Olukayode v. UnitedHealth Grp.

Oluro Olukayode, individually andon behalf Of all others similarly situated, Plaintiff, v. UnitedHealth Group, Optum, Inc.,and The Advisory Company, Defendants.

Civil No. 19-1101(DSD/HB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

August 2, 2021

ORDER

David Blanchard, Esq. and Blanchard & Walker, 221 North Main Street, Suite 300, Ann Arbor, MI 48104, counsel for plaintiff.

James G. Schmitt, Esq. and Nilan Johnson Lewis, PA, 120 South 6^th Street, Suite 400, Minneapolis, MN 55402, counsel for defendants.

This matter is before the court upon defendants UnitedHealth Group (UHG), Optum, Inc., and the Advisory Company's (ABC) motion to decertify the collective action, defendants' motion for summary judgment, and plaintiff Oluro Olukayode's motion for Rule 23 class certification. Based on a review of the file, record, and proceedings herein, and for the following reasons, the motion for decertification of the collective action is granted, the motion for summary judgment is granted in part, and the motion for Rule 23 class certification is denied.

BACKGROUND

I. Electronic Medical Record Implementation and Consultants

This Fair Labor Standards Act (FLSA) dispute arises out of Olukayode's and the putative class members' electronic medical record (EMR) software work on behalf of defendants ABC and Optum.¹ Clark Decl. ¶ 5, ECF No. 41. The EMR implementation work at issue includes hands-on training, referred to as "at-the-elbow (ATE) support," at hospitals. ATE support means that "at the time an electronic medical record or electronic health record is implemented ... at a hospital, physicians and nurses find it valuable to have a colleague ... quite literally standing at the elbow while they navigate this new computer system." Clark Dep. at 21:9-15. ABC and Optum contracted with clinicians, known as consultants, to provide the ATE support to their clients. Id. at 20:25-21:8; Clark Decl. ¶ 7. The consultants trained medical personnel to use new EMR software. Olukayode Dep. at 83:22-24, ECF No. 165-3.

ABC and Optum sought clinicians with medical backgrounds and knowledge about particular EMR software to provide support. Clark Decl. ¶ 8; Olukayode Dep. at 54:8-21, 82:17-25. Defendants aimedto provide "like-to-like" support, such as nurses providing support to nurses and pharmacists providing support to pharmacists, depending on the client's needs. Clark Decl. ¶ 10; Olukayode Dep. at 51:14-52:5, 53:22-54:21, 55:9-21, 57:1-13.

According to defendants, their business model had a distinct marketplace advantage because other healthcare IT firms contract with IT professionals who do not have medical training. Clark Decl. ¶ 9. Defendants assert that they did not need to train consultants about third-party EMR software because they already had familiarity with such software.² Optum Dep. at 104:22-105:2.

Defendants did not hire any consultants full-time because projects were too infrequent. Id. at 108:22-25. Defendants would primarily hire and classify consultants as independent contractors. Clark Dep. at 31:19-25, 32:12-33:3. Consultants were free to work for defendants' competitors before or after performing services for them, and they did not sign non-competition agreements. Clark Decl. ¶¶ 13-14.

Defendants paid consultants hourly. Clark Dep. at 94:24-95:12. During projects, consultants worked with "project managers" and "team leads" employed by defendants. Olukayode Dep. at 58:10-14, 135:11-18. Project managers would convey toconsultants what type of support clients needed, as well as which instructions to emphasize. Clark Dep. at 55:23-56:2. Project managers created project schedules to give to consultants, and consultants needed to seek permission to work beyond those hours. Id. at 48:22-49:6, 51:16-24. Project managers also encouraged consultants to log interactions with hospital staff during projects into defendants' logging platform. Id. at 61:9-18, 62:1-4.

At issue here are five projects in three different states. In Maine, defendants hired consultants for the MaineHealth hospital system project in 2017. Hungerford Decl. Ex. D., Interrogs. 3, 4, and 10, ECF No. 192-1. In New York, defendants hired consultants for the Hospital for Special Surgery (HSS) project, the New York City Health and Hospitals (NYHH) project, and Our Lady of Lourdes Memorial Hospital (Lourdes) project, which spanned from 2016 to 2018. Id. Ex. E, Interrogs. 3, 4 and 10. In Maryland, defendants hired consultants for the MedStar Health project, which spanned from 2016 to 2017. Id. Ex. F, Interrogs. 3, 4 and 10.

II. Oluro Olukayode

Olukayode worked five total projects in Maine, Maryland, and New York.³ Olukayode Dep. at 33:20-34:9; Olukayode Decl. ¶ 4, ECFNo. 170-5. Olukayode last worked for defendants on April 21, 2017. Wright Decl. ¶ 5, ECF No. 43; James Decl. Ex. I; Olukayode Dep. at 169:15-17. During these projects, Olukayode worked more than forty hours a week and was not paid time-and-a-half for the additional time. Olukayode Dep. at 80:4-6. Olukayode would work up to twelve hours a day during a project. Id. at 80:2-7.

