Gilbert v. CitiGroup, Inc.

Filing 65

ORDER by Judge Samuel Conti granting in part and denying in part 31 Motion to Conditionally Certify Class (sclc2, COURT STAFF) (Filed on 2/18/2009)

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1 2 3 4 5 6 7 8 9 10 For the Northern District of California UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DANA GILBERT, on behalf of herself ) and all others similarly situated, ) ) Plaintiff, ) ) v. ) ) CITIGROUP, INC., CITIBANK, N.A., ) ) Defendants. ) ) ) I. INTRODUCTION This matter comes before the Court on the Motion for Conditional Certification and Facilitated Notice submitted by Plaintiff Dana Gilbert. Docket No. 31. Defendants Citigroup Inc. Case No. 08-0385 SC ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION AND FACILITATED NOTICE United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Citibank, N.A. (collectively "Defendants") filed an Opposition and Plaintiff submitted a Reply. See Docket Nos. 38, 59. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion. II. BACKGROUND Plaintiff worked for Citibank as a Business Banking Officer ("BBO") from October 2006 to November 2007. No. 33, 2. Gilbert Decl., Docket As a BBO, she sold Citibank's basic business Id. 7. Plaintiff worked in Citibank's products and services. Financial Centers in Pleasant Hill, California and Walnut Creek, California. Id. 3. Plaintiff was paid on a salaried basis from 1 2 3 4 5 6 7 8 9 10 For the Northern District of California October 2006 until approximately June 2007. she was paid on an hourly basis. Id. Id. 4. Thereafter, Plaintiff contends that, by paying a salary, Defendants misclassified her and other BBOs as exempt employees and failed to pay overtime compensation in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201 et seq. 61. See Second Am. Compl. ("SAC"), Docket No. 16, 55- Plaintiff contends that when paid by the hour, Defendants failed to pay her and other BBOs for hours worked "off-the-clock" in violation of the FLSA. Id. 62-66. Plaintiff moves the Court to conditionally certify her misclassification claim and her "off-the-clock" claim as a collective action under the FLSA. at 1. Mot. United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONDITIONAL CERTIFICATION A. Legal Standard Section 16(b) of the FLSA provides employees with a private right of action to sue an employer for violations of the Act "for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. 216(b). To join an FLSA "collective action" as a plaintiff, an employee must affirmatively opt-in by filing a written "consent to join" in the court where the action is pending. See id. A majority of courts, including district courts in the Ninth Circuit, have adopted a two-stage certification procedure for collective actions brought under the FLSA. See, e.g., Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir. 2001); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th 2 1 2 3 4 5 6 7 8 9 10 For the Northern District of California Cir. 2001); Escobar v. Whiteside Construction Corp., No. 08-1120, 2008 WL 3915715, at *3 (N.D. Cal. Aug. 21, 2008); Beauperthuy v. 24 Hour Fitness USA, Inc., No. 06-0715, 2007 WL 707475, at *5 (N.D. Cal. Mar. 6, 2007); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). At the first stage, the district court approves conditional certification upon a minimal showing that the members of the proposed class are "similarly situated"; at the second stage, usually initiated by a motion to decertify, the court engages in a more searching review. Beauperthuy, 2007 WL 707475 at *5. The FLSA does not define "similarly situated," and the Ninth Circuit has not spoken to the issue. The Supreme Court, in United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989), left the term undefined.1 However, the Supreme Court indicated that a proper collective action encourages judicial efficiency by addressing in a single proceeding claims of multiple plaintiffs who share "common issues of law and fact arising from the same alleged [prohibited] activity." Id. Courts have distilled this into the requirement that a proponent for conditional certification present the court with "nothing more than substantial allegations that putative class members were together the victims of a single decision, policy, or plan." Thiessen, 267 F.3d at 1102 (internal quotations omitted); see also, e.g., Gerlach v. Wells Fargo & Co., No. 05-0585, 2006 WL 824652, at *2 Hoffmann-La Roche addressed a collective action brought under the Age Discrimination in Employment Act, which, the Court recognized, incorporates 16(b) of the FLSA. 493 U.S. at 170. 