United States District Court, D. Colorado
RACHEL BRAYMAN, on behalf of herself and all similarly situated persons, Plaintiff,
v.
KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation, Defendant.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
CONDITIONAL CERTIFICATION
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
Plaintiff
Rachel Brayman (“Plaintiff”) brings this action
against Defendant KeyPoint Government Solutions, Inc.,
(“Defendant”) for alleged violations of the Fair
Labor Standards Act, 29 U.S.C. §§ 201 et
seq. (“FLSA”). (ECF No. 1.) Plaintiff's
FLSA claim concerns Defendant's alleged failure to
properly compensate employees for overtime hours worked and
an alleged policy of only permitting overtime in certain
circumstances. (Id. ¶¶ 20-25.)
Currently
before the Court is Plaintiff's “Motion for
Conditional Certification and Court-Authorized Notice”
(the “Motion”). (ECF No. 22.) Plaintiff seeks to
have this matter conditionally certified as a collective
action under the FLSA for “all persons who worked as
Field Investigators, Background Investigators, or in other
positions with similar job duties for Defendant” from
March 8, 2015 to present.[1] (ECF No. 1 ¶12; ECF No. 22 at 2.)
Plaintiff also seeks to have her proposed notice approved by
the Court. Also before the Court is Defendant's Motion to
Strike Portions of Plaintiff's Declaration (“Motion
to Strike”). (ECF No. 64.) For the reasons explained
below, Defendant's Motion to Strike is denied and
Plaintiff's Motion is granted as to conditional
certification and denied as to the proposed notice. The
parties are instructed to meet and confer regarding the
proposed notice, taking into account the Court's below
instructions, and submit a revised proposed notice by
November 16, 2018.
I.
BACKGROUND
Defendant
provides investigative services and background screenings for
the federal government and private sector. (ECF No. 1
¶¶ 4-5.) Defendant is headquartered in Loveland,
Colorado, and has employees throughout the United States,
Puerto Rico, and Guam. (Id. ¶¶ 3, 7.)
Background investigation services are performed by
Defendant's Field Investigators, Background
Investigators, or other similar positions (collectively,
“Investigators”). (Id. ¶ 6; ECF No.
22 at 2.) Investigators' job duties include
“performing background investigations on individuals
seeking to obtain [a] security clearance” and require
Investigators to conduct interviews, collect documents and
records, catalogue records obtained from law enforcement
agencies, and compile reports. (ECF No. 22-4 at 2; see
also ECF No. 22-5 (job descriptions).)
Defendant
explains that Field Investigators are divided among
geographic regions, each of which has a Field Manager and a
Logistics Analyst. (ECF No. 29 at 2; ECF No. 29-1 at 2.)
Field Managers supervise the Field Investigators in the
region and Logistics Analysts are responsible for assigning
work to Field Investigators (though Field Managers may
occasionally assign work as well). (ECF No. 29 at 2; ECF No.
29-7 at 2.) Work is assigned to Field Investigators on a
“source unit” basis; the number of source units
depends on the task performed and the weekly source unit
expectations for a Field Investigator depend on the
individual's experience. (ECF No. 29-1 at 2.)
Plaintiff
worked as a Field Investigator for Defendant from
approximately September 2014 to June 2017. (ECF No. 1 ¶
9; ECF No. 22-4 at 2.) Plaintiff worked remotely from her
residence in New Jersey and covered a geographic territory in
New Jersey. (ECF No. 1 ¶ 10; ECF No. 22-4 at 2.)
Plaintiff
alleges that Defendant had a “common policy and/or
practice” of encouraging or requiring Plaintiff and
others to work unpaid overtime hours. (ECF No. 1 ¶ 16.)
Specifically, Plaintiff contends that she regularly had to
work unpaid overtime hours to meet Defendant's production
requirements, but was not paid for those overtime hours.
(Id. ¶¶ 17-18.) Plaintiff estimates for
the week of November 13-19, 2016, she worked between 55 and
60 hours, but was not paid for her overtime hours.
(Id. ¶ 19.) Although Plaintiff and others were
required to record hours worked in an electronic timekeeping
system, Plaintiff contends that the hours recorded do not
reflect all the hours Plaintiff or other worked in part
because Defendant instructed Plaintiff and other to
underreport actual hours worked. (Id. ¶¶
20, 22.) Plaintiff also claims that Defendant modified the
time records of Plaintiff and others to reflect fewer
overtime hours worked. (Id. ¶ 23.) Plaintiff
states that her supervisor acknowledged “in emails and
on teleconference calls that Plaintiff and other
Investigators worked overtime hours, but refused to approve
all the overtime hours that they worked.” (Id.
¶ 24.) Plaintiff claims that Defendant's unlawful
conduct is “widespread, repetitious, and
consistent” as well as “willful and in bad
faith.” (Id. ¶¶ 25-26.)
