United States District Court, N.D. Illinois, Eastern Division
JARED STEGER, DAVID RAMSEY, JOHN CHRISPENS, and MAI HENRY, individually and on behalf of all others similarly situated, Plaintiffs,
LIFE TIME FITNESS, INC., a Minnesota corporation, LTF CLUB MANAGEMENT COMPANY, LLC, a Delaware Limited Liability Company, and LTF CLUB OPERATIONS COMPANY, INC., a Minnesota corporation, and DOES 1 to 10, inclusive, Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN UNITED STATES DISTRICT COURT JUDGE.
Jared Steger, David Ramsey, John Chrispens, and Mai Henry
("plaintiffs"), acting on behalf of themselves and
all others similarly situated, filed an amended complaint
against defendants Life Time Fitness, Inc., LTF Club
Management Company, LLC, LTF Club Operations Company, Inc.,
and ten unnamed individuals (together
"defendants"), asserting claims under the Fair
Labor Standards Act and California and Illinois state law.
The plaintiffs subsequently moved for conditional
certification of their proposed class and judicial notice to
the class pursuant to section 216(b) of the Fair Labor
Standards Act. This Court denied that motion. The plaintiffs
now move this Court to reconsider that decision. For the
reasons that follow, the plaintiffs' motion to reconsider
 is denied.
for reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly discovered
evidence. Caisse Rationale de Credit Agricole v. CBI
Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). A
manifest error of law exists when a court patently
misunderstands a party, makes a decision outside of the
adversarial issues presented to the court, or makes an error
of apprehension. Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). A
motion to reconsider may also be appropriate where there has
been a controlling or significant change in the law or facts
since the submission of the issue to the Court. Id.
plaintiffs first contend that this Court committed a manifest
error of law by applying the wrong legal standard to review
the plaintiffs motion for conditional class certification.
of this district employ a two-step process for determining
whether a FLSA lawsuit should proceed as a collective action.
Jirak v. Abbottluibs., Inc., 566 F.Supp.2d 845, 845
(N.D. 111. 2008). At the first stage, the court makes an
initial determination whether notice should be sent to
potential opt-in plaintiffs who may be similarly situated to
the named plaintiff. Mielke v. luiidlaw Transit,
Inc., 313 F.Supp.2d 759, 762 (N.D. 111. 2004) (Castillo,
J.). To meet this burden, a plaintiff must make a modest
factual showing sufficient to demonstrate that she and the
potential opt-in plaintiffs were victims of a common policy
or plan that violated the FLSA. Bergman v. Kindred
Healthcare, Inc., 949 F.Supp.2d 852, 855(N.D. 111. 2013)
(Hart, J.). At this stage, the Court does not make merits
determinations, weigh evidence, determine credibility, or
specifically consider opposing evidence presented by a
defendant. Id. at 855-56. At the second stage,
following the completion of the opt-in process and
merits-related discovery, the defendant may ask the court to
reevaluate the conditional certification to determine whether
there is sufficient similarity between the named and opt-in
plaintiffs to allow the matter to proceed to trial on a
collective basis. Id. at 856. In conducting that
analysis, Courts assess whether the named and putative
plaintiffs are similarly situated based on (1) whether the
plaintiffs share similar or disparate factual and employment
settings; (2) whether the various affirmative defenses
available to the defendant would have to be individually
applied to each plaintiff; and (3) fairness and procedural
concerns. Mielke, 313 F.Supp.2d at 762.
motion for conditional class certification is filed in this
district after some discovery has been completed, the lenient
standard for conditional certification is heightened to an
intermediate standard, under which the court considers the
evidence submitted by both parties but requires the plaintiff
to make only a modest 'plus' factual showing that
there is a group of potentially similarly situated plaintiffs
that may be discovered by sending opt-in notices.
Bergman, 949 F.Supp.2d at 856. This Court, in
assessing whether the named plaintiffs and opt-in members of
the class were similarly situated, utilized the
Mielke factors to assess whether the putative
plaintiffs were similarly situated to the named plaintiffs.
