KIRKPATRICK v. CARDINAL ALLY, INC.

Filing 45

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 09/01/2017, that Cardinal's motion to strike (Doc. 14 ) is DENIED. FURTHER that Kirkpatrick's motion for conditional certification (Doc. 26 ) is GRANTED and that notic e is approved to the FLSA collective defined as: All persons who are, have been, or will be employed by Cardinal Innovations Healthcare Solutions as I/DD Care Coordinators within the State of North Carolina at any time within the last three years. FURTHER that insofar as Cardinal has moved to modify the proposed class notice (Doc. 27 -4) and opt-in form (Doc. 27 -5), the motion is DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MOLLY KIRKPATRICK, on Behalf
of Herself and All Others
Similarly Situated,

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)
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)
)
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)

Plaintiff,
v.
CARDINAL INNOVATIONS
HEALTHCARE SOLUTIONS,
Defendant.

1:16CV1088

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is a proposed collective action under the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”).

Before the court

is Plaintiff Molly Kirkpatrick’s motion to conditionally certify
an FLSA collective (Doc. 26) and the motion of Defendant Cardinal
Innovations Healthcare Solutions (“Cardinal”) to strike opt-in
forms she filed before seeking conditional certification (Doc.
14).

For the reasons set forth below, the motion to certify the

collective action will be granted, and the motion to strike will
be denied.
I.

BACKGROUND
Plaintiff

Kirkpatrick

Intellectual/Development

is

Disability

coordinator”) for Defendant

employed
Care

Cardinal.

as

Coordinator

an
(“I/DD

(Doc. 16 at 1, ¶ 1.)

Cardinal classifies its I/DD coordinators as exempt from overtime

pay under the FLSA’s “learned professional” provision.
2, ¶ 2.)

(Id. at 1-

Kirkpatrick brought this collective action alleging that

she and several other I/DD coordinators routinely work over forty
hours per week performing tasks that take them outside the learnedprofessional exemption, without paying them overtime.
¶ 9.)

(Id. at 3,

Alongside her complaint, Kirkpatrick filed opt-in forms

from six similarly situated I/DD coordinators (Doc. 1-2), all of
whom

asked

to

join

the

putative

class

after

“approach[ing]

Plaintiffs’ counsel as a group, and without any solicitation by
counsel, prior to any advertisement being run.”
¶ 3.)
6.)

(Doc. 19-1 at 2,

A seventh employee joined the action at a later date.

(Doc.

Plaintiffs’ counsel has also run advertisements in local

newspapers seeking other plaintiffs (e.g., Doc. 14-2) but stated
in a sworn declaration that the seven employees whose consent forms
have been filed approached counsel without any solicitation and
before any advertisements were run.

(Doc. 19-1 at 2, ¶ 3.)

Apart from their consent forms, Kirkpatrick has also filed
eight almost-identical declarations from herself (Doc. 27-1) and
the seven putative opt-in members (Doc. 27-2).

The employees

declare that they routinely work over forty hours per week without
overtime

compensation,

professional

credentials

that

they

that

lack

would

the
make

academic
them

and

“learned

professionals,” that they routinely perform tasks that do not
require specialized skills or training, and that their positions
2

share the same title, job descriptions, and compensation and
billing procedures.

(See generally Doc. 27-1; Doc. 27-2.)

Kirkpatrick now moves for conditional certification of an
FLSA collective to include all I/DD coordinators who have worked
for Cardinal in the course of the last three years.
is fully briefed and ready for decision.

This motion

Cardinal moves to strike

the consent forms filed by the seven opt-in employees on the basis
that Kirkpatrick has solicited collective members before seeking
conditional certification.
II.

ANALYSIS
A.

Motion to Strike

Pursuant to Federal Rule of Civil Procedure 12(f)(2) and 29
U.S.C. § 216(b), Cardinal moves to strike Kirkpatrick’s consent
form and seven other consent forms she has filed.
also Doc. 14-1.)

(Doc. 14; see

Cardinal’s sole ground for this motion is that

Kirkpatrick filed these consent forms and solicited collective
members – though not those who filed the consent forms Cardinal
seeks to strike - before moving for conditional certification under
29 U.S.C. § 216(b).

(Doc. 14 at 1-2, ¶¶ 1-4.)