3 1 1 2 3 4 5 6 7 8 9 10 For the Northern District of California (N.D. Cal. Mar. 28, 2006). Given that a motion for conditional certification usually comes before much discovery, and is made in anticipation of a later more searching review, a movant bears a very light burden in substantiating its allegations at this stage. See, e.g., Beauperthuy, 2007 WL 707475 at *5. B. Collective Action is Appropriate Plaintiff has met the burden for conditional certification of the collective action. Plaintiff and four other current or former See BBOs submitted sworn declarations in support of the Motion. Gilbert Decl.; Klein Decl.; Micuch Decl.; Owen Decl.; Perry Decl. Docket Nos. 33-37. These declarations show that Plaintiff and United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 other BBOs employed at different locations throughout California shared the same or similar job responsibilities. See Gilbert Decl. 7-17; Klein Decl. 8-15; Micuch Decl. 7-15; Owen Decl. 8-16; Perry Decl. 8-16. Plaintiff also submitted a document indicating that BBOs throughout North America were subject to the same variable compensation plan. See Wynne Decl., Docket No. 32, Ex. 3 ("BBO Variable Compensation Brochure"). Plaintiff has provided evidence showing that she and other BBOs were subject to the same allegedly illegal company-wide policy - namely, Citibank's failure to pay overtime compensation to BBOs both before and after their reclassification. Around the middle of 2007, Defendants reclassified four of the five declarants.2 See Gilbert Decl. 6; Klein Decl. 6; Micuch Decl. Brian Perry was not reclassified simply because he was no longer working for Citibank by the middle of 2007. See Perry Decl. 2. 4 2 1 2 3 4 5 6 7 8 9 10 For the Northern District of California 4; Owen Decl. 4. Before the reclassification, they were paid See Gilbert a salary, and afterwards, they were paid by the hour. Decl. 4; Klein Decl. 4; Micuch Decl. 4; Owen Decl. 4; Perry Decl. 4. Four of the declarants state they worked See overtime hours both before and after the reclassification. Gilbert Decl. 5; Klein Decl. 5; Micuch Decl. 5; Owen Decl. 5. Brian Perry states he worked overtime hours during the time he Perry Decl. 5. was employed as a BBO at Citibank. Defendants do not dispute that BBOs throughout the country were initially classified as exempt. Opp'n at 6. Defendants United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 state that as part of an organizational restructuring, the BBO position was eliminated. Sebok Decl., Docket No. 40, 13; Nationwide, BBOs were Sebok Decl. Phillips Decl., Docket No. 41, 9. transferred to other positions in early to mid 2007.3 13; Phillips Decl. 9. While Defendants vigorously dispute that the classification of BBOs as exempt was illegal, or that former BBOs were encouraged to work "off-the-clock" following their transfer to new positions, neither side contests that BBOs throughout the country were transferred to new positions around the middle of 2007. Based on this undisputed fact, coupled with Plaintiff's submission of five declarations and a document indicating BBOs were compensated in the same way nationwide, the Court concludes that Plaintiff has met her light burden of substantially alleging that BBOs were together the victims of a While the declarants state they were reclassified around May or June 2007, Defendants state the organizational restructuring occurred in California in April 2007. 5 3 1 2 3 4 5 6 7 8 9 10 For the Northern District of California single decision, policy, or plan. See Escobar, 2008 WL 3915715 at *3 (finding conditional certification warranted based on allegations in complaint and statements in three declarations); Leuthold, 224 F.R.D. at 468 (same); see also Ballaris v. Wacker Siltronic Corp., No. 00-1627, 2001 WL 1335809 (D. Or. Aug. 24, 2001)(finding that affidavits of two employees were sufficient for conditional certification). In opposing the Motion, Defendants rely primarily on Trinh v. JP Morgan Chase & Co., where the court denied a motion for conditional certification because the plaintiffs failed to show they were similarly situated to other members of the proposed class. No. 07-1666, 2008 WL 1860161 (S.D. Cal. Apr. 22, 2008). United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Trinh, the two