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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHARLES WILLIAMS, ET AL., 

Plaintiffs, 

v. 

K&K ASSISTED LIVING LLC, ET AL., 

Defendants. 

 / 

Case No. 15-cv-11565 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

ELIZABETH A. STAFFORD

ORDER GRANTING PLAINTIFFS’ MOTION FOR CONDITIONAL CLASS

CERTIFICATION AND REQUEST FOR CLASS DISCOVERY [22] 

I. INTRODUCTION

This action is brought by three named Plaintiffs, Charles Williams, George Ruffin, and 

Wanda Turner, on behalf of themselves and other similarly situated employees, against their 

employer, K&K Assisted Living LLC and Milton Kennedy (collectively “Defendants”). See Dkt. 

No. 1. Plaintiffs allege that Defendants violated the Fair Labor Standards Act of 1938 (“FLSA”), 

29 U.S.C. § 201, et seq., by requiring Plaintiffs and other direct care workers in group homes for 

the mentally disabled, owned and operated by Defendants, to work a substantial amount of 

overtime hours without paying overtime compensation. See Dkt. No. 22, p. 2, ¶¶ 1–2 (Pg. ID 

No. 90). 

This matter comes before the Court on Plaintiffs’ motion asking the Court to 

conditionally certify a class, pursuant to 29 U.S.C. § 216(b) of the FLSA; to approve issuance of 

notice to the potential class members; and to order class-related discovery. See id. For the 

reasons stated more fully below, this Court GRANTS Plaintiffs’ motion for conditional 

certification of a FLSA collective action and ORDERS class-related discovery. 

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II. BACKGROUND

Plaintiffs assert that they and those “similarly situated” to them are individuals who were 

or currently are employed by Defendants as direct care workers at the various K&K Assisted 

Living facilities. Dkt. No. 22, p. 11 (Pg. ID No. 99). Defendants operate multiple group homes in 

the Detroit area where mentally disabled individuals reside and receive around-the-clock care. Id. 

at 2, ¶ 1 (Pg. ID no. 90). Approximately five to six resident patients live in each group home. Id. 

Direct care workers, like Plaintiffs, are employed to care for the resident patients by tending to 

residents’ health and medication needs. Id. 

In support of their motion, Plaintiffs submit the Declarations of the three named 

Plaintiffs. Dkt. No. 22-3, 22-4, 22-5 (Pg. ID No. 124–38). Each of these Declarants worked in 

several of Defendants’ group homes. See id. at ¶ 2. The Declarations aver the following: All 

three Plaintiffs worked as direct care workers for Defendants in K&K facilities, overseeing the 

health and safety of mentally disabled residents. See id. Their duties consisted of tending to the 

health and medication needs of residents, providing medical care based off of plans from health 

care providers, completing medical charts, taking care of patients’ daily hygiene needs, and 

ensuring that patients’ care and comfort needs were met. See id. Duties were the same regardless 

of which care facility the Declarants worked in during their shifts. See id. at ¶¶ 7–8. 

The Declarants all worked multiple shifts each week, with the length of each shift 

consisting of approximately 12 hours.1 See id. at ¶ 5. Depending on the number of shifts each 

Declarant worked each week, their weekly total hours ranged from 48 hours per week to 72 

hours per week, although the average appears to be around 60 hours per week. See id. at ¶¶ 5, 9. 

 1

 Plaintiff Turner states that her shifts were approximately 12 to 16 hours long, while both Plaintiff Williams and 

Ruffin assert that their shifts were 12 hours in length. Compare Dkt. No. 22-5, p. 2, ¶ 5 (Pg. ID No. 136) to Dkt. No. 

22-3, p. 2, ¶ 5 (Pg. ID No. 125), 22-4, p. 2, ¶ 5 (Pg. ID No. 131). 

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All three Declarants aver that they did not receive lunch breaks or any other break of significant 

time. Id. at ¶ 5. 

 The three Plaintiffs were hourly, non-salaried employees for K&K. See id. at ¶6. 

Declarants each received an hourly wage of $8.19 per hour, without any additional compensation 

for overtime hours worked. See id. Each of the Declarants inquired about overtime pay and each 

was told that he or she was not entitled to it. See id. 

 Plaintiffs filed their Complaint in this action on April 30, 2015, alleging Defendants 

violated sections 206 and 207 by failing to pay direct care workers overtime compensation. See

Dkt. No. 1, p. 7, ¶ 33 (Pg. ID No. 7). On October 9, 2015, Plaintiffs moved for conditional 

certification of this action as a collective action pursuant to section 216(b) of the FLSA. See Dkt. 

