The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S MOTION FOR CONDITIONAL CLASS CERTIFICATION BE DENIED WITHOUT PREJUDICE OBJECTIONS DUE: 21 DAYS (Doc. 47)
Plaintiff Lisa Davis ("Plaintiff") filed suit against Social Service Coordinators, Inc. and Social Services Coordinators, LLC (collectively "SSC") on December 20, 2010, alleging, inter alia, that SSC failed to pay overtime wages in violation of the Fair Labor and Standards Act ("FLSA"), codified at 29 U.S.C. § 201, et seq. Following several motions, a Second Amended Complaint ("SAC") was filed on August 11, 2011, which is the operative complaint.*fn1 (Doc. 27.)
On April 30, 2012, Plaintiff filed a motion to conditionally certify a collective action pursuant to the FLSA. (Doc. 47.) On May 31, 2012, an opposition was filed by SSC. (Doc. 51.) Plaintiff filed a reply brief on June 15, 2012. (Doc. 59.) On July 18, 2012, the parties appeared telephonically for a hearing before U.S. Magistrate Judge Sheila K. Oberto. (Doc. 66.) Craig M. Nicholas, Esq., appeared on behalf of Plaintiff and Christian C. Antkowiak, Esq., appeared on behalf of SSC. (Doc. 66.)
For the reasons set forth below, the Court RECOMMENDS that Plaintiff's motion for conditional certification of a collective action be DENIED WITHOUT PREJUDICE.
SSC*fn2 is a private social service organization that contacts Medicare and Medicaid beneficiaries across the nation seeking to qualify these beneficiaries for particular benefit programs geared toward low-income applicants. (SAC, Doc. 27, ¶ 6.) Plaintiff worked as a remote case manager for SSC from August 23, 2010, through November 25, 2010. (SAC, Doc. 27, ¶ 11.) As a remote case manager, Plaintiff's principal and primary job duties included making telephone calls to predetermined senior citizens within particular Medicare plans from a list provided by SSC. (SAC, Doc. 27, ¶ 12.) Plaintiff was required and expected to interview and qualify the senior citizens, pursuant to SSC's strict guidelines and scripts, for a particular Medicare plan. (SAC, Doc. 27, ¶ 12.) Plaintiff's work as a remote case manager was to make, on a daily basis, quota-based telephone calls in accordance with the management decisions and business policies established by SSC. (SAC, Doc. 27, ¶ 12.) Plaintiff was also required to process the applications for the applicable benefits program. (SAC, Doc. 27, ¶ 13.) Plaintiff alleges her position as remote case manager was incorrectly classified by SSC as "exempt." (SAC, Doc. 27, ¶¶ 12, 13.)
According to Plaintiff, SSC employs a "fleet of employees" like Plaintiff in "intake/outreach employee positions" which are all mis-classified as exempt. (SAC, Doc. 27, ¶ 7.) Plaintiff alleges that SSC intentionally and deliberately created a number of job titles "to create the superficial appearance of a number of unique jobs, when in fact, these jobs are substantially similar and can be easily grouped together for the purpose of determining whether they were all misclassified." (SAC, Doc. 27, ¶ 7.) Plaintiff alleges that, because of this mis-classification, Defendant has refused to pay these employees overtime compensation and other benefits required by law. (SAC, Doc. 27, ¶ 1.)
Under the FLSA, complaining employees may bring a collective action on behalf of themselves and all others "similarly situated." 29 U.S.C. § 216(b) (2012). Plaintiffs must affirmatively "opt-in" by filing a written consent with the court, but are not subject to the more stringent requirements of class actions pursuant to Fed. R. Civ. P. 23. See id.; Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124, 1127 (N.D. Cal 2009). The FLSA does not define "similarly situated," and there are several different approaches to interpreting the term. District courts in the Ninth Circuit have adopted an ad hoc, two-tiered approach to determine whether plaintiffs are "similarly situated." See Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 627 n.3 (E.D. Cal. 2009) (collecting cases).
The first tier is the "notice" stage, when the court determines whether plaintiffs are sufficiently similarly situated that the collective action should be certified for the purpose of sending notice to potential class members. Id. at 627; Gerlach v. Wells Fargo & Co., No. C 05-0585, 2006 WL 824652, at *2 (N.D. Cal. Mar. 28, 2006). This threshold determination "requires little more than substantial allegations, supported by declarations or discovery, that 'the putative class members were together the victims of a single decision, policy, or plan.'" Gerlach, 2006 WL 824652, at *2 (quoting Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (11th Cir. 2001)). The standard is a lenient one, typically resulting in a "conditional certification" of the representative class which may be revisited at the second stage. Wynn v. Nat'l Broad. Co., 234 F. Supp. 2d 1067, 1082 (C.D. Cal 2002) (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995)).
