BOWIE v. GIFTED TOUCH, LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALENE BOWIE, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:25-cv-00441-TWP-MKK
)
GIFTED TOUCH, LLC, 	)
PATRICE PADRON, 	)
)
Defendants. 	)
)
)
MISTY BECRAFT 1:25-cv-00515-TWP-MKK, 	)
MARIAH VAZQUEZ on behalf of Themselves
and All Others Similarly Situated; consolidated
from 1:25-cv-00515-TWP-MKK,
)
)
)
)
Consol Plaintiffs. 	)
ENTRY ON PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION
This matter is before the Court on a Motion for Conditional Certification filed by Plaintiffs
Alene 	Bowie 	("Bowie"), 	Misty 	Becraft 	("Becraft"), 	and 	Mariah 	Vazquez 	("Vazquez"),
(collectively, "Plaintiffs") (Filing No. 57). Plaintiffs initiated this action to recover overtime wages
for non-exempt individuals employed by Defendants Gifted Touch, LLC ("Gifted Touch") and
Patrice Padron (collectively, "Defendants") who were allegedly unpaid or underpaid in violation
of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et. seq. Plaintiffs ask the Court to grant
a collective action and approve their proposed opt-in and opt-in notice form. For the reasons that
follow, the Motion is granted pursuant to the modifications contained in this Entry.
I. 	BACKGROUND
Gifted Touch is a limited liability company located in Indianapolis, Indiana (Filing No. 1
at 1). Defendant Patrice Padron is the sole member of Gifted Touch. Id.
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Bowie worked for Gifted Touch as a home health care provider on an hourly basis from
January 2022 to June 2022. Id. at 2. Bowie worked overtime hours for Gifted Touch but alleges
that she was not paid overtime premiums nor paid the correct amount for her overtime hours. Id.
Vasquez began working for Gifted Touch in September 2022 as a home health aide on an hourly
basis (Filing No. 58 at 2). Becraft began working for Gifted Touch in August 2023 as a home health
aide on an hourly basis. Id. at 1–2. Both Becraft and Vasquez worked over forty hours in certain
workweeks during their employment with Gifted Touch but were allegedly never paid overtime
premiums for those overtime hours. Id. Vasquez and Becraft terminated their employment with
Gifted Touch in September 2023 and February 2025, respectively. Id.
On March 6, 2025, Bowie initiated this action against the Defendants alleging violations
of the FLSA (Filing No. 1). On March 18, 2025, Becraft and Vasquez initiated a member case,
1:25-cv-00515-TWP-MKK, on behalf of themselves and all others similarly situated against the
Defendants alleging similar violations. The Defendants filed a motion to consolidate the cases,
(Filing No. 26), which the Court granted (Filing No. 27).
On November 20, 2025, the Plaintiffs filed the instant Motion for Conditional Certification
(Filing No. 58). Plaintiffs request that the Court grant conditional certification of their FLSA claim,
approve their proposed notice to potential opt-in plaintiffs ("Notice"), approve sending the
Plaintiffs' proposed Notice via US mail, e-mail, and text message, and approve their consent to
join collective action form ("Opt-In Form"). Id. at 7.
Defendants do not object to this case proceeding as a collective action nor do they object
to providing notice to the putative class members (Filing No. 60 at 1). However, they object to the
content and form of the Plaintiffs' proposed Notice. Id. The Defendants also state that the parties
need to agree on how the Notice should be sent. Id.
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The Court then ordered the Defendants to file their proposed class definition, Notice and
Opt-In Form so that it may properly rule on the instant Motion (Filing No. 67). Defendants
subsequently complied with the Court's order (Filing No. 70).
II. 	LEGAL STANDARD
Under the FLSA, an employee is permitted to maintain a collective action for "unpaid
overtime compensation . . . for and in behalf of himself . . . and other employees similarly situated."
29 U.S.C. § 216(b). "Such a collective action differs significantly from a Rule 23 class action.
Potential class members in a collective action must affirmatively opt-in to be bound, while in a
Rule 23 action they must opt out [to] not be bound." Cheesman v. Nexstar Broad. Group, Inc., No.
07CV360, 2008 U.S. Dist. LEXIS 42265, at *2 (S.D. Ind. May 27, 2008) (emphasis in original).