No. 22, p. 2 (Pg. ID No. 90). Plaintiffs propose the following class: “All current and former 

direct care workers who were employed by K&K at any time from May 7, 2012 to the present.” 

See id. at 20 (Pg. ID No. 108). 

III. LEGAL STANDARD

 Section 207 of the FLSA requires employers to compensate their employees at “a rate not 

less than one and one-half times the regular rate” of pay for time worked in excess of forty hours 

in any workweek. 29 U.S.C. § 207(a)(1).2

 The FLSA provides in section 216 that employers 

who violate section 207 “shall be liable to the employee or employees affected in the amount of 

their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in 

an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). The section also allows 

employees to recover in a collective action on behalf of themselves and “other employees 

 2

 Although Plaintiffs Complaint also alleges a FLSA violation under section 206, which sets minimum wages, it 

does not appear that allegations under this section were included in the present Motion. 

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similarly situated.” Id. 

“Section 216(b) establishes two requirements for a representative action: 1) the plaintiffs 

must actually be ‘similarly situated,’ and 2) all plaintiffs must signal in writing their affirmative 

consent to participate in the action.” Comer v. Wal–Mart Stores, 454 F.3d 544, 546 (6th Cir. 

2006). District courts generally follow a two-stage process for certification in order to determine 

if opt-in plaintiffs and lead plaintiffs are similarly situated. See Fisher v. Michigan Bell Tel. Co., 

665 F. Supp. 2d 819, 825 (E.D. Mich. 2009). First, during the “notice stage” the court determines 

whether to certify the suit as a collective action, which enables potential opt-in plaintiffs to be 

notified of and participate in the suit. See id. Later, after the court has received all the opt-in 

forms and discovery has concluded, the second stage occurs wherein the court utilizes a stricter 

standard to judge whether class members are similarly situated. See id. (citing Comer, 454 F.3d 

at 546). 

The first stage, involved in Plaintiffs’ present Motion, seeks only conditional 

certification. See id. Lead plaintiffs bear the burden of demonstrating that opt-in plaintiffs are 

similarly situated. O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 584 (6th Cir. 2009). 

However, the standard at this stage is “fairly lenient,” requiring only that plaintiffs “submit 

evidence establishing at least a colorable basis for their claim that a class of ‘similarly situated’ 

plaintiffs exists.” Olivo v. GMAC Mortgage Corp., 374 F. Supp. 2d 545, 548 (E.D. Mich. 2004) 

(quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266 (D. Minn. 1991)). “The 

plaintiff must show only that ‘his position is similar, not identical, to the positions held by the 

putative class members.’ ” Comer, 454 F.3d at 546–47 (quoting Pritchard v. Dent Wizard Int'l 

Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002)). This similarity can be illustrated by “a modest 

factual showing sufficient to demonstrate that they and potential plaintiffs together were victims 

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of a common policy or plan that violated the law.” Olivo, 374 F.Supp.2d at 548 (quoting Flores 

v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003)). 

If plaintiffs meet their burden, the court may authorize notification of similarly situated 

employees to allow them to opt into the suit. See Comer, 454 F.3d at 546. “The court may also 

order the defendant to provide plaintiffs with the contact information of potential opt-in 

plaintiffs.” Cobus v. DuHadway, Kendall & Associates, Inc., No. 13-CV-14940, 2014 WL 

4181991, at *2 (E.D. Mich. Aug. 21, 2014). Additionally, the court may limit the scope of a 

conditional class based on the plaintiffs’ factual showing. Id.; see also Shipes v. Amurcon Corp., 

No. 10-14943, 2012 WL 995362, at *6 (E.D. Mich. Mar. 23, 2012) (“[The] Court has the 

discretion to re-shape the class in an appropriate manner.”). 

IV. DISCUSSION 

 Plaintiffs’ proposed class includes “[a]ll current and former direct care workers who were 

employed by K&K at any time from May 7, 2012 to the present.” Dkt. No. 22, p. 20 (Pg. ID 

No. 108). Despite Defendants’ arguments to the contrary, Plaintiffs have met the “modest factual 

showing” required to conditionally certify a FLSA collective action. However, the Court will 

reshape the class as follows: 

All current and former persons employed as direct care workers and compensated 

on an hourly, non-salary basis by K&K who worked for at least one week in 

excess of forty hours since May 7, 2012. 

See Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856, 861 (S.D. Tex. 2012) (quoting Dreyer v. 

Baker Hughes Oilfield Operations, Inc., 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008)) (“A 

court also ‘has the power to modify an FLSA collective action definition on its own’ if the 

‘proposed class definition does not encompass only similarly situated employees.’ ”). 

