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Carrel v. Medpro Group, Inc.

United States District Court, N.D. Indiana

September 15, 2016

GRETCHEN B. CARREL, on behalf of herself and all other similarly-situated persons, Plaintiff,
MEDPRO GROUP, INC., Defendant.



         This matter is before the Court on a Motion for Conditional Class Certification on FLSA Claim and Notice to Potential Plaintiffs [ECF No. 18], filed by Plaintiff Gretchen B. Carrel on June 10, 2016. Having also received the Defendant's Opposition [ECF No. 26] and the Plaintiff's Reply [ECF No. 28], it appears that the parties agree that conditional certification is appropriate. They also agree on most aspects of the Notice to Potential Plaintiffs, with a few exceptions that the Court must now resolve.


         One of the Plaintiff's claims in this litigation is that her employer, MedPro Group, Inc., did not pay her overtime to which she was entitled under the Fair Labor Standards Act (FLSA). The Plaintiff alleges that the Defendant failed to properly calculate her regular rate of pay for overtime purposes when it did not include in her regular rate of pay the bonus payments she received under the Defendant's Long Term Incentive Plan (LTIP). The Plaintiff maintains that the Defendant issued LTIP bonus payments to most of its more than 500 employees over the past three years, and that hundreds of these employees, like the Plaintiff, were non-exempt and worked overtime. She alleges that the Defendant has thus adopted a uniform policy or practice that has deprived these employees the full amount of their owed wages. The Defendant denies that its practice of omitting LTIP bonus payments from the calculation of the regular rate of pay for overtime purposes violates the FLSA. According to the Defendant, its actions are legally permissible because the LTIP bonus is discretionary.

         The Plaintiff requests conditional certification of a collective action on behalf of similarly situated employees pursuant to 29 U.S.C. § 216(b). Additionally, she seeks authorization to send court-approved notices to all the Defendant's current and former non-exempt employees who received LTIP bonuses in any year since 2013, and who also worked overtime in that same year. To facilitate notice to potential class members, the Plaintiff asks the Court to order the Defendant to produce, within five business days, a document in useable electronic form that discloses the names and contact information of all potential plaintiffs.


         The FLSA provides: “[N]o employer shall employ any of his employees who in any workweek is engaged in commerce . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). The collective action provision of the FLSA allows one or more employees to sue on “behalf of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). Collective actions under the FLSA are different than class actions authorized by Federal Rule of Civil Procedure 23 because, in FLSA cases, the potential plaintiffs are given notice and an opportunity to opt in, rather than notice and an opportunity to opt out. 29 U.S.C. § 216(b) (“No 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.”).

         Courts have described a two-step process for the management of FLSA collective actions. In the first step, plaintiffs need only make “a minimal showing that others in the potential class are similarly situated.” Mielke v. Laidlaw Transit, Inc., 313 F.Supp.2d 759, 762 (N.D.Ill. 2004). “[A] court requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001); see also Smallwood v. Ill. Bell Tel. Co., 710 F.Supp.2d 746, 750 (N.D.Ill. 2010) (“In order to be conditionally certified, plaintiffs need only make ‘a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.'” (quoting Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1045 (N.D.Ill. 2003))). If the plaintiff makes this minimal showing, the class is conditionally certified and notice is sent to potential class members, giving them an opportunity to opt in. Heckler v. DK Funding, 502 F.Supp.2d 777, 779 (N.D.Ill. 2007); Mielke, 313 F.Supp.2d at 762. At the second step, once the opt-in process is complete, the court conducts a more stringent analysis of similarity. Heckler, 502 F.Supp.2d at 779.

         At this stage of the proceedings, the Defendant does not dispute that the first step of the conditional certification standard has been satisfied. The Defendant, however, has proposed changes to the Plaintiff's proposed form of Notice “to more accurately and fairly describe the case status, claims at issue, and potential plaintiffs' options.” (Def.'s Opp'n 1, ECF No. 26.) As stated above, the Plaintiff is amenable to most of these changes, but a few issues remain in dispute.

         A. Contents of the Notice

         1. Beginning Date for Proposed Class

         The proposed Notice, as modified by the Defendant, defines the class to include the Plaintiff and “any non-exempt employee who is or was employed by MedPro at any time since [date on which the notice is approved], 2013, and who received both overtime pay and an LTIP bonus payment during any year between 2013 and the present.” (Notice 2, ECF No. 28-1.) The Plaintiff initially proposed using January 1, 2013, as the relevant start date. The Defendant objected on grounds that such a date would include individuals whose claims fall outside the FLSA's three year statute of limitations. The Defendant thus proposed using the date of the Notice, as opposed to January 1.

         The Plaintiff indicates that she is willing to accept these changes, “subject to a couple of important caveats.” (Reply Br. 2, ECF No. 28.) The Plaintiff notes that the Defendant's LTIP bonuses have typically been paid in August. The Plaintiff suggests that, if the Notice is issued after August 2016, that the beginning date for the potential class members be tied to June 10, 2013, which is three years before she filed her motion to certify the conditional class.

         The Notice will obviously not be issued before August 2016-it is already September. The Court finds that the Notice should define the class using the June 10, 2013, date. Neither party has developed arguments ...

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