Learing v. Anthem Companies, Inc., TheLearing v. Anthem Companies, Inc., The
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR RECONSIDERATION
Caitlin L. Opperman and Rachana T. Srey, Nichols Kaster, PLLP, Minneapolis, MN, for Plaintiff.
Brett C. Bartlett, Kevin M. Young, and Lennon B. Haas, Seyfarth Shaw LLP, Atlanta, GA; and Thomas J. Posey, Seyfarth Shaw LLP, Chicago, IL, for Defendants.
Defendants Anthem Companies, Inc., Amerigroup Corporation, and Amerigroup Partnership Plan, LLC (collectively, “Anthem“), ask the Court to reconsider its March 2024 order granting, in relevant part, partial summary judgment in favor of Plaintiff Christine Learing (“Learing“) as to two of Anthem‘s affirmative defenses in this overtime compensation dispute. See ECF No. 254. For the reasons discussed below, the Court grants Anthem‘s motion in part and denies it in part.
FACTUAL BACKGROUND
Anthem is a health insurance company that provides managed care programs and related services. ECF No. 97 ¶ 14. Blue Cross Blue Shield of Minnesota (“BCBS“), another managed care organization, contracts with Minnesota‘s Department of Human Services to manage Medicaid plans in Minnesota. ECF No. 129-59 at 11:23–13:2. BCBS, in turn, subcontracts with Anthem to provide certain managed care services
Learing is a registered nurse (“RN“) who was employed by Anthem in a Nurse Medical Management (“NMM“) role. ECF No. 129-3 at 2–3.1 NMMs’ primary duty is performing utilization review, which generally involves evaluating service authorization requests submitted by healthcare providers on behalf of their patients to determine whether the requests meet certain clinical criteria that demonstrate the medical necessity of the requested service. ECF No. 131-1 at 2; ECF No. 129-66 at 22:5–12. To assess medical necessity, NMMs consult various sets of guidelines, such as federal and state Medicaid guidelines. See, e.g., ECF No. 131-11; ECF No. 129-16. NMMs typically learn how to perform utilization review through on-the-job training. ECF No. 129-62 at 248:25–249:10; ECF No. 129-67 at 111:6–112:2. NMMs also rely on their clinical background and experience to understand and apply the guidelines. See, e.g., ECF No. 142-28 at 138:16–141:11.
NMMs may approve requests only if the relevant medical necessity criteria are satisfied. See ECF No. 131-4 at 3. If the criteria are not satisfied, however, NMMs cannot deny requests themselves. See id. Rather, they may document the reasons that the applicable criteria are not satisfied and recommend denial to a medical director, a licensed physician who has authority to make the ultimate denial decision,2 see id., or refer the request to a case manager without escalating to a medical director, see ECF No. 142-24 at 74:5–14. NMMs can also request additional information from the healthcare provider if necessary to determine whether the request should be approved. ECF No. 131-17 at 2–3.
Anthem‘s contract with BCBS requires Anthem to meet industry standards set by the National Committee for Quality Assurance (“NCQA“), an accrediting organization. ECF No. 129-59 at 52:3–10. NCQA‘s standards govern several aspects of utilization review programs, including the structure of utilization review teams, the clinical guidelines used for utilization review, and the qualifications that utilization reviewers must possess. See generally ECF No. 131-9. Although NCQA‘s standards do not require that utilization reviewers be RNs, Anthem requires NMMs to have active RN licenses and at least two years of acute care clinical experience. ECF No. 131-49. Anthem also employs licensed practical nurses (“LPNs“) and licensed vocational nurses (“LVNs“) to perform utilization review work, but RNs review more complex cases than LPNs and LVNs, and the work of LPNs and LVNs is supervised by RNs. ECF No. 129-56 ¶¶ 5–6; ECF No. 142-33 at 17; ECF No. 129-2 at 7. Anthem classifies its NMMs as exempt from overtime-pay regulations and pays them on a salary basis, while its LPN and LVN utilization reviewers are classified as non-exempt and paid on an hourly basis. ECF No. 129-56 ¶¶ 5–6.
