Weeks et al v. Matrix Absence Management Incorporated

Filing 36

ORDER: IT IS ORDERED that Plaintiff's Motion for Step-One Notice Pursuant to the FLSA (Doc. 25 ) is granted as modified. (See Order for details.) Signed by Judge Steven P Logan on 10/14/20. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tina Weeks, et al.,

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Plaintiffs,
vs.

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Matrix Absence Management Inc.,
Defendant.

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No. CV-20-00884-PHX-SPL
ORDER

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Plaintiffs Tina Weeks, Michael McDonald, and Cassandra Magdaleno bring this

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action against Defendant Matrix Absence Management, Inc. to recover allegedly unpaid

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overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. At

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issue is Plaintiffs’ Motion for Step-One Notice Pursuant to the Fair Labor Standards Act

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(Doc. 25), in which Plaintiffs seek to conditionally certify similarly situated workers as a

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class for purposes of pursuing a collective FLSA action under 29 U.S.C. § 216(b). The

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Motion is fully briefed (Docs. 25, 26, 27, 33, & 35), and neither party is requesting oral

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argument. For the reasons that follow, the motion will be granted.

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I.

BACKGROUND

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Plaintiffs worked as “Claims Examination Employees” at Matrix Absence

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Management Inc. (hereinafter “Matrix”), a Japanese corporation that administers disability

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and leave absence claims in the U.S. (Doc. 1 at ¶¶ 1-2). Plaintiffs’ primary job consisted

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of “reviewing employee disability and leave of absence claims against predetermined

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guidelines to . . . determine benefit eligibility.” (Doc. 1 at ¶ 10). Plaintiffs’ job is classified

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as exempt from overtime pay under the FLSA. (Doc. 1 at ¶ 9). Plaintiffs’ Complaint alleges

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that Plaintiffs “regularly worked over 40 hours per work week” and that, due to

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“Defendant’s misclassification scheme,” they were wrongfully denied the one and one-half

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times pay premium required by the FLSA for overtime hours worked by non-exempt

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employees. (Doc. 1 at ¶¶ 8, 13, 30).
Plaintiffs therefore seek to pursue this case as a collective action and to conditionally

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certify the following class:

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All individuals employed by Matrix as Claims Examination
Employees in the last three years who were paid on a salary
basis and classified as exempt from overtime compensation.
This definition specifically includes all individuals employed
in [Claims Examination Employee] job titles in the last three
years.

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(Doc. 1 at ¶ 94); (Doc. 25 at 1). The Motion specifically defines “Claims Examination

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Employees” to include 22 job titles, all of which Plaintiffs allege shared the same job duty:

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“utilizing Matrix’s guidelines to determine whether to approve Claims based on whether

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they meet specific, predetermined criteria.” (Doc. 25 at 1 n.1, 4).

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Defendant asserts that its Claim Examiners are organized into four categories:

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“Leave of Absence (LOA) examiners, Short Term Disability (STD) examiners, Long Term

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Disability (LTD) examiners, and Absence Management Specialist (AMS) examiners.”

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(Doc. 33 at 2-3). Defendant argues the duties of these positions vary significantly, and “the

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notion that each job was ‘interchangeable’ (as Plaintiffs suggest) ignores the entire

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structure and nature of Matrix’s claim handling process.” (Doc. 33 at 4). Defendant also

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asserts, through an affidavit of its Senior Corporate Recruiter Michelle Bahadar, that the

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job descriptions of the Claim Examiners provided by Plaintiff (Doc. 27, ex. L) are not

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actually Matrix’s descriptions, and submits its own descriptions to consider instead (Doc.

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34-1). In sum, Defendant argues the purported class members are not “similarly situated”

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as required for class certification.

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II.

LEGAL STANDARDS

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The FLSA requires that employers ordinarily pay their employees time and one-half

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for work exceeding forty hours per week. 29 U.S.C. § 207(a)(1). The FLSA provides an

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exemption from overtime for persons “employed in a bona fide executive, administrative,

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or professional capacity.” 29 U.S.C. § 213(a)(1). An “employer who claims an exemption

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from the FLSA has the burden of showing that the exemption applies.” Donovan v. Nekton,

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Inc., 703 F.2d 1148, 1151 (9th Cir. 1983). Because the FLSA “is to be liberally construed

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to apply to the furthest reaches consistent with Congressional direction . . . FLSA

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exemptions are to be narrowly construed against . . . employers and are to be withheld

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except as to persons plainly and unmistakenly within their terms and spirit.” Klem v.

