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Clark v. Bank of America, N.A.

United States District Court, D. Nevada

March 31, 2019

MAUREEN CLARK, et al., Plaintiffs,
BANK OF AMERICA, N.A., Defendant.


          Gloria M. Navarro, Chief Judge.

         Pending before the Court is the Motion for Conditional Certification, (ECF No. 53), filed by Plaintiffs Maureen Clark and Sonya Alexander (collectively “Plaintiffs”). Defendant Bank of America, N.A., (“Defendant”) filed a Response, (ECF No. 56), and Plaintiffs filed a Reply, (ECF No. 58). Additionally, after obtaining leave from the Court, Defendant filed a Surreply, (ECF No. 61).[1]

         I. BACKGROUND

         This case arises out of, inter alia, alleged Fair Labor Standards Act (“FLSA”) violations, involving Defendant not compensating Plaintiffs “from the beginning of the first principal activity of the workday to the end of the last principal activity of the workday.” (Second Am. Compl. (“SAC”) ¶ 4, ECF No. 52). Clark worked at Defendant's call center in Las Vegas, Nevada, from April 1999 to May 2016, and Alexander worked at the same call center from June 2005 to December 2015. (See Id. ¶¶ 16, 17). According to Plaintiffs, they were employed as “hourly call center agents.” (Id. ¶ 2). However, Plaintiffs also refer to their position as “hourly customer service agents.” (See, e.g., id. ¶¶ 12, 13). While working there, Plaintiffs allege that before they could clock-in for their shifts, they were required to “boot up and login to various computer programs, software programs, and applications in order to access required information and software, ” and that this process took “substantial time on a daily basis ranging from 5 to 10 minutes per day, and up to 30 minutes on days where their computers were not working properly.” (Id. ¶¶ 19, 20). Because of this, Plaintiffs allege that Defendant deprived Plaintiffs and other members of the putative class of wages owed for their preliminary work activities. (See Id. ¶ 30). Plaintiffs allege these collective action allegations on behalf of “[a]ll current and former hourly customer service agents who worked for Defendant at any time after September 21, 2013.” (Mot. for Conditional Certification (“Mot.”) at 1, ECF No. 53).

         On June 22, 2018, Plaintiffs filed their Second Amended Complaint, (ECF No. 52), containing claims for (1) violation of the FLSA; (2) violations of NRS §§ 608.016, 608.018, and 608.260. Plaintiffs also filed the instant Motion for Conditional Certification and Court Authorized Notice to Potential Opt-in Plaintiffs, (ECF No. 53), pursuant to 29 U.S.C. § 216(b).


         Section 216(b) of the FLSA provides that one or more employees may bring a collective action “on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). While a plaintiff may bring an action on behalf of himself and others similarly situated, “no employee shall be a party to any such action unless he gives his consent in writing to become such a party and such consent is filed with the court in which such action is brought.” Id. “Although § 216(b) does not require district courts to approve or authorize notice to potential plaintiffs, the Supreme Court held in Hoffman-La Roche that it is ‘within the discretion of a district court' to authorize such notice.” McElmurry v. U.S. Bank Nat'l Ass'n, 495 F.3d 1136, 1139 (9th Cir. 2007) (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169, (1989)). “[P]laintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members.” Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (alteration in original) (internal quotation marks omitted). “[P]laintiffs bear the burden of demonstrating a ‘reasonable basis' for their claim of class-wide discrimination.” Id. at 1097. “The plaintiffs may meet this burden, which is not heavy, by making substantial allegations of class-wide discrimination, that is, detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary.” Id. (internal quotation marks omitted).

         The FLSA does not define “similarly situated.” A majority of courts have adopted a two-step approach for determining whether a class is “similarly situated.” See Padan v. W. Bus. Sols., LLC, No. 2:15-cv-00394-GMN-CWH, 2016 WL 304303, at *2 (D. Nev. Jan. 25, 2016); Gamble v. Boyd Gaming Corp., No. 2:13-cv-1009-JCM-PAL, 2014 WL 2573899, at *3 (D. Nev. June 6, 2014); Fetrow-Fix v. Harrah's Entm't Inc., No. 2:10-cv-00560-RLH-PAL, 2011 WL 6938594, at *6 (D. Nev. Dec. 30, 2011); Misra v. Decision One Mortg. Co., LLC, 673 F.Supp.2d 987, 992-93 (C.D. Cal. 2008); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004); Pfohl v. Farmers Ins. Grp., No. 2:03-cv-03080-DT-RC, 2004 WL 554834, at *2 (C.D. Cal. Mar. 1, 2004). This approach involves notification to potential class members of the representative action in the first stage followed by a final “similarly situated” determination after discovery is completed.