It argues that

because the court has a “managerial responsibility” to oversee the
proper joinder of new plaintiffs to an FLSA action (id. at 7
(quoting Solais v. Vesuvio’s II Pizza & Grill, Inc., No. 1:15CV227,
2016 WL 1057038, at *8 (M.D.N.C. Mar. 14, 2016))), Plaintiff’s
counsel cannot try to gather additional plaintiffs before the
3

collective is conditionally certified.

Cardinal further argues

that the proper remedy for a failure to abide by that rule is to
strike from the record those consent forms Plaintiff’s counsel has
already received – notwithstanding the fact that they did not arise
from the allegedly improper solicitations - and to “deny joinder”
of the seven opt-in plaintiffs.

(Id. at 2.)

On its face, Section 216(b) does not authorize motions to
strike opt-in forms that violate its terms.

Chemi v. Champion

Mortg., No. 05-CV-1238, 2006 WL 7353427, at *8 (D.N.J. June 21,
2006) (“[O]n its face, the FLSA is silent regarding the issue
whether consents may be filed before the court addresses and
authorizes notice.”).

Rule 12(f) allows the court to “strike from

a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter,” but Rule 7(a), which lists
which documents are “pleadings” for Rule 12(f)’s purposes, Solais,
2016 WL 1057038, at *2, does not include affidavits, declarations,
or consent forms. Cf. JHRG LLC v. StormWatch, Inc., No. 1:09CV919,
2011 WL 3111971, at *5 (M.D.N.C. July 26, 2011) (“Rule 7 . . .
does not define affidavits and declarations as ‘pleadings.’”)
Nevertheless, the Supreme Court has held that under § 216(b), the
district court has a “managerial responsibly to oversee the joinder
of additional parties” to an FLSA claim.
v. Sperling, 493 U.S. 165, 171 (1989).

4

Hoffmann-La Roche Inc.

Cardinal

cites

three

cases

for

the

proposition

that

“[s]everal courts have explicitly recognized that striking optins . . .

is

an

appropriate

remedy”

when

plaintiff’s

solicits opt-ins before conditional certification.

counsel

(Doc. 22 at 5-

6 (citing Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 580 (7th Cir.
1982); Partlow v. Jewish Orphans’ Home of S. California, Inc., 645
F.2d 757, 759 (9th Cir. 1981), abrogated by Hoffmann-La Roche Inc.,
493 U.S. 165 (1989); Heitmann v. City of Chicago, No. 04C3304,
2004 WL 1718420, at *2 (N.D. Ill. Jul. 30, 2004)).)

None of these

cases is availing.
Woods was decided before Hoffmann-La Roche and addressed
whether a district court has the power to effect notice to an FLSA
class.

686 F.2d at 579.

The court held that it does, as long as

the notice does not emanate from the court itself.1

In doing so,

the court noted that it would not have been proper for plaintiff’s
counsel to solicit opt-in forms without first telling the defendant
of his intent to do so and giving it the opportunity “to verify
the accuracy of the notice and, if he wished, to move for an order
amending the notice or limiting its distribution in an appropriate
manner.”

Id.

at

580.

Here,

Cardinal

does

not

argue

that

Plaintiff’s counsel did not reach out to it – its sole contention

1

Of course, Hoffmann-La Roche obviated that question. 493 U.S. at 171
(holding that the district court has a “managerial responsibly to oversee
the joinder of additional parties” to an FLSA claim).

5

is that the opt-in forms should not have been filed until after
conditional certification was granted.
The court in Heitmann required the plaintiff to amend his
consent forms because he failed to notify the defendant of their
distribution.

2004 WL 1718420, at *2.

But that was because of

the Seventh Circuit’s recognition in Woods that “it is improper
for the plaintiff to issue notice and consent forms ‘without first
communicating to the defendant’s counsel his intention to do so.’”
Heitmann, 2004 WL 1718420, at *2 (quoting Woods, 686 F.2d at 580).
The court noted that the plaintiff’s “ignorance of this requirement
is somewhat understandable” given that it has no express basis in
a statute or rule.

Id.

“Nevertheless,” the court held, “the rule

is more than twenty years old now, and Plaintiff should have
followed it.”
Circuit.

Id.

