Lawson et al v. BellSouth Telecommunications, Inc.
Filing
98
ORDER and OPINION granting 27 Plaintiffs' Motion for Conditional Collective Action Certification and Issuance of Notice to the Collective Action Class, but AMENDS the notice. See Order for specific amendments. Signed by Judge Julie E. Carnes on 8/16/11. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILLIAM LAWSON, JOE TRIPODI,
THOMAS WHITTINGTON, JASON
PHILLIPS, AND NESBIT B.
(“BRAD”) SILLS, Individually
and On Behalf of All Others
Similarly Situated,
Plaintiffs,
CIVIL ACTION NO.
1:09-CV-3528-JEC
v.
BELL SOUTH TELECOMMUNICATIONS,
INC., d/b/a AT&T SOUTHEAST
a.k.a. AT&T ALABAMA/AT&T
FLORIDA/AT&T GEORGIA/AT&T
KENTUCKY/AT&T LOUISIANA/AT&T
MISSISSIPPI/AT&T NORTH
CAROLINA/AT&T SOUTH
CAROLINA/AT&T TENNESSEE,
Defendant.
ORDER and OPINION
Plaintiffs seek conditional certification of a collective
action
on
employees
behalf
of
of
themselves
defendant
and
BellSouth
other
similarly
situated
Telecommunications,
Inc.
(“BellSouth”), in order to recover unpaid overtime wages under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219 (2006). For
the reasons discussed herein, the Court GRANTS Plaintiffs’ Motion
for Conditional Collective Action Certification and Issuance of
AO 72A
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Notice to the Collective Action Class [27], but AMENDS the proposed
notice.
BACKGROUND
The five named and thirty-eight opt-in plaintiffs are current
and former “Field Managers” employed by BellSouth.
Law
in
Support
of
Mot.
for
Conditional
(Pls.’ Memo. of
Collective
Action
Certification and Issuance of Notice to the Collective Action Class
(“Pls.’ Memo.”) [27-1] at 1.)
They officially hold the title of
Level One (or First Level) Managers, but they are also known as
Field Managers because they work with field technicians who install
and service BellSouth’s cables.
(Id. at 5.)
According to plaintiffs, Field Managers typically work between
50 to 70 hours a week.
(Id. at 6.)
Part of these long hours stem
from “duty shift” every few weeks, which requires Field Managers to
be on call 24 hours a day for seven days.
(Id. at 7.)
During duty
shift, Field Managers must respond to calls and emails after hours,
may not drink alcohol, and cannot leave their territories.
7-8.)
(Id. at
Plaintiffs allege that prior to September 2007, Field
Managers received overtime wages for duty shift work and for some
hours worked in excess of 40 hours a week.
(Id. at 8.)
Plaintiffs
contend that BellSouth nevertheless unlawfully denied Field Managers
overtime pay for several hours of “off-the-clock” work each day.
(Id.)
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In September 2007, after AT&T purchased BellSouth,1 plaintiffs
assert that BellSouth ceased paying Field Managers any overtime
wages on the ground that Field Managers fall within the executive
and administrative exemptions to the FLSA’s overtime requirements.
(Id. at 2.) Plaintiffs argue they have been misclassified as exempt
because they are really “low-level clerks” who perform little, if
any,
managerial
duties.
(Id.
at
2-3,
8-9.)
Specifically,
plaintiffs allege that Field Managers cannot hire, fire, or promote
technicians; they do not set technicians’ wages or schedules; they
do little training of technicians; they have almost no authority to
discipline
technicians;
they
do
not
determine
technician
assignments; and they do not advise technicians when a problem
arises in the field.
(Id. at 9-12.)
Although Field Managers
perform required quality and safety inspections of the technicians,
the inspections involve a standardized yes/no checklist of basic
questions, such as whether a technician is wearing a hard hat or is
strapped into a telephone pole.
(Id. at 12.)
The bulk of their day
is spent doing paperwork and entering computer data.
Plaintiffs
further
allege
their
1
work
is
highly
(Id. at 13.)
regimented,
BellSouth’s parent company, BellSouth Corporation, became a
wholly-owned subsidiary of AT&T Inc. following a merger effective
December 29, 2006.