The standards governing class certification under Rule 23 are not applicable to FLSA collective
actions. Id. Courts in the Seventh Circuit engage in a two-step inquiry to determine whether an
FLSA action may proceed as a collective action. Id. The first step is called the "notice stage" and
"involves an analysis of the pleadings and affidavits which have been submitted to determine
whether notice should be given to potential class members." Id. (quoting Carter v. Indianapolis
Power & Light Co., No. IP102CV01812SEBVSS, 2003 U.S. Dist. LEXIS 23398, at *3 (S.D. Ind.
Dec. 23, 2003)). "The second step, which usually occurs after discovery has largely been
completed, allows a court the opportunity to determine whether the class should be decertified or
restricted because various putative class members are not in fact similarly situated as required by
the statute." Id. During the initial "notice stage," plaintiffs do not have to prove their entire case.
Rather, the plaintiffs must make only a threshold showing that they are similarly situated to the
employees on whose behalf they seek to pursue claims. Coan v. Nightingale Home Healthcare,
Inc., No. 05-CV-0101, 2005 U.S. Dist. LEXIS 15475, at *1 (S.D. Ind. June 29, 2005). This
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threshold showing is "relatively modest." Id. "[T]o meet their burden, plaintiffs must provide
evidence via an affidavit, declaration, or other support beyond allegations in order to make a
minimal showing of other similarly situated employees subjected to a common policy." Id.
Although the first step of certification does not impose a high burden, "'this does not mean that the
"modest factual showing" is a mere formality.'" Simmons v. Broadway Home Improvement Inc.,
No. 14-cv-483, 2014 U.S. Dist. LEXIS 102420, *1 (S.D. Ind. July 28, 2014) (quoting Campbell v.
Advantage Sales & Mktg., LLC, No. 09-cv-1430, 2010 U.S. Dist. LEXIS 87077, at *11 (S.D. Ind.
Aug. 24, 2010)). The first step serves as an important and functional step in the certification
process because it would be a waste of the court's and the litigants' time and resources to notify a
large and diverse class only to later determine that the matter should not proceed as a collective
action because the class members are not similarly situated. If a court grants conditional
certification of a collective action, it "has discretion to authorize notice to similarly situated
employees." Knox v. Jones Grp., 208 F. Supp. 3d 954, 958 (S.D. Ind. 2016) (citing inter alia
Alvarez v. City of Chicago, 605 F.3d at 449 (7th Cir. 2010)). The court also has discretion "to
prescribe the form, manner, and timing of notice to ensure that putative members receive 'accurate
and timely notice concerning the pendency of the collective action, so that they can make informed
decisions about whether to participate.'" Weninger v. Gen. Mills Operations LLC, 344 F. Supp. 3d
1005, 1012 (E.D. Wis. 2018) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170
(1989)).
III. 	DISCUSSION
A. 	Conditional Certification
Among other things, the FLSA prohibits employers from working their employees more
than forty hours in a work week without compensating the employees overtime wages at a rate of
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at least time and a half for hours worked in excess of forty hours. 29 U.S.C. §§ 207, 215(a)(2).
"The FLSA exempts from overtime pay coverage those employed in a 'bona fide executive,
administrative, or professional capacity.'" Mullins v. Target Corp., No. 09 C 7573, 2011 U.S. Dist.
LEXIS 39997, at *4 (N.D. Ill. Apr. 13, 2011) (quoting 29 U.S.C. § 213(a)(1)). The FLSA provides
a procedural mechanism whereby employees may litigate a collective action on behalf of similarly
situated employees. See 29 U.S.C. § 216(b).
In their Motion, Plaintiffs ask the Court to conditionally certify a collective action for their
FLSA claim, arguing that they are similarly situated to their fellow non-exempt employees of
Gifted Touch because they were all subject to a common pay practice which violated the FLSA—
the nonpayment or underpayment of overtime hours worked (Filing No. 58 at 6). The Defendants
do not oppose conditional certification at this step 1 or "notice stage" but reserve the right to
subsequently object under the second step of the collective action process (Filing No. 60 at 2). The
parties also agree on the collective definition: All present and former non-exempt employees of
Gifted Touch, LLC who worked over 40 hours in a workweek and were not paid overtime
premiums from March 6, 2022, to the present (Filing No. 58 at 7, Filing No. 70 at 2).
Plaintiffs have met the modest factual burden to show that they are similarly situated to the
potential opt-in plaintiffs identified in the collective definition. As shown by the affidavits and
earnings records, Plaintiffs were employed by Gifted Touch as health home aids and paid at an
hourly rate (see Filing No. 57-1, Filing No. 57-2, and Filing No. 57-3). They routinely worked
more than 40 hours in a workweek and were not paid overtime premiums for such workweeks. Id.