Olukayode entered into an agreement with ABC for his ATE services (Agreement) in which defendants classified him as an independent contractor. See James Decl. Ex. F; Olukayode Decl. ¶ 3. He also separately entered into contractor agreements and statement of works for subsequent projects. James Decl. Ex. G. The Agreement provided that Olukayode: had an independent contractor relationship; had the right to control the method and manner of his performance; could work for other businesses, even competitors; must provide his own equipment and materials; could not participate in ABC's benefit plans; and was paid for authorized fees that were properly invoiced. See Id. Ex. F.

Olukayode has a medical degree from Nigeria, and he passed written exams to become certified to practice medicine in the United States, pending completion of a residency program. Id. at 69:8-21, 91:14-23. He specializes in oncology and Beacon software, as well the operating-room software Optime. Id. at 51:19-52:1, 57:10-13. With his medical background, he explained that he relates better to doctors. Id. at 51:14-15, 87:7-12, 219:10-16.Despite the advantage of having a medical background, Olukayode admits that the work he did for ABC was basic, that "anyone could do it," and that he did not use his medical degree. Id. at 83:9-16, 87:7-10.

Olukayode negotiated contracts with EMR implementation providers, and providers would usually cap their pay rate based on what the client was willing to pay. Id. at 195:16-23. Nevertheless, Olukayode once negotiated a raise in his hourly rate. Id. at 108:23-109:13. Olukayode also once accepted a project mid-stream because he had travel plans at the outset of the project. Id. at 148:8-18. He could decline projects if he did not accept the hourly rate. Id. at 195:16-196:13; Clark Decl. ¶ 16.

Olukayode learned about EMR software by training himself and through previous work experience. Clark Decl. ¶ 12; Olukayode Dep. at 53:2-9, 142:13-19. Defendants did not train Olukayode about third-party EMR software. Optum Dep. at 104:22-105:2.

Olukayode performed ATE consulting on various other EMR implementation projects for defendants' competitors, and he also worked as a clinic manager at an urgent care center in Virginia between ATE projects. Olukayode Dep at 65:2-19, 67:17-68:13; Pl.'s Answer to Interrog. Nos. 5, 7. He did not work for any other company while working for defendants, but he worked for other businesses between projects. Olukayode Dep. at 64:19-65:1.

Olukayode testified that his work hours were both "mutually scheduled" with project managers and, on particular projects, scheduled solely by project managers. Id. at 190:2-10; Kamieniecki Dep. at 31:2-6. Olukayode only received schedules from project managers or team leads, never from clients. Olukayode Dep. at 124:10-14, 133:25-134:1, 145:10-16, 152:24-153:1, 158:22-23. On at least one occasion, a client asked Olukayode to work longer hours than he was scheduled, but the project manager did not allow him to do so. Id. at 165:3-25, 167:7-168:6; Clark Dep. at 48:22-49:1.

Olukayode's interaction with project managers and team leads varied from project to project. When Olukayode arrived onsite, he was assigned to different areas based on client need. Olukayode Dep. at 131:3-11, 133:18-22. According to Olukayode, project managers were sometimes onsite, but not always. Id. at 124:7-9, 140:7-10. For two projects, Olukayode admitted he never interacted with the project manager and was not supervised. Id. at 126:13-16, 163:18-23.

Olukayode attended orientation meetings and "huddles" during projects. Before each project, Olukayode attended an orientation session conducted by hospital leadership and ABC, during which ABC explained the project's objective. Id. at 127:12-24, 134:21-135:6, 148:19-149:5, 201:13-22, 204:14-24; Clark Dep. at 60:6-9. Defendants required daily "huddles" for some projects during whichproject managers would give general directions and instructions, as well as address rules, responsibilities, and expectations. Olukayode Dep. at 136:17-23, 209:21-210:14. For one project, Olukayode had daily morning and evening "huddles" during which consultants received instructions from project managers due to the specialized nature of particular software. Id. at 157:15-158:13.

Defendants set rules for Olukayode regarding dress code, work conduct, interaction with hospital staff, and confidentiality. Id. at 209:14-18, 210:8-211:18. Olukayode was not allowed to speak with the hospital management directly, but instead had to ask questions to project leads to relay to the clients. Id. at 60:4-9, 145:10-16.

Project managers did not tell Olukayode how to provide support, but they would provide tip sheets that consultants referred to for common issues. Id. at 136:7-137:25. For one project, Olukayode testified that he worked independently: "we are allowed to work as independently as...