Lightner v. DaVita, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-03104-NYW-KAS
ANDUIN LIGHTNER, individually and on behalf of all others similarly situated,
Plaintiff,
v.
DAVITA, INC.,
Defendant.
ORDER ON MOTION FOR CONDITIONAL COLLECTIVE CERTIFICATION
This matter is before the Court on Plaintiff’s Opposed Amended Motion for FLSA
Conditional 	Certification 	and 	Court-Authorized 	Notice 	(the 	“Motion” 	or 	“Motion 	for
Conditional Certification”). 	[Doc. 72]. 	The Court has reviewed the Motion, the related
briefing, and applicable case law, and concludes that oral argument would not materially
assist in resolution of the Motion. For the reasons set forth in this Order, the Motion for
Conditional Certification is respectfully DENIED.
BACKGROUND
Plaintiff Anduin Lightner (“Plaintiff” or “Ms. Lightner”) initiated this collective action
on November 21, 2023 pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201–219. [Doc. 1]. Plaintiff alleges generally that Defendant DaVita, Inc. (“Defendant”
or “DaVita”), a “nationwide healthcare provider,” failed to provide bona fide meal breaks
to its employees and failed to compensate its employees for compensable, off-the-clock
rest breaks. [Id. at ¶ 1]. 	More specifically, Ms. Lightner alleges that DaVita nurses and
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technicians are regularly required to “remain responsible for patient care” during their
meal breaks, so their meal breaks are frequently interrupted “by work demands.” [Id. at
¶ 2]. Despite this, Plaintiff alleges, DaVita deducts 30 minutes from the employees’ six-
hour shifts, which deprives the nurses and technicians of compensation for time they
worked during their interrupted meal breaks. [Id. at ¶¶ 2–3]; see also [id. at ¶ 22 (“Plaintiff
and the class members were not compensated at any rate whatsoever for thirty minutes
of each of their six-hour shifts worked [even though] Plaintiff and the Collective Action
members had meal breaks that were routinely interrupted or subject to interruption to
perform job duties.”)]. 	She alleges that this practice also resulted in DaVita depriving
nurses and technicians of overtime pay during weeks in which they worked more than 40
hours. [Id. at ¶ 22].
In addition to meal-break violations, Ms. Lightner alleges that DaVita nurses and
technicians were and/or are required to clock out for rest breaks of fewer than 20 minutes,
which deprives them of compensation for those breaks and violates the FLSA. 	[Id. at
¶¶ 4, 31–33]; see also 29 C.F.R. § 785.18 (“Rest periods of short duration, running from
5 minutes to about 20 minutes, . . . must be counted as hours worked.”). Plaintiff suggests
that this sometimes occurred when an employee’s break “was intended to serve as a
meal break[] but was cut short due to an interruption,” [Doc. 1 at ¶ 22], but she also
suggests more generally that employees were required to clock out for rest periods
shorter than 20 minutes and deprived of compensation for that time, see [id. at ¶¶ 1, 4].
She asserts that this practice “had the effect of depriving nurses and technicians of
overtime compensation due to them under the FLSA in the weeks in which they worked
more than forty (40) hours in a workweek.” [Id. at ¶¶ 4, 33].
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Ms. Lightner raises a single claim in this case, asserting a violation of 29 U.S.C.
§ 207 based on DaVita’s alleged failure to pay proper overtime wages. [Id. at ¶¶ 36–43].
She brings her claim personally and on behalf of the following collective:
All current and former hourly paid nurses and technicians employed at all
DaVita locations excluding those in Arkansas, Florida, Georgia, Louisiana,
New York, Oklahoma, Tennessee, Texas, and Virginia, to provide direct
patient care at any time during the three years before this Complaint was
filed up to the present who, as a result of Defendant’s practice of not paying
for rest breaks 20 minutes or shorter in duration, did not receive all of the
overtime pay to which they were entitled under the FLSA in the weeks of
their employment in which said nurses and technicians worked more than
forty (40) hours per week[.]
