United States District Court, D. Colorado
ANDREW PETERSON, on behalf of himself and all similarly situated persons, Plaintiff,
NELNET DIVERSIFIED SOLUTIONS, LLC, Defendant.
AMENDED MEMORANDUM OPINION AND ORDER
Y. Wang, United States Magistrate Judge.
civil action comes before the court on Plaintiff Andrew
Peterson's (“Plaintiff” or “Mr.
Peterson”) and Defendant Nelnet Diversified Solutions,
LLC's (“Defendant” or “Nelnet”)
cross-motions for summary judgment (“Plaintiff's
MSJ” and “Defendant's MSJ”,
respectively) [#158; #168] as well as Nelnet's Motion to
Decertify FLSA Collective Action (“the Decertification
Motion”) [#171, filed May 15, 2019]. The undersigned
fully presides over this case pursuant to 28 U.S.C. §
636(c), the consent of the Parties [#11], and the Order of
Reference dated June 26, 2017 [#12]. For the reasons stated
in this Memorandum Opinion and Order, Defendant's Motion
for Summary Judgment is GRANTED,
Plaintiff's Motion for Summary Judgment is
DENIED, and Defendant's Decertification
Motion is DENIED AS MOOT. Because there are
no federal claims remaining, the court declines to exercise
supplemental jurisdiction and DISMISSES without
prejudice Plaintiff's remaining state law
Andrew Peterson (“Plaintiff” or “Mr.
Peterson”) initiated this action on April 28, 2017, by
filing a Complaint asserting a collective action under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 216(b), for unpaid overtime wages “on behalf of
himself and all current and former Account Managers and Call
Center Representatives.” [#1]. Mr. Peterson worked for
Defendant Nelnet, which is in the business of servicing
loans, at its Aurora, Colorado location from approximately
September 2011 to September 2014. [Id. at
¶¶ 10, 11]. Mr. Peterson alleged that Nelnet
violated the FLSA by failing to pay him and other call center
representatives premium overtime compensation for hours
worked in excess of forty hours in a workweek. [Id.
at ¶ 2]. In support of his claim, Mr. Peterson averred
that Nelnet failed to accurately track or record the actual
hours worked by CCRs as follows: “(i) [by] failing to
provide [call center representatives] with a way to
accurately record the hours they actually worked; (ii)
permitting [call center representatives] to work before and
after they ‘clock in' to Nelnet's timekeeping
system; and (iii) allowing work during uncompensated lunch
breaks.” [Id. at ¶ 6]. In his original
Complaint, Mr. Peterson asserted claims for: (1) violation of
the FLSA on behalf of himself and the collective; (2)
violation of Colorado Minimum Wage Order on behalf of himself
and a Rule 23 class of individuals (“Second Cause of
Action”); and (3) violation of the Colorado Wage Act on
behalf of himself and a Rule 23 class of individuals
(“Third Cause of Action”). [#1]. Defendant
subsequently filed a Motion to Dismiss, [#19], which was
mooted when Plaintiff filed his Amended Complaint as a matter
of right. [#29; #30]. The Amended Complaint included the same
three claims with additional factual detail. [#29]. Defendant
filed an Answer to the Amended Complaint on October 5, 2017.
January 31, 2018, Plaintiff filed a Motion for Court
Authorized Notice Pursuant to 29 U.S.C. § 216(b) of the
FLSA (“Motion for Conditional Certification”).
[#50]. On April 25, 2018, the court granted the Motion for
Conditional Certification in part, allowing a collective to
go forward as to Advisors, Collectors, and Flex Advisors for
pre-shift uncompensated log-in time (collectively,
“CCRs”). [#79]. Shortly thereafter, the parties
stipulated to the following definition of the conditionally
Current and former Flex Advisors, Collectors, or Advisor Is
who worked at Nelnet Diversified Solutions, LLC's Aurora,
Colorado; Lincoln, Nebraska; and Omaha, Nebraska Customer
Interaction Center locations at any time from July 15, 2014
to April 25, 2018 and who worked off-the-clock without
compensation at the beginning of their shifts prior to
clocking into the timekeeping system. Individuals who worked
as Collectors in Direct Account Placement or
“DAP” are not included in this collective
29, 2018, the notice administrator mailed the FLSA collection
action notice to the putative collective members who worked
at the relevant locations in Aurora, Lincoln, and Omaha.
[#92]. Ultimately, 359 individuals opted into the FLSA
collective, a few of whom have since been dismissed from the
collective for unrelated reasons, primarily failure to
participate in discovery. [#99; #100; #101; #102; #105; #108
at 11 n.3].
November 16, 2018, the Parties submitted a Joint Status
Report, in which Plaintiff indicated “[t]he Plaintiff
is no longer pursuing any Rule 23 class action claims.”
[#117 at 1]. Plaintiff further indicated “[i]f the case
reaches a trial, such trial would therefore be narrowed to
the compensability of activities that plaintiff alleges he
was required to perform to become call- ready before clocking
in pre-shift and related potential damages issues.”
[Id. at 2]. The Parties then indicated that they
believed trial could be completed in five days.
