Ahad v. Southern Illinois School of Medicine et al
Filing
53
OPINION AND ORDER: (1) The Court conditionally certifies a collective action by Plaintiff and similarly situated members of the class pursuant to 29 U.S.C. § 216(b), defined as: All current and former female faculty physicians at SIU School of M edicine and SIU Physicians & Surgeons, Inc., also known as SIU Healthcare, within three years of September 28, 2017. (2) The Court APPROVES Plaintiffs counsel as class counsel for the collective action; (3) The Court APPROVES Plaintiff Sajida Ahad, M .D. as the named plaintiff for purposes of this collective action under 29 U.S.C. § 216(b); (4) The Court APPROVES Plaintiffs Proposed Notice of Pending Lawsuit (d/e 32-1); (5) The Court AUTHORIZES Plaintiff to send the approved notice to the class as defined above. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 9/28/2017. (ME, ilcd)
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E-FILED
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Friday, 29 September, 2017 12:22:14 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SAJIDA AHAD, MD, on
behalf of herself and all
others similarly situated,
Plaintiff,
v.
BOARD OF TRUSTEES OF
SOUTHERN ILLINOIS
UNIVERSITY and SIU
PHYSICIANS & SURGEONS,
INC.,
Defendants.
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No. 3:15-cv-03308
OPINION AND ORDER
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Plaintiff Dr. Sajida Ahad’s Motion for
Conditional Collective Action Certification and Judicial Notice (d/e
32). For the reasons stated herein, Plaintiff’s motion is GRANTED.
I. BACKGROUND
Plaintiff brings this action under the Equal Pay Act (EPA), 29
U.S.C. § 206(d), part of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq. The EPA prohibits sex-based wage
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discrimination between employees who perform jobs that require
substantially equal skill, effort, and responsibility under similar
working conditions. The EPA permits employees to bring a
collective action on behalf of themselves and others who are
similarly situated against employers who allegedly violate the EPA.
29 U.S.C. § 206(d).
Plaintiff seeks conditional certification of a collective action by
female faculty physician employees of Defendants: the SIU School of
Medicine (governed by the SIU Board of Trustees) and SIU
Physicians & Surgeons, Inc. Plaintiff also requests the Court’s
authorization of her proposed notice to the class. Finally, Plaintiff
requests that the Court approve her as the named plaintiff for the
collective action and approve her counsel to be the counsel for the
collective action.
Plaintiff asserts that Defendants systematically paid her and
other female physicians less than male physicians with similar
experience, responsibility, and seniority. Plaintiff has also asserted
individual claims under the Illinois Equal Pay Act, Title VII of the
Civil Rights Act of 1964, and the Illinois Civil Rights Act.
II. LEGAL STANDARD
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Pursuant to section 16(b) of the FLSA, a plaintiff may bring a
collective action on behalf of themselves “and other employees
similarly situated.” 29 U.S.C. § 216(b). A prospective member of
the collective action may “opt-in” by filing a written consent form in
the court where the action is brought; a person who does not opt-in
is not part of the FLSA collective action and is not bound by the
court’s decision. Gambo v. Lucent Techs., Inc., No. 05 C 3701,
2005 WL 3542485, at *3 (N.D. Ill. Dec. 22, 2005).
The FLSA does not detail the process a court should employ to
determine whether potential class members are “similarly situated.”
See Smallwood v. Illinois Bell Co., 710 F. Supp. 2d 746, 750 (N.D.
Ill. 2010), citing Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165,
170–174 (1989). Nor has the Seventh Circuit done so. Id. A
majority of courts, including courts in this District, have adopted a
two-step method to determine whether a plaintiff is “similarly
situated” to putative class members. See, e.g., North v. Bd. of Trs.
of Ill. State Univ., 676 F. Supp. 2d 690, 694 (C.D. Ill. 2009); Jirak v.
Abbott Laboratories, Inc., 566 F. Supp. 2d 845, 847 (N.D. Ill. 2008)
(collecting cases).
