United States District Court, D. Colorado
DENA M. CANNON, JULIANA VAN TUIL, and SUZANNA BOLDEN, on behalf of themselves and others similarly situated, Plaintiffs,
TIME WARNER NY CABLE LLC, Defendant.
RECOMMENDATION ON PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF A COLLECTIVE ACTION UNDER THE FAIR LABOR STANDARDS ACT, 29 U.S.C. §216(b) AND FOR COURT ASSISTED NOTICE UNDER AUTHORITY OF SPERLING V. HOFFMAN-LA ROCHE, 493 U.S. 165 (1989) (DOCKET NO. 84) ORDER ON DEFENDANT TIME WARNER NY CABLE LLC'S MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION (DOCKET NO. 98) ORDER SETTING STATUS CONFERENCE ON OCTOBER 30, 2014, AT 10:30 a.m.
MICHAEL J. WATANABE, Magistrate Judge.
Plaintiffs have all worked as customer service representatives at Defendant's call center in Colorado Springs, Colorado. They allege that they often worked off-the-clock and without pay, due to Defendant's informal but nonetheless effective policies for service-call efficiency-in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. (2012). Plaintiffs wish to proceed as a "collective action" on behalf of as many customer service representatives as will join them, under 29 U.S.C. § 216(b).
As has become usual in these cases, the Court and the parties split discovery into two stages. Stage 1 discovery is solely for determining whether Plaintiffs' allegations sufficiently establish a "similarly situated" class of potential opt-in plaintiffs for purposes of § 216(b). If the Court finds that such a class arguably exists (based on the pleadings and stage 1 discovery), the Court will "conditionally certify" the collective action, court-approved notices will go out to that class of potential opt-in plaintiffs, and the parties will proceed to stage 2 "merits" discovery. Cf. Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001) (explaining two-step certification process).
Plaintiffs have moved for conditional certification (Docket No. 84). Judge Raymond P. Moore referred the question to this Court pursuant to 28 U.S.C. § 636(b) (Docket No. 99). The Court assumes that the motion is treated as dispositive for purposes of 28 U.S.C. § 636(b). See, e.g., Giuffre v. Marts Lake Lodge, LLC, No. 11-cv-00028-PAB-KLM, 2012 WL 5199427 n.1 (D. Colo. Oct. 1, 2012). The arguments of the parties have been considered, and to the extent not addressed herein, deemed moot or meritless. The Court recommends that Plaintiffs' motion be GRANTED for the reasons set forth herein, subject to certain modifications to their proposed notice.
The Court SETS a status conference for October 30, 2014, at 10:30 a.m. at which the parties shall be prepared to discuss the status of the case and scheduling matters.
Factual & Procedural Background
Plaintiffs allege that, when they worked at Defendants' call center, they were obligated to work without pay in two ways. First, by the nature of the job, Plaintiffs needed to boot up their computers and load various customer-service applications before fielding calls. But Plaintiffs say they were compelled to field calls immediately upon clocking in-and thus, they were effectively required to do their booting-and-loading while off-the-clock. They allege it took an average of 20 to 30 minutes, every day (Complaint ¶¶ 23-31).
Second, Plaintiffs allege that they often received phone calls without interruption or downtime between calls; as a result, there was insufficient time for completing paperwork after each call. Employees managed the workflow by finishing their paperwork after the phone calls stopped-i.e., after they clocked out for a meal break or at the end of a shift. Plaintiffs allege that this amounted to an average of 45 minutes of unpaid work each week (Complaint ¶¶ 32-39).
As noted, discovery was bifurcated into a conditional-certification stage and a merits stage. The first stage consisted of a four-month period of discovery limited to Plaintiffs' individual FLSA claims and whether they should be conditionally certified as a class. Stage 1 is now completed. Defendant has taken six depositions: all three named Plaintiffs, two opt-in Plaintiffs, and one third-party witness identified by Plaintiffs. Both sides have served and responded to interrogatories and document requests, albeit with some difficulty getting along through the process.