(Def’s. Mem. in Opp. to Pls.’ Mot. for
Conditional Collective Action Certification (“Def’s. Mem.”) [80-1]
at 4 n.2.)
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micromanaged, and lacks true managerial authority.
(Id. at 13-14.)
Plaintiffs seek to conditionally certify a FLSA collective
class comprised of “All Field Managers employed by BellSouth from
December 2006 and thereafter.”
(Id. at 6.)
Plaintiffs’ proposed
class is comprised of two subclasses:
Subclass A: All Field Managers employed by BellSouth from
December 2006 and thereafter who were classified by the
company as non-exempt employees under the FLSA.
Subclass B: All Field Managers employed by BellSouth from
December 2006 and thereafter who were classified as exempt
employees under the FLSA.
(Id. at 6-7.) Subclass A covers Field Managers who were allegedly
denied overtime pay for “off-the-clock” work, even though they were
classified as non-exempt prior to AT&T’s takeover.
(Id. at 24.)
Subclass B covers Field Managers who were allegedly misclassified as
exempt employees once AT&T purchased BellSouth and denied them
overtime wages.
(Id.)
In addition, plaintiffs request the Court to order BellSouth to
provide plaintiffs with the names and contact information for all
members of the collective classes and to authorize their proposed
Notice of Court Certification of Collective Action.
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(Id.)
DISCUSSION
I.
FLSA Requirements
A.
Overtime Wage Provisions
The FLSA requires that employers pay employees one and a half
times the regular rate for hours worked in excess of forty hours a
week.
29 U.S.C. § 207(a)(1).
This overtime provision exempts “any
employee employed in a bona fide executive, administrative, or
professional capacity.”
Id. § 213(a)(1).
The executive exemption applies if: (1) the employee’s salary
is $455 or more per week; (2) the employee’s primary duty is
management; (3) the employee customarily and regularly directs the
work of two or more other employees; and (4) the employee has the
authority to hire or fire other employees, or whose opinion is given
particular weight in
employees.
the
hiring,
firing, or promotion of other
29 C.F.R. § 541.100(a)(2010).
Although an exempt
employee may perform both exempt and non-exempt work, an “employee
whose primary duty is ordinary production work or routine, recurrent
or repetitive tasks cannot qualify for exemption as an executive.”
Id. § 541.106(a).
Administrative employees are subject to the same
salary requirement as executive employees, and their primary duty
must also directly
operations.
relate
to
Id. § 541.200(a).
management or general business
Additionally, their primary duty
must include “the exercise of discretion and independent judgment
5
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with respect to matters of significance.”
Id.
For instance, an
administrative employee may have the authority to formulate or
influence management policies, or the authority to negotiate and
bind the employer on important matters.
Id. § 541.202(b).
An
employee may be considered to have discretion and independent
judgment even though the employee’s decisions are subject to review,
or even reversal.
Id. § 541.202(c).
The Department of Labor regulations define “primary duty” as
the “principal, main, major or most important duty that the employee
performs.”
Id. § 541.700(a).
In general, an employee who spends
more than 50% of his time performing exempt work will satisfy the
primary duty requirement.
factor, however.
Id.
Id. § 541.700(b).
Time is only one
Other considerations include “the relative
importance of the exempt duties as compared with other types of
duties”
and
supervision.”
“the
employee’s
relative
Id. § 541.700(a).
freedom
direct
Overall, the “character of the
employee’s job as a whole” matters the most.
B.
from
Id.
Collective Action Requirements
An employee may sue an employer on behalf of himself and other
“similarly situated” employees for violating the FLSA’s overtime
requirements.
29
U.S.C.
§
216(b).
To
determine
whether
a
collective action is warranted pursuant to § 216(b), a district
court may follow a two-stage process.
6
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Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008) (noting that the
Eleventh
Circuit
procedure).
has
sanctioned,
but
not
required,
two-step
First, a district court evaluates “whether other
similarly situated employees should be notified.”
Id.
If so, then
the court conditionally certifies the collective action and provides
notice to putative class members.