Given that the Defendants do not object to this action proceeding as a collective action at this stage
of the litigation, the Court finds no reason to deny conditional certification. Accordingly, the
conditional certification for the FLSA claim as a collective action is granted for the following
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collective (the "Collective"): All present and former non-exempt employees of Gifted Touch, LLC
who worked over 40 hours in a workweek and were not paid overtime premiums from March 6,
2022, to the present.
B. 	Proposed Notice and Method of Dissemination
The parties dispute the content, form, and method of dissemination of the Notice and Opt-
In Form. Both parties filed their proposed Notices and Opt-In Forms (Filing No. 57-4, Filing No.
70-1). In their Reply to the Defendants' proposed, Plaintiffs state their objections (Filing No. 71).
The Court will first address the Notice and then the Opt-In Form and Method of Dissemination.
The parties use the same format for their proposed Notices. However, the Plaintiffs'
proposed Notice contains errors including misspellings and references to "Subway," who is not a
party to this litigation. (See Filing No. 57-4). Accordingly, the Court will work off the Defendants'
proposed Notice and take into considerations those objections raised in the Plaintiffs' Reply. The
Plaintiffs' Notice is therefore denied, and the Defendants' proposed Notice is approved as
modified as discussed below.
Plaintiffs object to Section 2 of the Defendants' proposed Notice stating that the final
sentence of the very last paragraph should be deleted, and the final two paragraphs be consolidated
into the following:
The Court has not ruled which party will prevail in this lawsuit. Gifted Touch
disputes Plaintiffs' claims and denies any liability under the FLSA or any other
wage and hour statute. Gifted Touch contends it properly paid workers pursuant to
the FLSA and any other wage and hour law. Gifted Touch maintains that at all times
it acted in good faith in compensating its employees.
(Filing No. 71 at 1). The Court agrees. Section 2 is titled "What Is The Lawsuit About?" The
deleted sentence discusses decertification and the possibility of a statute of limitations issue. Such
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language is not necessary at this stage and would only serve to confuse potential plaintiffs. The
final two paragraphs of Section 2 shall therefore be consolidated into the paragraph stated above.
Next, the Plaintiffs take issue with the final two paragraphs in Section 4 arguing that they
have nothing to do with eligibility to participate in the lawsuit and should be eliminated. Id. The
Court agrees with respect to paragraph 3 but disagrees as to paragraph 4. Section 4 is titled
"Eligibility To Participate In The Lawsuit." Paragraph 3 reads, "If you do decide to join the lawsuit
this does not automatically mean that you have valid claims and/or that those claims are not barred,
or that you are eligible to receive any recovery." This paragraph has nothing to do with eligibility
and would serve only to dissuade some potential plaintiffs. However, paragraph 4, which reads,
"You may also contact an attorney of your choice. If you do not wish to be a part of the lawsuit
you do not need to do anything. This decision to join is entirely yours[,]" does not run the same
risk of dissuasion. Moreover, nowhere else in the proposed Notice does it indicate that potential
plaintiffs may contact an attorney of their choice concerning their decision to join the lawsuit.
Accordingly, paragraph 3 of Section 4 shall be deleted, and paragraph 4 shall remain.
Next, the Plaintiffs state that 45 days to opt-in is a reasonable period of time. Id. The Court
finds this reasonable as "Courts in this circuit have approved opt-in periods ranging from 45 to
120 days." Burr v. Loadsmart, Inc., 759 F. Supp. 3d 881, 890 (N.D. Ill. 2024) (internal quotation
marks and citation omitted). Moreover, the Defendants proposed an opt-in time frame of 60 days
(Filing No. 70-1). Accordingly, Section 5 of the Notice titled "How Do I Join The Lawsuit?" shall
provide for an opt-in period of 45 days after the Notice is sent.
Plaintiffs also argue that Section 5 should allow for potential plaintiffs to text a filled-out
version of the proposed Opt-In Form to Plaintiffs' counsel rather than be limited merely to mail, e-
mail, or fax (Filing No. 71 at 2). The Court agrees and the Defendants have provided no authority
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or reason why the Court should not allow such option. The Court finds that in today's electronic
age, potential plaintiffs should not be limited to opting in only via mail, e-mail, or fax as
Defendants' proposed Notice suggests. See Mobley v. Workday, Inc., No. 23-cv-00770, 2025 WL
3215337, at *1 (N.D. Cal. Nov. 18, 2025) (approving notice to potential plaintiffs which allowed
them to text their completed opt-in forms to plaintiffs' counsel). Accordingly, Section 5 shall add
the following fourth option for potential plaintiffs to join the lawsuit by completing the Opt-In
Form and submitting it by "Texting it to Ronald Weldy at (317) 289-0483."