The plaintiffs contend that doing so constituted a manifest
error of law because the Mielke factors can only be
applied at the second stage of analysis and not at the
intermediate stage. The plaintiffs are incorrect. Multiple
courts in this district have applied the Mielke
factors at the intermediate stage in precisely the manner
that this Court did. See, e.g., Babych v. Fsychiatnc
Solutions, Inc., No. 09 C 8000, 2011 WL 5507374, at *4
(N.D. 111. Nov. 9, 2011) (Lefkow, J.) (considering the
Mielke factors in assessing whether the plaintiffs
at the conditional certification stage were similarly
situated); Howard v. Securitas Sec. Sews., USA.
Inc., No. 08 C 2746, 2009 WL 140126, at *2
(N.D. 111. Jan. 20, 2009) (Gottschall, J.) (applying the
Mielke factors at the conditional class
certification stage); Molina v. First Line Solutions
LLC, 566 F.Supp.2d 770, 787 (N.D. 111. 2007) (Hart, J.)
(identifying the Mielke factors as factors
"that may be considered in determining whether
plaintiffs are similarly situated" for conditional
certification purposes); see also Franks v. MKM Oil,
Inc., No. 10 CV 00013, 2012 WL 3903782, at *10 (N.D.
111. Sept. 7, 2012) (Chang, J.) (applying the factors without
explicitly stating that it was doing so). As Judge Hart
explained in Molina, "[f]he primary difference
between the two stages of litigation is the level of proof
required, " although, "at the first step,
information about particular factors may not be available at
all or may not be very well developed." Molina,
566 F.Supp.2d at 788 n. 18. The Mielke factors only
describe the types of evidence that may be considered; what
distinguishes the different stages of analysis is not the
type of evidence that is considered but the level of proof
that is required. Howard, 2009 WL 140126, at
*2 (citing Molina, 566 F.Supp.2d at 788 n.
this Court applied the modest-plus standard of proof required
in conducting an intermediate analysis, it considered the
Mielke factors to determine whether the evidence
presented was sufficient to establish that the putative
plaintiffs and named class members were similarly situated.
The Mielke factors were particularly relevant
because the parties had engaged in lengthy discovery
concerning the appropriateness of conditional class
certification, and evidence was therefore available beyond
what would ordinarily be available to a court conducting a
first-stage analysis. See Franks, 2012 WL 3903782 at
*10 (noting that it made "no sense" to treat a
motion for class certification as being at the conditional
certification stage where the parties had engaged in
extensive class certification discovery). In light of the
precedent for considering the Mielke factors as it
did, this Court rejects the plaintiffs' assertion that it
committed a manifest error of law.
plaintiffs alternatively contend that this Court should
reconsider its decision in light of the Supreme Court's
ruling in Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct.
1036, 194 L.Ed.2d 124 (2016). In Tyson Foods, the
Supreme Court upheld the use of representative statistical
evidence to calculate the amount of unpaid overtime that
employees incurred donning and doffing their protective gear.
But there was, and is, no representative statistical evidence
before this Court to support conditional class certification.
Although the plaintiffs contend that they are entitled to
conditional class certification based on the possibility that
they will be able to obtain and employ such evidence at the
decertification stage, this Court does not perceive anything
in Tyson so holding. Tyson merely confirms
that such representative evidence, where otherwise properly
presented and determined to be reliable, may be taken into
consideration. Cf Oto v. Metro. Life Ins. Co., 224
F.3d 601, 606 (7th Cir. 2000) ("A party may not use a
motion for reconsideration to introduce new evidence that
could have been presented earlier."). Even if such
evidence was available to mitigate the need for
individualized analyses of the applicability of the 207 (i)
exemption, moreover, this Court's analysis of the first
and third Mielke factors would remain unchanged.
Accordingly, Tyson does not compel this Court to
reconsider its prior ruling.
foregoing reasons, the plaintiffs' motion for
reconsideration  is denied.
 This Court notes that even if it had
reconsidered its prior decision under the standard that the
plaintiffs assert, its decision would have been unchanged. As
the plaintiffs repeatedly asserted throughout their briefs,
they are not challenging the legality of the defendants'
stated compensation policies, but only the alleged unwritten,
de facto policy of pressuring employees to work off the
clock. The evidence before this Court was insufficient to
support a "modest plus" factual showing that the
potential opt-in plaintiffs ...