Id. at 1260-61.
The notice stage
is important because a similarly situated employee can only join the
collective action by filing written
consent
with
the
court.
See id. at 1258-59; 29 U.S.C. § 216(b).
At this initial stage, a plaintiff must show “a reasonable
basis
for
employees.”
omitted).
his
claim
that
there
are
other
similarly
situated
Morgan, 551 F.3d at 1260 (quotation marks and citation
The plaintiff’s burden is “not heavy” and “courts apply
a fairly lenient standard” in assessing similarity.
Id. at 1261
(quotation marks and citations omitted). The similarity required at
this step is even less stringent than the requirements for joinder
under Rule 20(a), for separate trials under Rule 42(b), or for class
certification under Rule 23(b)(3).
F.3d 1086, 1096 (11th Cir. 1996).
See Grayson v. K Mart Corp., 79
Plaintiffs may satisfy their
burden through “detailed allegations supported by affidavits which
successfully engage defendants’ affidavits to the contrary.” Id. at
1097 (quotation marks and citation omitted).
minimal
discovery
may
have
occurred
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at
the
Further, because
notice
stage,
the
district court’s decision may sometimes be based solely on the
plaintiffs’ pleadings and affidavits.
Morgan, 551 F.3d at 1262
n.41; Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th
Cir. 2001) (noting with approval that a district court’s decision at
the notice stage is “usually based only on the pleadings and any
affidavits
which
have
been
submitted”);
see
also
Anderson
v.
Cagle’s, Inc., 488 F.3d 945, 952 (11th Cir. 2007) (district court
certified a collective action at the first stage based primarily on
the named plaintiffs’ detailed allegations, which were supported in
part by the employers’ admissions and other documentary evidence).
The second stage imposes a greater burden on the plaintiff to
prove similarity.
over
or
nearly
decertification.
See Morgan, 551 F.3d at 1261.
complete,
Id.
the
employer
may
When discovery is
file
a
motion
for
“[I]n order to overcome the defendant’s
evidence, a plaintiff must rely on more than just allegations and
affidavits.” Id. (quotation marks and citation omitted). The court
then reassesses its initial certification decision based on a more
comprehensive factual record.
Id.
The Eleventh Circuit has explored the contours of the phrase
“similarly situated” without imposing a precise definition. See id.
at 1259.
To warrant conditional certification in the first stage,
a court “should satisfy itself that there are other employees . . .
who desire to ‘opt-in’ and who are ‘similarly’ situated with respect
8
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to their job requirements and with regard to their pay provisions.”
Id. (citing Dybach v. State of Fla. Dep’t of Corrs., 942 F.2d 1562,
1567-68 (11th Cir. 1991)).
At the second stage, though, it is no
longer enough that the putative class members share similar job
duties and pay provisions.
See id. at 1262.
The court should
consider other factors as well, including the similarity of the
plaintiffs’
defenses
factual
to
each
settings,
plaintiff,
and
whether
any
the
same
and
procedural considerations associated with a collective action.
Id.
employees
apply
employment
fairness
at 1261.
will
and
It is important to remember that at either stage,
may
be
considered
identical positions.
similarly
situated
without
having
Id. at 1260; Anderson, 488 F.3d at 953
(reiterating that “the FLSA does not require potential class members
to hold identical positions”).
The similarly situated requirement
may also be satisfied without evidence of a “unified policy, plan,
or scheme of discrimination.”
Hipp, 252 F.3d at 1219 (quotation
marks and citation omitted).
Ultimately, the issue of whether
employees are similarly situated hinges on the specific facts of the
case.
See Morgan, 551 F.3d at 1262 (“[W]hether a collective action
is appropriate depends largely on the factual question of whether
the plaintiff employees are similarly situated to one another.”)
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II.
Analysis
Given that limited discovery has occurred in this case, the
Court will apply the more lenient standards of the notice stage.
Plaintiffs are entitled to conditional certification of a collective
action if they can show there are other employees: (1) who wish to
opt-in and (2) who are similarly situated in their job requirements
and pay provisions.
Id. at 1259.
