govinfo:USCOURTS-moed-4_21-cv-00834-1

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
 
DANIELLE PECK,  
 
  Plaintiff,  
 
 v.  
 
MERCY HEALTH, et al.,  
 
  Defendants. 
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 No. 4:21-CV-834 RLW 
 
MEMORANDUM AND ORDER 
 This matter is before the Court on Defendants’ “Motion to Reconsider or to Amend/Modify 
Order and Certify for Interlocutory Appeal.” (ECF No. 93). Plaintiff opposes the motion and it is 
fully briefed. (ECF Nos. 101, 106).  For the reasons below, the Court will deny the motion.  
BACKGROUND 
 Plaintiff Danielle Peck brings this action against Defendants Mercy Health, Mercy Health 
Foundation, and MHM Support Services (collectively, “Mercy”) for alleged violations of the Fair 
Labor Standards Act, 29 U.S.C. §§ 201 -219 (“FLSA”), the Oklahoma Protection of Labor Act, 
Okla. Stat. tit. 40, §§ 165.1 et seq. (“OPLA”) and Oklahoma common law for breach of impl ied 
contract. (ECF No. 23 at ¶ 1). Mercy is a health system with locations in Missouri, Oklahoma, 
Arkansas, and Kansas. Id. at ¶ 15. Plaintiff , who has worked for Mercy in Oklahoma as  a Unit 
Registration Representative since July 2016 , asserts that Mercy w illfully failed to compensate 
hourly-paid employees for work performed during meal breaks. Id. at ¶ 11.  
 On March 28, 2022, Plaintiff filed a Motion for Conditional Collective Certification. (ECF 
No. 37). The Court granted the motion on December 27, 2022, a nd certified the following FLSA 
collective class: 
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All hourly -paid employees of the Defendants who were or are 
subject to the automatic meal break deduction policies at any time 
on or after three (3) years prior to the date on which the Court 
approves this collective certification. 
 
(ECF No. 90). The Court further ordered Mercy to identify all putative members of the collective 
by providing their names, last known addresses, dates and locations of employment, job titles, 
phone numbers, and email addresses. Id.    
LEGAL STANDARD 
Although the motion at bar is entitled “Motion to Reconsider or to Amend/Modify Order 
and Certify for Interlocutory Appeal,” Mercy’s Memorandum in Support focuses almost entirely 
on the standard for interlocutory appeal under 28 U.S.C. § 1292(b), as opposed to the stan dards 
for reconsideration under Rules 59 (e) and 60 of the Federal Rules of Civil P rocedure. Under 28 
U.S.C. § 1292(b), a district court may certify a non-final order for immediate appeal if it finds that 
the order “involves a controlling question of law as to which there is substantial ground for 
difference of opinion and that an immedia te appeal from the order may materially advance the 
ultimate termination of the litigation[.]” 28 U.S.C. § 1292(b); White v. Nix, 43 F.3d 374, 376 (8th 
Cir. 1994).  The Eighth Circuit has observed that motions for c ertification should be granted 
sparingly and that the movant “bears the heavy burden of demonstrating that the case is an 
exceptional one in which immediate appeal is warranted.” White, 43 F.3d at 376. “Inherent in these 
requirements is the concept of ripeness.” S.B.L. v. Evans, 80 F.3d 307, 310 (8th Cir. 1996) (quoting 
Paschall v. Kansas City Star Co. , 605 F.2d 403, 406 (8th Cir.1979) ) (internal quotation marks 
omitted). That is, “even if all three requirements are satisfied, the factual basis of a claim must be 
developed so that ‘we can make a precise decision upon a precise record—not an abstract answer 
to an abstract question.’” Id. (quoting Paschall, 605 F.2d at 407).  
 
