United States District Court, N.D. Illinois, Eastern Division
SAKEENA BARRETT, individually, and on behalf of others similarly situated Plaintiff,
NORTHSHORE UNIVERSITY HEALTHSYSTEM, Defendant.
MEMORANDUM OPINION AND ORDER
M. Rowland, Judge.
Sakeena Barrett brings this putative collective action
against her former employer, Defendant NorthShore University
Health System (“NorthShore”), for alleged
violations of the overtime provisions of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq. Barrett, a former Patient Access
Representative (“PAR”) for NorthShore, claims
that she and other PARs occasionally worked more than 40
hours per week without overtime pay. Before the Court is
Barrett's motion for conditional certification of the
proposed class and approval of her proposed notice to
potential class members. (Dkt. No. 19.) For the reasons set
forth below, the motion for conditional certification is
granted. The parties shall confer regarding the content of
the notice and the means of distributing the notice, and
shall submit either a joint proposal or competing proposals
by October 4, 2019.
was previously employed by NorthShore as a Patient Access
Representative ("PAR") at the company's
Practice Support Call Center in Skokie, Illinois. (Pl.'s
Mem. of Law in Support of Pl.'s Pre-discovery Mot. for
Conditional Cert. ("Pl.'s Mem.") at Ex. 3
¶ 2, Dkt. No. 20-3.) PAR is an entry-level position, in
which the employee answers phone calls from NorthShore
patients seeking to schedule an appointment with a physician,
schedule a medical test, or ask a general question about
NorthShore's services. (Id. at Ex. 3 Ex. A, Dkt.
No. 20-3.) Barrett alleges that during her employment, she
and other PARs occasionally worked more than 40 hours per
week without overtime pay in violation of the FLSA.
(Id. at Ex. 3 ¶ 4)
requires PARs to clock in to document their hours and receive
their hourly wages. (Pl.'s Mem. at 1) This timekeeping
system rounds to the nearest fifteen-minute increment; for
example, if Barrett clocks in at 8:52 a.m., the system
records her as clocking in at 8:45 a.m. (Id. at 3).
Likewise, if Barrett clocks in at 8:53 a.m., the system
records her as clocking in at 9:00 a.m. (Id.)
However, PARs were not permitted to clock in more than seven
minutes before the start of their scheduled shift.
(Id. at Ex. 3 ¶ 13; see also Ex. 4,
Def.'s Mandatory Initial Disclosures, at 5 (stating that
"the general rule is that [PARs] generally should not
clock in more than seven minutes before the start of their
to Barrett, NorthShore had four common policies that worked
in concert to deprive PARs of overtime pay. (Pl.'s Mem.
at 3) First, NorthShore required PARs to be prepared to start
handling calls at the start of their shift. (Id. at
Ex. 3 ¶ 7) Second, in order to be adequately prepared to
handle calls, PARs had to do several time-consuming tasks
such as logging into various computer programs and
applications. (Id. at Ex. 3 ¶ 8) Barrett
alleges that this process took between 8 to 24 minutes to
complete. (Id.) Third, NorthShore rounds PAR's
time to the nearest fifteen-minute increment (Id. at
Ex. 3 ¶ 13) And finally, NorthShore prohibits PARs from
clocking in more than seven minutes prior to their scheduled
shift time. (Id. at Ex. 3 ¶ 14) Barrett asserts
that she did not receive compensation for her pre-shift
activities because NorthShore forbade her from clocking in
more than seven minutes early and rounded down her time if
she clocked in seven or less minutes early. (Id. at
Ex. 3 ¶ 13) NorthShore denies that their rounding policy
resulted in overtime denial, and disputes that PARs need to
do anything other than clock in before the start of their
shift. (Def.'s Mem. of Law in Opp'n to Pl's Mot.
for Conditional Class Cert. ("Def.'s Mem.") at
1, Dkt. No. 31) NorthShore also disputes Barrett's
timeframe for logging into applications, claiming that it
takes between 30 seconds and four minutes to log into all
computer programs, regardless of whether PARs do so on or off
the clock. (Def.'s Mem. at 7).
claims that based on NorthShore's policies, she was not
compensated for all the time she worked. And based on her
personal observations and conversations with co-workers,
Barrett asserts that her experience was shared by other PARs.