[Id. at ¶ 44 (the “Proposed Collective”)].1
On March 7, 2024, the Honorable Kathryn A. Starnella entered a Scheduling
Order, which contemplates three phases of discovery. [Doc. 33 at 6]. In the first phase,
the Parties “focus[ed] on the Named Plaintiff[] and opt-in plaintiffs and the discovery
necessary for conditional certification of the FLSA collective action.” [Id.]. The first phase
of discovery closed on January 31, 2025. [Doc. 61].
Plaintiff filed the Motion for Conditional Certification on March 3, 2025. [Doc. 72].
On August 21, 2025, DaVita moved to strike all of Plaintiff’s consent forms on the basis
that 	Plaintiff’s 	counsel 	obtained 	the 	consent 	forms 	through 	false 	and 	misleading
communications. [Doc. 104]. This Court agreed that Plaintiff’s counsel’s communications
1 The Complaint also asserts a claim on behalf of an “FLSA Meal Break” collective based
on DaVita’s alleged “practice of deducting 30 minutes from each shift worked and not
paying for same.” 	See [Doc. 1 at ¶ 44]. 	However, on August 5, 2026, Plaintiff filed a
Notice of Withdrawal of FLSA Meal Break Claim for Conditional Certification Purposes
Only, wherein she “withdraw[s] her request to conditionally certify a[n] FLSA meal break
collective without prejudice.” [Doc. 155 at 2]. Accordingly, the Court construes the Motion
for Conditional Certification as seeking conditional certification only of the “FLSA Rest
Break” collective referenced in the Complaint. [Doc. 1 at ¶ 44].
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were false and misleading and determined that corrective action—curative notice sent to
all individuals who had jointed the case—was necessary before it could rule on the Motion
for Conditional Certification. [Doc. 135 at 2–4]. Accordingly, the Court ordered the Parties
to meet and confer about the contents of the curative notice and the process for its
distribution. 	[Id. at 4]. 	The Parties did so, see [Doc. 137], and the Court approved the
Parties’ proposed curative notice and proposed corrected consent form, [Doc. 138].
Plaintiff’s counsel distributed the curative notice to the individuals who had opted in, see
[Doc. 139], and approximately half of the original opt-ins filed corrected consent forms,
see [Doc. 142 at 2].
The Motion for Conditional Certification is fully briefed, [Doc. 73; Doc. 77], and ripe
for resolution.2
LEGAL STANDARD
The FLSA sets forth standards governing the payment of minimum and overtime
wages to employees. 29 U.S.C. §§ 206, 207. Section 216(b) permits private individuals
to challenge minimum wage and overtime pay violations by bringing claims on “behalf of
. . . themselves and other employees similarly situated.” 29 U.S.C. § 216(b). This sort of
collective action allows “plaintiffs the advantage of lower individual costs to vindicate
rights by the pooling of resources.” 	Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
2 On August 17, 2026, DaVita filed a “Response” to Plaintiff’s Notice of Withdrawal of
FLSA Meal Break Claim for Conditional Certification Purposes Only. 	See [Doc. 156].
Plaintiff’s Notice of Withdrawal did not create a right for DaVita to file a 15-page response
containing substantive legal arguments that could have been raised in its original
Response to the Motion for Conditional Certification, and DaVita did not ask for leave of
Court prior to filing this document. 	The Court did not consider Defendant’s new
arguments in ruling on the Motion for Conditional Certification.
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170 (1989) (interpreting the Age Discrimination in Employment Act, which explicitly
incorporates the collective action provisions of the FLSA).
FLSA collective actions may be maintained “only by and among employees who
are ‘similarly situated.’” 	Norwood v. WBS, Inc., No. 15-cv-00622-MSK-KMT, 2016 WL
7666525, at *1 (D. Colo. Sept. 29, 2016). “The trial court is tasked with determining who
is ‘similarly situated’ for purposes of a § 216(b) claim in a ‘manner that is orderly, sensible,
and not otherwise contrary to statutory commands or the provisions of the Federal Rules
of Civil Procedure.’” 	Pena v. Home Care of Denv., LLC, No. 19-cv-00069-CMA-NYW,
2019 WL 5577947, at *1 (D. Colo. Oct. 29, 2019) (quoting Hoffmann-La Roche, 493 U.S.
at 170–72).