At Step 1, the court decides if a class should be “conditionally”
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certified. See Russell v. Ill. Bell Co., 575 F. Supp. 2d 930, 933 (N.D.
Ill. 2008). Accordingly, 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.” Bitner v. Wyndham Vacation Resorts, Inc., 301 F.R.D. 354,
357 (W.D. Wis. 2014) (internal citations and quotation marks
omitted). The plaintiff’s burden at Step 1 is minimal; the standard
is “fairly lenient” and does not involve “adjudicating the merits of
the claims, nor the kind of rigorous analysis typical of class
certification under Fed. R. Civ. P. 23.” Berndt v. Cleary Bldg. Corp.,
No. 11-cv-791, 2013 WL 3287599, at *7 (W.D. Wis. Jan. 25, 2013).
“The ‘modest factual showing’ cannot be satisfied simply by
‘unsupported assertions,’ but it should remain a low standard of
proof because the purpose of this first stage is merely to determine
whether ‘similarly situated’ plaintiffs do in fact exist.” Myers v.
Hertz Corp., 624 F.3d 537, 555 (2nd Cir. 2010) (citations omitted).
Plaintiff must supply “some evidence, beyond pure speculation, of a
factual nexus between the manner in which the employer’s alleged
policy affected her and the manner in which it affected other
employees.” Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 n.4
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(3d Cir. 2012) (internal quotation marks omitted); see also Molina v.
First Line Solutions LLC, 566 F. Supp. 2d 770, 786 (N.D. Ill. 2007)
(“Unless defendant admits in its answer or briefs that other
similarly situated employees exist, plaintiffs cannot rely on their
allegations alone to make the required modest factual showing.”).
The plaintiff need not supply “conclusive” support on the question,
but rather need only supply “an affidavit, declaration or other
support beyond allegations in order to make a minimal showing of
other similarly situated [individuals] subjected to a common policy.”
Nehmelman v. Penn National Gaming, Inc., 822 F. Supp. 2d 745,
751 (N.D. Ill. 2011).
This evidence must demonstrate a “factual nexus that binds
the plaintiffs together as victims of a particular violation of the”
FLSA, although “a unified policy, plan, or scheme . . . is not
necessarily required to satisfy the similarly situated requirement,
especially if a collective action would promote judicial economy
because there is otherwise an identifiable factual or legal nexus.”
Woods v. Club Cabaret, Inc., 140 F. Supp. 3d 775, 780 (C.D. Ill.
2015).
If the court concludes that the plaintiff has met her burden at
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Step 1, the court certifies the conditional class and may order that
appropriate notice be provided to potential class members. See id.
at 781.
Step 2 occurs after the conclusion of discovery and the opt-in
process is complete. At this step, the court’s inquiry is more
“stringent” than during Step 1. With the benefit of discovery, the
court examines three factors: “1) whether the plaintiffs share
similar or disparate employment settings; 2) whether affirmative
defenses raised by the defendant would have to be individually
applied to each plaintiff; and 3) any fairness and procedural
concerns.” Id. Also at Step 2, the court may revisit the “similarly
situated determination” and make a final ruling on the certification.
North, 676 F. Supp. 2d at 695.
At this stage in the litigation, then, plaintiff’s motion requires
analysis only under the first step of the two-step method.
III. ANALYSIS
A. Plaintiff has made a sufficient factual showing that she is
similarly situated to proposed collective action members who are
affected by a process that potentially violates the EPA.
Instead of the lenient standard described in the preceding
section, Defendants ask the Court to deny certification under a
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stricter standard. Defendants seek to apply what is known as the
intermediate standard because a substantial amount of discovery
has taken place. Under the intermediate approach, the lenient
standard of Step 1 is somewhat more stringent to require the
plaintiff to present evidence that potential plaintiffs are similarly
situated both in being subject to an unlawful compensation plan
and in their job duties and circumstances. Kurgan v. Chiro One
Wellness Centers LLC, No. 10-cv-1899, 2014 WL 642092, at *3
(N.D. Ill. Feb. 19, 2014).