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DISCUSSION 
Mercy contends there are two controlling questions of law at issue in this case: (1) the 
meaning of “substantial allegations” in the context of determining whether employees are 
“similarly situated” for the purposes of class certification, and (2) whether plaintiffs are required 
to show that Mercy’s meal-break policy was unlawful. (ECF No. 94 at 12).  
A controlling question of law is one that “may contribute to the determination, at an early 
stage, of a wide spectrum of cases.” E.E.O.C. v. Allstate Ins. Co., No. 4:04-CV-01359 ERW, 2007 
WL 38675, at *3 (E.D. Mo. Jan. 4, 2007) (citing Federal Deposit Ins. Corp. v. First Nat. Bank of 
Waukesha, Wis., 604 F.Supp. 616, 620 (D.Wis.1985)). A question of law is not controlling if it is 
within the discretion of the district court. Id.  
I. The Standard for Conditional Class Certification 
The Court agrees with Plaintiff that conditional certification of a collective class is firmly 
within the Court’s discretion. See Learing v. Anthem Companies, Inc., No. 21 -CV-2283 
(KMM/JFD), 2022 WL 594378, at *4 (D. Minn. Feb. 28, 2022) (explaining that courts have wide 
discretion to manage collective actions); Lewis-Ramsey v. Evangelical Lutheran Good Samaritan 
Soc'y, No. 3:16-CV-00026, 2017 WL 821656, at *2 (S.D. Iowa Jan. 10, 2017) (“[T]he decision to 
certify a collection opt-in class under § 216(b) is within the sound discretion of the district court.”); 
Piazza v. New Albertsons, Inc. , No. 20-CV-03187, 2021 WL 3645526, at *2 (N.D. Ill. Aug. 16, 
2021) (stating that district courts have wide discretion to manage collective  actions and what 
evidence a court considers in determining whether to certify a collective action  is not a matter of 
law); Hunter v. Legacy Health, No. 3:18-CV-02219-AC, 2021 WL 4238991, at *11 (D. Or. Apr. 
13, 2021) (“Preliminary certification, to the extent it relates to the approval and dissemination of 
notice, is an area of substantial court discretion.”).  
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Here, the Court followed the well-established two-step process for class certification under 
the FLSA. (ECF No. 90 at 3). That is, the Court considered only whether Plaintiff met the standard 
for conditional class certification, knowing full well Mercy could later move for decertification. 
Id. Despite Mercy’s argument to the contrary, the Court considered the entire record when making 
its determination. Id. In fact, the Court explicitly considered the employee declarations that Mercy 
suggests were all-but ignored by the C ourt its December 27, 2 022 Order. (ECF No. 90 at 9 -10) 
Simply put, t he Court reviewed the record, applied the facts to a well -established standard, and 
determined—in its discretion —that the putative class members were “similarly situated” to 
Plaintiff. Id.  
Mercy tries to avoid this reality by arguing that the issue at hand is the “similarly situated” 
standard itself, not the Court’s application of the facts to that standard. But Mercy fails to identify 
any meaningful disagreement within the Eighth Circuit regarding the appropriate standard. The 
Court agrees with Plaintiff’s argument that any seemingly disparate conclusions among courts in 
this Circuit regarding FLSA class certification stem from case-specific application of facts and not 
pure questions of law. See In re Dicamba Herbicides Litig. , No. 1:16 -CV-299-SNLJ, 2018 WL 
3619509, at *4 (E.D. Mo. July 30, 2018) (noting the distinction between pure questions of law that 
can be decided without digging into the record and case-specific questions that consider whether 
a district court properly applied settled law) . Mercy fails to present a pure question of law in this 
regard.   
Even if the meaning of “similarly situated” in 29 U.S.C. § 216(b) is a pure question of law, 
Mercy fails to establish substantial grounds for a difference of opinion on the issue. Mercy argues 
that the Fifth Cir cuit’s decision in Swales v. KLL M Transp. Servs., LLC “unquestionably” 
demonstrates that there are substantial grounds for difference of opinion regarding certification  
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under the FLSA. (ECF No. 94 at 7) (citing Swales v. KLLM Transp. Servs., LLC , 985 F.3d 430 
(5th Cir. 2021)). The Court is not persuaded. In Swales, the Fifth Circuit abandoned the two-step 
approach for certification in favor of a more rigorous standard. Swales, 985 F.3d 430. While 
identification of “a sufficient number of conflicting and contradictory opinio ns” would provide 
substantial ground for disagreement, this Court is unaware of a single case from within the Eighth 
Circuit that applies the Swales standard. See Union Cnty., Iowa v. Piper Jaffray & Co ., 525 F.3d 
643, 647 (8th Cir. 2008) (finding no substantial grounds for disagreement where plaintiff offered 
no contradictory Iowa statutes or case law ). In fact, a review of the case law  reveals nearly 
universal negative treatment of Swales by other district cou rts in this Circuit. See Learing, 2022 
WL 594378, at *4  (“The Court dec lines to apply Swales, as have other courts in the Eighth 
Circuit.”); Looney v. Weco, Inc., No. 4:21-CV-00165-KGB, 2022 WL 4292384, at *2 (E.D. Ark. 
Sept. 16, 2022) (“The Court declines to apply Swales, as have other district courts in the Eighth 
Circuit.”); Clark v. Sw. Energy Co., No. 4:20-CV-00475-KGB, 2022 WL 993755, at *3 (E.D. Ark. 