The Tenth Circuit has authorized a two-step process for determining whether
putative collective action members are similarly situated. 	Thiessen v. Gen. Elec. Cap.
Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). 	At the initial “notice stage” of litigation, to
assess whether the putative plaintiffs are similarly situated, the court determines whether
the plaintiff has asserted “substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan.” Id. at 1102 (quoting Vaszlavik
v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). “Certification at this step
is conditional, and the standard of proof ‘is a lenient one that typically results in . . .
certification,’ allowing notice to be sent to the putative class members and discovery to
be undertaken.” Norwood, 2016 WL 7666525, at *1 (quoting Brown v. Money Tree Mortg.,
Inc., 222 F.R.D. 676, 679 (D. Kan. 2004)); see also Dunkel v. Warrior Energy Servs., Inc.,
304 F.R.D. 193, 199 (W.D. Pa. 2014) (“A plaintiff’s burden at the first [stage] is light,
requiring only that the plaintiff make a modest factual showing by ‘producing some
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evidence, beyond pure speculation, of a factual nexus between the manner in which the
employer’s alleged policy affected her and the manner in which it affected other
employees.’” (cleaned up)). 	But importantly, conditional certification is “not automatic.”
Jung v. Gina Grp., LLC, No. 19-cv-08624-MKV, 2021 WL 4120642, at *2 (S.D.N.Y. Sept.
9, 2021) (quotation omitted).
Courts generally “limit[] the scope of their review on a motion for conditional
certification to the allegations in plaintiffs’ complaint and supporting affidavits.” Shockey
v. Huhtamaki, Inc., 730 F. Supp. 2d 1298, 1303 (D. Kan. 2010); accord MacDonald v.
Covenant Testing Techs., LLC, No. 18-cv-02290-NRN, 2019 WL 1755282, at *3 (D. Colo.
Apr. 18, 2019). Courts can, however, also consider other evidence obtained through early
discovery. See Thiessen, 267 F.3d at 1108; James v. Boyd Gaming Corp., 522 F. Supp.
3d 892, 912 (D. Kan. 2021) (considering deposition testimony and interrogatory answers
at conditional-certification step); Gomez v. Epic Landscape Prods., L.C., No. 2:22-cv-
02198-JAR-ADM, 2023 WL 3159604, at *3 (D. Kan. Apr. 28, 2023) (“[T]he Court
considers the allegations in Plaintiffs’ Amended Complaint and the instant motion, as well
as the documentation attached thereto, to determine if there are substantial allegations
that the putative class members were together the victims of a single decision, policy, or
plan to not pay overtime premiums.”). The Court does not weigh evidence, resolve factual
disputes, 	or 	reach 	the 	merits 	of 	the 	case 	at 	the 	conditional-certification 	stage.
MacDonald, 2019 WL 1755282, at *3.
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ANALYSIS
I. 	Defining the Proposed Collective
In 	the 	Motion 	for 	Conditional 	Certification, 	Ms. 	Lightner 	asks 	the 	Court 	to
conditionally certify the “following collective as it relates to FLSA . . . rest breaks for the
three years prior to the filing of this lawsuit and forward”:
All current and former hourly-paid nurses and technicians employed at any
DaVita location, excluding those in Arkansas, Florida, Georgia, Louisiana,
New York, Oklahoma, Tennessee, Texas, and Virginia, who provide(d)
direct patient care.
[Doc. 72 at 15 (footnote omitted)]. 	Without citation to legal authority, DaVita responds
that Plaintiff “does not identify the collective[] she seeks to certify,” so “she is beholden to
the one propounded in the Complaint.” 	[Doc. 73 at 1–2]. 	Plaintiff does not respond to
DaVita’s argument or clarify the collective she wants to conditionally certify. 	See [Doc.
77].
DaVita’s argument is not entirely accurate—Plaintiff does identify the collective she
seeks to certify; it just differs from the Proposed Collective she identified in the Complaint.