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County of Santa Clara, 208 F.3d 1085, 1089 (9th Cir. 2000) (internal quotation marks and

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citations omitted).

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“Any employer who violates the provisions of . . . section 207 . . . shall be liable to

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the employee or employees affected in the amount of . . . their unpaid overtime

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compensation.” Id. § 216(b). A collective action to recover these damages may be brought

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“against any employer . . . by any one or more employees for and on behalf of himself or

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themselves and other employees similarly situated.” Id. Employees not named in the

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complaint who wish to join the action because they are similarly situated must give their

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consent in writing to the court in which the action is brought (i.e., “opt in”). Id.; see also

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Campbell v. City of Los Angeles, 903 F.3d 1090, 1100 (9th Cir. 2018).

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“Section 216(b) does not define ‘similarly situated,’ and the Ninth Circuit has not

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construed the term.” Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010). “The

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majority of courts, including those within the District of Arizona, have adopted the two-

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tiered approach in deciding whether to grant FLSA collection action status.” Villarreal v.

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Caremark LLC, No. Cv-14-00652-PHX-DJH, 2014 WL 4247730, at *3 (D. Ariz. Aug. 21,

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2014) (internal quotations and alterations omitted). Under this approach, the first step is to

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“make an initial notice stage determination of whether plaintiffs are similarly situated.”

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Stickle v. SCI Western Market Support Center, 2008 WL 4446539, at *2 (D. Ariz. Sept.
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30, 2008). Here, Plaintiffs now seek this first step of conditional certification. Thus, at this

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juncture the Court is concerned only with determining whether the proposed class members

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are “similarly situated.”

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A plaintiff’s burden at this notice stage is low. See Baltazar v. U.S. Airways Group,

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Inc., 2013 WL 4654567, at *2 (D. Ariz. Aug. 30, 2013) at *2 (the standard at the notice

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stage is “lenient . . . because the court has little evidence at this stage and the usual result

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is conditional class certification” (internal quotation marks and citation omitted)). “At this

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first stage, the court require[s] nothing more than substantial allegations that the putative

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class members were together the victims of a single decision, policy, or plan.” Stickle, 2009

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WL 3241790, at *2 (internal quotation marks and citations omitted). “The court’s

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determination at this first step is based primarily on the pleadings and any affidavits

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submitted by the parties.” Kesley v. Entm’t U.S.A. Inc., 67 F.Supp.3d 1061, 1065 (D. Ariz.

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2014) (internal quotations omitted).

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If the plaintiff “survives this hurdle, the district court will conditionally certify the

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proposed class and the lawsuit will proceed to a period of notification, which will permit

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potential class members to opt-into the lawsuit.” Id. Because of the limited amount of

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evidence before the court at the first step, at the second step “the party opposing the

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certification may move to decertify the class once discovery is complete and the case is

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ready to be tried.” In re Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp. 2d

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1053, 1071 (N.D. Cal. 2007).

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III.

ANALYSIS

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Defendant argues the purported class members are not “so substantially similar that

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the Court can treat them as one.” (Doc. 33 at 1). In support of the conditional certification,

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Plaintiffs submit (among other things) the factual allegations contained in Complaint

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(Doc. 1), declarations from Plaintiffs’ attorney Jack Siegel (Doc. 27), declarations from

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eleven “Claim Examiners” at Matrix (Doc. 27, Exs. A-K), and the Claim Examiner job

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description (Doc. 27, ex. L). For the foregoing reasons, this evidence taken together is

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sufficient to support a finding that the purported class identifies similarly situated
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individuals. See, e.g., Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 468 (N.D. Cal.

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2004) (finding, based only on the allegations in the complaint and supporting affidavits of

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employees, that “the information presented by plaintiffs is adequate to warrant conditional

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certification of the class for purposes of notifying proposed class members of the pendency

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of the suit”).