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A. Plaintiffs Have Met Their Lenient Burden for Conditional Certification 

Plaintiffs’ allegations present evidence that they and other potential plaintiffs were 

“similarly situated” victims of a common policy of Defendants’ that violated the FLSA: 

(1) Defendants required Plaintiffs, in their positions of direct care workers, to work schedules of 

varying length, though generally around twelve hours each, without lunch breaks; (2) during 

these shifts, Plaintiffs’ duties were similar in that the position of direct care worker required 

tending to the health and medication needs of mentally disabled resident patients; (3) the weekly 

total of Plaintiffs’ shifts exceeded forty hours; and (4) Plaintiffs were paid a single rate of $8.19 

for all hours worked without any additional overtime compensation, in violation of the FLSA. 

In addition, Plaintiffs submitted supplemental declarations, attached to their Reply, in 

which they provide additional allegations regarding their understanding of their specific 

employer3

 and their familiarity with other putative class members’ work schedules. See Dkt. No. 

24-4, 24-5, 24-6 (Pg. ID No. 251–74). Plaintiffs claim that work shifts were posted in such a 

manner that workers could see one another’s shifts. See Dkt. No. 24-4, p. 3, ¶ 7 (Pg. ID No. 253); 

Dkt. No. 24-6, p. 2, ¶ 3 (Pg. ID No. 260). Furthermore, all three Plaintiffs allege personal 

observations and conversations with co-workers who were similarly denied overtime pay while 

working at K&K group homes. See id.; Dkt. No. 24-5, p. 2, ¶ 3 (Pg. ID No. 267). Although 

Plaintiffs do not include the names of the co-workers with whom they spoke, such anonymity 

may be justified at this point considering the allegations of retaliation against workers involved 

 3

 Defendants devote a significant portion of their Response to addressing which K&K Assisted Living entities 

Plaintiffs brought suit against and whether or not the entities were properly named. See, e.g., Dkt. No. 23, p. 15–16 

(Pg. ID No. 201–02). Plaintiffs submitted an additional declaration from their counsel, supported by exhibits, that 

supports their decision to bring suit against the named Defendants. See Dkt. No. 24-8, p. 2–11 (Pg. ID No. 281–90). 

Nonetheless, even if Plaintiffs named the incorrect K&K facility, it does not seem as though this issue would preclude 

first stage collective action certification. Cf. Fisher, 665 F. Supp. 2d at 825 (“[T]he Court does not resolve factual 

disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.”) (alteration in 

original). 

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in this suit.4

Defendants claim that Plaintiffs’ assertions are unsupported and conclusory. See Dkt. 

No. 23, p. 11 (Pg. ID No. 192). The Court disagrees. As the Sixth Circuit stated in Comer, the 

Plaintiffs only need to make a “modest factual showing” under this “fairly lenient standard.” 454 

F.3d at 547. Evidence presented on a motion for FLSA conditional certification need not meet 

the same evidentiary standards applicable to motions for summary judgment because there is no 

possibility of final disposition at the first stage of collective action certification. Fisher, 665 F. 

Supp. 2d at 826. Plaintiffs should be “afforded an opportunity, through discovery, to test fully 

the factual basis of [their] case.” Id. 

Here, the three Plaintiffs have stated similar allegations of fact based on their 

employment as direct care workers and have included bases for their observations in their 

declarations. The cases cited to by Defendants in their Response are unpersuasive. See Sanchez 

v. JMP Ventures, L.L.C., No. 13 CIV. 7264 KBF, 2014 WL 465542, at *1 (S.D.N.Y. Jan. 27, 

2014) (refusing conditional certification of “all tipped employees, including delivery persons, 

bussers, runners, waiters and bartenders” based on the declaration of a single plaintiff); Jin Yun 

Zheng v. Good Fortune Supermarket Grp. (USA), Inc., No. 13-CV-60 ILG, 2013 WL 5132023, 

at *7 (E.D.N.Y. Sept. 12, 2013) (denying a single plaintiff’s request for conditional certification 

where her declaration restated conclusory factual allegations). 

 4

 Plaintiff Williams alleges he was fired in retaliation for being among the plaintiffs in the present suit. Dkt. No. 

22-3, p. 4, ¶ 11–12 (Pg. ID No. 126). Defendants stated in their sworn affidavits that Williams was voluntarily quit 

after being questioned about an absence. Dkt. No. 23-2, p. 4, ¶ 15 (Pg. ID No. 214); Dkt. No. 23-3, p. 4, ¶ 11 (Pg. ID 

No. 219). Plaintiffs allege that Defendants perjured themselves and provide a transcript of an audio recording from the 

meeting where Williams was allegedly terminated. Dkt. No. 24, p. 4–6 (Pg. ID No. 227–29); Dkt. No. 24-7, p. 3–4 (Pg. 