Even

if

Of course, there is no such rule in the Fourth
there

were,

Cardinal

does

not

claim

that

Plaintiff failed to notify it of the opt-ins, so she has not
violated the Seventh Circuit rule.

See Woods, 686 F.2d at 580

(“Before this suit was filed, Woods had sent invitations to other
members of the class to join with him, and New York Life does not
challenge his right to do this.”).

And even if she had, it does

not necessarily follow from the Seventh Circuit’s rule that the
proper remedy for its violation is to strike offending opt-in
forms.

Even the Heitmann court allowed the plaintiffs to amend

their opt-in forms.

2004 WL 1718420, at *2.
6

The

question

in

Partlow,

under

“very

peculiar

factual

circumstances,” was whether due process concerns arising from the
FLSA’s

opt-in

rules

required

the

district

court

to

notify

plaintiffs who filed FLSA consent forms when they were later
determined to be invalid so those plaintiffs could elect whether
to continue in the lawsuit.

645 F.2d at 759-60.

Partlow was decided before Hoffmann-La Roche.
noted

in

dicta

that

“most

courts

that

have

Like Woods,

The Ninth Circuit
interpreted

the

FLSA . . . have held that neither the named plaintiffs, their
counsel, nor the court have the power to provide notice to FLSA
class members,” 645 F.2d at 759, a statement of law abrogated by
Hoffmann-La Roche.

The court’s statement a few sentences later

that “named plaintiffs’ counsel had no power to solicit the class
members,” id., appears to be a restatement of that now-abrogated
standard.
Partlow

Even if Partlow were good law, the relevant language in
applies

improperly.

only

class

members

who

were

solicited

645 F.2d at 759 (“[U]nder the law of this circuit,

named plaintiffs’
members.

to

The

counsel had no power to solicit the class

district

resulting ‘consents’

court

quite

properly

were ineffective.”

found

that

the

(citation omitted)).

Here, the seven opt-in forms filed alongside the complaint came
from employees who “approached Plaintiffs’ counsel as a group, and
without any solicitation by counsel, prior to any advertisement
being run.”

(Doc. 19-1 at 2, ¶ 3.)
7

Cardinal has identified only two cases in which courts have
struck pre-certification opt-in forms on the ground that they were
filed before conditional certification was granted.

(Doc. 14 at

6 (citing Melendez Cintron v. Hershey Puerto Rico, Inc., 363 F.
Supp. 2d 10, 17 (D.P.R. 2005)); id. at 8-9 (citing Chemi, No. 052006 WL 7353427, at *9).)

The notable distinction between those

cases and the present one is that in them, as in Partlow, the optin

forms

struck

were

obtained

solicitation by the plaintiff.

through

a

pre-certification

Melendez Cintron, 363 F. Supp. 2d

at 11 (stating that the objectionable opt-in forms were obtained
through a “solicitous letter” sent by plaintiff’s counsel);2 Chemi,
2006 WL 7353427, at *8 (“There is no indication that opt-in
plaintiffs became aware of the pending lawsuit except through the
efforts of counsel to publicize it.” (footnote omitted)).3

2

Melendez Cintron does not apply to this case for at least one other
reason. It held that to justify notice to the class, a plaintiff can
make a showing based solely on allegations in the pleadings. 363 F.
Supp. 2d at 16 (“Plaintiffs need simply allege that the putative class
members were, together, the victims of a single decision, policy, and/or
plan that violated the FLSA in order to meet this burden.” (citations
omitted); id. at 15-16 (“This initial ruling is ‘usually based only on
the pleadings and any affidavits that have been submitted’ during the
first stages of the case proceedings.” (citations omitted)).
But
conditional certification determinations are not restricted to
allegations contained in pleadings. E.g., Beasley v. Custom Commc’ns,
Inc., No. 5:15-CV-583-F, 2016 WL 5468255, at *4 (E.D.N.C. Sept. 28, 2016)
(“The court’s determination of whether a plaintiff made the proper
showing is based on ‘substantial allegations’ in the pleadings and any
submitted affidavits or declarations.” (citation omitted)).
3

Chemi applied the Fourth Circuit’s burden-of-production standard but
relied solely on authorities this court has already rejected.
Acknowledging “the lack of statutory guidance as to when consents may
be filed,” the Chemi court cited the same three cases Defendant cites

8

Here, the seven opt-ins filed alongside the complaint came
from employees who “approached Plaintiffs’ counsel as a group, and
without any solicitation by counsel, prior to any advertisement
being run.”