To ensure compliance with NCQA standards, Anthem requires NMMs to follow specific processes when performing utilization reviews. See ECF No. 131-14. Anthem conducts monthly audits to evaluate the timeliness and accuracy of reviews by NMMs, as well as whether NMMs consistently
RELEVANT PROCEDURAL BACKGROUND
Learing filed suit on October 14, 2021, on her own behalf and on behalf of all other similarly situated NMMs. ECF No. 1. Learing alleges that Anthem misclassified her and other NMMs as exempt from overtime-pay regulations under the Fair Labor Standards Act (“FLSA“) and the Minnesota Fair Labor Standards Act (“MFLSA“) and seeks to recover unpaid overtime wages. See ECF No. 90 at 14–19 (Second Amended Complaint). Anthem asserts that its NMMs were properly classified as exempt under the FLSA‘s learned professional or administrative exemptions. See ECF No. 97 at 30.
The Court conditionally certified a collective of plaintiffs pursuant to
On April 24, 2023, the parties filed cross-motions for summary judgment. ECF Nos. 126, 139. Learing sought only partial summary judgment as to the applicability of Anthem‘s exemption defenses, ECF No. 128 at 1–2, while Anthem moved for summary judgment as to its liability, ECF No. 140 at 6–9. On March 22, 2024, the Court entered an order (the “March 2024 Order“) granting partial summary judgment to Learing and holding that Anthem‘s exemption defenses were inapplicable. ECF No. 192 at 18-30. As it pertained to Anthem‘s exemption defenses, the Court articulated that “it is Anthem‘s burden to prove than an overtime exemption applies, and it must do so by showing that the employees fit ‘plainly and unmistakably within the exemption‘s terms and spirit.‘” Id. at 18 (quoting Cruz v. Lawson Software, Inc., 764 F. Supp. 2d 1050, 1065 (D. Minn. 2011)).
Citing the Supreme Court‘s decision in E.M.D. Sales, Anthem sought leave to file a motion for reconsideration regarding the March 2024 Order. ECF No. 248. Anthem contended that it was held to a higher evidentiary burden than preponderance of the evidence on summary judgment and that the decision in E.M.D. Sales—in combination with a previous Supreme Court decision involving interpretation of FLSA exemptions, Encino Motorcars v. Navarro, 584 U.S. 79 (2018)—constituted a sufficient basis to reconsider the March 2024 Order. See ECF No. 248.
The Court found compelling circumstances to reconsider the March 2024 Order and granted Anthem leave to file its motion for reconsideration. ECF No. 252. The Court limited the scope of Anthem‘s motion to the issue of “whether, and to what extent, the Supreme Court‘s decision in E.M.D. Sales affects this Court‘s analysis on summary judgment, strictly as it relates to Anthem‘s ‘administrative’ and ‘professional’ exemption defenses.” Id. at 3.
ANALYSIS
“A ‘motion for reconsideration’ is not described in the Federal Rules of Civil Procedure.” Peterson v. Travelers Indem. Co., 867 F.3d 992, 997 (8th Cir. 2017) (citation omitted). Nonetheless, “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”
A district court has “wide discretion” in determining whether to grant a motion for reconsideration. SPV-LS, LLC v. Transamerica Life Ins. Co., 912 F.3d 1106, 1111 (8th Cir. 2019); see In re Charter Commc‘ns, Inc., Sec. Litig., 443 F.3d 987, 993 (8th Cir. 2006) (“A district court
I. Effect of E.M.D. Sales
As an initial matter, the Court addresses the impact of the Supreme Court‘s holding in E.M.D. Sales on this case. Unsurprisingly, the parties strongly disagree as to the relevance and importance of E.M.D. Sales.