[Id.]. Based on this Status Report, the court
dismissed the Second and Third Causes of Action from the
Amended Complaint and ordered the Parties to file a
Supplemental Scheduling Order. [#119]. Following a Motion to
Reconsider based on an ambiguity as to whether the
Aurora-based FLSA collective members were still asserting
their Colorado state law claims individually if not as a
class, the court affirmed its prior order and denied further
relief, finding that the relevant claims remaining were the
conditional class's FLSA claims and Mr. Peterson's
individual state law claims. [#128; #153]. Shortly
thereafter, the Parties filed the instant cross-motions for
summary judgment and Defendant filed the Decertification
Motion. After an extension of time harmonized the briefing
schedule on the pending motions, briefing closed on June 21,
2019, and the matters are now ripe for decision.
judgment is appropriate only if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co.,
Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A
‘judge's function' at summary judgment is not
‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 572 U.S. 650,
656 (2014) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 249 (1986)). Nevertheless, the content of the
evidence presented at summary judgment must be admissible to
be considered. See Fed. R. Civ. P. 56(c)(4);
Thomas v. Int'l Bus. Machines, 48 F.3d 478, 485
(10th Cir. 1995).
there is a genuine dispute as to a material fact depends upon
whether the evidence presents a sufficient disagreement to
require submission to a jury or conversely, is so one-sided
that one party must prevail as a matter of law.
Anderson, 477 U.S. at 248-49; Stone v. Autoliv
ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000);
Carey v. U.S. Postal Service, 812 F.2d 621, 623
(10th Cir. 1987). A fact is “material” if it
pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so
contradictory that if the matter went to trial, a reasonable
party could return a verdict for either party.
Anderson, 477 U.S. at 248. “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine
issue for trial.'” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citing First Nat. Bank of Ariz. v. Cities Service
Co., 391 U.S. 253, 289 (1968)).
court begins by considering the cross-motions for summary
judgment. The court begins with the undisputed material facts
and then examines whether the time at issue qualifies as
compensable time. Finding the time compensable, the court
then proceeds to consider whether the time is de
minimis and concludes that the time at issue is so brief
and recording it poses such an administrative challenge that
the time is de minimis as a matter of law.
Accordingly, the court concludes that summary judgment should
enter for Defendant Nelnet.
following undisputed material facts are drawn from the
Parties' cross-motions for summary
Defendant Nelnet Diversified Solutions LLC is in the business
of servicing student loans. [#168-1 at 5, 39:16-20].
this end, Nelnet maintains several “customer
interaction centers” in Aurora, Colorado; Lincoln,
Nebraska, and Omaha, Nebraska. [Id. at 41:17-22].
these centers, Nelnet employees service student loans and
interact with debtors over the phone and through email.
[Id. at 2, 9:4-15]. This case is concerned with
those employees who were worked as Flex Advisors, Collectors,
or Advisors I from July 15, 2014 to April 25, 2018
(“the CCRs” or “the employees”).
are paid once they clock into the timekeeping system at their
individual workstations. [#168-8 at 2, 12:12-24]. Before a CCR
may clock in to the system, he or she must first perform
First, the CCR selects a workstation and moves the mouse or
presses a key to wake the computer up from standby mode.
[#168-11 at 3].
CCR then inserts an “Imprivata” security badge
and enters his or her credentials (username, password).
computer automatically launches Citrix, which loads the
CCR's personal desktop, and Nelnet's Intranet which
contains a link to the timekeeping system. [Id.].
the Intranet has loaded, an employee has access to the
timekeeping system and may, and nearly always does, clock
into the system and begin receiving payment. [Id.;
#168-5 at 2-3, 7:4-10:24]. The time from the Imprivata badge
swipe to the Citrix session initiating is referred to as the
“Boot-Up Time” and the time from Citrix
initiating to the timeclock check in is referred to as the
“Citrix-Active Time” and collectively,
“pre-shift activities.” 9. Completing these
pre-shift activities is necessary to conduct the CCRs'
principal job duties. [Id.; #159-1 at 39, 17:8-13].
median Boot-Up Time is 0.5 minutes in Omaha, 0.9 minutes in
Lincoln, and 1.02 minutes in Aurora. [#168-16 at 17].
median 10th percentile Citrix-Active Time-which the parties
accept as the relevant measure-is 1.1 minutes at Omaha, 1.3
minutes in Lincoln, and 1.25 minutes in Aurora.
Nelnet policy provided that CCRs were to be “call
ready” within six minutes of their scheduled shift,
and, by custom, permitted CCRs to clock in five minutes prior
to the start of a shift. [#168-31 at 2; #168-32 at 1].
Nelnet policy is that an employee should clock in at this
point before launching any further programs. [Id. at
become call ready after booting up the computer and launching
Citrix and the Intranet, a CCR must launch several additional
programs. [Id. at 162:9-23].
Nelnet permits its employees to use their computers for
personal tasks and the timekeeping system design permits the
employee to clearly delineate when the work begins and ends.
[#168-23 at ¶ 13].
CCRs are also permitted to do personal tasks when waiting for
the pre-shift activities to complete which are basic, rote
activities that do not require much if any thought or effort.
[#168-18 at 2-3, 57:7-18, 138:3-140:2].
Nelnet does not, and has never, used the timestamps
associated with logging into Citrix or insertion of the
Imprivata Badge for timekeeping purposes. [168-9 at ¶
would be technically challenging to link the Imprivata or
Citrix timestamps to the timekeeping system typically used
for compensation. [#168-23 at ...