(Doc. 19-1 at 2, ¶ 3.)

Cardinal acknowledges as much

(Doc. 22 at 4 (“Plaintiff notes that this lawsuit was filed on
August 28, 2016, and plaintiff did not begin running advertisements
in local newspaper until on or about September 14, 2016 . . . .”))
but insinuates either that (a) Plaintiff’s counsel was not being
candid in her declaration when she stated that she didn’t solicit
the

opt-in

forms

(id.

(questioning

“how

these

other

opt-in

Plaintiffs learned about the case, how they learned about whom to
contact to opt-in, and what information they were provided”)); or
(b) Plaintiff – and the seven employees who have opted into the
litigation - should be punished merely for counsel’s decision to
run advertisements before conditional certification and that the
proper punishment for those advertisements is to strike otherwisevalid opt-in forms.
In response to Cardinal’s arguments, Kirkpatrick cites a host
of cases in which courts have granted conditional certification to

in its reply brief – Woods, Partlow, and Heitmann – for the proposition
that striking opt-ins before conditional certification is “an
appropriate remedy” when plaintiffs’ counsel “embark in direct
solicitation efforts to obtain consents without the input or
participation of defense counsel or the court.” 2006 WL 7353427, at *8.
As discussed above, those three cases do not apply here and cannot fairly
be said to stand for that proposition. The Chemi court also relied on
Melendez Cintron, which does not apply squarely to this case for the
reasons stated above.

9

pre-certification opt-in plaintiffs.

(Doc. 19 at 6-7.)

See also

Hoffmann-La Roche, 493 U.S. at 169 (declining to overturn the
district court’s decision not to strike pre-certification opt-in
forms).

In none of these cases did a defendant actually move to

strike the resultant opt-in forms.
The court also finds persuasive Kirkpatrick’s argument that
allowing

pre-certification

opt-ins

helps

her,

as

the

named

Plaintiff, achieve the threshold showing that she is “similarly
situated” and notes that some courts rely on opt-in forms to find
that the showing was made (id. at 7-8 (citing Beasley v. Custom
Commc’ns, Inc, No. 5:15-CV-583-F, 2016 WL 5468255, at *3 (E.D.N.C.
Sept. 28, 2016); Long v. CPI Sec. Sys., Inc., 292 F.R.D. 296, 297
(W.D.N.C. 2013))) and that the Eleventh Circuit even requires
district courts to “satisfy [themselves] that there are other
employees . . . who desire to ‘opt-in’ and who are ‘similarly
situated’” (id. at 8; Morgan v. Family Dollar Stores, Inc., 551
F.3d 1233, 1259 (11th Cir. 2008)).

Kirkpatrick also notes that

FLSA opt-in plaintiffs are subject to the statute of limitations
and that the limitations period for FLSA class actions run for
each plaintiff until she opts into the lawsuit.
(citations omitted).)

(Id. at 6

From this, Kirkpatrick urges that it would

not be sensible to prevent plaintiffs from opting in before
conditional certification.
In

conclusion,

there

(Id.)
is

no
10

evidence

that

Kirkpatrick’s

counsel solicited the opt-in forms in question, so striking them
would be tantamount to holding that all pre-certification opt-in
forms per se violate the FLSA.

It would also require the court to

hold that the proper remedy for such a violation is to strike
unsolicited opt-in forms.

There is no basis for either holding in

the FLSA, the Federal Rules of Civil Procedure, or the case law.
It is true that in Hoffmann-La Roche, the Supreme Court read into
§ 216(b) a managerial responsibility that the statute’s express
language does not grant the district courts.

To the extent that

principle has been construed to empower district courts to strike
opt-in

forms

that

plaintiff’s

counsel

solicits

without

court

approval or notice to the defendant, that scenario is not presented
here.
Cardinal’s motion to strike will therefore be denied.
B.

Motion for Conditional Certification

Employees may sue employers for violations of the FLSA as a
class or “collective.”
litigation,

each

29 U.S.C. § 216(b).

“similarly

situated”

written consent with the court.

Id.

