Virginia Lawyers Weekly VA Lawyers Weekly
Where a medical management nurse showed that that she was similarly situated to other medical management nurses working at the defendant’s location, at a similar employment level and whose primary job duty was conducting medical necessity reviews, a collective action was approved.
Background
Winifred Midkiff seeks to represent a putative collective of medical management nurses who were allegedly denied proper overtime compensation during the past three years while employed by defendants. Now before the court is plaintiff’s motion for court-authorized notice under the Fair Labor Standards Act, or FLSA.
Stay
Defendants first argue that this court should stay proceedings in this matter pending resolution of a present and anticipated motion in suits pending in New York and Tennessee. The court acknowledges the similarities between these lawsuits and does not deny that any opinions provided in those matters could provide insight here.
However, the court finds that staying proceedings in this matter is not warranted. While any decision by our sister district courts could be persuasive, those decisions are not binding on the Eastern District of Virginia. This court believes that delaying the proceedings at hand is unnecessary and may harm some potential plaintiffs’ ability to bring their claims.
Standard
Defendants next argue that the court should reject the “‘lenient’ two-stage process” advocated by the plaintiff. Instead, defendants argue the court should adopt the more rigorous standard of Swales v. KLLM Transp. Serv., LLC, 985 F.3d 430 (5th Cir. 2021). This court does not find defendants’ suggestion persuasive.
To start, the Fifth Circuit’s decision is not binding on this court. Notwithstanding, this court does not find Swales persuasive enough to depart from Fourth Circuit district courts’ longstanding practice of using the two-step process for granting conditional certification and court-authorized notice.
Similarly situated
Defendants next argue that plaintiff has failed to satisfy her burden of establishing that she and the opt-in plaintiffs are similarly situated. Defendants note that three of the four declarants in this case, including plaintiff, do not “speak to the period of time during which the putative collective members worked for Anthem.”
Although the court acknowledges that plaintiff and some of the declarants did not work at Anthem within the last three years or always at the same time as each other, there is no authority to indicate that the differing work periods preclude plaintiff from representing the suggested class. The declarations still speak to similar job duties, requirements, trainings and a common policy in effect throughout those time periods.
Defendants next assert that the declarations do not satisfy plaintiff’s burden for certification because “they are so boilerplate that they reveal essentially nothing about each declarant’s day-to-day duties.” Plaintiff seeks to show she is similarly situated to other medical management nurses working at Anthem, in Virginia, at a similar employment level and whose primary job duty was conducting medical necessity reviews.
Plaintiff and the declarants do not attempt to show that they are similarly situated to every single employee who conducted a medical necessity review for Anthem in the last three years across the country. Rather, plaintiff and the declarants provided sufficient detail in their declarations to meet the “modest factual showing” that plaintiff must make in showing they are similarly situated to the putative collective they seek to represent in Virginia.
Defendants also argue that plaintiff has not met her burden because the declarations are not based on personal knowledge. Although it is true that the declarations must be based on personal knowledge, this does not require that the declarants personally observe everything within their declarations for the requirement to be met. Here, plaintiff and declarants have adequately established that their accounts are based on their personal knowledge.
Defendants next assert that their evidence “reveals dissimilarities among putative collective members,” showing that the proposed collective is not similarly situated. Plaintiff’s proposed collective by its language, however, would not include those roles within the nurse medical management family that do not carry the primary responsibility for performing medical necessity reviews. Finally defendants assert that plaintiff fails to adduce evidence of a common unlawful policy. But, at this stage, plaintiff is not required to prove that defendants’ exempt classification is unlawful.
The court agrees with defendants, however, that plaintiff’s proposed collective is more expansive than their factual support shows. Plaintiff has not established enough factual evidence to include “Nurse Reviewers,” “Nurse Reviewer Associates” or generally those in similar job titles who had the primary responsibility of conducting medical necessity reviews.
Notice
The court will allow plaintiff to send notice to the proposed collective via mail and email but will not allow a reminder notice to be sent before the notice period ends. As to the substance of the notice, counsel for the parties are to confer and file a mutually acceptable notice, or in the alternative separate proposals for the notice, with support for their differing positions, for the court’s consideration within 21 days of the entry of the accompanying order.
Plaintiff’s motion for court-authorized notice under the FLSA granted in part, denied in part.
Midkiff v. The Anthem Companies Inc., Case No. 3:22-cv-417, Nov. 10, 2022. EDVA at Richmond (Hudson). VLW 022-3-508. 17 pp.