Compare [Doc. 1 at ¶ 44], with [Doc. 72 at 15]. But the Court does not find the Proposed
Collective identified in the Complaint materially different from the collective identified in
the Motion as it relates to rest breaks 20 minutes or shorter. Because it is more specific,
the Court will rely on the proposed collective identified in the Complaint:
All current and former hourly paid nurses and technicians employed at all
DaVita locations excluding those in Arkansas, Florida, Georgia, Louisiana,
New York, Oklahoma, Tennessee, Texas, and Virginia, to provide direct
patient care at any time during the three years before this Complaint was
filed up to the present who, as a result of Defendant’s practice of not paying
for rest breaks 20 minutes or shorter in duration, did not receive all of the
overtime pay to which they were entitled under the FLSA in the weeks of
their employment in which said nurses and technicians worked more than
forty (40) hours per week[.]
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[Id. at ¶ 44].3
II. 	Whether the Proposed Collective Members are Similarly Situated
The Court must determine whether Ms. Lightner has raised substantial allegations
that the Proposed Collective members are similarly situated. Thiessen, 267 F.3d at 1105.
As a preliminary matter, Plaintiff’s rest-break FLSA claim depends at least in part
on allegations that DaVita interrupted employees’ 30-minute unpaid meal breaks. 	See
[Doc. 72 at 5 (“[R]egardless of whether attributable to meal breaks cut short by an
interruption 	or 	for 	other 	reasons, 	Defendant’s 	records 	clearly 	show 	impermissible
deductions for breaks of fewer than twenty minutes.”)]; see also [id. at 13 (“Regardless
whether this short break was intended to serve as a meal break, but was cut short due to
3 On May 20, 2026, the Parties filed a joint status report at the Court’s directive identifying
the individuals who filed corrected consent forms. 	See [Doc. 142]. 	Sixty-two people
originally filed consent-to-join forms, and of those 62, 27 previous opt-ins filed corrected
consent forms. [Id. at 2]. In addition, two people who submitted corrected consent forms
had not originally joined the lawsuit. 	[Id.]. 	The Parties take competing positions on
whether the Court can consider deposition testimony from individuals who originally
joined the lawsuit but did not file corrected consent forms. 	See [id. at 2–4]. 	Ultimately,
the Court concludes that whether or not it considers the testimony of individuals who
originally joined this case but did not file corrected consent forms, the Court’s resolution
of the Motion for Conditional Certification remains the same.
Aside from identifying the current opt-ins, as ordered by the Court, both Parties raise
procedurally improper arguments in their status report. For example, DaVita argues that
“[t]hree of those who filed corrected consents to join have time-barred claims and thus
should also be disregarded.” [Id. at 3]. Ms. Lightner, on the other hand, references two
additional potential opt-ins “whose consents have been received but have yet to be filed,”
and she seeks “leave to file these consents late.” [Id. at 3–4]. Plaintiff also “asks for leave
to file consents expected this week and next week, but which have not yet been received,
as there is no prejudice to Defendant in accepting these forms, and they will still be
received in time for the Court’s consideration of the pending motion.” [Id. at 4]. No Party
has filed any formal motion requesting affirmative relief, and their requests for relief raised
in the status report are procedurally improper and will be disregarded. 	See NYW Civ.
Practice Standard 7.1A(a)(5) (“All requests for the Court to take distinct actions must be
contained in separate, written motions.” (emphasis added)).
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an interruption, such short breaks are compensable under the FLSA.”)]; see also [Doc.
77 at 4–5 (Plaintiff arguing that she has identified a “single policy and practice” that DaVita
“require[es] (and expect[s]) direct patient care workers to remain on-duty during unpaid
meal periods and subject[s] these workers to interruptions throughout their attempted
meal periods” (capitalization altered and emphasis omitted))]. 	Therefore, although
Plaintiff has “withdraw[n] . . . her request to conditionally certify a[n] FLSA meal break
collective without prejudice,” [Doc. 155 at 2], the Court will still consider meal-break-
related 	allegations 	and 	evidence 	in 	determining 	whether 	the 	Proposed 	Collective
Members are similarly situated.4
Ms. Lightner argues that the Proposed Collective Members are similarly situated
because “they were all classified as non-exempt, overtime eligible employees; paid on an
hourly basis (even with the same . . . time tracking software); and subject to the same
meal and rest break policies.” 	[Doc. 72 at 5–6 (footnotes omitted)]. 	The Court’s focus
here, however, is whether Plaintiff has put forth substantial allegations that the Proposed
Collective Members were subject to a single decision, policy, or plan. Thiessen, 267 F.3d
at 1102; see also Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 927 (D. Ariz. 2010)
(allegations that employees were all classified as exempt and performed the same tasks
were by themselves insufficient to justify conditional certification because they did not
“constitute the necessary evidence of a common policy, plan, or practice”); Barron v.
