Young v. Cerner Corp.

Decision Date18 January 2007
Docket NumberNo. 06-0321-CV-W-NKL.,06-0321-CV-W-NKL.
PartiesLaurie YOUNG and Amber McMillin, on behalf of themselves and all others similarly situated, Plaintiffs, v. CERNER CORPORATION, Defendant.
CourtU.S. District Court — Western District of Missouri

Alan G. Crone, James J. Webb, Jr., Crone & Mason, PLC, Memphis, TN, Michael F. Brady, Overland Park, KS, Thomas H. Brill, Mission Hills, KS, for Plaintiffs.

Katherine R. Sinatra, Lori Renee Schultz, Shook Hardy & Bacon LLP-Grand, Kansas City, MO, for Defendant.


LAUGHREY, District Judge.

Plaintiffs Laurie Young ("Young") and Amber McMillin ("McMillin") are former employees of Defendant Cerner Corporation ("Cerner"). Cerner considered both to be exempt employees under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., meaning that they were salaried and did not receive overtime pay for working more that 40 hours per week. Plaintiffs bring this putative representative action under the FLSA to recover overtime pay on behalf of all past and present "Staff Associates" treated as exempt by Cerner from April 14, 2003, forward. Pending before the Court, is Plaintiffs' Motion for Conditional Certification of Representative Action [Doc. # 39]. For the reasons set forth below, the. Motion is denied.

I. Factual Background

Cerner is in the healthcare information technology business, providing software to more than 1,500 healthcare organizations ranging from single-doctor practices to entire countries. The company employs approximately 5,700 associates, each of whom works in various sub — and sub-sub-divisions of 17 Center Organization Units such as Intellectual Property (IP) Solution Sales, Client. Operations, IP Knowledge and Discovery, and Functional Operations. More than 1000 Cerner associates hold a management or supervisory position.

Cerner classifies all of its employees in one of seven compensation levels, with Level 7 being the lowest tier. Plaintiff Young worked for Cerner as a Level 6 software engineer from September 2004 to October 2005. She served on a team with approximately 10 other associates. Her duties and responsibilities included writing and configuring computer code. She was expected to define client needs, provide input to functional design and engage in testing and troubleshooting. Young admits that she did not perform her job in a satisfactory manner because she did not have the skills, knowledge or experience necessary to meet the expectations of her position. She also admits that Cerner misunderstood the extent of her knowledge and experience when she was hired. She "felt like [she] had a kindergartner's level of experience ... and was thrown into a college level ...." Young Depo., p. 63:11-18. Young submitted her letter of resignation on September 20, 2005.

Plaintiff McMillin worked for Cerner from November 2003 to July 2004 as a Level 7 business analyst on the Cerner Technologies Operations Team. She was required to research, analyze and make recommendations for process changes and increasing efficiency across Cerner. Her specific job duties and responsibilities were determined in large part by the project on which she was working. For example, she was in charge of creating and launching the Cerner Technologies Virtual Binder, an internal web page used by Cerner Technologies associates. For that project, she interviewed executives and key associates to create the necessary web pages and design the website to meet each Group's needs. She was also the project manager on the Freight Analysis project, the objective of which was to determine a freight calculation that Cerner could charge its clients to ensure that Cerner did not lose or benefit from freight costs, and to examine risks before the project was deployed to eliminate or decrease risk to Cerner. Her recommendations and strategy are still being used by Cerner Technologies today.

When McMillin began working for the company in April 2001 in a different capacity than she worked at times relevant to this law suit, she received a document called "Compass Culture" during orientation which classified Level 7 and Level 6 employees, the lowest two levels, as ."Staff Associates." This document is no longer used by Cerner and has not been in circulation since 2001. Other than its appearance in Compass Culture, neither Plaintiff can recall the term "staff associate" ever being used in any Cerner publication or by any Cerner personnel.