To become part of the

employee

must

file

her

Employees are “similarly

situated” when they “raise a similar legal issue as to coverage,
exemption, or nonpayment o[f] minimum wages or overtime arising
from at least a manageably similar factual setting with respect to
their job requirements and pay provisions.”

11

Solais, 2016 WL

1057038, at *5 (quoting McLaurin v. Prestage Foods, Inc., 271
F.R.D. 465, 469 (E.D.N.C. 2010)) (alteration in original).
FLSA class certification takes place in two stages.4

The

first stage – applicable here - is conditional certification,
during which the court determines whether the employees’ claims
are similar enough to merit the distribution of court-approved
notice to possible class members.

Solais, 2016 WL 1057038, at *5;

see also Hoffmann-La Roche, 493 U.S. at 169 (“[D]istrict courts
have discretion, in appropriate cases, to implement [§ 216(b)] by
facilitating
certification

notice
is

to

potential

appropriate

plaintiffs.”).

when

it

would

Conditional

serve

judicial

efficiency, Hoffmann-La Roche, 493 U.S. at 169, and the court must
be mindful that granting conditional certification expands the
scope

of

the

litigation

and

begins

a

process

of

class-wide

discovery, see, e.g., Blaney v. Charlotte-Mecklenburg Hosp. Auth.,
No. 3:10-CV-592-FDW-DSC, 2011 WL 4351631, at *10 (W.D.N.C. Sept.
16, 2011).

The standard for conditional certification is “fairly

lenient,” but it is not a “rubber stamp.”

Adams v. Citicorp Credit

Servs., Inc., 93 F. Supp. 3d 441, 453 (M.D.N.C. 2015) (citation
omitted).

While parties generally “have minimal evidence at this

point

the

in

proceedings, . . .

4

[m]ere

allegations

will

not

The second, not at issue here, is similar to a Rule 23 class
certification. It is at this second stage that a deeper inquiry into
the merits is conducted.

12

suffice; some factual evidence is necessary.”
omitted) (alteration in original).

Id. (citations

That evidence must tend to

show that there exists a “common policy, scheme, or plan” that
violates the FLSA, but it “need not . . . enable the court to
determine

conclusively

whether

a

class

of

similarly

situated

plaintiffs exists, and it need not include evidence that the
company has a formal policy” that violates the FLSA. Id. (citation
omitted).
disputes,

At this stage, “the Court does not resolve factual
decide

substantive

credibility determinations.”

issues

on

the

merits,

or

make

Solais, 2016 WL 1057038, at *6

(quoting Adams, 93 F. Supp. 3d at 454).

“The fact that an employer

classifies all or most of a particular class of employees as exempt
does not eliminate the need to make a factual determination as to
whether class members are actually performing similar duties.”

In

re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 959
(9th Cir. 2009) (citation omitted).
Cardinal opposes conditional certification primarily on two
grounds.

First,

it

argues

that

Kirkpatrick

has

failed

to

“demonstrate the existence of a common unlawful policy necessary
to support a collective action.”

(Doc. 43 at 18.)

Much of

Cardinal’s contention on this issue amounts to a merits argument
that Cardinal’s exemption policy complies with the FLSA.

(See,

e.g., Doc.43 at 18 (“There is nothing unlawful about an employer
not paying overtime compensation to exempt employees.”); id. at 20
13

(“Plaintiff must identify an unlawful policy to which she and the
other putative class members were subjected.”).)

This argument is

misplaced.

not

At

this

stage,

Plaintiff

need

demonstrate

conclusively that the policy is unlawful. Solais, 2016 WL 1057038,
at *6 (stating that the court needn’t “decide substantive issues
on the merits” at the conditional certification stage (quoting
Adams, 93 F. Supp. 3d at 454)).
Cardinal is, of course, correct that “‘mere allegations’ are
not sufficient to make a preliminary factual showing that a
similarly

situated

group

of

potential

plaintiffs

exists.”

Slavinski v. Columbia Ass’n, Inc., No. CIV. CCB-08-890, 2011 WL
2119231, at *2 (D. Md. May 27, 2011) (citing Quinteros v. Sparkle
Cleaning, Inc., 532 F. Supp.2d 762, 771–772 (D. Md. 2008)). Though
Cardinal devotes close to two pages of its brief to establishing
this simple, undisputed proposition, Kirkpatrick adequately meets
this standard.
Citing Slavinski, Cardinal claims that Plaintiff has not
offered any factual support for her contention that the I/DD
coordinators were misclassified.
incorrect.

