IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

Theresa Cosentino, on behalf of herself )

and others similarly situated, )

Plaintiffs, ) Case No: 12 C 3627

)

v. )

) Judge Ronald A. Guzmán

Transcend Services, )

Defendant. )

ORDER

For the reasons stated below, Transcend’s motion for decertification [264] is granted. 

 STATEMENT 

Plaintiffs, a group of medical language specialists (“MLSs”), bring this collective action

under the Fair Labor Standards Act (“FLSA”) for overtime and minimum wage violations. The

Court granted Plaintiffs’ motion for conditional certification and approximately 705 MLSs have

opted in. The parties engaged in significant discovery, including a total of 35 depositions, and

Transcend now moves to decertify the class. 

Facts

The MLSs work from home providing medical transcription and medical text editing services

for Defendant’s clients, which include large acute care facilities and various medical clinics. (Pls.’

Ex. 5.) The MLS’s job entails sitting at a computer station, downloading audio files of medical

dictation via the Internet, transcribing those dictations into written form, editing transcriptions and

returning completed jobs via the Internet. (Id.) The MLSs download a medical transcription

software platform onto their home computers to transcribe and edit the medical reports. (Pls.’ Ex.

34, Robertson Dep., at 74.) According to Defendant’s Vice-President of Human Resources, Donna

DonFrancesco, MLSs use one of seven transcription platforms. (Def.’s Ex. 1, DonFrancesco Decl.,

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¶ 5.) 

The MLSs record their own time and are paid primarily based on their production, not on

an hourly basis. (Id. ¶ 7.) Specifically, the MLSs earn a rate of compensation per line or report

produced or edited. (Id.) According to DonFrancesco, the production rates of compensation vary

depending on the customer, account, transcription platform and the regional operations manager

(“ROM”) to which the MLS is assigned. (Id. ¶ 8.) 

Defendant’s MLS New Employee Orientation presentation states that “[a]ctual work time

must be recorded on a daily basis and accurately reflect your work time” and that “[t]he hours being

captured is actual time spent working, not running errands, doing laundry, walking the dog, etc.” 

(Def’s. Reply, Ex. 2, Dkt. # 276-2, at 4.) Further, the MLS Employee Handbook indicates that all

hourly and production-based employees are required to submit their time worked through the

TimeSaver program, and that “[e]mployees will enter the total number of hours actually worked on

a daily basis at the end of each work shift.” (Def.’s App., Ex. 2, Dkt. # 251-2, at 24.) Moreover,

the Employee Handbook states that the failure to accurately record one’s time could result in

disciplinary action up to and including termination. (Id.) 

Analysis

The FLSA allows an action to “be maintained against any employer . . . by any one or more

employees for and in behalf of himself or themselves and other employees similarly situated.” 29

U.S.C. § 216(b). At this stage of the certification of a collective action, after conditional

certification has been granted and discovery has taken place, “the examination [of the proposed

class] is more incisive, and the additional information [obtained during discovery] may urge that

certification be revoked, or the class divided.” Vergara v. Clarence Davids & Co., No. 12 C 7245,

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2014 WL 1715443, at *2 (N.D. Ill. Apr. 30, 2014). “The burden is on the plaintiffs to show that they

are ‘similarly situated,’ as required by the statute.” Russell v. Ill. Bell Tel. Co., Inc., 721 F. Supp.

2d 804, 811 (N.D. Ill. 2010). As noted by another court in this district:

[d]uring this second stage analysis, a court reviews several factors, including (1)

disparate [or shared] factual and employment settings of the individual plaintiffs; (2)

the various defenses available to defendant which appear to be individual to each

plaintiff; [and] (3) fairness and procedural considerations.

Id. (citation and internal quotation marks omitted, alterations in Russell). Although plaintiffs in a

collective action need not be situated identically, there must be “an identifiable factual nexus that

binds the plaintiffs together as victims of a particular violation of the overtime laws.” Blakes v. Ill.

Bell Tel. Co., 11 C 336, 2013 WL 6662831, at *10 (N.D. Ill. Dec. 17, 2013) (internal quotation

marks and citation omitted). “In analyzing similarity, the court looks to factors like the plaintiffs'

job locations, duties, supervision, and common policies.” Id. “Where individualized circumstances

and questions predominate over common issues, decertification is appropriate.” Id. 