Henry Cnty. Sch. Sys., 242 F. Supp. 2d 1096, 1103 (M.D. Ala. 2003) (“[A] plaintiff must
make some rudimentary showing of commonality between the basis for his claims and
4 The Court does not consider the deposition testimony of Tennessee worker Rosalind
Rodgers, since Tennessee is one of nine states carved out of the Proposed Collective.
See [Doc. 1 at ¶ 44; Doc. 65-24 at 2].
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that of the potential claims of the proposed class, beyond the mere facts of job duties and
pay provisions.”).
In her Complaint, Plaintiff alleges:
• 	“[O]n numerous instances Plaintiff and Collective Action members were required
to clock out for a rest break period of less than 20 minutes in duration, which time
period went uncompensated. 	This had the effect of depriving nurses and
technicians of overtime compensation due to them under the FLSA in the weeks
in which they worked more than forty (40) hours in a workweek in violation of the
FLSA. 	On information and belief, all of DaVita’s non-exempt, hourly paid direct
patient care nurses and technicians were subjected to this illegal pay practice.”
[Doc. 1 at ¶ 4].
• 	“[O]n numerous instances Plaintiff and Collective Action members were required
to clock out for a rest break period of less than 20 minutes in duration without
compensation. 	Regardless of whether this short break was intended to serve as
a meal break, but was cut short due to an interruption, such short breaks are
compensable time under the FLSA.” [Id. at ¶ 22].
• 	“On numerous instances Plaintiff and Collective Action members were denied
compensation for rest break periods of less than 20 minutes in duration. This had
the effect of depriving nurses and technicians of overtime compensation due to
them under the FLSA in the weeks in which they worked more than forty (40) hours
in a week.” [Id. at ¶ 33].
• 	“[B]ased on information and belief, Defendant’s pay and time records will show
many instances when Plaintiff and Collective Action Members were required to
clock out for uncompensated rest break of less than 20 minutes in duration.” [Id.
at ¶ 35].
These allegations provide little information about or insight into DaVita’s alleged 41-state
“practice of not paying for rest breaks 20 minutes or shorter in duration.” See [id. at ¶ 44].
For example, there are no allegations establishing how such an informal practice was
implemented or how often the practice deprived employees of rest-break compensation
they were owed. 	And there are no allegations as to which, or all, of DaVita’s facilities
were involved. “Courts have found that such conclusory allegations are not ‘substantial
allegations’ and therefore are insufficient” to support conditional certification. 	Smith v.
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Mini Mart, Inc., No. 17-cv-00671-PAB-MEH, 2018 WL 10932965, at *6 (D. Colo. Mar. 26,
2018) (collecting cases); see also Islam v. LX Ave. Bagels, Inc., No. 18-cv-04895-RA-
RWL, 2019 WL 5198667, at *6 (S.D.N.Y. Sept. 30, 2019) (“[C]ourts have denied
conditional 	certification 	where 	plaintiffs 	submitted 	threadbare, 	overly 	conclusory
allegations of similarly situated employees.” (collecting cases)).
