean and in good repair.'" Id. at *3. The 

court further noted the plaintiffs' claim "that the wrinkle-free policy imposed a de 

facto ironing requirement that led employees to perform several hours weekly of 

unpaid work." Id. The court held that, notwithstanding these allegations, plaintiffs 

failed to meet the "modest factual showing" necessary to certify a collective class. 

Id. at *4. The court observed that the plaintiffs did not address differences 

between the uniforms worn by the putative class. Id. The court further noted that 

"the actual effect of the 'wrinkle-free' policy appears to depend on its 

implementation by individual facilities, departments and supervisors." Id. On this 

basis, the court denied certification based on the "wrinkle-free" policy. Id.

Just as in Chandler, Plaintiff is trying to imply some de facto "ironing" 

requirement in the General Appearance Standards (which does not exist) and then 

apply that unfounded requirement to almost 3,700 HFHS non-exempt direct patient 

care employees working in over 100 facilities, for 1,131 supervisors and in 230 job 

classifications. HFHS, like the employer in Chandler, requires different uniforms 

for different employees and further maintains department-based policies for 

appearance and uniforms. As in Chandler, the actual effect of the General 

Appearance Standards depends on its implementation by the various HFHS 

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business units and departments, a fact which is confirmed by the existence of 

specific departmental policies for uniformed employees. 

The dramatic differences between Plaintiff and other HFHS employees are 

abundant. The only conclusion which can be drawn from these differences is that 

Plaintiff is not similarly situated to potential employees in the putative class, 

whether based on alleged uniform maintenance or application of a common policy. 

Because Plaintiff is not similarly situated, he cannot obtain conditional collective 

certification and his motion must be denied. Williams v. Securitas Sec. Serv., 2011 

WL 3629023 (E.D. Pa. Aug. 17, 2011) (denying conditional class certification in 

uniform maintenance case where there were differences between employees with 

respect to how they maintained uniforms); Hall v. Guardsmark, 2012 WL 3580086 

(W.D. Pa. Aug. 17, 2012) (denying conditional certification where policy required 

employees uniforms to be "well-pressed at all times" because plaintiffs failed to 

submit evidence they were similarly situated to employees in putative class).

5. The Cases Cited By Plaintiff Are Inapposite

The cases cited by Plaintiff in support of conditional certification are 

distinguishable. For example, while the court granted conditional certification 

with respect to a uniform maintenance claim in Dinkel v. Medstar Health, the 

defendant in that case failed to oppose certification of the uniform maintenance 

issue, so the court determined that defendant conceded conditional certification. 

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See 880 F.Supp.2d 49, 58 ("In the absence of meaningful opposition from 

Defendants, the Court exercises its discretion to treat the matter as conceded."). 

Moreover, as set forth in HFHS's motion to dismiss, the Dinkel court recently 

dismissed the uniform maintenance claims as a matter of law. See Dinkel v. 

Medstar Health, __ F.Supp.3d __, 2015 WL 1735078 (D.D.C. April 16, 2015), a 

fact which Plaintiff conveniently failed to provide to the Court.

While conditional certification was granted in Outlaw v. Secure Health LP, 

2012 WL 3150582 (M.D. Pa. August 2, 2012), the facts in that case are 

distinguishable because the claims were limited to non-exempt employees working 

at two nursing homes, unlike the thousands of employees and numerous facilities 

and policies at issue here. Moreover, the legal basis for the decision in Outlaw was 

called into question by the Goldstein court because the cases on which the Outlaw

relied were either non-FLSA cases or were distinguishable on the facts. See

Goldstein v. Children's Hospital of PA, 2013 WL 664174 (E.D. Pa. Feb. 23, 2013).

D. The Proposed Notice Is Objectionable

In the unlikely event the Court conditionally certifies the class, the notice 

Plaintiff requests for the putative class is objectionable. Any notice must advise 

potential opt-in plaintiffs that they may be held liable for the payment of HFHS's 

costs associated with this lawsuit if HFHS prevails. See Robbins-Pagel v. Wm. F. 

Puckett, Inc., No. 6:05-cv-1582, 2006 WL 3393706 (M.D. Fla. Nov. 22, 2006)

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(“[T]his Court finds that form inadequate because it fails to inform potential 

plaintiffs that, if they do opt-in and are unsuccessful on the merits of their claim, 

they may be responsible for the defendant's costs in this matter. Any notice, to be 

approved by this Court, must include a full disclosure of the individuals’ rights and 

responsibilities should they decide to opt-in to the suit.”). 

The judicial neutrality statement is currently buried in Plaintiff's proposed 

notice. The statement regarding judicial impartiality should be set forth in bold, 

underlined text and it should appear immediately under the case caption. See, e.g., 

Wright v. Lehigh Valley Hosp. and Health Network, 2011 WL 221770, *6 (E.D. 

Pa. Jan. 20, 2011) (“[A] statement regarding the Court’s neutrality is common in 

FLSA notices and should be added in bolded, all capital letters....”); Adams v. 

Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 540 (N.D. Cal. 2007) (“[N]otices 

typically contain a court caption and the bolded statement of neutrality below the 

caption should make the court’s position clear to potential plaintiffs.”); Hoffman v. 

Securitas Sec. Serv., 2008 WL 5054684, *15 (D. Idaho Aug. 27, 2008) (holding 

that the reference should be “bolded and enhanced” and should contain words to 

the effect that: “The Court has taken no position in the case regarding the merits of 

Plaintiff’s claims or Defendants’ defenses. Therefore, this Notice is not an 

expression by the Court of any opinion as to the merits, if any, of the lawsuit.”); 

Boyd v. Jupiter Alum. Corp., 2006 WL 1518987, *6 (N.D. Ind. May 31, 2006)

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(case caption did not suggest judicial sponsorship of plaintiff’s claims because 

notice included neutrality disclaimer in boldface type).

In addition, the proposed notice improperly implies that potential opt-in 

plaintiffs must be represented by Plaintiffs’ counsel if they want to join in this suit 

or that there is some significance to having been appointed by the Court. This is 

improper and not required or authorized by law. In addition, one of the Plaintiff's 

attorneys, David Cohen, is not authorized to practice law in this judicial district.

While Plaintiff has utterly failed to meet his burden for conditional 

certification in this matter, if the Court determines that notice will be provided, 

then Plaintiff's proposed notice should be revised to address these objections.

IV. CONCLUSION

For the reasons set forth herein, Plaintiff's motion should be denied.

Respectfully submitted,

VARNUM LLP

By: /s/ Terrence J. Miglio

Terrence J. Miglio (P30541)

Barbara E. Buchanan (P55084)

Attorneys for Defendant

39500 High Pointe Blvd., Suite 350

Novi, Michigan 48375

Date: August 27, 2015 (248) 567-7400

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CERTIFICATE OF SERVICE

I hereby certify that on August 27, 2015, I caused the 

foregoing documents to be electronically filed with the 

Clerk of the Court using the ECF System, which will 

send notification of such filing to all counsel of record.

/s/ Terrence J. Miglio

9708779

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