(Doc. 43 at 20.)

This is

As Cardinal readily admits, Kirkpatrick has submitted

eight declarations from I/DD coordinators in support of the motion.
(Doc. 43 at 20; Doc. 27-1; Doc. 27-2.)
detailed

factual

assertions

about

the

Each declaration contains
mechanics

of

the

I/DD

position and the coordinators’ duties and limitations. (See, e.g.,
14

Doc. 27-2 at 1-4, ¶¶ 3, 5, 6-8, 12, 18.)

Cardinal makes much of

the fact that the forms are similar if not identical, except for
the blanks for years of employment and hours worked per week.
(Doc. 43 at 20.)

It seems to imply that the fact that the

statements are identical should lead the court to doubt their
effectiveness or even truthfulness.

(Doc. 43 at 21 (“These

statements are little more than conclusory allegations that add no
factual

support

to

misclassified.”).)
They

are

not

Plaintiff’s

argument

that

she

was

Declarations are, of course, factual support.

pleadings

or

mere

allegations;

statements and part of the factual record.

they

are

sworn

Cardinal’s attacks on

the declarations are, in the end, challenges to their credibility
and thus are factual matters the court need not resolve now.
Solais, 2016 WL 1057038, at *6 (holding that the court need not
“resolve

factual

disputes . . .

or

make

credibility

determinations” at this stage).
Similarly,

Cardinal

questions

the

truthfulness

of

two

particular declarations, asserting that the academic credentials
of Kirkpatrick and Kelly Soule, another I/DD coordinator, belie
their claims that they “had no advance knowledge in a field of
science or learning requiring specialized instruction that was
necessary to perform [the] job.”
this

line

of

argument,

(Doc. 43 at 21.)

Cardinal

notes

that

In support of

the

position’s

educational requirements are imposed by statute and therefore
15

cannot be “ignored” by an employer such as Cardinal.
22-23.)

(Doc. 43 at

It also points out that Soule purports to have a Masters

in Social Work, which contradicts Kirkpatrick’s claim.

(Doc. 27-

2 at 15.) There does appear to be a fairly wide range of acceptable
educational and experiential requirements for the job position.
(E.g., Doc. 27-3 at 7.)

For example, Kirkpatrick’s primary

education appears to be in criminal justice, with some vocational
rehabilitation evaluation training at Auburn University.
43-1 at 9.)

(Doc.

For now, however, these are factual issues that need

not be decided at this stage.

Solais, 2016 WL 1057038, at *6

(holding that the court need not “resolve factual disputes . . .
or make credibility determinations” at this stage).
The

cases

distinguishable.

Cardinal

cites

for

its

argument

are

For example, in Moore v. PNC Bank, N.A., the

plaintiff was a decided aberration compared to others who worked
in her position.
29, 2013).

No. 2:12-CV-1135, 2013 WL 2338251 (W.D. Pa. May

She alleged that she did not perform the “essential

functions” of her position and instead “spent the overwhelming
majority of her time on nonexempt activities that a platform banker
normally

performs,

namely

customer

receiving overtime compensation.”

service

Id. at *2.

duties,

without

She provided no

supporting declaration of any similarly situated employees, and
there were on the record “sworn statements of current and former
ABMs [the position Moore occupied] . . . filed by [the Defendant]
16

to rebut her claim that ABMs perform non-exempt tasks.”

Id. at

*4. The court rejected Moore’s contention that it should disregard
those declarations.

Id.

Here, while Cardinal has filed its own

declaration describing the job duties in general, there is no
evidence that Kirkpatrick is an aberration.
Second,
exemption

Cardinal

requires

argues

an

that

the

“individualized

learned-professional
inquiry”

into

each

plaintiff’s job responsibilities and qualifications, putting the
exemption “at odds with” class certification.
Cardinal

ignores

the

litany

of

cases

(Doc. 43 at 23-25.)

granting

conditional

certification to classes on theories of the misapplication of the
learned-professional

exemption.

E.g.,

Kress

v.

PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 630 (E.D. Cal. 2009)
(granting conditional certification to a class organized on a
learned-professional
employee’s

claim

theory

will

turn

and
on

noting,
that

“Here,

employee’s

while
job

each

duties,

plaintiffs argue that PwC’s training, PwC’s audit methodology, and
the applicable professional standards together ensure that all
Attest Associate’s job duties are similar in pertinent regards.
This argument is supported by some evidence.”); In re RBC Dain
Rauscher Overtime Litig., 703 F. Supp. 2d 910, 965 (D. Minn. 2010)
(granting conditional certification to a class organized on a
learned-professional

theory

and

noting,

“For

purposes

of

conditional certification of the collective action, the Court
17

finds that ISs and JISs in the Fixed Income Capital Markets Team
are

similarly

situated

responsibilities

and

because

because

they

they

have

have

a

similar
similar

duties
system

and
of

compensation.”); Dillon v. Jackson Home Care Servs., LLC, No.
116CV01300STA-egb, 2017 WL 3446293, at *4 (W.D. Tenn. Aug. 10,
2017) (granting conditional certification to a class organized on
a learned-professional theory and noting, “The Court finds it
unnecessary

to

reach

these

fact-bound

determinations

at

the

conditional certification stage.”); Pippins v. KPMG LLP, No. 11
CIV. 037(CM)(JLC), 2012 WL 19379, at *1 (S.D.N.Y. Jan. 3, 2012)
(granting conditional certification to a class organized on a
learned-professional theory).
Alongside that argument, Cardinal posits that Kirkpatrick is
not similarly situated to her coworkers because she “has failed to
show that all I/DD Care Coordinators exercise the same duties and
responsibilities.”

(Doc. 43 at 25.)

Of course, as discussed

above, Kirkpatrick need not make such a showing at this stage.
Kirkpatrick has offered evidence that I/DD coordinators have the
same job descriptions and titles and work an average of over forty
hours per week without overtime compensation.
27-2.)

(See generally Doc.

There is also ample evidence that all I/DD coordinators

were subject to the same compensation and billing requirements.
(E.g., Doc. 27-2 at 4, ¶ 16.)

18

Cardinal also contends that Kirkpatrick “fails to account
for”

several

including
expertise.

variations

their

among

geographic

different

locations

(Doc. 43 at 26-27.)

and

I/DD

coordinators,

their

skills

and

Notably, Cardinal does admit in

its answer that all its I/DD coordinators are classified as exempt
under the learned-professional exemption (Doc. 23 at 9, ¶ 31) and
that they all have the same job descriptions, with identical
qualifications

and

responsibilities

(Doc.

23

at

7-8,

¶ 24).

Regardless, as with most of Cardinal’s arguments, these “delve[]
too deeply into the merits of” this case, requiring the court to
make

factual

litigation.

determinations

reserved

for

later

stages

of

Essame v. SSC Laurel Operating Co. LLC, 847 F. Supp.

2d 821, 826 (D. Md. 2012); see also De Luna-Guerrero v. N. Carolina
Grower’s Ass’n, Inc., 338 F. Supp. 2d 649, 654 (E.D.N.C. 2004)
(“In FLSA actions, persons who are similarly situated to the
plaintiffs must raise a similar legal issue as to coverage,
exemption, or nonpayment or minimum wages or overtime arising from
at least a manageably similar factual setting with respect to their
job requirements and pay provisions, but their situations need not
be identical.” (citation omitted)); Rehberg v. Flowers Foods,
Inc., No. 3:12CV596, 2013 WL 1190290, at *2 (W.D.N.C. Mar. 22,
2013) (granting conditional certification on the sole bases that
“(1) plaintiffs have the same job duties; and (2) are subject to

19

the same policies and standards determining their compensation and
performance requirements”).
For all these reasons, Kirkpatrick’s motion for conditional
class certification will be granted.
C.

Alterations to Class Notice

Cardinal asks the court to make six changes to Kirkpatrick’s
opt-in form.

“The Court has the power and duty to ensure that the

notice is fair and accurate, but should only alter a plaintiff’s
proposed Notice when such an alteration is necessary.”

Harris v.