Most courts do not apply the intermediate standard where, as
here, discovery on the merits of the case remains pending or where
the opt-in process and discovery from the class members are not
complete. See Babych v. Psychiatric Solutions, Inc., No. 09-c-8000,
2011 WL 5507374, at *3 (N.D. Ill. Nov. 9, 2011) (“Courts refuse to
skip the first step of the conditional certification inquiry where the
parties’ agreed schedule indicates that there will be two stages of
discovery.”); Brown v. Club Assist Rd. Serv. U.S., Inc., 2013 WL
5304100, at *12 (N.D. Ill. Sept. 19, 2013) (“[I]t is not until the
conclusion of the opt-in process and class discovery ‘that the court
more rigorously reviews whether the representative plaintiff and the
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putative claimants are in fact similarly situated so that the lawsuit
may proceed as a collective action.’”). After all, the Court is
“assessing whether the plaintiffs who have opted in are in fact
‘similarly situated’ to the named plaintiffs.” Id.; Sylvester v.
Wintrust Fin. Corp., 2013 WL 5433593, at *3 (N.D. Ill. Sept. 30,
2013).
Despite the limited applicability of the intermediate approach
during Step 1, Defendants seek to apply a standard even more
stringent than the intermediate standard applied by most courts.
Defendant advocates for the application of the three Step 2 factors
at this stage of the proceedings. See Bunyan v. Spectrum Brands,
Inc., No. 07-cv-0089, 2008 WL 2959932, at *8 (S.D. Ill. July 31,
2008).
The Court finds that application of the Step 2 factors during
Step 1 is inappropriate, even when the intermediate approach is
appropriate. While the “lenient standard occasionally is heightened
if plaintiffs have been allowed extensive discovery, an intermediate
standard—not the decertification standard requested by [the
defendant]—applies.” Kurgan, 2014 WL 642092, at *3. The
intermediate standard, while more stringent than the lenient firstPage 8 of 21
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step standard, is less rigorous than the second-step decertification
standard. “Both sides’ evidentiary submissions will be considered
in determining whether there is a group of similarly situated
employees who may be discovered by sending out an opt-in notice.”
Bergman v. Kindred Healthcare, Inc., 949 F. Supp. 2d 852, 856
(N.D. Ill. 2013). But in “evaluating each side’s submissions, it must
be kept in mind that, despite the discovery that has been allowed,
defendants still have greater access to evidence than plaintiffs and
plaintiffs’ modest showing need not be conclusive.” Id. Even if a
stricter standard is applied, Plaintiffs need only “make a modest
‘plus’ factual showing that there is a group of potentially similarly
situated plaintiffs that may be discovered by sending opt-in
notices.” Kurgan, 2014 WL 642092, at *3.
The Court need not resolve the parties’ dispute as to the
appropriate standard to apply at this step because Plaintiff has
made the minimal “modest factual showing” and she has made a
“modest plus” showing identifying potentially similarly-situated
plaintiffs who may be discovered by sending opt-in notices.
Plaintiff’s Summary and Analysis of Voluminous Evidence (d/e 338) (hereinafter Data Analysis Summary) identifies instances of pay
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discrepancies between male and female physician faculty employees
within departments. Plaintiff asserts that the pay differentials are
the result of a discriminatory scheme effectuated through uniform
processes including Defendants’ Compensation Plan and unofficial
policies described by Defendants’ representatives’ deposition
statements. (d/e 32-1, 32-5, 32-7).
B. Plaintiff has established that she and potential class members
are similarly situated.
Defendants argue that Plaintiff cannot show that she is
similarly situated to other female physician faculty employees
because each department and each division within each department
involves different duties and procedures. Defendants argue that
Plaintiff does not share similar employment settings with potential
claimants.
Defendants’ assertions are premature. Whether the potential
plaintiffs share similar employment settings is more properly
considered during Step 2, when the Court considers whether to
certify the class or to decertify the conditional class. Wellens v.