Plaintiffs seek to represent "All present or former employees of Cerner Corporation employed as Staff Associates (Level 7 and Level 6 employees) who worked over 40 hours a week and who were also treated as exempt employees under the FLSA at any time from April 14, 2003, to the present date." Such a class would include over 4,500 current and former exempt Cerner associates who were compensated at Level 6 or 7 from April 2003 to the present. These 4,500-plus associates work in different facilities and countries and hold more than 300 different titles with diverse job duties and responsibilities. Cerner considers all members of the putative class to fall within one or more of the following FLSA exemptions: Executive, Administrative, Professional, Computer Professional, Creative Professional, and Outside Sales. Examples of members of the putative class include Dr. Prajesh Kothawala, M.D., a Medical Research Associate; Kendrick Cummings, a Sales Executive; and Michelle Fisher, Corporate Legal Counsel.

Plaintiffs request expedited court-supervised notice procedures that come with conditional certification to broaden their search for other past and present Cerner employees who may want to opt in.

II. FLSA Certification

Section 7 of the FLSA mandates that an employer may not subject non-exempt employees to a work week in excess of 40 hours unless the employee is compensated for her overtime with additional pay of at least one and one half times her regular hourly wage. 29 U.S.C. § 207. The Act also provides that any employer who violates this restriction "shall be liable to the employee or employees affected in the amount of their ... unpaid overtime compensation ... and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). An action to recover the overtime and liquidated damages may be maintained "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Id.

Although the FLSA permits a kind of collective action, such an action is considerably different than a class action certified under Fed.R.Civ.P. 23. Davis v. NovaStar Mortg., Inc., 408 F.Supp.2d 811, 814-815 (W.D.Mo.2005). In an FLSA collective action, a similarly situated employee does not become a plaintiff (and is not bound by a subsequent judgement) "unless he gives his consent in writing to become such a party" in the court where the action is pending. 29 U.S.C. § 216(b). Thus, FLSA collective actions are "opt-in" rather than "opt-out." Davis, 408 F.Supp.2d at 815.

The Eighth Circuit has not yet adopted a standard for determining whether plaintiffs and the class they wish to represent are "similarly situated" but other courts in the Western District of Missouri have used a two-step approach. See id.; Garner v. Regis Corp., 2004 U.S. Dist. LEXIS 29167, Case No. 03-5037-CV-SW-SWH (W.D.Mo., Aug. 5, 2004)(Order granting plaintiffs' motion for conditional certification of collective action). Reported district court cases in other circuits appear to take a similar approach. See Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987); Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 568 (N.D.Ala.1995). This approach has been used in other circuits with opt-in collective actions under the ADEA. See Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir.2001); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001).

Under this two-step approach, a plaintiff moves for conditional certification for notice purposes early in the litigation, and defendants may move for de-certification at the close of discovery. Davis, 408 F.Supp.2d at 815. 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. (internal quotation omitted). Although the standard is a lenient one, plaintiffs must present more than mere allegations; i.e., some evidence to support the, allegations is required. See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir.1996); Freeman v. Wal-Mart Stores, Inc., 256 F.Supp.2d 941, 944 (W.D.Ark.2003). The burden is on the plaintiffs to demonstrate that they and the potential opt-in plaintiffs are substantially similar. See Grayson, 79 F.3d at 1096. Plaintiffs need show only that their positions are similar, not identical, to the positions of the potential class members. See Hipp, 252 F.3d at 1217.

III. Analysis

Although Plaintiffs are required to present "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan," Davis, 408 F.Supp.2d at 815, they have failed to meet even this lenient standard.

The proposed class includes "All present or former employees of Cerner Corporation employed as Staff Associates (Level 7 and Level 6 employees) who worked over 40 hours a week and who were also treated as exempt employees under the FLSA at any time from April 14, 2003, to the present date." Plaintiffs' basis for including all 4,500 Level 7 and Level 6 employees is a 2001 orientation" document entitled "Compass Culture" that refers to all employees at the two lowest compensation levels as "staff associates." The Document further labels those at compensation Levels 5 and 4 as "Team Leaders", those at Levels 3 and 2 as "Managers" and those at Level 1 as "Directors." It then discusses what is expected from Cerner employees of different compensation...

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