In response to Defendant’s motion to decertify, Plaintiffs assert that Defendant’s common

policies and practices that are in violation of the FLSA bind them together. For example, Plaintiffs

assert that Defendant maintained uniform policies and practices to underreport compensable work

time. Specifically, Plaintiffs contend that Defendant routinely instructed Plaintiffs to report only

“production” or “hands on keyboard” time in TimeSaver, which did not include other tasks such as

researching, e-mails, phone calls, computer problems and elective training. (Pls.’ Resp., Dkt. # 273,

App. 1.) Plaintiffs also argue that Defendant’s production and performance quotas constitute a

common policy binding Plaintiffs together. According to Plaintiffs, Defendant’s production

standards were unattainable in a 40-hour workweek but at the same time, they were instructed not

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to report all of their productive worktime or were required to obtain pre-approval of overtime.1

Finally, Plaintiffs argue that Defendant’s uniform half-time overtime policy violates the FLSA. 

Defendant moves to decertify on the ground that individual inquiries predominate over

common issues of fact and law. 

Factual and Employment Settings

The individual employment settings of the MLSs indicate that decertification in this case is

appropriate. With respect to determining whether a plaintiff in this case has a minimum wage or

overtime claim, the unique circumstances of each MLS’s productivity, timekeeping method,

interpretation of compensable time, and specific directions from the MLS’s supervisor would need

to be considered. Camilotes v. Resurrection Health Care Corp, 286 F.R.D. 339, 346 (N.D. Ill. 2012)

(“A collective action is not appropriate when determining whether a plaintiff has a viable claim

requires a detailed, fact-specific inquiry.”)

For example, the MLSs are paid on a piece-rate system (i.e., so many dollars per job) under

which they “earn[] a rate of compensation per line or report produced.” (Pls.’ Resp., Dkt. # 273, at

7.) Accordingly, their earnings depend on their own time-keeping methods and efficiency. Some

MLSs testified that they worked far in excess of 40 hours per week, while others did not. (Def.’s

App., Ex. 37, Wingler Dep., at 162 (stating she worked 30 to 40 extra hours per week); id., Ex. 18,

1

 As to the policy regarding production and performance quotas, Plaintiffs fail to indicate

how these requirements constitute violations of the FLSA. While Plaintiffs acknowledge that

Defendant required MLSs to gross at least $900.00 each pay period to remain a full-time

employee or $450.00 to be considered part-time, and that “[n]ot meeting Defendant’s production

quotas meant MLS termination, demotion [to part-time status] or discipline” (Pls.’ Resp., Dkt. #

273, at 9), they do not point to any provision of the FLSA these quotas violate. Plaintiffs argue

that Defendant knew that the production quotas were unattainable (apparently without working

overtime), but point to no record evidence supporting this statement.

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Marques Dep., at 182-83 (stating she had no idea how many hours over 40 she worked each week

or how many weeks she worked less than 40 hours).) Plaintiffs practiced different methods of

documenting their work time, including writing detailed notes or keeping track in their head, while

some did not track their hours at all. (Id., Ex. 16, Lindquist Dep., at 95; id., Ex. 24, Pence Dep., at

184; id., Ex. 18, Marques Dep., at 58.) Kandace Chancey testified that her Team Leads told her to

determine the number of hours she worked by taking the number of lines she edited and divide by

300 and the number of lines she typed and divide by 150. (Id., Ex. 5, Chancey Dep., at 159.) Sheila

Reeser stated that her entries on Time Saver were “pretty sporadic” and that she could not recall the

weeks she worked above, below, or at 40 hours. (Id., Ex. 27, Reeser Dep., at 46-48.) Thus,

determining the actual number of hours each Plaintiff worked, and whether an overtime or minimum

wage violation occurred, is necessarily an individual inquiry. 