Daiichi Sankyo, Inc., No. 13-cv-581, 2014 WL 2126877, at *5 (N.D.
Cal. May 22, 2014). At Step 1, it is sufficient that Plaintiff has
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shown “some factual nexus [that] connects her to other potential
plaintiffs as victims of an unlawful practice.” Berndt, 2013 WL
3287599, at *6.
At Step 1, the factual similarity among the potential plaintiffs
need not relate to job duties or circumstances. Molina, 566 F.
Supp. 2d at 786 (“The other employees need not be in the same
identical job or situation.”). Plaintiff has set forth Defendants’
Member Practice Agreement (d/e 32-2), which she asserts is signed
by all physicians and which requires that they perform the same job
duties involving patient, teaching, and administrative functions.
For example, the nature of work for all surgeons includes—in
addition to their surgical work—teaching, research, service
components. U.S. Dep’t of Labor Decision and Order (Apr. 13,
2016) (d/e 45-1) at 6. Plaintiff has established a sufficient basis to
establish that female faculty physicians are similarly situated to
Plaintiff for Step 1. Whether it is fair to compare the salaries of
women and men who are in different departments or subdivisions—
when Plaintiff has provided evidence that the job descriptions for
the three tiers of physicians are the same—is a question to be
resolved at the second step of the certification process.
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C. Plaintiff’s alleged common policy potentially violates the EPA.
Plaintiff alleges that physician faculty employees are subjected
to common processes and policies regarding minimum
qualifications and compensation decisions. Plaintiff asserts that
there is a single process by which compensation of new hires is
determined and compensation is annually reassessed. All
physician faculty employees are compensated pursuant to the
Compensation Plan. Master Agreement (d/e 33 ex. 3); Cox Dep. 8687 (d/e 33 ex. 1). Plaintiff claims that newly hired physicians’
salaries are recommended to and reviewed by SIU Healthcare, the
Dean and Provost of SIU School of Medicine, and the Office of
Management and Budget. Existing employee faculty physician
compensation is adjusted annually by a small, centralized group of
decisionmakers called the Compensation Committee. The
compensation adjustment is then reviewed and approved by the
Dean of SIU School of Medicine and the CEO of SIU Healthcare,
who are currently the same individual.
Plaintiff further asserts that the only job titles for physician
faculty employees are Professor, Associate Professor, and Assistant
Professor. Defendants’ Faculty Guidelines (d/e 33 ex. 4) set forth
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the minimum qualifications for each rank, which are the same
across departments. Upon hiring, all physician faculty employees
are presented with the same agreement—the Member Practice
Agreement—which sets forth duties and compensation. (d/e 33 ex.
2). All physician faculty employees also execute an Annual
Compensation Agreement. Plaintiff asserts that the terms of these
agreements establish near uniformity as to key aspects of
administration of the Compensation Plan.
Defendants contend that the Compensation Plan cannot be
the unlawful policy that ties together the purported class because
the plan is gender-neutral and is not facially illegal or
discriminatory. Defendant’s interpretation of the relevant common
policy is much narrower than Plaintiff’s. Plaintiff asserts that the
applicable common policy includes both the Compensation Plan
and an unofficial policy of Defendants—allegedly effectuated by the
Compensation Committee, the Dean/CEO, and the Office of
Management and Budget—to unfairly compensate women. Plaintiff
supports her allegation of an unofficial discriminatory process with
a description of the process of compensation determinations,
including the involved players and the layers of review, supported
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by Defendants’ agreements, policies, and deposition statements.
This showing is sufficient to demonstrate the existence or impact of
the alleged unofficial policy at Step 1.
D. Plaintiff has set forth a sufficient evidentiary basis to establish a
potentially discriminatory practice.
In her Data Analysis Summary, Plaintiff asserts that for the
years from 2007 to 2016, the average total compensation of female
Associate Professors and Assistant Professors was over $62,000 less
each year than that of their male counterparts and the average total
compensation of Professors was approximately $45,000 less than
that of male Professors. Plaintiff further alleges that in every year
from 2012 to 2016, in every department with a female physician, at
least one female in every rank was paid less than a male in a
corresponding rank in that department. Plaintiff sets forth various
additional statistics that she argues support her contention that
Defendants discriminated by gender in compensation.