The Motion for Conditional Certification, which focuses heavily on the now-
withdrawn request to conditionally certify a meal-break collective, does little more to
establish a companywide practice with respect to unpaid rest breaks. 	Ms. Lightner
asserts that DaVita “subjected [Proposed Collective Members] to an identical policy and
practice with respect to meal and rest breaks, which was implemented identically (and
illegally) at all locations.” 	[Doc. 72 at 3]. 	She argues that DaVita “does not pay for the
time employees are clocked out as a meal period without compensation for the time
worked, even when breaks are 20 minutes or less,” [id. at 10–11], that its records “clearly
show impermissible deductions for breaks of fewer than twenty minutes,” [id. at 5], and
that its records “show that it illegally failed to compensate for short breaks of fewer than
twenty minutes in violation of the FLSA,” [id. at 14]. 	She also claims that the Proposed
Collective Members were, “on occasions,” “required to clock back in[] prior to taking a full
30-minute meal break because it was cut short by an interruption, or for other reasons
immaterial to the merits of their meal break claims.” 	[Id. at 13]. 	For each of these
assertions, she cites a single employee’s time records reflecting a 19-minute break, which
Plaintiff implies was uncompensated. See [id. at 5 n.13, 11 n.26, 13 n.35, 14 n.37]; see
also [Doc. 65-18 at 2]. However, time records from a single employee—who did not file
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a corrected consent form5—do little to establish a companywide practice, across 41
states, of failing to compensate employees for short rest breaks.
Although Plaintiff has attached hundreds of pages of deposition testimony and
other evidence to her Motion for Conditional Certification, see, e.g., [Doc. 65-1; Doc. 65-
2; Doc. 65-3; Doc. 65-4; Doc. 65-5; Doc. 65-8; Doc. 70-2; Doc. 70-4; Doc. 70-5], she does
not cite any of this evidence in support of her claim that DaVita had a practice of not
paying for rest breaks 20 minutes or shorter in duration, see [Doc. 72 at 13–14]. It is not
this Court’s duty to sift through this evidence in search of support for Plaintiff’s Motion.
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995). 	But as explained
above, because Plaintiff’s rest-break claim is based at least in part on would-be meal
breaks that were cut short, see [Doc. 72 at 5, 13], the Court has, in an abundance of
caution, reviewed the deposition testimony cited by Plaintiff in support of her arguments
that the Proposed Collective Members’ meal breaks were interrupted, see [id. at 4 & n.11;
id. at 8 n.22].
Testimony that employees’ meal breaks were interrupted, see, e.g., [Doc. 65-1 at
151:9–15; Doc. 65-2 at 65:12–66:4; Doc. 65-5 at 94:2–18], does not necessarily provide
clear support for Plaintiff’s claim that, based on a companywide policy, all Proposed
Collective Members were deprived of pay for compensable rest breaks. 	For example,
many employees testified that their meal breaks were often interrupted, but the cited
testimony does not necessarily reflect that, because of these interruptions, the employees
started working again within 20 minutes of starting their break (rendering those breaks
5 This employee, Ileshia Hogan, filed a consent form at the early stages of this case, see
[Doc. 5-1 at 6], but she did not file a corrected consent form, see [Doc. 142 at 2].
Furthermore, the state(s) in which Ms. Hogan worked is not evident. See [Doc. 65-18].
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compensable). 	See, e.g., [Doc. 65-2 at 65:12–66:22 (technician stating that he was
frequently 	interrupted 	by 	“small 	inconveniences,” 	but 	not 	indicating 	whether 	the
interruptions resulted in unpaid breaks of fewer than 20 minutes); Doc. 65-11 at 34:17–
25, 158:11–159:16 (technician stating that she would be on a break and “would get called
back,” but not indicating whether she clocked back in or how quickly into her break she
would be called back); Doc. 65-12 at 94:13–95:22 (technician stating that her breaks were
interrupted, but not discussing the length of the breaks or clocking back in); Doc. 70-2 at
35:21–24, 36:18–37:8 (nurse stating that she “sometimes” finished her meal when her
meal breaks were interrupted, but also stating she did not think nurses clocked out for
meal breaks)]; see also [Doc. 77 at 5 (Plaintiff describing the FLSA violation as occurring
when an employee “clock[s] back in from an attempted meal or rest break lasting between
5 and 20 minutes [but] receive[s] no compensation for that time”)]. At best, one employee
stated that she would clock out for her meal break, and after five to ten minutes, her break
would be interrupted and she would have to clock back in and resume work. [Doc. 70-5
at 20:4–17].