The second stage occurs at the conclusion of discovery, usually on a defendant's motion for decertification, and applies a stricter standard for "similarly situated." Gerlach, 2006 WL 824652, at *2. Factors considered at the second stage include "(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations." Leuthold v. Destination Am., 224 F.R.D. 462, 467 (N.D. Cal. 2004).
B. The Parties' Arguments
1. Plaintiff's Motion for Conditional Class Certification
The FLSA provides that a non-exempt employee who works in excess of forty hours in one week shall be paid "not less than one and one-half times the regular rate of pay at which he is employed." 20 U.S.C. § 207(a)(1). Plaintiff's complaint alleges SSC intentionally and wilfully mis-classified certain positions in the company as "exempt." Plaintiff contends that her position, and positions like hers, should have been classified as "non-exempt" and, as a result, SSC should have paid her overtime under Section 207(a)(1).
Although SSC has many departments and divisions, at issue here are employees who work in two sub-divisions of the Operations and Outreach division: the "Intake and GT" sub-division and the "Medicare Outreach" sub-division. (Doc. 52, 7:7-13.)*fn3 Plaintiff contends that the proposed collective class members share in common that they are non-executive employees working within these sub-divisions, who were classified by SSC as "exempt" from overtime pay. (Doc. 52, 7:13-15.) Plaintiff wishes to conditionally certify "outreach" and "intake" employees "who essentially were telemarketers working in one of these two sub-divisions." (Doc. 52, 7:15-18.)
Plaintiff claims that the individuals in these sub-divisions can be easily grouped together for purposes of determining whether they were mis-classified because the jobs in the sub-divisions involved substantially similar duties, regardless of job title. Plaintiff asserts that employees in these sub-divisions "sat in front of a computer, and often wore a telephone headset. These employees' primary job duties and responsibilities were, and continue to be, uniform: performing intake and outreach services to SSC's members . . . . Intake/outreach employees spent their day making outbound telephone calls to pre-determined or pre-qualified clients regarding their potential participation in medicare plans or programs." (Doc. 52, 10:14-21.) Plaintiff maintains that all of SSC's "intake/outreach" employees would adhere to the written scripts provided by SSC, and "spent the vast majority of their workday on the phone conducting outreach, via-telephone calls, to potential applicants." (Doc. 52, 11:28-12:1; 12:13-14.) The remainder of these outreach employees' day was spent filling out forms, entering information into SSC's database, and ensuring that the proper materials were mailed to the medicare program applicant.
Plaintiff claims that SSC maintained quotas regarding the status of each case that employees in the two sub-divisions handled, and categorized each case as "in progress," "pending," and "approved." (Doc. 52, 12:24.) The quotas dictated a specific amount of time per day that intake/outreach employees were to spend following-up and working on "in progress" cases, including via outbound calls. (Doc. 52, 12:25-26.) The quotas were extremely high and virtually impossible to achieve without working overtime. (Doc. 52, 13:10-11.) All the SSC intake/outreach employees were under constant supervision by management. (Doc. 52, 13:16.) According to Plaintiff, in performing their job duties, SSC intake/outreach employees did not use any independent discretion, judgment, or management decisions with respect to matters of significance. "Each of those job categories [was] under close supervision by a SSC manager, performed outreach services, made calls from a per-determined list, operated according to SSC's written scripts and guidelines, and had to meet quotas." (Doc. 52, 13:21-23.)
Plaintiff contends that she is similarly situated with the rest of the proposed class because (1) everyone was designated as exempt; and (2) all the conditional class members worked over 40 hours, but were never paid overtime. Although Plaintiff asserts that these facts alone support conditional class certification, (Doc. 52, 19:3-13), Plaintiff provides more by presenting some evidence that the prospective class members share similar job duties. (Doc. 52, 19:17-21:2.) Plaintiff claims that members of the two sub-divisions share an essential function: they "regularly reach out to SSC clients/customers to gather information and/or then filling-out/submitting a predetermined set of forms related to government-sponsored programs." (Doc. 52, 20:5-8.)Plaintiff asserts that sub-division membership is the "glue that binds everyone in this conditional class and makes collective treatment particularly appropriate." (Doc. 52, 20:8-9.) In short, all of the members of the proposed class were part of the process of making contact with pre-determined clients/members, and then filing out and "pushing through" the various forms mandated by SSC's process.