Defendants argue that the pay discrepancies exhibited by
Plaintiff’s Data Analysis Summary can be accounted for by nondiscriminatory, gender-neutral explanations. Defendants’ Response
to Plaintiff’s Motion for Conditional Collective Action Certification
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and Judicial Notice (d/e 41) (hereinafter Response) at 20.
Defendants state that discrepancies among physician compensation
amounts result not from a unified, discriminatory process, but are
based on individualized factors taking into account the physicians’
experience and seniority, the relevant market comps, the
department/division’s typical procedures, etc. Response at 9.
Gender-neutral factors such as pooling agreements, call schedules,
clinical productivity, administrative appointments, procedure type,
clinical practice arrangement, and success of individual programs
all affect physician compensation.
Defendants contend that this Court should not conditionally
certify the collective action because the nature of each physician’s
work and the individualized factors contributing to compensation
require an individualized inquiry into each plaintiff’s compensation
to determine whether discrimination was involved. Defendants
argue that the “case-by-case” analysis this case requires obviates a
class and obliterates any judicial efficiency. Defendants further
argue that because Plaintiff has not shown disparate pay due to
gender rather than because of gender-neutral factors, Plaintiff has
not shown that potential plaintiffs are similarly situated as to a
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common unlawful policy or plan. Response at 7.
The issue Defendants raise as to the need for individualized
inquiries is more appropriately addressed at the second step of
FLSA certification. See, e.g., Gilbert v. Citigroup, Inc., No. C–08–
0385 SC, 2009 U.S. Dist. LEXIS 18981, at *10 (N.D. Cal. Feb. 18,
2009) (“Defendants’ concern about individualized inquiries does not
require the Court to deny conditional certification . . . . Under the
two-stage certification procedure, Defendants can present this
evidence and make these arguments as part of a motion to decertify
the class once discovery is complete.”).
Further, Plaintiff need not prove at this stage in the
proceedings that pay discrepancies between men and women are
due to discriminatory practices. The Court does not assess the
merits of the plaintiff’s claim when determining whether to certify
the collection action. Nehmelman, 822 F. Supp. 2d at 751. It is
enough at Step 1 that Plaintiff has shown that there is a reasonable
basis to conclude that there are similarly-situated class members
affected by a common policy that potentially violates the EPA. See
Campeau v. NeuroScience, Inc., 86 F. Supp. 3d 912, 918 (W.D. Wis.
2015). Nonetheless, the Court notes that whether or not
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compensation is affected by individualized, gender-neutral factors,
such circumstances do not preclude the possibility that
compensation is also affected by gender discrimination. Accepting
that a physician’s compensation is based on the variety of factors
listed by Defendants, such circumstances do not preclude the
possibility that female physicians are systematically paid less than
their male counterparts even after the gender-neutral factors are
considered. While the existence of the individual factors may
hinder Plaintiff’s ability to prove her EPA claim, the merits of
Plaintiff’s case are not at issue at Step 1 of conditional certification
of collective action.
Defendants also refute Plaintiff’s claims by asserting that
several female physicians earned more than men. However, that in
some years some subset of the potential plaintiffs may have earned
more than certain comparator men would not undermine evidence
that in other years, or portions of years, they have been paid less.
Cf. Garner v. G.D. Searle Pharmaceuticals & Co., 802 F. Supp. 418,
423 (M.D. Ala. 1991) (“In a representative suit under the EPA,
however, plaintiffs are not required to establish that the entire class
of females has been victimized.”).
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E. Plaintiff’s Data Analysis Summary is proper at Step 1.
Defendants argue that Plaintiff may not rely on her Data
Analysis Summary to support her motion for conditional
certification because the summary is inadmissible because it is not
supported by expert testimony as to methodology in violation of
Fed. R. Evid. 702. Response at 17.