The Court considers Plaintiff’s allegations in conjunction with the evidence Plaintiff
proffers in support of her Motion—(1) the time records of one employee, who has not filed
a corrected consent form and who worked in an unidentified state, showing that they took
a 19-minute break, which Plaintiff claims was uncompensated, [Doc. 65-18]; and (2) one
South Carolina employee’s testimony that she had to clock out for breaks lasting only five
or ten minutes, [Doc. 70-5 at 20:4–17]. The Court respectfully concludes that Plaintiff has
not set forth “substantial allegations” that the Proposed Collective Members “were
together the victims of a single decision, policy, or plan.” 	Thiessen, 267 F.3d at 1102.
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The minimal evidence submitted by Plaintiff does not establish the DaVita practice
contemplated in Plaintiff’s Complaint in any one state, let alone a common informal policy
implemented across 41 states. 	See Jibowu v. Target Corp., 492 F. Supp. 3d 87, 125
(E.D.N.Y. 2020) (affidavits from eight employees were insufficient to show that they were
similarly situated to 14,000 potential collective members); see also Burns v. City of
Holyoke, 881 F. Supp. 2d 232, 235 (D. Mass. 2012) (declining to conditionally certify a
collective “based on the affidavits of a few employees”); Flores v. Lifeway Foods, Inc.,
289 F. Supp. 2d 1042, 1046 (N.D. Ill. 2003) (evidence that two of 50 employees were
deprived of overtime wages did not amount to “modest factual showing of a common
policy or plan” (quotation omitted)).
Although Plaintiff’s burden at this conditional stage is “modest, it is not non-
existent, and it cannot be satisfied simply by unsupported assertions.” Ward v. Express
Messenger Sys., Inc., No. 17-cv-02005-NYW, 2018 WL 1604622, at *3 (D. Colo. Apr. 3,
2018) (quoting Korenblum v. Citigroup, Inc., 195 F. Supp. 3d 475, 480 (S.D.N.Y. 2016));
see also Dunkel, 304 F.R.D. at 199 (requiring a “modest factual showing” at first stage of
certification process). There is simply no basis for this Court to conclude that Plaintiff has
raised “substantial allegations” that the Proposed Collective Members are similarly
situated or all subject to a single decision, policy, or plan, since there is no clear indication
that the Proposed Collective Members were required to clock back in within the first 20
minutes of their meal breaks and were deprived compensation for that time (or were
otherwise denied pay for breaks shorter than 20 minutes).6 	In other words, conditional
6 The lack of support for Plaintiff’s cursory allegations distinguishes this case from the
Court’s decision in Bowling v. DaVita, where the Court conditionally certified a meal-break
collective covering nine states. See No. 21-cv-03033-NYW-KLM, 2023 WL 4364140, at
*6 (D. Colo. July 6, 2023) (conditionally certifying collective after concluding that the
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certification of the Proposed Collective on the current record would require the Court to
assume the existence of evidence that is absent from the record. The Court respectfully
concludes that Plaintiff has not met her burden at this stage and declines to conditionally
certify the Proposed Collective. 	In so ruling, the Court makes no determination on the
merits of Plaintiff’s individual claim or whether DaVita has violated the FLSA.
For the reasons set forth in this Order, the Motion for Conditional Certification is
respectfully DENIED. On or before September 4, 2026, the Parties shall meet and confer
and submit a joint status report concerning the appropriate next steps in this case.
CONCLUSION
For these reasons, it is ORDERED that:
(1) 	Plaintiff’s Opposed Amended Motion for FLSA Conditional Certification and
Court-Authorized Notice [Doc. 72] is DENIED;
(2) 	Defendant DaVita Inc.’s Opposed Motion to Decide DaVita’s Motion to
Decertify in Bowling v. DaVita Inc. Before Deciding Plaintiff’s Amended
Motion for FLSA Conditional Certification or, in the Alternative, for a Hearing
[Doc. 147] is DENIED as moot;
(3) 	DaVita Inc.’s Conditional Motion Requesting New Conditional Certification
Briefing [Doc. 157] is DENIED as moot; and
plaintiff had raised substantial allegations that employees in certain states were subject
to the same decision, policy, or plan).
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(4) 	On or before September 4, 2026, the Parties shall meet and confer and
submit a joint status report concerning the appropriate next steps in this
case.
DATED: August 21, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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