Plaintiffs easily meet the first
requirement as thirty-eight BellSouth Field Managers have filed
written consents to opt-in to this action.2
It is also undisputed
that BellSouth classifies Field Managers as exempt from overtime
pay.3
Thus, the key contested issue is whether the putative class
members share similar job requirements.
The Court finds that plaintiffs have satisfied their initial
burden to show there are other BellSouth employees with similar job
requirements.
According to William McKinney, AT&T’s Director of
Quality Management Systems, Field Managers are expected to perform
2
Three additional employees (Fred Monks, Melinda Taggart, and
William A. Barry, Jr.) have revoked their original consent to join
in the action. (Notices of Filing Revocation of Consent to Join [591, 82-1].)
3
The parties do disagree, however, as to when Field Managers
were first classified as exempt. Plaintiffs allege that they were
only classified as exempt after BellSouth merged with AT&T, whereas
BellSouth asserts that Field Managers have always been classified as
exempt. (Pls.’ Mem. [27-1] at 2; Def’s Mem. [80-1] at 5 n.4.)
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the
same
responsibilities
no
matter
what
state
or
business
organization they work in:
The company wanted to make sure that the operations were
consistent across all of the geographic regions and the
responsibilities of a first level manager should be
consistent among all of the different operating areas, and
so, when you think about what they do or what they should
be doing, there shouldn’t be significant differences
between the way we operate in California and the way we
operate in SNET, in the Connecticut area.
(McKinney Dep. [87-3] at 35:5-14). To achieve this unity, all Field
Managers
must
follow
a
particular
management
Management System & Operating Control (“MSOC”).
system
called
(Id. at 44:2-10.)
The MSOC dictates a daily routine, with “the same elements,”
for all Field Managers.
(Id. at 103:13-24.)
According to Field
Manager Albert Borchetta, “[M]y day is dictated by a guide called
‘Day in the Life.’”
(Borchetta Decl. [27-15] at ¶ 25.)
This
document, distributed by upper management, “lays out what Level One
Managers should be doing at all times throughout the day.”
(Id.)
As a result, many of the Field Managers characterize their positions
as “highly
regimented”
and
“micromanaged.”
(Lawson Decl. [27-5]
at ¶ 10; Whittington Decl. [27-7] at ¶ 10; Phillips
at
Decl. [27-8]
¶ 10; Hill Decl. [27-14] at ¶ 14; Ollayos Decl. [27-18] at ¶ 9;
Arnold Decl. [87-12] at ¶ 11; McWhirter Decl. [87-15] at ¶ 10.)
Pursuant to MSOC, Field Managers begin each day by printing out
and posting the technicians’ performance reports.
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(See, e.g.,
Lawson Decl. [27-5] at ¶ 16; Tripodi Decl. [27-6] at ¶ 15; Ollayos
[27-18] at ¶ 11.)
data.
Field Managers are not involved in compiling this
(Ollayos [27-18] at ¶ 11.)
Once the technicians arrive,
Field Managers hold a short “tailgate” meeting or “huddle” to relay
company messages and distribute assignments.
(See, e.g., Lawson
Decl. [27-5] at ¶ 17; Coffman Decl. [27-12] at ¶¶ 16-17; Benson
Decl. [27-13] at ¶ 14; Hill Decl. [27-14] at 17.)
Field Managers
are required to read verbatim any documents sent to them by upper
management, such as safety directives or new company policies.
(See, e.g., Lawson Decl. [27-5] at ¶ 17; Tripodi Decl. [27-6] at ¶
17; Morris Decl. [27-16] at ¶ 16; Baker Decl. [27-17] at ¶ 14.)
After
plaintiffs’
the
technicians
declarations
leave
for
their
assignments,
indicate
that
Field
Managers
the
spend
a
majority of their time performing a variety of clerical tasks,
including answering company e-mails, documenting their technicians’
work, filling out reports, collecting timesheets, and doing other
paperwork.
(See, e.g., Lawson Decl. [27-5] at ¶¶ 10, 19; Tripodi
Decl. [27-6] at ¶¶ 19-20, 22; Sills Decl. [27-9] at ¶ 16; Borchetta
Decl. [27-15] at ¶¶ 15, 17; Morris Decl. [27-16] at ¶¶ 9, 17.)