District courts within the Seventh Circuit are divided on the
question of whether declarations in support of a motion for
conditional certification must comply with the Federal Rules of
Evidence. See Adair v. Wis. Bell, Inc., No. 08–cv–280, 2008 WL
4224360, at *8 (E.D. Wis. Sept. 11, 2008) (collecting cases). Several
courts have held that at Step 1, the plaintiff must set forth
“admissible evidence that the potential class members are
sufficiently similar to believe a collective action will facilitate
efficient resolution of a legal dispute involving claims which share
common questions and common answers.” Berndt, 2013 WL
3287599, at *7. Defendants also attack counsel’s methodology in
analyzing the data. Response at 18-19. Defendants assert that
Plaintiff included and excluded certain data from the analysis and
that she applied inconsistent time periods and other parameters to
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different data sets to support her position.
Given that the Court considers the Data Analysis Summary at
this stage in the proceedings only for the purpose of completing
Step 1 of the conditional certification determination, the Court will
afford Plaintiff some leeway with her statements about the
compensation of other employees. Therefore, at this point in the
proceeding, the Court will allow Plaintiff to support her motion for
conditional certification with laymen calculations, since Plaintiff has
provided some basis for that analysis—namely, that the supporting
data is entirely from Defendants’ production to Plaintiff. Evidence
adduced in support of Step 2 of the certification process, however,
must fully comply with the rules of evidence. See Campeau, 86 F.
Supp. 3d at 918.
F. The absence of interest to opt-in by potential class members
does not indicate that conditional certification is improper.
Defendants argue that conditional certification is improper
because Plaintiff has failed to demonstrate that other employees
desire to opt-in to this case. While courts in the Fifth and Eleventh
Circuits have required that, before a case can proceed as an FLSA
collective action, a plaintiff must come forward with evidence that
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there are other employees who desire to opt-in, see e.g., Dybach v.
Florida Dept. of Corrections, 942 F.2d 1562 (11th Cir. 1991);
Barten v. KTK & Assocs., Inc., 2007 WL 2176203, at *7 (M.D. Fla.
July 24, 2007), a number of courts have held that such a
requirement is in conflict with the Act’s broad remedial goal. See,
e.g., Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 780. Such
a rule would also interfere with the notification process that allows
the Court to supervise the issuance of a straightforward and
accurate notice because it would essentially force plaintiffs to
informally notify and solicit potential claimants. For practicality
and remedial reasons, this Court rejects Defendants’ implication
that Plaintiff has fallen short of her burden because there is no
evidence at this stage that there are other employees who desire to
opt-in.
IV. CONCLUSION
As detailed above, Plaintiff has set forth the requisite factual
showing that she and other similarly situated female employees
were subjected to a common policy and plan involving
discriminatory compensation practices by Defendants in violation of
the EPA. Conditional certification of a collective action is
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appropriate. The Court GRANTS Plaintiff’s Motion for Conditional
Collective Action Certification and Judicial Notice (d/e 32).
Defendants will have an opportunity to seek decertification of the
class at the conclusion of discovery.
It is therefore ORDERED as follows:
(1) The Court conditionally certifies a collective action by
Plaintiff and similarly situated members of the class pursuant to 29
U.S.C. § 216(b), defined as:
All current and former female faculty physicians at
SIU School of Medicine and SIU Physicians &
Surgeons, Inc., also known as SIU Healthcare,
within three years of September 28, 2017.
(2) The Court APPROVES Plaintiff’s counsel as class
counsel for the collective action;
(3) The Court APPROVES Plaintiff Sajida Ahad, M.D. as
the named plaintiff for purposes of this collective action under
29 U.S.C. § 216(b);
(4) The Court APPROVES Plaintiff’s Proposed Notice of
Pending Lawsuit (d/e 32-1);
(5) The Court AUTHORIZES Plaintiff to send the
approved notice to the class as defined above.
ENTERED: September 28, 2017
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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