Anthem argues that the disputed “plainly and unmistakably” language is inextricably linked to the Supreme Court‘s instruction that FLSA exemptions were to be “narrowly construed” against employers, beginning with its first articulation in A.H. Phillips, Inc. v. Walling, 324 U.S. 490 (1945).4 See ECF No. 255 at 4–7. Anthem asserts that those principles, taken together and as applied in the case law (including the March 2024 Order), constitute a heightened evidentiary standard, which the Supreme Court expressly rejected in Encino Motorcars and E.M.D. Sales. See id.; see also Encino Motorcars, 584 U.S. at 88–89 (citation modified) (“Because the FLSA gives no textual indication that its exemptions should be construed narrowly, there is no reason to give them anything other than a fair (rather than a narrow) interpretation.“); E.M.D. Sales, 604 U.S. at 53-54 (rejecting the argument that “a heightened standard should govern in [FLSA] cases” and holding that “the preponderance-of-the-evidence standard applies when an employer seeks to show that an employee is exempt from the . . . overtime-pay provisions of the [FLSA]“).
Learing, largely relying on the Tenth Circuit‘s opinion in Lederman v. Frontier Fire Protection, Inc., 685 F.3d 1151 (10th Cir. 2012), asserts that “plainly and unmistakably” is not and never was intended to be an evidentiary standard but, instead, was directed toward statutory interpretation of FLSA exemptions. See ECF No. 256 at 4–9. Learing contends that the phrase “has routinely appeared alongside many courts’ recitation of the preponderance-of-the-evidence standard of proof, reinforcing that ‘plainly and unmistakably’ relates to statutory construction, not an employer‘s burden of proof.” Id. at 8 (collecting cases).
Both appear to be correct, at least to some extent. But the Court agrees with Anthem that whether “plainly and unmistakably” was intended to be an evidentiary
In Lederman, the district court gave the following instructions to the jury regarding FLSA exemption defenses:
The party asserting a claim or an affirmative defense has the burden of proving the essential elements of the claim or affirmative defense by a preponderance of the evidence. To “prove by a preponderance of the evidence” means to prove that something is more likely so than not so. . . . The rule does not require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case.
An employer seeking an exemption from the overtime requirements of the FLSA bears the burden of proving that the particular employee fits plainly and unmistakably within the terms of the claimed exemption. . . .
To prove this exemption, the defendants must prove [an FLSA exemption applies] by a preponderance of the evidence ....
685 F.3d at 1154. On appeal, the defendant-employer argued that “the trial court erred by instructing the jury that [Employer] had to prove [Employee] ‘fit[] plainly and unmistakably within the terms of the claimed exemption.‘” Id. at 1156 (third alteration in original).
Lederman v. Frontier Fire Protection, Inc. traced the origin of the phrase “plainly and unmistakably” in its own Tenth Circuit case law and Supreme Court precedent. Id. at 1156–57. Lederman acknowledged that beginning as early as 1993, the phrase had been “misquote[d]” from a 1960 Supreme Court opinion—Arnold v. Ben Kanowsky, Inc., 361 U.S. 388 (1960)—in its Tenth Circuit decisions. Lederman, 685 F.3d at 1156–57; see also Reich v. Wyoming, 993 F.2d 739, 741 (10th Cir. 1993). The court further explained that “[m]ore recently, some of [its] opinions may have appeared to support the notion that ‘plainly and unmistakably’ refers to the employer‘s burden of proof.” Id. at 1157. The Tenth Circuit concluded, as Learing argues here, that its “cases employing this phrase have done so in addressing legal rather than factual issues” and do not stand for “the proposition that an employer need prove such an exemption by anything more than a preponderance of the evidence.” Id. at 1157-58.
Critically, however, the Tenth Circuit found the jury instructions to be erroneous because “the jury should have only been instructed to consider the evidence under the preponderance-of-the-evidence standard.” Id. at 1158–59. The Tenth Circuit further held that “the district court‘s instructional error was prejudicial” because “the jury might have based its verdict on the erroneously given standard of proof.” Id. at 1160 (emphasis added) (internal quotation marks omitted) (citation omitted). Ultimately, the Tenth Circuit vacated the jury‘s verdict and remanded the case to the district court. Id.