Several
declarants
“repetitive.”
described
this
work
as
“routine”
and
(See, e.g., Lawson Decl. [27-5] at ¶ 11; Whittington
Decl. [27-7] at ¶ 16; Coffman Decl. [27-12] at ¶ 19; Baker Decl.
[27-17] at ¶ 18.)
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Thomas Whittington explained that these clerical duties were
“extremely time-consuming” because “[e]very interaction that we had
needed to be documented, entered into the computer system, and
forwarded to the appropriate contacts.” (Whittington Decl. [27-7] at
¶ 18.)
Jerry Hill estimated that approximately 90% of his job is
devoted to clerical work.
(Hill Decl. [27-14] at ¶ 19.)
A major duty shared by Field Managers is to pass information
between the company and the field technicians.
(See, e.g., Lawson
Decl. [27-5] at ¶ 3; Sills Decl. [27-9] at ¶ 11; Coffman Decl. [2712] at ¶ 9.)
Joseph Tripodi characterizes himself “as a messenger
between technicians and other departments.”
at ¶ 23.)
(Tripodi Decl. [27-6]
If a technician has a payroll problem, for instance, the
Field Manager relays the problem to the payroll department and then
reports the department’s response back to the technician.
(Id.)
Similarly, when a problem occurs in the field, Field Managers serve
as middlemen between technicians and the engineers who designed the
job.
(Sills Decl. [27-9] at ¶ 17.)
All
Field
Managers
must
also
monitor
their
technicians’
performance through periodic safety and quality inspections at the
job site.
(See, e.g., Coffman Decl. [27-12] at ¶ 30; Benson Decl.
[27-13] at ¶ 24; Borchetta Decl. [27-15] at ¶ 34.)
Company policy
requires Field Managers to use a standard inspection checklist
consisting of basic “yes” or “no” questions.
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(See, e.g., Ollayos
Decl. [27-18] at ¶ 24 (“I made simple observations and checked off
“yes” or “no” as to whether a technician was complying with a
particular item on the checklist.”); Story Decl. [27-20] at ¶ 21 (“I
exercise minimal discretion or judgment in carrying out these
inspections.”).)
For example, during safety inspections, Field
Managers ascertain that technicians are wearing the proper safety
gear or have parked correctly.
(Borchetta Decl. [27-15] at ¶ 34.)
For quality inspections, Field Managers confirm that the job has
been successfully completed and the customer is satisfied.
(Id.)
Plaintiffs’ declarations also support their allegations that
they have limited authority and discretion in supervising their
technicians.
technicians.
Field
Managers
cannot
hire,
fire,
or
promote
(See, e.g., Lawson Decl. [27-5] at ¶¶ 27-28; Tripodi
Decl. [27-6] at ¶¶ 27-29; Whittington Decl. [27-7] at ¶¶ 24-25;
Pesaro Decl. [27-19] at ¶¶ 27-30.)
the
decision-making
process.
Nor do they have much input into
(See, e.g., Morris Decl. [27-16] at
¶ 26 (Field Manager documented technician’s substance abuse problem
but played no role in termination decision); Benson Decl. [27-13] at
¶ 30 (Field Manager collected information about a technician who
picked up a 13-year-old girl in a company vehicle, but had no input
in
termination
decision).)
Similarly,
any
major
disciplinary
decisions are generally made by the Field Managers’ superiors.
(See, e.g., Sills Decl. [27-9] at ¶ 25 (“If discipline was needed,
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my supervisors would make the determination and my only role was to
communicate the decision to the technician.”); Baker Decl. [27-17]
at ¶ 26 (Level Two Manager chose not to discipline technician who
repeatedly called in sick and did inadequate work, despite Field
Manager’s opinion that technician should be terminated).)
The
Field
Managers’
authority
over
the
technicians
is
circumscribed in other ways. They have limited authority to approve
overtime hours for technicians. (See, e.g., Phillips Decl. [27-8] at
¶ 25; Coffman Decl. [27-12] at ¶¶ 25-26; Hill Decl. [27-14] at ¶
28.)