         “Since this first determination is generally made before the close of discovery and based on a limited amount of evidence, the court applies a fairly lenient standard and typically grants conditional class certification.” Misra, 673 F.Supp.2d at 993 (citing Leuthold, 224 F.R.D at 467; Pfohl, 2004 WL 554834, at *2). At the initial notice stage, “a plaintiff need only make a ‘modest factual showing sufficient to demonstrate that [the putative class members] were victims of a common policy or plan that violated the law.'” Id. If the court “conditionally certifies” the class, putative class members are given notice and the opportunity to “opt-in” by a certain deadline. Id.

         The second stage determination is held after discovery is complete and the matter is ready for trial. Id. At this stage, the court can make a factual determination on the similarly situated question by weighing such factors as: “(1) the disparate factual and employment settings of the individual plaintiffs, (2) the various defenses available to the defendant which appear to be individual to each plaintiff, and (3) fairness and procedural consideration.” Id. (citing Pfohl, 2004 WL 554834, at *2). If the claimants are similarly situated, the collective action proceeds to trial. Id. If claimants are not similarly situated, the court decertifies the class and the opt-in plaintiffs are dismissed without prejudice. Id.


         Plaintiffs seek certification of a collective action for their FLSA claim alleging that Defendant “failed to pay [call center agents] for preliminary activities which directly benefited Defendant, ” and which are “an essential part” of a customer service agent's job responsibilities. (Mot. at 5, ECF No. 53) (alteration removed). In support, Plaintiffs provide their own declarations, (ECF Nos. 53-3, 53-4); declarations from two opt-in plaintiffs, Cameron McDonald and Shanece Chongling, (ECF Nos. 53-5, 53-6); a fact sheet from the Department of Labor concerning the application of the FLSA to employees working in call centers, (ECF No. 53-7); and an order entered by this Court in an unrelated collective action, (ECF No. 53-8). Moreover, attached to their Reply, Plaintiffs submit three collective action complaints filed against Defendant in other federal district courts, (ECF Nos. 58-1, 58-2, 58-3). Plaintiffs offer this evidence to demonstrate that the putative class members were victims of Defendant's common scheme and practice of failing to pay wages for compensable pre-shift activities, thereby violating the law. See Misra, 673 F.Supp.2d at 993; (Mot. 2:14-15).

         In his declaration, McDonald states that he worked as an hourly call center agent from February 3, 2014, to December 4, 2015, at the Las Vegas, Nevada call center. (McDonald Decl., ECF No. 53-5). McDonald makes allegations similar to Plaintiffs', stating that Defendant failed to pay hourly call center agents overtime wages for pre-shift work performed. (Id.). In her declaration, Chongling states that she has worked as a call center agent in Defendant's Newark, Delaware call center since June 11, 2011. (Chongling Decl., ECF No. 53-6). She similarly states that Defendant failed to pay hourly call center agents, including herself, overtime wages for pre-shift work performed. (Id.). She adds, among other things, that she “[has] met and come to know numerous other call center agents employed at Bank of America's Newark call center and other locations, ” and that she has had “numerous conversations with these call center agents about Bank of America's compensation policies, and its failure to pay call center agents for work performed in connection with the pre-shift work[.]” (Id.).

         Defendant argues that the collective action cannot be certified because the proposed class members are not similarly situated. (Resp. 12:22-13:7, ECF No. 56). Defendant asserts that many of its call centers have “employees in different lines of business, sub-lines, and divisions working in them, in roles specific to the part of the business they support, and with their own management teams.” (Id. 3:1-10). Moreover, Defendant argues that Plaintiffs' and opt-in plaintiffs' experience and observations were confined to Defendant's Las Vegas, Nevada call center and Newark, Delaware call center. (Id. 18:26-19:2). Defendant further argues that Plaintiffs have “failed to define the employees or positions they seek to include in their collective action in a reasonably-ascertainable way. Plaintiffs' proposed collective definition is ‘All current and former hourly customer service agents who worked for Defendant . . . .'” (Id. 12:24-27). Defendant contends that “Plaintiffs, however, never held any position of ‘customer service agent' and no such position even exists at [Defendant's call] centers.” (Id. 12:27-28). Therefore, according to Defendant, it is “a ...

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