Plaintiff also contends that the class is similarly situated because all class members were strictly controlled and regulated by SSC through statutory requirements, lists, scripts, checklists, training materials, and strict quotas. (Doc. 52, 21:6-13.)
2. SSC's Opposition to Plaintiff's Motion for Conditional Certification
SSC argues that Plaintiff has not filed an opt-in consent for purposes of initiating a collective action pursuant to 29 U.S.C. § 216(b), and thus the action has not been properly commenced and the motion cannot be granted as a procedural matter. (Doc. 51, p. 7-8.) SSC next argues that Plaintiff's proposed class, drawn based on SSC's grouping of certain positions in two sub-divisions of the company, is so broad and generic that it "precludes a meaningful analysis of 'who' is alleged similarly situated to Plaintiff." (Doc. 51, p. 9.) SSC asserts that Plaintiff fails to show how different job titles within the sub-divisions have the same duties and together were the victims of an improper single decision, policy or plan. (Doc. 51, p. 10.) Further, the fact that job titles are organized by subdivisions does not mean that every position within a particular sub-division requires the same primary duties.
SSC also contends that, even to the extent that Plaintiff has adequately identified job titles and duties within the sub-divisions, the evidence offered does not show that there is a similarity between the job duties of the putative class. (Doc. 51, p. 11-19.) SSC notes that no other individual of the proposed class has filed a consent to opt-in to this case, which the Court should consider at this stage. (Doc. 51, p. 11-12.) SSC argues that the declarations Plaintiff submitted in support of the motion are nearly identical and speculative in nature, contain boilerplate and legal conclusions, and often discuss matters as to which the declarants have no firsthand knowledge. (Doc. 51, p. 12- 13.) Further, Plaintiff improperly attempts to rely upon membership in a company sub-divisions to establish that she and others are similarly situated; however, membership in a sub-division is not a "job function." (Doc. 51, p. 14.) Plaintiff offers no meaningful analysis of the specific job duties and titles within the two relevant divisions. (Doc. 51, p. 15.) The job descriptions of positions within the sub-divisions are different, and Plaintiff's discussion of the various positions exemplifies the lack of similarities in the job duties among employees in these divisions. (Doc. 51, p. 15-16.)
According to SSC, although Plaintiff argues that every employee in the proposed class used the same training materials as evidenced by Plaintiff's submission of some of SSC's training materials, there is no showing that the entire putative class across the two sub-divisions received and used the same training materials, attended the same trainings, or was governed by the same quotas. Instead, Plaintiff simply asserts that it is true. (Doc. 51, p. 17 ("There is no evidence as to who these materials and trainings may have applied, when they applied, and how they applied or who provided them.").) Even the declarants who stated that SSC maintained quotas for outbound calls are "noncommittal" as to whether everyone had the same quotas. (Doc. 51, p. 17-18.)
SSC further contends that Plaintiff has also failed to identify a company-wide policy or decision common to all the putative class members. The mere fact that Plaintiff alleges that these employees were mis-classified is not sufficient to establish a company-wide policy or decision common to all. (Doc. 51, p. 19-21.) Finally, SSC asserts that there are too many individualized issues among class members for a collective action to be maintained. For example, SSC intends to assert an administrative exemption defense with respect to Remote Case Managers. (Doc. 51, p. 21.) This exemption requires a highly individualized factual inquiry that will not be common to every class member. As it relates to every employee in these sub-divisions, collective treatment is "even less plausible." (Doc. 51, p. 22.)
Finally, SSC contends that, even to the extent the Court authorizes notice, the parties should negotiate the terms of the notice proposed by Plaintiff. Specifically, the notice fails to address several issues that need to be resolved, including how Plaintiff's counsel will maintain the confidentiality of the putative plaintiffs' contact information, (Doc. 51, p. 25), and the parties should also meet and confer regarding the length of the notice period. (Doc. 51, p. 26-27.)
Plaintiff contends that SSC ignores the lenient standard that is applicable at this notice-stage of the proceedings, as indicated by SSC's repeated statements that Plaintiff's evidence does not constitute "substantial evidence." Plaintiff notes that the standard at the notice-stage of the proceedings requires only allegations and "some" evidence. (Doc. 59, 6:22-24.)
Plaintiff asserts that she filed an express consent to suit with her original complaint and each of her amended complaints; thus, SSC is mistaken in its argument that the suit has not been properly commenced. (Doc. 59, 7:11, n. 3.) As to the proposed class, in light of an affidavit from SSC's Human Resource Director that all positions within the Intake and GT sub-division are "non-exempt" (Doc. 51-1, ¶ 18), Plaintiff narrows her proposed class to the following group:
All current and former SSC employees working in the "Medicare Outreach" subdivision, who worked overtime, but were not classified as exempt, excluding anyone with the title of President, Vice President, Director, Supervisor, or Team Lead. (Doc. 59, 16:14-16.)