Field Managers lack authority to grant or deny vacation or
personal days.
(See, e.g., Lawson Decl. [27-5] at ¶ 24; Baker Decl.
[27-17] at ¶ 21; Pesaro Decl. [27-19] at ¶ 22.)
Field Managers have
only limited authority to purchase supplies for technicians.
e.g.,
Ollayos
Decl.
[27-18]
at
¶
28
(required
area
(See,
manager’s
permission); Story Decl. [27-20] at ¶ 23 (limited authority).)
Finally, Field Managers provide little training to technicians, who
are primarily trained at the company’s training center or through
online computer programs.
(See, e.g., Sills Decl. [27-9] at ¶ 33;
Baker Decl. [27-17] at ¶ 29; Pesaro Decl. [27-19] at ¶ 32.)
BellSouth’s arguments that the putative class members are not
similarly situated are unconvincing.
BellSouth emphasizes that its
operations span nine states and are divided into three business
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organizations.4 In particular, BellSouth argues that Field Managers
in the U-verse organization have different duties because their
technicians are less experienced and not unionized.
individual
factual
and
employment
settings
are
Differences in
generally
a
consideration for the second stage when discovery is complete and
the Court has more information to evaluate.
See Morgan, 551 F.3d at
1261.
Even when such factors are considered, though, they are not
dispositive.
The plaintiffs in Hipp and Grayson worked in various
locations but still satisfied the similarly-situated requirement.
See Hipp, 252 F.3d at 1219 (fact that plaintiffs worked in different
geographical locations was “not conclusive”); Grayson, 79 F.3d at
1091 (plaintiffs qualified for collective action despite employer’s
operation in 18 states).
Indeed, Family Dollar operated more than
6,000 stores in 40 states, plus the District of Columbia, and was
organized into five divisions, 22 regions, and 380 districts.
See
Morgan, 551 F.3d at 1248. The district court certified a collective
action class of 1,424 store managers, despite Family Dollar’s
contention that their duties varied according to the store’s size,
4
BellSouth operates in Georgia, Florida, Alabama, Mississipi,
Louisiana, Tennessee, Kentucky, North Carolina, and South Carolina.
(Def’s. Mem. [80-1] at 4 n.3.) The three business organizations are
Installation & Maintenance (I&M), Construction & Engineering (C&E),
and U-verse (which handles BellSouth’s internet television service).
(Id. at 5, 9).
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sales volume, region, and district.
Id. at 1239, 1263.
The
Eleventh Circuit affirmed the certification, noting that Family
Dollar’s uniform exemption of all store managers from overtime pay
reflected that “even Family Dollar perceived no such distinction.”
Id. at 1263.
The same holds true here.
Despite BellSouth’s assertions that
Field Managers perform different duties depending on their business
organization, BellSouth unilaterally exempts all Field Managers in
every organization from overtime pay.
Furthermore, even upper
management has admitted that Field Managers nationwide have the same
“responsibilities” regardless of their operating area.
Dep. [87-3] at 35:5-14.)
(McKinney
Stewart McElhannon, Director of Work
Measurements, also conceded that U-verse Level One Managers have
reasonably similar job duties to other Level Ones. (McElhannon Dep.
[87-4] at 184:13-17.)
These statements are confirmed by several of
Plaintiffs’ declarations, which affirm that all Level One Managers,
including those in the U-verse organization, share similar job
duties.
(See, e.g., Arnold Decl. [87-12] at ¶ 13; Brannan Decl.
[87-14] at ¶ 12; McWhirter Decl. [87-15] at ¶ 12 ; Munna Decl. [8716] at ¶ 12.)
It is true that the Field Managers’ declarations submitted by
BellSouth at times contradict plaintiffs’ declarations as to their
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work experiences.5 For instance, BellSouth’s declarations state that
Field
Managers
approve
sometimes
overtime,
and
order
supplies,
discipline
grant
technicians
vacation
without
days,
approval.
(See, e.g., Macolly Decl. [64-1] at ¶ 10 (U-verse Field Manager can
purchase supplies under $2000 without authorization); Boyette Decl.
