Carol Giles, a nurse, sued her hospital in small claims court, alleging that it did not reimburse her for training time, and asking for a policy on training reimbursement. When the hospital unveiled its policy, it agreed to pay nurses for two years’ reimbursement in exchange for a release of any claims.
So Ms. Giles filed a wage-and-hour class action, seeking an additional years’ worth of reimbursement under the FLSA. She also moved to limit the hospital’s communications with the class, arguing that doing so would prevent class members’ signing an overbroad release.
In opposing the motion to limit class communications, the hospital argued:
If the caregivers believe they are entitled to liquidated damages under the FLSA or penalty wages under ORS Chapter 652 and 653 or that they are entitled to an additional year’s worth of unpaid study time (as plaintiffs contend in this lawsuit), they are free to assert as much in litigation. If asked, St. Charles’ representatives make clear that the caregivers’ rights in the litigation will not be affected by their participation in the meetings.
However, when the plaintiff moved for certification, the hospital argued that she was not a typical class representative, because she had not executed the same release as many class members had.
The court, in Giles v. St. Charles Health Sys., Inc., No. 6:13-CV-00019-AA, 2013 U.S. Dist. LEXIS 152695 (D. Or. Oct. 22, 2013), was not impressed by this argument:
This does not necessarily mean that typicality is lacking. Defendant previously represented to this Court that executing a Release would not affect a potential class member’s ability to join in this action and obtain additional relief.
To drive its point home, it invoked the doctrine of judicial estoppel:
Defendant, however, cannot obtain an advantage in these proceedings by taking positions that contravene those previously asserted.
The takeaway here is a simple one, that both sides often forget. Stay consistent. Courts rarely sympathize with a party who appears to only argue for tactical advantage, and class certification is a tough place to be held to old arguments.