To be sure, this case is clearly distinguishable from Lederman. Anthem‘s concerns here relate to the Court‘s articulation and application of Anthem‘s burden of proof on summary judgment, not jury instructions given at trial. As such, there is no concern that a jury may have been confused as to how to apply the “plainly and unmistakably” standard for statutory construction purposes and the “preponderance of the evidence” standard for evidentiary sufficiency. But the Court cannot ignore that the Tenth Circuit ultimately found the district court‘s jury instruction to be reversible error, even though the instruction expressly articulated that the employer‘s burden of proof was preponderance
Further, as even Learing acknowledges, the evolution of the Eighth Circuit‘s case law regarding FLSA exemptions is remarkably similar to the Tenth Circuit‘s. See ECF No. 256 at 6-7. Indeed, Learing traces the origin of the disputed “plainly and unmistakably” language in the Eighth Circuit to McDonnell v. City of Omaha, 999 F.2d 293 (8th Cir. 1993), which was decided the same year—and, in fact, cited the same Supreme Court opinion, Arnold—as Reich, the Tenth Circuit case identified as having “misquoted” Arnold. Compare McDonnell, 999 F.2d at 296 (quoting Arnold, 361 U.S. at 392) (“Employers have the burden of proving that the exemption applies, and they must demonstrate that their employees fit ‘plainly and unmistakably within the [the exemption‘s] terms and spirit.‘” (alteration in original)), with Reich, 993 F.2d at 741 (quoting Arnold, 361 U.S. at 392) (“Exemptions to the FLSA are to be narrowly construed; the employer must show the employees fit ‘plainly and unmistakenly within [the exemption‘s] terms.‘” (alteration in original)); but see Arnold, 361 U.S. at 392 (“We have held that these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.“); see also Lederman, 685 F.3d at 1157 (acknowledging that Reich “misquoted” Arnold).
Learing cites several cases predating both Encino Motorcars and E.M.D. Sales that reconcile the “plainly and unmistakably” standard for statutory construction with a clear articulation of the preponderance-of-the-evidence standard for the employer‘s burden of proof. See ECF No. 256 at 8–9. But the sole Eighth Circuit decision Learing cites was decided in 1963—thirty years before McDonnell which, as Learing acknowledges, appears to have misquoted Arnold. See id. at 8 (citing Norman v. Moseley, 313 F.2d 544, 546–47 (8th Cir. 1963)). And in any event, it cannot be disputed that the March 2024 Order did not expressly articulate that preponderance of the evidence was Anthem‘s burden of proof. See ECF No. 192 at 18. That was not the law in this Circuit at the time.
More fundamentally, “plainly and unmistakably” on its face connotes far more certainty than “preponderance of the evidence.” It is difficult to imagine how stating that an employer must “prove that an overtime exemption applies, and it must do so by showing that the employees fit ‘plainly and unmistakably within the exemption‘s terms and spirit,‘” id. at 18 (emphasis added), could be understood as anything other than a burden of proof. This articulation suggests that more is needed—perhaps much more—than is required under the preponderance-of-the-evidence standard.5 See Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (citation omitted) (explaining that the preponderance-of-the-evidence standard “simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence” (internal quotation marks omitted)); cf. Anderson, 477 U.S. at 252 (“If the defendant in a run-of-the-mill civil case moves for summary judgment . . . based on the lack of proof of a material fact, the judge must ask [her]self not whether [s]he thinks the evidence unmistakably favors one side or the other . . . .“). Even when deployed side-by-side, as Learing proposes, the presence of “plainly and unmistakably” still causes it to sound more like the type of heightened evidentiary standard expressly foreclosed by E.M.D. Sales. See Lederman, 685 F.3d at 1158 (“[J]ust as some courts have mistakenly viewed ‘clear and affirmative evidence’ as a heightened evidentiary standard, the same is true with the phrase ‘plainly and unmistakably.‘“). Simply put, there is clear tension in requiring an employer to prove it is “more likely than not” that an FLSA exemption “plainly and unmistakably” applies.