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Defendant asserts that the job descriptions Plaintiffs provide do not belong to Matrix

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and submits its own descriptions to consider instead. (Doc. 34 at ¶ 15). However, even the

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job descriptions submitted by Defendant (Docs. 34-1, 34-2, 34-3, 34-4, 34-5, & 34-6)

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provide a basis, in conjunction with the Complaint and the employees’ declarations, to find

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that the purported class members are similarly situated. The descriptions all describe claims

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examiners of some type, who all work in operations division, and who all report to the

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supervisor of integrated claims. And although the language of the substantive job

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descriptions varies, the positions all appear to all handle the same tasks. To name a few, all

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job descriptions involve investigating leave claims, determining eligibility, and

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communicating approvals and/or denials to the client. (Doc. 34-1 at 2) (Claims Examiners

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II, AMS job description includes “investigate all relevant issues,” “determines eligibility,”

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and “communicates approvals, denials, . . . and other important information regarding leave

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to the employee and client”); (Doc. 34-2 at 2) (Claims Examiners II, LOA job description

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includes “investigate, evaluate and adjudicate claims,” “determines eligibility,” and

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“communicates approvals, denials, . . . and other important information regarding leave to

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the employee and client”); (Doc. 34-3 at 2) (Claims Examiners II, LTD job description

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includes “prompt and thorough investigation,” “interprets . . . eligibility,” and

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“communicates with claimants, policyholders, physicians to resolve investigation issues”);

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(Doc. 34-4 at 2) (Claims Examiners I, LTD job description includes “analyze, approve or

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deny disability claims,” “determining eligibility,” and “communicates approvals, denials,

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. . . and other important information regarding leave to the employee and client”); (Doc.

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34-5 at 2) (Claims Examiners I, DI or LOA/FMLA job description includes “investigate

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claim issues,” “interprets . . . eligibility,” and “act as a liaison between client, employee
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and healthcare provider”); and (Doc. 34-6 at 2) (Claims Examiners, Sr., LTD job

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description includes “investigation of claims,” “interprets . . . eligibility,” and

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“communicates with claimants, policyholders, physicians to resolve investigation issues”).

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These descriptions, though not identical, certainly show a sufficient similarity to allow

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conditional class certification. See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th

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Cir.1996) (finding that, to satisfy the “similarly situated” requirement, “plaintiffs need

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show only that their positions are similar, not identical, to the positions held by the putative

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class members”); Villarreal v. Caremark LLC, 66 F. Supp. 3d 1184, 1189 (D. Ariz. 2014)

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(abrogated on other grounds) (same).

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Defendant also argues that the certification should be denied because “Plaintiffs’

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declarations are far too generic and implausible to support certification.” (Doc. 33 at 10).

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The declarations submitted by the employees, as Defendant points out, are essentially

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“carbon copies” of each other. (Doc. 33 at 10). “The District of Arizona has previously

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denied certification of a FLSA class action when the supporting declarations were nearly

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identical, vague, conclusory, silent where one would expect important detail, and

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contradictory to allegations in the complaint.” Kuzich v. HomeStreet Bank, No. CV-17-

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02902-PHX-GMS, 2018 WL 3872191, at *2 (D. Ariz. Aug. 15, 2018) (emphasis added)

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(citing Delnoce v. Globaltranz Enterprises, Inc., 2017 WL 4769529 at *5 (D. Ariz. Sept.

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25, 2017)). However, a finding that submitted declarations are “rather ‘cookie-cutter’ . . .

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alone is not a basis upon which to deny” a FLSA class action. Baughman v. Roadrunner

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Communications LLC, 2012 WL 12937133 at *3 (D. Ariz. Sept. 27, 2012) (citing Bollinger

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v. Residential Capital, LLC, 761 F. Supp. 2d 1114, 1120 (W.D. Wash. 2011) (“But at this

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stage, under a lenient standard, the use of similarly worded or even ‘cookie cutter’

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declarations is not fatal to a motion to certify an FLSA collective action.”)). Here, though

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the declarations are identical, they are neither vague nor conclusory. Rather, they contain

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detailed descriptions of the Plaintiffs’ job duties and the extent to which Defendant controls

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them, all of which are consistent with the allegations set forth in the Complaint.

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Defendant further argues the declarations are “empty and implausible” because they
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copied “verbatim” the language used by plaintiffs in other cases. (Doc. 33 at 10-11). The

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Court finds this argument unpersuasive too. That the Plaintiffs copied language from other

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cases to explain the extent to which Defendant controlled the execution of their job duties

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(for example, that the employee was “a rule follower, not a rule maker”) does not render

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the declarations empty or implausible. The declarations also include descriptions of

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Plaintiffs’ specific job duties and the extent to which Matrix controls them. For example,

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they explain that Claims Examiners are only allowed to deny claims without approval from

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a supervisor if the claimant failed to provide necessary documentation. (See, e.g., Doc. 27-

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1 at ¶ 3). Further, they explain that they could only approve or deny claims based on

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whether the claims met specific, predetermined criteria outlined by Matrix and, if the

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criteria were met, the employee would send a template approval letter prepared by Matrix.