sub-prime loan officers who brought the suit worked at JP Morgan for less than six months, only closed a single loan between them, and were ultimately terminated for poor performance and misconduct, respectively. Id. at *1. Despite the fact that they briefly worked in only one office, and did not submit declarations from any other sub-prime loan officers, the plaintiffs sought to conditionally certify a class of all JP Morgan loan officers throughout the country. Id. Here, Plaintiff has filed declarations from four other BBOs who worked in different branches throughout California, and each worked for longer than one year. See Klein Decl. 2-3; Micuch 2-3. While Perry Decl. 2-3; Owen Decl. 2; Perry Decl. left Citibank before the reclassification, Plaintiff and the other BBOs were reclassified around the middle of 2007, and they allege they worked overtime hours both before and after being 6 1 2 3 4 5 6 7 8 9 10 For the Northern District of California reclassified. Plaintiff also submitted a document indicating that BBOs are compensated in the same way throughout North America. See BBO Variable Compensation Brochure. Unlike the evidence in Trinh, the evidence here is sufficient to warrant conditional certification. The Court is not persuaded by the other cases cited in Defendants' Opposition. Maddock v. KB Homes, Inc., 248 F.R.D. 229 (C.D. Cal. 2007) was decided under Federal Rule of Civil Procedure 23 rather than the lenient FLSA standard for conditional certification. Defendants cite to cases where extensive discovery United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 had already occurred and that were decided under the more rigorous second stage analysis. See, e.g., Pfohl v. Farmers Ins. Group, 2004 WL 554834 (C.D. Cal. 2004); Holt v. Rite Aid, 333 F. Supp. 2d 1265 (M.D. Ala. 2004); Basco v. Wal-Mart Stores, Inc., 2004 WL 1497709 (E.D. La. 2004). Defendants also tend to rely on cases where there was no evidence to support conditional certification beyond the allegations in the complaint. See, e.g., Haynes v. Singer Co., 696 F.2d 884 (11th Cir. 1983); Harper v. Lovett's Buffet, Inc., 185 F.R.D. 358, 363 (M.D. Ala. 1999). Defendants contend that determining exempt status or determining "off-the-clock" issues necessarily involves individualized inquiries, which requires the Court to deny conditional certification. Opp'n at 12-18. Defendants submit numerous declarations showing how the job duties of BBOs varied widely. See, e.g., Sebok Decl., 5-7, 13; Phillips Decl. 9, Ilano Decl., Docket No. 42, 7, 9; Villamizar Decl., Docket No. 7 1 2 3 4 5 6 7 8 9 10 For the Northern District of California 45, 7-9; Nolan Decl., Docket No. 46, 4.4 Defendants also argue that resolution of Plaintiff's "off-the-clock" claims would require testimony from numerous supervisors and employees. at 16-18. The Court finds that Defendants' concern about individualized inquiries does not require the Court to deny conditional certification. See Escobar, 2008 WL 3915715 at *5 (disagreeing Opp'n with defendants' argument that FLSA claims require numerous individualized inquiries that render them inappropriate for conditional certification). Under the two-stage certification United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 procedure, Defendants can present this evidence and make these arguments as part of a motion to decertify the class once discovery is complete. See Leuthold, 224 F.R.D. at 467. At that second stage of the certification procedure, the Court must make a factual determination regarding the propriety and scope of the class by considering the following factors: (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. Id. At this first stage of the procedure, however, Plaintiff has met her burden of showing she is similarly situated to other BBOs for purposes of providing notice. The Court GRANTS Plaintiff's motion for conditional certification of the collective action. Plaintiffs submitted evidentiary objections to many of Defendants' declarations. See Docket No. 61. Since the Court's Order does not rely on this evidence, the Court does not rule on Plaintiff's objections. 