The Court is persuaded by Anthem‘s argument that “plainly and unmistakably” was part and parcel with the principle that FLSA exemptions were to be construed narrowly against employers—a principle which the Supreme Court has since rejected. See Encino Motorcars, 584 U.S. at 89. Now that the Supreme Court has spoken in E.M.D. Sales, and with respect to this Court‘s sister courts and the Eighth Circuit, the Court is not convinced that attempting to reconcile the “plainly and unmistakably” language pertaining to statutory construction with the preponderance-of-the-evidence standard for evidentiary sufficiency is an effective or sustainable approach. Taking together Encino Motorcars‘s instruction that FLSA exemption defenses are to be given a “fair reading” rather than “construed narrowly” against employers, 584 U.S. at 89, and E.M.D. Sales‘s holding that “the preponderance-of-the-evidence standard applies when an employer seeks to show that an employee is exempt” from the FLSA‘s overtime-pay provisions, 604 U.S. at 54, this Court believes the more prudent approach is to abandon the phrase “plainly and unmistakably” altogether in these kinds of cases.
The Court is not convinced, however, that the March 2024 Order was premised on an incorrect application of the law when it was entered. Nor does the Court presume to suggest that the decisions of its sister courts and the Eighth Circuit using the “plainly and unmistakably” language were wrongly decided. Nevertheless, this Court must endeavor to ensure its rulings align with controlling law as it stands now. See United States v. Cavanaugh, 643 F.3d 592, 606 (8th Cir. 2011) (explaining that lower courts are bound to follow Supreme Court precedent “until such time that the Supreme Court itself overturns” that precedent). Given the lengthy history and procedural posture of this case, the fact that no judgment has been entered, and in the interest of ensuring the issues in this case are fairly adjudicated and properly resolved at trial, the Court, in its discretion, believes it is appropriate to revisit its summary-judgment determination regarding Anthem‘s FLSA exemption defenses with the benefit of the clarity provided by E.M.D. Sales. See Roemen, 343 F.R.D. at 623–24; Grozdanich, 48 F. Supp. 2d at 888.
Having explained the basis for reconsidering the March 2024 Order, the Court turns to analyzing the summary-judgment
II. Summary Judgment
Summary judgment is appropriate when “no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Bharadwaj v. Mid Dakota Clinic, 954 F.3d 1130, 1134 (8th Cir. 2020); see
III. Anthem‘s Exemption Defenses
Under the FLSA,6 an employer generally is required to pay an employee overtime compensation if the employee works more than forty hours in one week.
Exemptions are to be given a “fair reading,” construed in a manner that favors neither the employer nor the employees. Encino Motorcars, 584 U.S. at 88-89. And because the exemption analysis is based largely on the employee‘s duties, whether an exemption applies is “an intensely fact bound and case specific” question. Cruz, 764 F. Supp. 2d at 1062 (citation omitted); see also Schaefer-LaRose v. Eli Lilly & Co., 679 F.3d 560, 572 (7th Cir. 2012) (explaining that determining whether an FLSA exemption applies “requires a thorough, fact-intensive analysis of the employee‘s employment duties and responsibilities“); Rutlin v. Prime Succession, Inc., 220 F.3d 737, 740–41 (6th Cir. 2000) (citing Bohn v. Park City Grp., Inc., 94 F.3d 1457, 1461 (10th Cir. 1996)) (same). When analyzing
Upon careful review of the summary judgment record, the March 2024 Order, and the parties’ arguments on reconsideration, the Court grants reconsideration as to Anthem‘s learned professional exemption defense but will not disturb its holding as to Anthem‘s administrative exemption defense.