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(See, e.g., Doc. 27-1 at ¶ 4). These allegations show a level of control by Matrix specific

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to this case and common to all Plaintiffs. See In re Wells Fargo Home Mortg. Overtime

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Pay Litig., 527 F. Supp. 2d 1053, 1071 (N.D. Cal. 2007) (conditionally certifying an FLSA

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class based in part on “cookie-cutter declarations that do not reveal the true experiences of

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the purported declarants” because “[a]lthough defendants raise substantial issues regarding

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the reliability of these declarations, plaintiffs’ factual showing satisfies the lenient standard

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warranting conditional certification of this collective action”) (internal quotations omitted).

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It necessarily follows that, where Plaintiffs have the same job duties, so too were they all

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subject to the same “decision, policy, or plan”: Metrix’s alleged misclassification of them

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as exempt. Kesley, 67 F. Supp. At 1065.

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IV.

APPROVAL OF NOTICE

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Finally, Defendant contests (i) the length of the opt-in period proposed in the notice

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of collection action and lawsuit (the “Notice”); (ii) that the Notice requests multiple forms

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of notice (i.e. text, email, and mail) when U.S. Mail is sufficient; (iii) that the Notice “does

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not plainly inform potential opt-ins that they may be required to participate in discovery

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and pay litigation costs”; and (iv) that the Notice “puts Plaintiff’s counsel in the position

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of handling the notice process, instead of a third-party administrator.” (Doc. 33 at 21).
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A certified class must receive “the best notice practicable under the circumstances,

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including individual notice to all members who can be identified through reasonable

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effort.” Reab v. Electronic Arts, Inc., 214 F.R.D. 623, 630 (D. Colo. 2002) (quoting Fed.

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R. Civ. P. 23(c)(2)); see also Stickle v. SCI W. Mkt. Support Ctr., L.P., No. 08-083-PHX-

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MHM, 2009 WL 3241790, at *7 (D. Ariz. Sept. 30, 2009) (declining to require notice via

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“employee newsletter” when it saw “no reason why [U.S. Mail] notice is inadequate”).

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However, “[t]he district court has discretion regarding the form and content of the notice.”

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Juvera v. Salcido, 294 F.R.D. 516, 523 (D. Ariz. 2013). Plaintiffs have agreed not to send

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notice via text message, but still ask that notice be sent via email. (Doc. 35 at 12).While

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U.S. Mail is often the best and most efficient means of communication, the Court notes

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that, during the COVID-19 global pandemic, people are utilizing email to access

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information and documents now more than ever. The Court sees no reason to not allow

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notice by email here.

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Regarding the notice period, this Court has approved opt-in periods of 60 days in

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FLSA collective actions. See, e.g., Cardoso et al. v. Pick A Part, LLC et al., 18-CV-04759-

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MTL, Doc. 46 (D. Ariz. Aug. 22, 2020); Barrera v. US Airways Grp., Inc., No. CV-2012-

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02278-PHX, 2013 WL 4654567, at *9 (D. Ariz. Aug. 30, 2013); Taylor v. Autozone, Inc.,

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No. CV-10-8125-PCT-FJM, 2011 WL 2038514, at *6 (D. Ariz. May 24, 2011). The Court

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sees no reason, nor does Defendant provide one, that a 63-day opt-in period should not be

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granted, particularly during a pandemic.

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Defendant also asserts that a third-party administrator should “handl[e] the notice

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process.” (Doc. 33 at 16). However, Defendant does not provide any particular security

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concerns—or any reasons at all—why Plaintiffs’ counsel cannot or should not handle the

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notice process. See Ramirez v. Ghilotti Bros. Inc., 941 F. Supp. 2d 1197, 1207 (N.D. Cal.

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2013) (declining to appoint a third-party administrator where the defendant “offered no

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persuasive reason . . . that plaintiffs’ counsel will violate their professional

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responsibilities”); Poehler v. Fenwick, No. 2:15-CV-01161 JWS, 2015 WL 9258448, at *3

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(D. Ariz. Dec. 18, 2015) (declining to appoint a third-party administrator where “there is
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no compelling reason articulated by Defendants as to why a third-party administrator

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would be beneficial”) (citing Hensley v. Eppendorf N. Am., Inc., 14-cv-419, 2014 WL

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2566144, at *9 (S.D. Cal. June 5, 2014) (“Requiring a third-party administrator to send

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notice would likely complicate the notice process and generate additional expenses.”)). A

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third-party administrator is not required here.