In
support of the Motion, Plaintiff submits her own declaration
as well as declarations from six other former Investigators,
namely Desiree Gaudet, Tasha George, Ebony Holmes, Catiana
Munoz, DeAijha Perry, and Paul Tschiffely. (ECF No. 22-4.)
These individuals have all opted to join the case. (ECF Nos.
1-2; 8-1; 17-1; 18-1.) These declarations demonstrate that
Investigators covered specific geographic territories in
various parts of the United States (District of Columbia,
Louisiana, Maryland, New Jersey, and Virginia) in
substantially similar positions. (ECF No. 22-4.) The
declarations each state that the individual was not paid for
all of the overtime hours worked, could only record overtime
if the production quota was met, and was discouraged from
reporting all overtime hours worked. (Id.)
In
response, Defendant submits a declaration from Marci
Haabestad, Defendant's Chief People Officer, stating that
Defendant's official policy is that all hours worked,
regular or overtime, must be recorded. (ECF No. 29-1 at 2-3;
see ECF No. 29-2.) Defendant also submits the
declaration of Ryan Haunfelder, Defendant's Head of Data
Science, which states that 66% of the time when an
Investigator recorded overtime, the same Investigator was, on
average, 2.76 source units behind their production quota.
(ECF No. 29-17 at 2.) Of the 19 individuals who filed
consents to join, 12 had not met his or her production quota
when he or she recorded overtime. (Id. at 3-7; ECF
No. 29 at 5.) By implication, the other seven individuals
always met their production quota when they asked for
overtime.
Defendant
also notes that a number of Field Investigators signed
dispute resolution agreements in October 2015, and estimates
that approximately 2, 596 individuals of the 4, 231 in the
putative collective action are bound to litigate any claim
for unpaid wages under the FLSA in individual, binding
arbitration. (ECF No. 29 at 5-6; ECF No. 29-1 at 4.)
Defendant
also notes that approximately 54% of the individuals employed
as Field Managers and Logistics Analysts since March 2015
also served as Field Investigators on or after March 2015 and
are thus potential members of the putative collective action.
(ECF No. 29 at 5; 29-1 at 4.) Defendant does not state the
total number of persons who have served in both capacities
since March 2015.
II.
LEGAL STANDARD
The
FLSA permits collective actions when allegedly aggrieved
employees are “similarly situated.” 29 U.S.C.
§ 216(b). Whether employees are similarly situated is
judged in two stages: a preliminary or “notice
stage” (at issue here) and then a more searching,
substantive stage, usually after the close of discovery.
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1102-03, 1105 (10th Cir. 2001). At the notice stage, a
plaintiff requires “nothing more than substantial
allegations that the putative [collective action] members
were together the victims of a single decision, policy, or
plan.” Id. at 1102 (internal quotation marks
omitted); see also Boldozier v. Am. Family Mut. Ins.
Co., 375 F.Supp.2d 1089, 1092 (D. Colo. 2005) (applying
Thiessen standard).
If the
plaintiff meets this standard, the Court may order the
defendant to provide contact information for all employees
and former employees that may be eligible to participate in
the collective action, and the Court may approve a form of
notice to be sent to all of those individuals. See
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-74
(1989). Such notice is often necessary because, unlike class
actions under Federal Rule of Civil Procedure 23, collective
actions under the FLSA require a party to opt in rather than
opt out. See 29 U.S.C. § 216(b) (“No
employee shall be a party plaintiff to any [collective]
action unless he gives his consent in writing to become such
a party and such consent is filed in the court in which such
action is brought.”). Obviously current or former
employees cannot opt in if they do not know about the pending
action.
III.
ANALYSIS
Defendant
claims that, for various reasons, the collective action
should not be conditionally certified. The Court will address
these arguments in turn.
A.
Plaintiff's Declaration
Defendant
moves to exclude certain statements from Plaintiff's
March 30, 2018 declaration submitted in support of
conditional certification as conflicting with her August 21,
2018 deposition testimony. (ECF No. 64.) Specifically,
Defendant contends that Plaintiff's deposition testimony
contradicted three material statements in her declaration
regarding Plaintiff's personal knowledge of whether other
Investigators worked unpaid overtime hours, whether Plaintiff
could only record overtime hours if she met her production
quota, and whether Defendant paid Plaintiff for all overtime
hours worked.[2]
Plaintiff's
deposition statements do not contradict or undermine her
affidavit in the manner suggested by Defendant, and the Court
finds no reason to strike or disregard the statements. First,
Plaintiff's affidavit states “[b]ased on my
personal knowledge, observations, and experiences, I believe
that other Investigators . . . worked unpaid overtime hours
because of KeyPoint's policy. . . .” (ECF No. 22-4
at 3, ¶ 17.) Defendant seeks to strike Plaintiff's
declaration statement based on her statement at her
deposition that she had no knowledge of any other field
investigator working unpaid overtime hours. (ECF No. 64 at 3,
9.) However, Plaintiff did not retract or contradict her
statements regarding her belief that others were
subject to the same policy. And pleading on belief does not
undermine Plaintiff's allegation that others ...