A. Learned Professional Exemption
The learned professional exemption applies when the following three-part test is met: (1) the employee‘s primary duty is performing “work requiring advanced knowledge“; (2) the advanced knowledge is “in a field of science or learning“; and (3) the advanced knowledge is “customarily acquired by a prolonged course of specialized intellectual instruction.”
1. Work Requiring Advanced Knowledge
“The phrase ‘work requiring advanced knowledge’ means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work.”
Particularly relevant here, the learned professional exemption is not necessarily precluded simply because employees use employer-mandated guidelines and procedures to perform their work. To the contrary, “[t]he use of manuals, guidelines or other established procedures containing or relating to...complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills does not preclude exemption.”
Ultimately, whether the work required advanced knowledge turns on whether the NMMs “rel[ied] on advanced knowledge of their specialty to exercise discretion and judgment that is characteristic of their field.” Pippins v. KPMG, LLP, 759 F.3d 235, 243 (2d Cir. 2014). The parties agree that the NMMs’ primary duty was utilization or medical necessity review, but they offer starkly different portrayals of the NMM role.
Learing says that Anthem‘s utilization review process “limits discretion and independent judgment by design” because it “guards against variances and subjective application of criteria.” ECF No. 128 at 29–30. Learing highlights the fact that NMMs could approve authorization requests only if predetermined medical necessity
Anthem, on the other hand, suggests that Learing focuses too narrowly on NMMs’ lack of authority to deny requests and contends that NMMs exercised discretion and judgment by “analyz[ing] medical information to determine whether relevant criteria were satisfied” and “deciding whether to approve a request, consult a medical director, or send a case to case management.” ECF No. 140 at 18–19. Anthem cites deposition testimony from several Opt-In Plaintiffs in which they agreed that they had “discretion” to approve requests or to refer them to case management or to a medical director. E.g., ECF No. 142-23 at 78:12-14 (“Q: And if they met the guidelines, you had the discretion to approve a request. A: Correct.“); ECF No. 142-24 at 74:11–22 (“Q: So you have the discretion to look at a case and say, ‘I think this needs to be sent to case management‘? A: Yes. . . . Q: You have discretion to determine whether a review should be approved or pended to the medical director, correct? A: Yes.“); see ECF No. 141 ¶¶ 40–48.
Anthem also highlights testimony from Opt-In Plaintiffs stating that their RN training was important to their ability to perform their duties as NMMs. See, e.g., ECF No. 142-28 at 138:16–141:11 (stating that “nursing experience” was needed to understand medical necessity criteria and agreeing that RN licensure was “essential“); ECF No. 142-26 at 22:16–25:15 (stating that “nursing background” and “experience” helped provide context for applying medical necessity criteria); ECF No. 142-24 at 83:7–85:4 (“Q: So you would agree. . . that you do apply clinical judgment when conducting a review using the[] guidelines? A: I do apply critical judgment based on my interpretation of the criteria. . . .“). Moreover, Anthem notes that at least one set of guidelines NMMs used expressly notes the importance of relying on clinical experience and judgment to apply the guidelines: “In all cases, clinical judgment consistent with the standards of good medical practice should be used when applying the Guidelines. . . . The Guidelines are not a substitute for the experience and judgment of a physician or other health care professionals.” ECF No. 159-1 at 28 (emphasis added).
Although the evidence presented on summary judgment, when construed under a heightened evidentiary standard, may not have been sufficient to show that the NMMs’ primary duty was the performance of work requiring advanced knowledge, the record reveals genuine issues of material fact when viewed through the
Because genuine issues of material fact preclude summary judgment as to the “work requiring advanced knowledge” part of the test, the Court proceeds with the analysis assuming, without deciding, that Anthem could satisfy that part for the purpose of determining whether the purported advanced knowledge was acquired through a “prolonged course of specialized intellectual instruction.”
2. Prolonged Course of Specialized Intellectual Instruction
“The best prima facie evidence” that an employee meets the specialized intellectual instruction requirement is “possession of the appropriate academic degree.”