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Finally, the Court finds that the Notice need not include information regarding the

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opt-in’s participation in discovery and potential associated costs. In FLSA collective

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actions, individualized discovery of similarly situated plaintiffs is rarely appropriate. See,

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e.g., Adkins v. Mid-American Growers, Inc., 143 F.R.D. 171, 174 (N.D. Ill. 1992)

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(“Because the court has already determined the plaintiffs are ‘similarly situated,’ individual

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depositions and interrogatories are not appropriate. . . . Individualized discovery is just too

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onerous.”) (internal quotations and citations omitted). And where individualized discovery

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is unlikely, the potential negative deterring effects of including information about

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associated costs outweigh the benefits. Prentice v. Fund for Pub. Interest Research, Inc.,

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No. C-06-7776 SC, 2007 WL 2729187, at *5 (N.D. Cal. Sept. 18, 2007) (“Including a

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warning about possible discovery when that discovery is unlikely will serve no purpose

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other than deterring potential plaintiffs from joining the suit based on unfounded concerns

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about the hassle of discovery.”); Carrillo v. Schneider Logistics, Inc., No. CV-11-8557

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CAS DTBX, 2012 WL 556309, at *14 (C.D. Cal. Jan. 31, 2012) (“[T]he Court believes

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that this kind of warning would undermine the FLSA’s goal of encouraging full

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enforcement of statutory rights, especially where potential opt-in plaintiffs are low-wage

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workers.”). Accordingly, this Court will not require that the notice inform opt-ins that they

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may have to participate in discovery or pay associated costs.

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V.

CONCLUSION

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Given the liberal requirements for conditional certification under the FLSA,

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Plaintiffs have set forth sufficient evidence to show the purported class members are

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“similarly situated.” Further, consistent with the revisions in the Notice above, the Court

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approves Plaintiffs’ amended Notice attached as Exhibit D to its Reply. (Doc. 35-4).
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Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Step-One Notice Pursuant to the

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FLSA (Doc. 25) is granted as modified.

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IT IS FURTHER ORDERED that the collective class of potential plaintiffs is

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conditionally certified under 29 U.S.C. § 216(b) and consists of all individuals employed

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by Defendant as Claims Examination Employees in the last three years who were paid on

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a salary basis and classified by Defendant as exempt from overtime compensation

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(“Collective Action Members”) including, without limitation, all individuals employed in

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CEE job titles in the last three years.
IT IS FURTHER ORDERED that the Notice and Consent Form attached as

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Exhibit D to Plaintiffs’ Reply (Doc. 35-4) is approved.

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IT IS FURTHER ORDERED that Defendant shall produce to Plaintiffs’ Counsel

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a computer-readable data file containing the names, job titles, dates of employment, last

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known mailing addresses, last known personal email addresses, and work locations for all

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Collective Action Members (the “Class List”) within seven (7) days of this Order.

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IT IS FURTHER ORDERED that Plaintiff’s Counsel shall (1) mail the approved

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Notice and Consent Form to all Collective Action Members via regular U.S. mail; and (2)

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issue the Notice and Consent via email to all Collective Members for whom email

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addresses were produced by Defendant within twenty-one (21) days of receiving the Class

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List.

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IT IS FURTHER ORDERED that Collective Action Members shall have sixty-

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three (63) days from the date the Notice and Consent Form is sent to sign and return the

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Consent Form (the “Notice Period”).

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IT IS FURTHER ORDERED that consent Forms that are postmarked during the
Notice Period shall be considered timely filed.

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IT IS FURTHER ORDERED that Plaintiffs’ Counsel may send a reminder notice

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to all Collective Action Members who have not yet returned signed Consent Forms thirty

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(30) days after the Notice and Consent Form is first mailed. Such reminder notice may be
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issued by regular U.S. mail and email.

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IT IS FURTHER ORDERED that within fourteen (14) days of the close of the

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Notice Period, the Parties shall meet and confer to discuss a proposed discovery plan and

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deadlines for dispositive motions. No later than twenty-one (21) days after the close of the

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Notice Period, the Parties shall submit a Joint Case Management Plan setting forth their

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respective proposals.

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Dated this 14th day of October, 2020.

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Honorable Steven P. Logan
United States District Judge

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