Mar. 31, 2022) (“The Court declines to apply Swales, as have other district courts in the Eighth 
Circuit.”); Murphy v. Lab. Sour ce, LLC, No. 19-CV-1929 (ECW), 2022 WL 378142, at *11 (D. 
Minn. Feb. 8, 2022)  (stating that Swales undermines the discretion afforded to district courts in 
implementing 29 U.S.C. § 216(b)); McCoy v. Elkhart Prod. Corp., No. 5:20-CV-05176, 2021 WL 
510626, at *2 (W.D. Ark. Feb. 11, 2021)  (declining to follow the standard adopted in Swales); 
Rodriguez v. Cutchall , No. 4:20 -CV-3106, 2021 WL 5911322, at *2 (D. Neb. Nov. 16, 2021), 
report and recommendation adopted , No. 4:20 -CV-3106, 2021 WL 5907935 (D. Neb. Dec. 14, 
2021) (declining to follow Swales where defendant failed to present any persuasive reason why 
the court should deviate from the two -step approach); Knight v. Dakota 2000 Inc., No. 3:21-CV-
03025-RAL, 2022 WL 15773896, at *3 (D.S.D. Oct. 28, 2022) (“[T]he [two-step] approach makes 
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sense, and most federal courts use it.”); Freeman v. Tyson Foods, Inc., No. 5:21-CV-05175, 2022 
WL 3566615, at *3 (W.D.  Ark. Aug. 18, 2022)  (“This Court will continue using the two-step 
standard it has historically employed in FLSA collective actions[.] ”). Thus, despite Mercy’s 
contention, there appear to be no substantial grounds for difference of opinion on the appropriate 
standard for class certification—and thus the meanings of “substantial allegations” or “ similarly 
situated”—under the FLSA. Indeed, the opposite appears to be true.  
Finally, it is important  to note that  certification  of the putative class  at this stage  is 
conditional by its  nature. (ECF No. 90). Mercy  may later move to decertify  the class.  Id. at 4. 
Several courts have determined that the  conditionality  of such  certifications necessarily means 
they do not present  controlling  questions of law.  Piazza, 2021 WL 3645526, at *2  (collecting 
cases).  
For the foregoing reasons, the Court finds that Mercy has failed to establish a pure question 
of law  as to the meaning  of “substantial allegations” in determining whether individuals  are 
“similarly situated” under 29 U.S.C. 216(b). Even if Mercy could establish a pure question of law, 
it has  not demonstrated  substantial grounds  for a  difference  of  opinion on the meaning  or 
application of those  terms. Thus, the  Court need not address whether an immediate appeal from 
the order may materially advance the ultimate termination of the  litigation. The Court will deny 
Mercy’s motion as to the standard for conditional certification under § 216(b).  
II. The Lawfulness of the Meal-Break Policy
Mercy next argues that the Eighth Circuit should be allowed to consider whether Plaintiff 
must establish the unlawfulness of the meal-break policy  before obtaining  conditional class 
certification. (ECF No. 94 at 12). Even if the Court were to accept that this issue presents a pure 
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question of law, Mercy fails to show substantial grounds for a difference of opinion  within the 
Eighth Circuit.  
Mercy relies on the Eighth Circuit’s decision in Bouphakeo v. Tyson Foods, Inc. to suggest 
that all putative class members must suffer from a single unlawful policy to be  considered 
“similarly situated.” (ECF No. 94 at 12) ( citing Bouaphakeo v. Tyson Foods, Inc. , 765 F.3d 791, 
796 (8th Cir. 2014), aff'd and remanded, 577 U.S. 442 (2016) ). It is true that the Eighth Circuit 
stated in Bouaphakeo that plaintiffs may be similarly situated when “they suffer from a single, 
FLSA-violating policy[.]” Id. at 796. But the Eighth Circuit did not state, as Mercy seems to 
suggest, that so long as a policy is lawful as written,  it cannot form the basis for co nditional 
certification of a putative class, even if the policy is intentionally ignored or misapplied by an 
employer. Mercy fails to cite any authority for its position. For that reason, not only does Mercy 
fail to establish substantial grounds for difference of opinion, but it also fails to demonstrate  a 
manifest error that would warrant reconsideration under Rules 59(e) or 60 of the Federal Rules of 
Civil Procedure. Thus, the Court will deny Mercy’s motion as to whether Plaintiff must establish 
the unlawfulness of the policy in question before obtaining conditional class certification under 
the FLSA.  
CONCLUSION 
 Mercy has failed to carry the heavy burden of demonstrating that the Court’s Order of 
December 27, 2022 warrants immediate appeal. See White, 43 F.3d at 376. Thus, the C ourt will 
not certify its Order for interlocutory appeal. Further , Mercy does not address the standard for 
reconsideration under Rules 59(e) and 60 of the Federal Rules of Civil Procedure or establish any 
manifest error that would w arrant reconsideration. Thus, the Court will not amend its December 
27, 2022 Order.  
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Accordingly,  
 IT IS HEREBY ORDERED  that Mercy’s “Motion to Reconsider or to Amend/Modify 
Order and Certify for Interlocutory Appeal” is DENIED. (ECF No. 93) 
 IT IS FURTHER ORDERED that Mercy ’s corresponding “Motion to Stay and for 
Expedited Consideration” is DENIED as moot. (ECF No. 95).  
 
 
             
      RONNIE L. WHITE 
      UNITED STATES DISTRICT JUDGE 
 
Dated this 7th day of February, 2023.  
 
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