Learing contends that the learned professional exemption does not apply because Anthem has “historically hired LPNs and LVNs to perform utilization review work.” ECF No. 128 at 21. Learing argues that NCQA standards “establish[] that RN-level knowledge is not required for utilization review work,” which supports the conclusion that Anthem cannot establish that the learned professional exemption applies. Id. at 35; see
Anthem points out that the evidence upon which Learing relies relates to “practices [that] occurred more than a decade ago.” ECF No. 157 at 10. Anthem notes that none of the Opt-In Plaintiffs testified that they worked with any LPN or LVN utilization reviewers at Anthem, see ECF No. 141 ¶¶ 49–54, which could undermine Learing‘s assertion that NMMs with RN licenses performed exactly the same work as utilization reviewers who are LPNs and
As with “advanced knowledge,” genuine issues of material fact render entry of summary judgment inappropriate as to the “specialized intellectual instruction” part of the test. For example, while Anthem cites evidence that LPNs and LVNs in utilization review roles had more limited responsibilities than RNs in the contested NMM roles, see ECF No. 140 at 23–24, a reasonable jury could find that because NCQA standards do not expressly require RN-level licensure for utilization reviewers, see ECF No. 131-9 at 19–20, the skills utilized by NMMs were not “acquired by a prolonged course of specialized intellectual instruction,”
At bottom, as the regulations require—and as the parties assert, see ECF No. 128 at 35-37; ECF No. 140 at 16–17—the inquiry extends beyond the titles or degrees the NMMs held or the environments in which they performed their work and must account for the actual work the NMMs performed. But viewing the evidence in the light most favorable to either party on their cross-motions for summary judgment, see Micone, 132 F.4th at 1078, the Court believes that “a reasonable jury could return a verdict” for both parties on this record, see Huber, 139 F.4th at 620 (citation omitted). Resolving the underlying factual disputes at this stage would require the Court to “weigh the evidence, make credibility determinations, or attempt to discern the truth of [] factual issue[s],” which the Court may not do. Avenoso, 19 F.4th at 1024.
For these reasons, and pursuant to
The administrative exemption applies for employees whose primary duty (1) is the “performance of office or non-manual work directly related to the management or general business operations of the employer or the employer‘s customers” and (2) includes “the exercise of discretion and independent judgment with respect to matters of significance.”9
Anthem requested reconsideration of the March 2024 Order as to both the learned professional and administrative exemption defenses. See ECF No. 254. However, its briefing on reconsideration as to its exemption defenses focuses almost exclusively, if not entirely, on issues relating to discretion and judgment—an overlapping element of both the learned professional and administrative exemptions.10 At oral argument for Anthem‘s motion for reconsideration, counsel for Anthem stated that Anthem intends to focus on the learned professional exemption. The Court expressed that it understood Anthem to be conceding that the administrative exemption does not apply in this case, which Anthem did not refute. Accordingly, Anthem has waived its administrative exemption defense, and the Court will not revisit the March 2024 Order as to that issue. See Riley v. Bondi, 145 S. Ct. 2190, 2201 (2025) (“If a party neglects to raise, concedes, or waives an issue, a court generally has no obligation to consider it.“).
ORDER
Based on the foregoing, and on all the files, records, and proceedings in this matter,
IT IS HEREBY ORDERED that:
- Anthem‘s Motion for Reconsideration of Summary Judgment (ECF No. 254) is GRANTED IN PART as it pertains to Anthem‘s learned professional exemption defense;
- The March 2024 Order (ECF No. 192) is REVISED as follows: Learing‘s Motion for Partial Summary Judgment (ECF No.
126) is DENIED IN PART as to Anthem‘s learned professional exemption defense; - In all other respects, Anthem‘s Motion for Reconsideration of Summary Judgment (ECF No. 254) is DENIED, and the March 2024 Order (ECF No. 192) otherwise remains in effect as entered.
Dated: August 12, 2025
s/Laura M. Provinzino
Laura M. Provinzino
United States District Judge