ID No. 277–78). The Court will not make credibility determinations or resolve factual disputes at this juncture. See 

Fisher, 665 F. Supp. 2d at 825. 

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B. Conditional Certification Is Warranted for All K&K Group Homes 

Defendants further argue that Plaintiffs’ failure to state that they worked “at any one of 

the K&K group homes” is a fatal flaw in their pleadings. See Dkt. No. 23, p. 21 (Pg. ID No. 

202). The Court disagrees. As previously recognized by another court in this district considering 

a similar issue, if Plaintiffs provide sufficient evidence of a company-wide practice through 

declarations of current or former employees, then the court may send notice to similarly situated 

employees at all locations at issue in the litigation. See Fisher, 665 F. Supp. 2d at 828. 

Plaintiffs are former employees of K&K and each state that they worked in several of the 

group homes operated by K&K. See Dkt. No. 22-3, 22-4, 22-5 (Pg. ID No. 124–38). If it later 

comes to light that the alleged violations occurred only in specific K&K facilities, the Court can 

reexamine whether the members of the collective action are similarly situated at the second, 

stricter stage of certification. Thus, at this point, it does not seem that Plaintiffs’ failure to 

specifically state exactly which K&K homes in which they worked is as fatal as Defendants 

allege. 

C. The Court Will Have the Parties Jointly Revise the Proposed Notice 

In Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989), the Supreme Court 

held that district courts have discretion to facilitate notice to potential plaintiffs in a collective 

action. Since the Court finds that the Plaintiffs have demonstrated employees to receive notice 

are similarly situated with them, the Court will utilize its discretion to authorize notification of 

those individuals so that they may choose whether to opt into the lawsuit. See Comer, 454 F.3d at 

546. 

In Fisher, the court noted several reasons why judicial notice may be appropriate in a 

FLSA collective action. 665 F. Supp. 2d at 828–29. First, “judicial notice protects ... claims by 

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informing similarly situated employees of the facts needed to make an informed decision 

whether to opt-in.” Id. at 829. “Second, judicial notice promotes judicial economy, helps avoid 

the ‘multiplicity of duplicative suits’ inherent in these types of lawsuits, and notifies putative 

plaintiffs of an economically feasible litigation option.” Id. Third, the court found that judicial 

notice is appropriate where the proposed notice uses language similar to what was used in other 

FLSA actions. Id. 

The notice proposed by the Plaintiffs differs significantly in form and language from 

other approved collective action notices. See Fisher, 665 F. Supp. 2d at 829 (detailing plaintiffs’ 

exhibit 17, which contained example notices). Thus, the notice will be revised. Preferably, the 

parties will be able to agree on an acceptable notice addressing all of Plaintiffs’ claims, and the 

Court will give them an opportunity to do so, as set forth in the Conclusion to this Opinion and 

Order. 

D. The Court Will Grant Plaintiffs’ Discovery Request 

Finally, Plaintiffs request that this Court order K&K to “provide the names, addresses, 

email addresses, and telephone numbers of all the direct care workers who have worked at K&K 

during the Relevant Time Period.” Dkt. No. 22, p. 22 (Pg. ID No. 110). Defendants object that 

class-related discovery is inappropriate because they do not feel that there are any direct care 

workers (current or former) who are similarly situated to Plaintiffs. See Dkt. No. 23, p. 21 (Pg. 

ID No. 207). Other than the broad objection to class-related discovery, Defendants have made no 

specific objections to the types of information Plaintiffs request. As mentioned above, the Court 

is unpersuaded by Defendants’ argument that there are no direct care workers who are similarly 

situated to Plaintiffs, based on the lenient standard in the first stage of certification. Accordingly, 

the Court will require Defendants disclose the required information to Plaintiffs. 

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IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Conditional Class Certification and 

Request for Class Discovery [22] is GRANTED. 

Additionally, the parties are directed to work together to draft a mutually acceptable 

notice to be sent to class members advising them of this lawsuit and their opt-in/opt-out rights. 

The parties should work together and submit a proposed order for such purpose. The proposed 

notice shall be submitted to the Court for approval within twenty (20) days of the issuance of this 

Opinion and Order. If the parties are unable to come to an agreement, each side will submit their 

proposed notice to the Court. Once the Court has approved a notice, it will issue an order 

directing issuance of the notice to class members. 

IT IS SO ORDERED. 

Dated: November 17, 2015 

 s/Gershwin A. Drain 

 HON. GERSHWIN A. DRAIN 

 United States District Court Judge 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing document was served upon counsel of record l on 

November 17, 2015. Service was done electronically and by U S Postal Mail as required. 

 

s/Teresa A. McGovern 

 Case Manager Generalist 

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