Moreover, some MLSs claim they received Markup to Minimum (“MKM”), which ensured

that they received at least minimum wage and any overtime the FLSA requires, while others state

they have never heard of it. (Id., Ex. 4, Bargerstock Dep., at 139 (stating she received MKM pay);

id., Ex. 7, Cosentino Dep., at 208 (stating she had never heard the term MKM); id., Ex. 9, Denio

Dep., at 180 (stating that because she was such a fast typist, MKM was never an issue for her since

“the faster you are, you come nowhere near minimum wage” and that “[e]ven if you’re not getting

work, you do fine”).) In addition, at least one MLS was paid by the report, not by the line, and

another was paid by the line or report depending on the subject matter of the report. (Id., Ex. 37,

Wingler Dep., at 20; id., Ex. 15, Keenan Dep., at 76-77.) One MLS, Julie Wright, worked also as

a Team Lead and in quality assurance simultaneously at various points during her employment. (Id.,

Ex. 38, Wright Dep., at 154, 180.) As a Team Lead, she earned an additional $700.00 per week and

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in the quality assurance position she earned $17.50 per hour in addition to her line rate productivity. 

(Id. at 158, 181.) Also, Diane Martin earned double her non-production hourly rate for performing

work related to Instant Text training during the same period she also received wages for her per-line

productivity. (Id., Ex. 19, Martin Dep., at 42-45.)

In addition, the MLSs who were deposed testified as to different understandings of what

“productive” or “hands on keyboard” time meant. While some interpreted it to mean their entire

shift, others interpreted it to exclude research time on the computer. (Def.’s Mem. Supp. Mot.

Decertification, Dkt. # 265, at 28-29.) Further, one MLS testified that she worked during the day

as it suited her personal schedule while another stated that she was told to work only during her

scheduled hours. (Compare Def.'s App, Ex. 11, Failla Dep., at 109 with id., Ex. 32, Spencer Dep.,

at 120.) These examples from among the 35 plaintiffs and opt-ins out of 705 who were deposed

demonstrate the unique circumstances applicable to many of the MLSs.

Not only would individual inquiries thus need to be made to determine liability under the

FLSA, but damage determinations would be unmanageable. The Seventh Circuit’s case,

Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir. 2013), is instructive on this issue. In

Espenscheid, the district court certified several subclasses of home satellite technicians seeking

relief for overtime and minimum wage violations under the FSLA but later decertified them “when

it became apparent that the trial plan submitted by the plaintiffs was infeasible.” Id. at 773. The

Espenscheid court noted that the plaintiffs, who worked on a piece rate system, only sought

damages:

And to determine damages would, it turns out, require 2341 separate evidentiary

hearings, which might swamp the Western District of Wisconsin with its two district

judges. For it’s not as if each technician worked from 8 a.m. to 5 p.m. and was

forbidden to take a lunch break and so worked a 45–hour week (unless he missed one

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or more days because of illness or some other reason) but was paid no overtime.

Id. The Court noted that the suit charged the defendant with concealing its FLSA violations “by

forbidding the technicians to record time spent on certain tasks” so each technician’s damages could

not be computed “effortlessly, mechanically, from the number of days he worked each week and his

hourly wage.” Id. Instead, the damages inquiry for each class member would vary depending on

their efficiency and the tasks performed by each technician. Id. Indeed, “when one is paid by the

job rather than by the hour, the hourly wage varies from job to job and worker to worker.” Id. at

774. That is the case here. Each MLS worked at a different pace; indeed, one MLS testified that

she experienced significant differences in her efficiency depending on the account and the quality

of the audio recording. (Def.’s App., Ex. 24, Pence Dep., at 45- 47 (describing one account as

“horrible” because “they had so many piddly specifics that they wanted,” indicating that it often took

longer to edit transcripts than transcribe them due to poor “voice recognition capture” and that she

had to “basically retype” many transcripts during the editing phase); id., Ex. 9, Denio Dep., at 183

(stating that MLSs typed at different speeds, and factors affecting the speed of transcription included

“doctor factors, accents, fast talkers” as well as “MLS factors, like arthritic hands, or, . . . an illness”

and agreeing that some MLSs simply typed faster than others).) 

Plaintiffs contend that they can “calculate damages through representative testimony and data

generated by Defendant’s platforms and proficiency reports.” (Pls.’ Resp., Dkt. # 273, at 38.) 

Specifically, Plaintiffs state in footnote 16 of their response brief that:

Defendant produced data showing the precise times 35 Plaintiffs downloaded and

submitted medical reports. Defendant also produced MLS proficiency reports. 

Subject to Defendant’s full compliance with discovery obligations, Plaintiffs will

rely on electronic data of work time, MLS proficiency reports, plus Plaintiffs’ own

representative testimony to demonstrate damages.