8 4 1 2 3 4 5 6 7 8 9 10 For the Northern District of California IV. SCOPE OF PROPOSED COLLECTIVE CLASS A. Geographical Limitation Defendants argue that if conditional certification is granted, then the conditional class should be limited to BBOs who worked in Citibank's Walnut Creek, Pleasant Hill, Concord, Fresno, or San Diego branches, or in California at the outside extreme. Opp'n at 18; Objections to Proposed Notice at 1. Defendants base this request on the fact that Plaintiff has submitted declarations from BBOs who worked in seven California branches only. 5. Opp'n at Defendants point out that, between February 2006 and April United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2007, there were approximately 878 individuals in ten different states and the District of Columbia who held the position of BBO or BBO in training at Citibank. Decl., Docket No. 52, 5. In Hoffmann-La Roche, the Supreme Court recognized the discretion of district courts to facilitate the process by which potential plaintiffs are notified of FLSA collective actions. U.S. at 169-70. 493 Opp'n at 4; McSherry-Knight Exercising this discretion, the Court finds that Defendants' proposed geographical limitations are not appropriate. Defendants themselves concede that BBOs throughout the country were transferred to new positions in early to mid 2007. Decl. 13; Phillips Decl. 9. See Sebok Plaintiff submitted a document indicating that BBOs throughout North America were compensated in the same way. See BBO Variable Compensation Brochure. This evidence in conjunction with five declarations from BBOs who worked at seven California branches of Citibank is sufficient for conditional certification of the proposed nationwide class. 9 See 1 2 3 4 5 6 7 8 9 10 For the Northern District of California Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 537-38 (N.D. Cal. 2007)("For conditional certification, plaintiffs do not need to provide evidence that every facility relevant to the proposed class maintains an illegal policy . . . Rather, the named plaintiff must demonstrate that there existed at least one similarly situated person at a facility other than her own."). B. Temporal Limitation and Equitable Tolling Plaintiff seeks authorization for the mailing of a proposed notice to "[a]ll Business Banking Officers and/or Trainees for the Business Banking Officer position of Citibank, N.A. and/or Citigroup, Inc. between January 22, 2005 to the present." Decl. Ex. 1 ("Proposed Notice"). Wynne United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The statute of limitations for a claim under the FLSA is two years, but if the violation is willful, the statute of limitations is extended to three years. See 29 U.S.C. 255(a). Plaintiff therefore seeks to toll the statute of limitations as of the date she filed her Complaint, January 22, 2008. Although Plaintiff's Motion contains no argument to support equitable tolling, Plaintiff contends in her reply brief that equitable tolling is appropriate because Defendants have unreasonably refused to provide any contact information as to any potential class members. See Reply at 15. Defendant objects to Plaintiff's effort to toll the statute of limitations. 2-4. "Equitable tolling applies when the plaintiff is prevented from asserting a claim by wrongful conduct on the part of the defendant, or when extraordinary circumstances beyond the 10 See Opp'n at 21-22; Objections to Proposed Notice at 1 2 3 4 5 6 7 8 9 10 For the Northern District of California plaintiff's control made it impossible to file a claim on time." Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999). Federal courts have typically extended equitable relief only sparingly. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). Plaintiff has not alleged extraordinary circumstances, and Defendants' refusal to provide contact information prior to certification does not count as wrongful conduct. See Prentice v. Here, Fund for Pub. Interest Research, No. 06-7776, 2007 WL 2729187, at *3-4 (N.D. Cal. 2007); Gerlach, 2006 WL 824652, at *2. The FLSA does not require Defendants to provide contact information until after the court certifies the collective action. See Adams, 242 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.R.D. at 543 (citing Hoffmann-LaRoche, 493 U.S. at 170). The Court DENIES Plaintiff's request to authorize mailing notice to BBOs who have been employed since January 22, 2005. Defendants propose sending notice to BBOs who have been employed since February 6, 2006, which is three years prior to the hearing date for Plaintiff's Motion. 