(Pl's Mem. at Ex. 3 ¶¶ 11-12.) Barrett thus
seeks to certify a class of "[a]ll current and former
Patient Access Representatives employed by NorthShore
University Health System ("Defendant") at any time
from December 19, 2014, through the date of judgment in this
case." (Id. at 1).
FLSA provides that “no 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 of no less than one and
one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). Section 16(b) of
the FLSA allows for a collective action against any employer
“by any one or more employees for and on behalf of
[herself] or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b).
courts have considerable discretion in deciding how such
collective actions proceed. Alvarez v. City of
Chicago, 605 F.3d 445, 449 (7th Cir. 2010) (citing
Hoffman-LaRoche v. Sperling, 493 U.S. 165, 170-72
(1989)). In this District, courts employ a two-step process.
First, at the conditional certification and notice stage,
plaintiffs must show that there are similarly situated
employees who are potential claimants. Russell v. Ill.
Bell. Tel. Co., 575 F.Supp. 2d. 930, 933 (N.D. Ill.
2008). To do this, plaintiffs must 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." Id. Although
this standard is lenient, "a modest factual showing
… cannot be founded solely on the allegations of the
complaint." DeMarco v. Northwestern Mem'l
Healthcare, No. 10 C 397, 2011 U.S. Dist. LEXIS 88651,
at *4 (N.D. Ill. Aug. 10, 2011) (citing Anyere v. Wells
Fargo Co., Inc., No. 09 C 2769, 2010 U.S. Dist. LEXIS
35599, at *2 (N.D. Ill. Apr. 12, 2010) (internal quotations
omitted)). Plaintiffs "must provide an affidavit,
declaration, or other support beyond the allegations in order
to make the minimal showing of other similarly situated
employees." Muir v. Guardian Heating & Cooling
Servs., No. 16 C 9755, 2017 U.S. Dist. LEXIS 35232, at
*5 (N.D. Ill. Mar. 13, 2017) (citing Molina v. Fist Line
Sol'ns LLC, 556 F.Supp.2d 770, 786 (N.D. Ill.
2007)). If the plaintiff makes the requisite modest factual
showing, the court may allow notice of the case to be sent to
the similarly situated employees, who may then opt in as
plaintiffs. Russell, 575 F.Supp.2d at 933.
Importantly, the court does not adjudicate the merits at this
conditional certification stage, and factual disputes are
resolved in favor of the plaintiff. Holmes v. Sid's
Sealants, LLC, No. 16 C 821, 2017 U.S. Dist. LEXIS
194833, at *5 (W.D. Wisc. Nov. 18, 2017). The instant motion
is Barrett's attempt to satisfy the first step in this
second step, "following the completion of the opt-in
process and further 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." Russell, 575
F.Supp.2d at 933. Unlike step one where a lenient standard is
used, "step two requires plaintiffs to overcome a more
stringent evidentiary standard." Smith v.
Safety-Kleen Sys., No. 10 C 6574, 2011 U.S. Dist. LEXIS
40670, at *5 (N.D. Ill. Apr. 14, 2011). If the court
determines that similarities do not exist, it may revoke the
conditional certification. Russell, 575 F.Supp.2d at
Barrett claims that she was not compensated for all the time
she worked, and she seeks to certify a class of "[a]ll
current and former Patient Access Representatives employed by
NorthShore University Health System ("Defendant")
at any time from December 19, 2014, through the date of
judgment in this case." (Pl's Mem. at 1) In addition
to the allegations in her complaint, Barrett relies on her
own declaration in which she describes NorthShore's
policies as well as her observations of, and discussions
with, fellow employees. As discussed above, Barrett asserts
that NorthShore used four discrete policies to collectively
deprive PARs of overtime pay: (1) PARs must be ready to
handle calls at the start of their shifts, (2) to be ready,
PARs must turn on their computers and log into various
programs and applications, (3) time entries are rounded to
the nearest 15-minute increment, and (4) PARs may not clock
in more than seven minutes prior to their scheduled shift
time. (Id. at 3-4.) Barrett further alleges that
these policies were communicated to PARs by NorthShore
managers during employee orientation. (Id. at Ex. 3
raises several objections to conditional certification, but
its assertions can be distilled down to two arguments: 1)
Barrett has not offered additional employee declarations, and
2) Barrett's facts are wrong, and thus she ...