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Bertroche v. Mercy Physican Associates, Inc.

United States District Court, N.D. Iowa, Cedar Rapids Division

August 29, 2018



          C.J. Williams, Chief United States Magistrate Judge

         This matter is before the Court on Sharon Bertroche, M.D.'s ("plaintiff") Motion for Conditional Class[1] Certification and Court Authorized Notice. (Doc. 14). Mercy Physician Associates timely resisted the motion. (Doc. 27). The Court heard argument on the motion on July 31, 2018. The Court ordered the parties to submit certain data to the Court and granted leave for the parties to file supplemental briefing. (See Doc. 33). Both plaintiff and defendant submitted supplemental briefs, as well as the required data. (Docs. 34-37). For the following reasons, the Court grants in part and reserves ruling in part on plaintiff's motion.

         I. BACKGROUND

         Plaintiff is a female medical doctor who previously practiced medicine at Mercy Physician Associates ("defendant"). Plaintiff filed this action in state court in November 2016, alleging, inter alia, that defendant owed plaintiff $43, 149.00 as compensation for work plaintiff performed for defendant. (Doc. 4, at 2-3). On April 27, 2018, plaintiff amended her state court petition to add a claim under the federal Equal Pay Act. (Doc. 6, at 4-5). On May 24, 2018, defendant timely removed this action to federal court. (Doc. 1).

         The parties appear to have engaged in substantial discovery regarding the state law claims during the pendency of the state court proceeding. (Docs. 14, at 3; 27, at 3). In discovery, defendant produced documents including income statements for the income paid to physicians other than plaintiff who were employed by defendant. (Doc. 27, at 3). Plaintiff alleges that these income statements, although difficult for plaintiff to interpret, show "systemic and substantial compensation differences between similarly-situated [sic] male and female physicians employed by [d]efendant." (Docs. 14, at 3; 14-1, at 3-4). This alleged gender-based pay gap led plaintiff to bring her claim under the Equal Pay Act and, now, to seek conditional certification of the class of female physicians who were employed by defendant during a set time period so that she may "notify other potential plaintiffs that they may have an Equal Pay Act claim against [defendant] and enable them to 'opt in' to this case." (Doc. 14-1, at 4).


         The Equal Pay Act, 29 U.S.C. § 206, is one of many provisions contained within the Fair Labor Standards Act, 29 U.S.C. 201, et. seq. ("FLSA"). Under the Equal Pay Act, an employer may not discriminate against employees "on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility . . .." 29 U.S.C. § 206(d)(1). An action to recover damages under the Equal Pay Act "may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No. employee shall be a party plaintiff . . . unless he gives his consent in writing . . .." 29 U.S.C. § 216(b). Thus, class members must opt in to be considered parties to a collective action under the FLSA. Bouaphakeo, 564 F.Supp.2d at 890 (citing Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975)).

         Under the FLSA, "[t]he sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). Thus, the FLSA authorizes district courts to facilitate providing notice to potential plaintiffs "in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure." Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169-70 (1989). In authorizing notice to potential plaintiffs, the Court must take care to prevent "unwarranted solicitation" of potential plaintiffs. Bouaphakeo, 564 F.Supp.2d at 890 (citation and internal quotation marks omitted).

         This Court has previously followed a two-step approach to determine whether it is appropriate to certify a collective action under the Equal Pay Act. At the first step, a plaintiff "need merely provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist." Id., at 892 (citation and internal quotation marks omitted). This standard is "more lenient," and does not require a showing that the potential plaintiffs are actually similarly situated to the plaintiff. Id. However, allegations alone are insufficient for a plaintiff to meet his or her burden. Id. Supporting evidence must be provided and, further, the evidence should show that other potential plaintiffs desire to opt in to the lawsuit. Id. This Court has summarized that "conditional certification in the first step requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Id. (citations and internal quotation marks omitted).

         At the second stage of the two-step inquiry, the plaintiff seeking certification must show that he or she is "similarly situated with respect to [his or her] job requirements and pay provisions." Id. (citation and internal quotation marks omitted). This showing, however, is not required, in every case, to be made at the conditional certification stage. Rather, "[t]his showing is usually required after a collective action has been conditionally certified and upon the defendant's motion to decertify, or after the close of discovery, or at least where discovery is largely complete and the matter is ready for trial." Id. (internal citations and quotation marks omitted). Plaintiff's burden at the second stage is heavier than at the first stage. Id. The Court has emphasized in the past, and emphasizes again, that "the level of proof required at each stage in the FLSA collective action certification process is largely dependent upon the amount of information before the court." Id., at 893.


         A. Conditional Certification

         The Court will first note that although the parties engaged in substantial discovery while this action was pending in state court, that discovery largely related to only the state law claims. Plaintiff advised the Court that the parties have engaged in little to no discovery with respect to the Equal Pay Act claim, aside from the single document that led to plaintiff bringing the Equal Pay Act claim. Thus, plaintiff has little information upon which to base her argument in favor of conditional certification, and the Court, likewise, has little information to turn to in determining whether conditional certification is appropriate. As a result, the level of proof plaintiff must bring in support of her argument for conditional certification is lesser than if the parties had engaged in the full breadth of discovery with respect to the Equal Pay Act claim. See id.

         Turning now to the merits of plaintiff's motion, the Court finds it appropriate to address only the first step of the two-step inquiry at this stage of the litigation. Thus, the Court must determine whether plaintiff has offered supporting evidence and made "substantial allegations" that other potential plaintiffs exist who, together with plaintiff, were victims of the same decision, policy, or plan. Id. Plaintiff has satisfied her burden of showing that at least one other potential plaintiff exists who would be interested in joining the lawsuit. (See Doc. 32).[2] ...

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