3-4. See Objections to Proposed Notice at The Court adopts Defendants' proposal. V. PRODUCTION OF CONTACT INFORMATION AND SOCIAL SECURITY NUMBERS To facilitate notice, Plaintiff requests that Defendants be ordered to produce all last known addresses, residence telephone numbers, cell phone numbers, email addresses, and social security numbers of potential class members. Mot. at 18. Defendants object to the request that they be ordered to produce confidential employee information to Plaintiff and instead suggest that the information be provided to a third-party notice administrator. 11 1 2 3 4 5 6 7 8 9 10 For the Northern District of California Opp'n at 22-3. Plaintiffs do not object to the use of a notice administrator, but emphasize that social security numbers be provided to facilitate skip-tracing of the class members' addresses. Reply at 15. Since both sides agree that use of a notice administrator is appropriate, the Court orders the parties to meet and confer within ten calendar days from the date of this order regarding the appointment of a notice administrator. Plaintiff can appoint a Plaintiff is notice administrator acceptable to Defendants.5 responsible for all costs and expenses of the notice administrator. The Court orders Defendants to produce the names, addresses, telephone numbers, and email addresses of potential class members to the notice administrator. At this juncture, the Court will not Plaintiffs United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 require Defendants to produce social security numbers. may move to compel production of social security numbers if this contact information is not sufficient to provide notice to a large percentage of the potential class members. VI. FORM OF NOTICE Defendants object to the case caption in the Proposed Notice. Objections to Proposed Notice at 4. of the case caption. Plaintiff agrees to removal Defendants also Reply to Objections at 5. object to the date and signature block at the end of the Proposed Defendants suggest using Rust Consulting or Rosenthal & Company LLC, who apparently are notice administrators Plaintiff's counsel has used before. Opp'n at 24 n.25; see also Stecher Decl., Docket No. 55, 7-9. 12 5 1 2 3 4 5 6 7 8 9 10 For the Northern District of California Notice. Objections to Proposed Notice at 4. Both the case caption and the signature block must be removed from the Notice. Like the case caption, the signature block could also "give a false impression of judicial endorsement of [Plaintiff's] position where none exists." See Prentice, 2007 WL 2729187 at *5. Defendants request that additional language be added to the Notice stating that if an individual opts into the action, the named Plaintiff will have the right to make decisions on behalf of the opt-in Plaintiff concerning the litigation, and that those decisions are generally binding. 4. Objections to Proposed Notice at The additional language United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court GRANTS Defendants' request. should be added to Section V of the Notice, entitled "Effect of Joining this Suit." VII. CONCLUSION For the reasons stated above, Plaintiff's Motion for Conditional Certification and Facilitated Notice is GRANTED IN PART and DENIED IN PART. 1. The Court ORDERS as follows: This action is certified as a collective action pursuant to 29 U.S.C. 216(b). Covered Employees include all Business Banking Officers and/or Trainees for the Business Banking Officer position of Citibank, N.A. and/or Citigroup, Inc. between February 6, 2006 to the present. 2. The parties shall meet and confer within ten (10) calendar days from the date of this order regarding the appointment of a notice administrator. 13 Plaintiff can 1 2 3 4 5 6 7 8 9 10 For the Northern District of California appoint a notice administrator acceptable to Defendants. Plaintiff will be responsible for all costs and expenses of the notice administrator. 3. Defendants shall provide the names, addresses, telephone numbers, and email addresses of potential class members to the notice administrator within thirty (30) days of the appointment of the notice administrator. 4. The caption and signature block shall be removed from the Proposed Notice, and additional language shall be added stating that if an individual opts into the action, the named Plaintiff will have the right to make decisions on behalf of the opt-in Plaintiff concerning the litigation, and that those decisions are generally binding. United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: February 18, 2009 UNITED STATES DISTRICT JUDGE 14

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