Next, the Plaintiffs argue that the second paragraph of Section 7 is not necessary and should
not be included. Section 7 is titled "What Happens If I Join The Lawsuit?" The second paragraph
explains that any potential plaintiff who joins the lawsuit may be required to provide records,
answer written questions, or testify under oath and that any potential plaintiff who joins the lawsuit
will be bound by any judgment of the Court or settlement between the parties. The Court disagrees
with the Plaintiffs and finds that potential plaintiffs should be informed of their possible obligations
and that they will be bound should they join the lawsuit. Accordingly, Section 7 shall remain as is.
Plaintiffs then argue that Section 8 is repetitive and should be eliminated because the
proposed Notice already states that the Defendants deny any liability as to the claims in this
lawsuit. The Court agrees. Section 8 is titled "Do The Defendants Agree That They Are Liable?"
However, the proposed Notice already tells potential plaintiffs that the Defendants dispute all
claims and deny any liability. Thus, Section 8 of the proposed Notice should be eliminated and the
later Sections shifted accordingly.
Plaintiffs' final objection is that Section 9 of the Defendants' proposed Notice, which will
now be Section 8 with the above deletion, eliminated too much language from the Plaintiffs'
proposed Notice. The Court agrees as to some of the language and finds that Section 9 titled "Can
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I Be Fired Or Punished By Gifted Touch Because I Participate In This Lawsuit?" shall now be
Section 8 with the same title and read as follows:
No, if you opt-in to the FLSA Collective Action by completing and mailing, e-
mailing, texting, or faxing the Green Consent Form, federal law prohibits Gifted
Touch from discharging or retaliating against you or in any manner discriminating
against you because you have done so.
Federal law prohibits Gifted Touch from discouraging you to join this lawsuit.
Federal Law prohibits Gifted Touch from taking any adverse employment action
against you because you have joined this lawsuit.
29 U.S.C. § 215(3) states – it shall be unlawful for any person – "to discharge or in
any other manner discriminate against any employee because such employee has
filed any complaint or instituted or caused to be instituted any proceeding under or
related to this chapter . . ."
This brings the Court to the Opt-In Form and method of dissemination of the materials.
The parties Opt-In Forms do not differ in their language and although the Defendants objected in
their Response, the Court can find no meaningful difference between the two proposed forms.
The Court finds the Plaintiffs' proposed Opt-In Form to be appropriate and in furtherance of the
goals of the FLSA. However, because the Court today finds that potential plaintiffs shall be
allowed to opt-in via text, the form should be modified to state, "RETURN THIS FORM BY E-
MAIL, TEXT, FAX, OR MAIL TO" so that the Court's determination is reflected. Accordingly,
the Plaintiffs' proposed Opt-In Form (Filing No. 57-5) is approved as modified in the above way.
Lastly, Plaintiffs ask the Court to approve sending the Notice via U.S. mail, e-mail, or text
message (Filing No. 58 at 7). While Defendants state that the parties need to agree on how the
Notice should be sent, (Filing No. 60 at 4), the Court finds Plaintiffs' request reasonable. "It is
common to permit distribution of FLSA opt-in notices by mail, email, and text message, as
[P]laintiffs request." Rivera v. Plateia, Inc., 762 F. Supp. 3d 699, 701 (N.D. Ill. 2025) (citing
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cases). Accordingly, the Court approves disseminating the Notice and Opt-In Form via U.S. mail,
e-mail, or text message.
IV. 	CONCLUSION
For the reasons discussed above, the Court GRANTS Plaintiffs' Motion For Conditional
Certification (Filing No. 57), APPROVES Defendants' Notice as modified above, APPROVES
Plaintiffs' Opt-In Form as modified above, and APPROVES disseminating the Notice and Opt-
In Form via U.S. Mail, e-mail, or text message.
SO ORDERED.
Date: 	1/12/2026
Distribution:
Hilary Kathryn Leighty
Krieg DeVault LLP
hleighty@kdlegal.com
Scott Stuart Morrisson
KRIEG DEVAULT LLP
smorrisson@kdlegal.com
William John Schenck
Weldy Law
wschenck@weldylegal.com
Ronald E. Weldy
WELDY LAW
rweldy@weldylegal.com
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