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(Pls.’ Resp. Dkt. # 273, n.16, at 19) (internal citations omitted.) Further, Plaintiffs note that

Defendant’s Editing Proficiency Tutorial tracked weekly data regarding the actual hours worked by

an MLS, minutes of audio edited, edited lines per hour, estimated active time editing medical

reports, and the pause percentage of each particular MLS. In addition, Plaintiffs note that Defendant

possessed reports demonstrating precise times Plaintiffs downloaded and submitted medical reports. 

As to the latter, Plaintiffs point to their Exhibit 35, which is a listing of reports downloaded

and returned by a particular MLS on July 24, 2011, generally asserting that these can be used to

calculate damages across the board. One excerpt is as follows:

(Pls.’ Ex. 35, Dkt. # 271-35.) 

Defendant contends that the download reports do not provide a basis for computing damages

in an accurate or consistent manner. It notes, for example, that while MLS St. George downloaded

job number 33394559 at 3:42 p.m. and returned it at 4:28 p.m., she also downloaded job number

33395446 at 3:43 p.m. and returned it at 5:11 p.m. Thus, she had two reports open at the same time

and Plaintiffs do not explain how they can determine how much time MLS St. George spent on each

report or whether she took a break during the time the reports were open. 

As to the proficiency reports, Defendants contend these actually demonstrate that there is no

overtime issue in this case. Defendant points to MLS Cosentino’s proficiency report, which

indicates that her Estimated Active Time Editing for the week of January 9, 2011 was 14.13 hours.

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(Def.’s Reply, Dkt. # 276, Ex. 3.) But her self-reported time record in TimeSaver indicates that she

worked 40 hours that week. (Id., Ex. 4.) Not only are these records wholly contradictory as to the

amount of time MLS Cosentino worked during the week of January 9, 2011, but Defendant argues

that reconciling this type of variance would require a specific inquiry into MLS Cosentino’s

particular situation for that particular week. Extrapolating the inquiry for over 700 MLSs for a

period of three years becomes completely unworkable and demonstrates that individual inquiries

predominate over common questions of law or fact. 

For their part, Plaintiffs do not address the discrepancies nor do they propose a calculation

or formula for accurately estimating damages across class members; instead, they make broad

statements completely lacking in specificity. (Pls.’ Resp., Dkt. # 273, at 33 (“Plaintiffs will use

Plaintiffs’ testimony and Defendant’s records produced during discovery to determine the amount

of time Plaintiffs worked without compensation in violation of the FLSA”); id. at 34 (“Plaintiffs may

compute accurate damage calculations through electronic platform data, Defendant’s proficiency

reports, and Plaintiffs’ testimony.”); id. at 37 (“Plaintiffs’ damages will be presented in a

straightforward manner . . . . [and] [t]he result is a mathematical formula common to all class

members. . . .”); id. (“Resolution of damages may be easily achieved by using Defendant’s platform

records and proficiency reports data, along with Plaintiff’s testimony regarding hours worked to

calculate damages class-wide.”).) Plaintiffs contend that they are “neither proposing a methodology

that varies from person-to-person nor proposing a method that fails to account for damages on a

class-wide basis,” which is true, since they propose nothing. (Id. at 37.) 

Plaintiffs state that they “are not necessarily adverse to using sub-classes or trying this case

on a bifurcated basis if necessary and will comply with court direction on trial presentation.” (Pls.’

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Resp., Dkt. # 273, at 39.) But again, they offer no concrete proposals for subclasses or even suggest

vague parameters for breaking the class down into subclasses in a manner that would facilitate

damage calculations. Moreover, bifurcation may facilitate resolution of liability but it does not

address the issue of individualized damages. 

Further, Plaintiffs’ superficial reference to representative testimony as an “appropriate case

management tool” is unavailing. Not only do Plaintiffs fail to specify which class members would

offer the purported representative testimony, they do not explain how the representatives would be

chosen. Espenscheid, 705 F.3d at 774 (noting that plaintiffs’ proposal of representative testimony

failed to explain how the representatives were selected, “whether for example they were volunteers,

or perhaps selected by class counsel after extensive interviews and hand picked to magnify the

damages sought by the class”). And, as noted by the Espenscheid court, even if one assumes that

the representatives chosen by class counsel were, by “pure happenstance,” representative to the

extent that the average numbers of hours they worked but were not paid is equal to the average

numbers of hours for the class, one could not calculate the damages of all members of the class. Id. 

