United States District Court, D. Nevada
M. Navarro, Chief Judge.
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).
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).
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).
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
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.
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.
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.
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).
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[.]”
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 ...