Pathways Cmty. Behavioral Healthcare, Inc., No. 10-0789-CV-W-SOW,
2012 WL 1906444, at *3 (W.D. Mo. May 25, 2012) (citation omitted).
First, Cardinal asks the court to include “a statement that
the Court has made no determination on the merits of Plaintiff’s
claims.”

(Doc. 43 at 28.)

The proposed notice already includes

this language, almost verbatim.

(Doc. 27-4 at 1.)

Second, Cardinal asks the court to expand on the proposal’s
statement that “Defendant denies any wrongdoing, asserts certain
affirmative defenses, and denies it owes any overtime pay or
liquidated damages” (Doc. 27-4 at 2) to give a more thorough
overview of Cardinal’s contention on the merits.

(Doc. 43 at 28.)

This is unnecessary to ensure the notice’s fairness and accuracy;
the language in Kirkpatrick’s proposal is in fact broader and
clearer than Cardinal’s modification.

20

Third, Cardinal asks the court to allow class members only
forty-five days, instead of ninety, to join the class.
at 29.)

(Doc. 43

Cardinal’s argument that potential plaintiffs “have

already had well over two hundred days in which to file their
consent” (id.) assumes that potential plaintiffs already know of
the lawsuit.

Cardinal offers no evidence of any potential class

member who knows of the suit and has chosen not to opt in, and
ninety days is no longer than necessary to gather the class.
Fourth, Cardinal argues that the notice should explain that
“opt-ins may be deposed and subject to obligations such as fees
and costs” and that “opt-ins can choose other counsel.”
at 29.)

(Doc. 43

Cardinal does not offer any legal or factual argument in

support of this contention.

Cf. Landress v. Tier One Solar LLC,

No. 1:15CV354, 2017 WL 1066648, at *2 n.7 (M.D.N.C. Mar. 21, 2017)
(noting that where a party fails to develop an issue in its brief,
courts have deemed the issue waived (citing Belk, Inc. v. Meyer
Corp., U.S., 679 F.3d 146, 152 n.4 (4th Cir. 2012))).

It is not

apparent that the first statement about costs and fees is true; in
any event, the court will not require that either statement be
made.
Fifth, Cardinal asks the court to include the names and
contact

information

for

factual or legal support.

Cardinal’s

attorneys,

again

with

no

Even if Cardinal had developed the

point, including this information risks confusing potential class
21

members.

See

Ahle

v.

Veracity

Research

Co.,

No.

CIV.09-

00042ADM/RLE, 2009 WL 3103852, at *6 (D. Minn. Sept. 23, 2009).
Finally, Cardinal asks the court to change the consent form’s
statement that
I . . . consent to be a party plaintiff in an action to
recover unpaid overtime, damages, and attorneys’ fees
to read instead,
I . . . consent to be a party plaintiff in an action
seeking to establish that Cardinal did not properly
classify
I/DD
Care
Coordinators
as
learned
professionals.
I seek to recover potential unpaid
overtime, damages, and attorneys’ fees, and to require
Cardinal to classify my position as non-exempt,
requiring me to provide Cardinal with hourly timecards
for my hours worked.
In support of this addition, Cardinal argues that the existing
language “sounds as if the recovery of unpaid overtime, damages,
and attorneys’ fees has already been determined in Plaintiff’s
favor.”

(Doc. 43 at 29.)

When read in context and alongside the

opt-in notice, which already contains a disclaimer that the court
has not ruled on the merits of Plaintiff’s claims, this concern is
remote.

Furthermore, to a layperson, Cardinal’s language would be

unclear and obfuscating.

The court therefore declines to alter

the language.
III. CONCLUSION
For the reasons noted,
IT IS THEREFORE ORDERED that Cardinal’s motion to strike (Doc.
14) is DENIED.
22

IT

IS

FURTHER

ORDERED

that

Kirkpatrick’s

motion

for

conditional certification (Doc. 26) is GRANTED and that notice is
approved to the FLSA collective defined as:
All persons who are, have been, or will be employed by
Cardinal Innovations Healthcare Solutions as I/DD Care
Coordinators within the State of North Carolina at any
time within the last three years.
IT IS FURTHER ORDERED that insofar as Cardinal has moved to
modify the proposed class notice (Doc. 27-4) and opt-in form (Doc.
27-5), the motion is DENIED.

/s/
Thomas D. Schroeder
United States District Judge
September 1, 2017

23