This is so because “[t]o extrapolate from the experience of the 42 to that of the 2341 would require

that all 2341 have done roughly the same amount of work, including the same amount of overtime

work, and had been paid the same wage,” but “[n]o one thinks there was such uniformity.” Id. 

Contrary to Plaintiffs’ assertion, Anderson v. Mt. Clemens Pottery, 328 U.S. 680 (1946),

superseded on other grounds by statute, Portal to Portal Act of 1947, 29 U.S.C. §§ 251–62, does not

stand for the proposition that plaintiffs in a class action may always use representative testimony

when an employer has failed to keep proper time records. In Anderson, the Supreme Court stated

that if an employer has failed to keep proper time records in accordance with its statutory duty, “an

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employee has carried out his burden if he proves that he has in fact performed work for which he

was improperly compensated and if he produces sufficient evidence to show the amount and extent

of that work as a matter of just and reasonable inference.” Id. at 687. As noted by the Seventh

Circuit, however, “what can’t support an inference about the work time of thousands of workers is

evidence of the experience of a small, unrepresentative sample of them.” Espenscheid, 705 F.3d at

775. Thus, Anderson fails to solve Plaintiffs’ problems regarding its proposal to use representative

testimony. 

Nor do Plaintiffs address how to deal with payment under the piece-rate system because

“[w]hen one is paid by the job rather than the hour, the hourly wage varies from job to job and

worker to worker.” Id. 

Espenscheid is clear that the plaintiffs are required to set forth “a feasible litigation plan,”

but they did not. Indeed, when Defendant came forward with a detailed challenge to Plaintiffs’

ability to establish a consistent and accurate manner by which to calculate damages for the entire

class, Plaintiffs wholly failed to respond, offering only vague references to “mathematical formulas”

and “accurate damage calculations” without specifying what those are. As noted by the Espenscheid

court, “if class counsel is incapable of proposing a feasible litigation plan though asked to do so, the

judge’s duty is at an end.” Espenscheid, 705 F.3d at 776. See also Camilotes, 286 F.R.D. at 354

(granting decertification motion, noting that “[a]lthough Plaintiffs contend that ‘numerous

mechanisms are available to this Court at trial to allay any fairness or procedural concerns,’ they fail

to propose any specific trial plan, nor do they propose any specific potential subclasses” and

“[g]enerically stating that unspecified mechanisms may exist is not sufficient to allay the Court's

manageability and fairness concerns, especially given the plethora of individualized factual issues

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in this case.”). 

Fairness and Procedural Concerns

Plaintiffs invoke fairness and procedural considerations in support of their position that the

class should remain certified. Class actions are an “ingenious procedural innovation” which are

“especially important when each claim is too small to justify the expense of a separate suit, so that

without a class action there would be no relief, however meritorious the claims.” Eubank v. Pella

Corp., 753 F.3d 718 (7th Cir. 2014). However, certain cases may arise in which numerous class

members are “harmed to a different extent” such that the efficiencies provided by resolution for a

class or subclasses are lost. Espenscheid, 705 F.3d at 776. Although Plaintiffs, in opposing

decertification, contend that “[i]t is logical and advantageous to allow the[m] . . . to pool their

resources and for the Court and parties to not toil through hundreds of individual trials” (Pls.’ Resp.,

Dkt. # 273, at 23), they offer no solutions to the significant problems posed by the individual

damages inquiries discussed above. Indeed, as the case now stands, proceeding with a class would

result in exactly what Plaintiffs seek to avoid –“hundreds of individual trials” on damages. Without

any proposal of a workable methodology in this case, Plaintiffs’ assertion that “individualized

inquiries into damages do not necessarily require decertification, so long as damages stem from the

defendant’s common policies and are capable of determination through a uniform methodology”

rings hollow. (Id. at 36.) 

As noted by the Supreme Court:

What matters to class certification . . . is not the raising of common questions – even

in droves – but, rather the capacity of a classwide proceeding to generate common

answers apt to drive the resolution of the litigation. Dissimilarities within the

proposed class are what have the potential to impede the generation of common

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answers.

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (citation and internal quotation marks

omitted). 

Conclusion

For these reasons, Defendant’s motion to decertify [264] is granted. 

Date: September 25, 2014 ____________________________________

Ronald A. Guzmán

United States District Judge 

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