In their deposition testimony, the five Plaintiffs and the third-party witness all conceded that Defendants' formal, written policies prohibited off-the-clock work and that those policies also required timesheets to be accurate. They also all conceded, with varying degrees of clarity and one exception, that they had never been explicitly told to work while off-the-clock. However, the third-party witness and most of the Plaintiffs also testified that they did actually work while off-the-clock, that they were obligated to do so as a practical matter, and that this de facto obligation was imposed by the "metrics" or "scorecards" that Defendant uses for monitoring, compensating, and disciplining employees.
Plaintiffs now wish to conditionally certify the collective action and to send court-approved notices to potential opt-in plaintiffs (Docket No. 84). They included as exhibits to their motion (1) a proposed notice, (2) a proposed opt-in form, (3) affidavits from two named Plaintiffs and one opt-in Plaintiff; (4) deposition transcripts from four of the depositions taken by Defendant; (5) opt-in forms for eleven opt-in plaintiffs, all of whom had previously filed their consent to join the case; and (6) a copy of the scheduling order entered by the Court last November. Defendants filed a response in which they provided (1) exhibits and excerpts from depositions from other cases filed against Defendant by Plaintiffs' counsel (in an attempt to show bad faith on the part of Plaintiffs and their attorneys), and (2) exhibits and excerpts from all six depositions in this case. Plaintiffs, in their reply, provided the Court with complete deposition transcripts and portions of the deposition exhibits. Altogether, the motion, objection, and reply total about 1, 548 pages, with exhibits.
On the apparent belief that those 1, 548 pages failed to do justice to the topic, Defendant sought leave to file a surreply (Docket No. 98). Plaintiffs objected (Docket No. 100), and Judge Moore referred the motion to this Court (Docket No. 103). The Court finds that Plaintiffs' reply did not raise new arguments or introduce previously undisclosed evidence, and that Defendants' proposed surreply likewise includes no arguments not already covered in detail in Defendants' original objection. Accordingly, the motion for leave to file a surreply is DENIED.
Judge Moore recently explained the legal framework for conditionally certifying a collective action under FLSA:
Section 216(b) of the FLSA authorizes private individuals to recover damages for violations of overtime provisions. It provides in part:
An action to recover the liability [for unpaid overtime compensation, retaliation and liquidated damages] may be maintained against any employer... in any Federal or State court of competent jurisdiction 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).
The FLSA requires that non-exempt employees be paid overtime compensation for time worked in excess of forty (40) hours in one work week. 29 U.S.C. § 207(a). The minimum rate of compensation that an employer must pay a non-exempt employee for overtime work is one-and-one-half times the employee's hourly rate. 29 U.S.C. § 207(a)(1)....
The Tenth Circuit has approved the use of a two-step process for determining whether putative class members are similarly situated to the named plaintiff. In Thiessen v. General Electric Capital Corp ., the court outlined the case by case or "ad hoc" method as follows: at the first step, prior to discovery, the district court makes a "notice stage" determination of whether the plaintiffs are similarly situated. 267 F.3d 1095, 1105 (10th Cir. 2001). For conditional certification at the notice stage, the Tenth Circuit "require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Id. at 1102. "The standard for certification at this stage is a lenient one." Baldozier v. Am. Family Mut. Ins. Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005). At this stage, "a court need only consider the substantial allegations of the complaint along with any supporting affidavits or declarations." Smith v. Pizza Hut, Inc., No. 09-CV-01632-CMA-BNB, 2012 WL 1414325 (D. Colo. Apr. 21, 2012) (quoting Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 434 (D. Kan. 2007)).
In the second stage, which comes at the conclusion of discovery and often in the context of a defense motion to decertify the class, the court applies a stricter standard of "similarly situated, " including application of at least four factors, to determine whether the case can proceed as a class action. Thiessen, 267 F.3d at 1102-03; Daugherty v. Encana Oil & Gas (USA), Inc., 838 F.Supp.2d 1127, 1132-33 (D. Colo. 2011).
Lysyj v. Milner Distribution Alliance, Inc., No. 13-cv-01920-RM-MJW, 2014 WL 273214, at *2-3 (Jan. 24, 2014). The first, "notice" stage is a matter of facilitating notice to potential opt-in plaintiffs and conducting specific discovery for that purpose. See Hoffman-La Roche Inc. v. Sperling, 493 U.S. 164, 170-71 (1989). It is at the second, "decertification" stage that courts consider the disparate factual or legal circumstances of ...