Plaintiff maintains that all the employees within the Medicare Outreach sub-division have similar, even if not identical, primary duties. The proposed class members worked in a "cubical city call-center" making hundreds of calls to elderly applicants a day, "pushed and filled out forms provided by SSC, and operated according to strict training, quotas, scripts, and checklists." (Doc. 59, 5:10-13.) Putative class members who did not work in "cubicle city" had positions with the "exact duties," but they worked from home or "remotely" by logging into the same computer system as putative class members in the Florida call center, and used the same scripts, checklists, training, and federal and state eligibility criteria. (Doc. 59, 5:13-16.)
Other putative class members worked in the "field" doing the "exact same thing as their cubicle-bound counterparts," but they visited the elderly clients in person. (Doc. 59, 5:16-18.) These putative class members worked as "Field Coordinators" and did "just what everyone else did, but instead of using the telephone to market SSC's services and complete the rigid tasks, they used their cars and feet to reach elderly clients who were not as comfortable using the phone or internet." (Doc. 59, 5:18-20.) Further, Field Coordinators all used the same caller/client lists, scripts, quotas, checklists, training protocols, and eligibility criteria. (Doc. 59:11:15-17.) Thus, Plaintiff maintains that she has more than met the lenient standard required for notice of the collective action.
Finally, Plaintiff contends that SSC's arguments with regard to the notice to the class are "largely inappropriate attempts to limit participation by potential plaintiffs and to hinder plaintiffs' counsel's efforts to investigate the case on behalf of Ms. Davis." (Doc. 59, 17:1-11.)
C. The Parties' Objections to Affidavits and Argument
1. Plaintiff's Evidentiary Objections Should be OVERRULED
In conjunction with her reply brief, Plaintiff filed objections to the affidavits of Cristina Pinckney ("Pinckney Aff.") (Doc. 51-1, Exh. A) and Minette Gomez ("Gomez Aff.") (Doc. 51-2, Exh. B) filed in support of SSC's opposition to Plaintiff's motion. (Doc. 59-1.) There are divergent opinions within the district courts regarding whether evidence submitted in support of or in opposition to a conditional class certification motion must be in a form admissible at trial. Compare Harrison v. McDonald's Corp., 411 F. Supp. 2d 862, 865-66 (S.D. Ohio 2005) ("[O]nly admissible evidence may be considered in connection with a [Section] 216(b) motion.") with White v. MPW Industrial Servs., Inc., 236 F.R.D. 363, 368 (E.D. Tenn. 2006) (finding that hearsay evidence may properly be considered in the context of a motion for conditional class certification under Section 216(b)); Aguayo v. Oldenkamp Trucking, No. 04-6279-AWI-LJO, 2005 WL 2436447, at * 4 (E.D. Cal. Oct. 3, 2005) (disregarding hearsay and foundational challenges to declarations submitted in support of motion for conditional certification).
There are several reasons why the evidentiary standards should be relaxed at this stage of the proceedings, and Plaintiff's evidentiary objections should be disregarded. First, this is a nondispositive motion, and unlike a Rule 56 motion for summary judgment, there is no express requirement that the evidence considered be admissible for purposes of trial. Second, by considering evidence at this stage, the Court is not making any binding determination as to the admissibility of evidence for purposes of trial. Many courts have relaxed the evidentiary requirements for plaintiffs at the conditional certification stage because the evidence has not been fully developed through discovery and the evidence will be subjected to greater scrutiny at the second stage. Indeed, Plaintiff's declarations suffer similar foundational issues raised by SSC that are addressed below.
As the Court recommends that the evidentiary standards be relaxed with respect to Plaintiff's declarations, SSC's testimonial evidence will be viewed similarly. More importantly, none of Ms. Pinckney's statements form the basis of the Court's recommendation to deny Plaintiff's motion.
Regarding Plaintiff's objection that Minette Gomez's statements lack foundation and contain inadmissible hearsay, the matters addressed in Ms. Gomez' affidavit do not pertain to Plaintiff's motion for conditional certification, but rather to contact Plaintiff's counsel had with a former employee of SSC and whether it involved a solicitation to join this lawsuit. This issue was not briefed by either party, and the evidence is unrelated to the present motion.
For these reasons, Plaintiff's evidentiary objections to the affidavits of Cristina Pinckney and ...