[64-1] at
¶ 22 (C&E Field Manager can approve tool purchases up to
$500); Natterman Decl. [64-1] at
approve
requests
for
vacation
¶ 5 (U-verse Field Manager can
and
demands); Cayer Decl. [64-1] at
time
off
based
on
workload
¶ 6 (I&M Field Manager can grant
technicians time off or change vacation days); Macolly Decl. [64-1]
at
¶
8
(U-verse
Field
Manager
requests); Oeth Decl. [64-1] at
can
approve
certain
overtime
¶ 7 (C&E Field Manager can approve
overtime); Cayer Decl. [64-1] at
¶ 16 (I&M Field Manager can
informally discipline technicians using verbal counseling); Fancher
Decl. [64-1] at
¶ 12 (U-verse Field Manager can initiate informal
and formal discipline).)
As these declarations reflect, though,
these activities are not confined to any one business organization,
5
Plaintiffs urge the Court to disregard BellSouth’s
declarations and supporting documents until the second stage of
certification. The Court declines to do so. As discussed, because
only limited discovery may have occurred at the notice stage, the
Eleventh Circuit has stated that, “In some cases, the district
court’s first-stage certification analysis is properly based on
plaintiffs’ pleadings and affidavits.” Morgan, 551 F.3d at 1262
n.41. However, the Eleventh Circuit has not expressly authorized a
district court to disregard a defendant’s evidence merely because
the court is at the initial notice stage.
18
AO 72A
(Rev.8/82)
but are instead shared amongst Field Managers across the company.6
Furthermore, BellSouth’s declarations corroborate plaintiffs’
evidence that all Field Managers are expected to follow MSOC, which
standardizes their basic job requirements.
(Cayer Decl. [64-1] at
¶ 9 (“I see the MSOC system as intending to make uniform many of the
things Managers across the company do each day, such as filling out
the same documentation and doing the same activities each day.”);
Hall Decl. [64-1] at ¶ 24 (“Complying with MSOC is very timeconsuming and has made my job more difficult.
There are greater
requirements for documenting performance evaluations, quality and
safety
inspections,
rides.”).)
and
[Demonstrated
Performance
Capability]
No matter what business organization they belong to,
every Field Manager must hold daily tailgate meetings, relay company
information to technicians, conduct safety and quality inspections,
monitor and document their technicians’ performance, and ensure that
assignments are completed.
The fact that some Field Managers may
sometimes perform additional duties (such as ordering supplies or
granting time-off requests) does not defeat plaintiffs’ argument
6
Although the merits of the case are not at issue here, the
Court notes that even if a Field Manager performs some discretionary
duties, he may still be entitled to overtime wages under the FLSA so
long as the employee’s primary duty is non-exempt work. See Morgan,
551 F.3d at 1268 (“[A]n employee whose primary duty is to perform
nonexempt work does not become exempt merely because she has some
responsibility for occasionally directing the work of nonexempt
employees.”).
19
AO 72A
(Rev.8/82)
that they are similarly situated.
Employees need only have similar
job positions, not identical ones.
See Morgan, 551 F.3d at 1260.
Here, the MSOC has “leveled the playing field” by imposing the same
standards on all Field Managers.
BellSouth
next
points
(Davis Decl. [64-1] at ¶ 27.)
to
a
May
2010
telephone
survey
it
commissioned of 662 current and former Field Managers, conducted by
the Field Research Corporation which is headed by Dr. Deborah Jay.
(BellSouth
Field
Managers
Survey
[64-3]
questioned
Field
Managers
about
whether
at
4.)
they
The
survey
determine
work
assignments, approve overtime, order supplies, train technicians,
discipline technicians, resolve customer complaints, and perform
other duties.
(Id. at 5-7.)
BellSouth argues that the survey’s
results show that an overwhelming majority of Field Managers have
different work experiences than those recounted by plaintiffs. Like
BellSouth’s declarations, this survey appears to contradict certain
facts plaintiffs seek to prove about their managerial capacity. The
Court
is
allegations
satisfied,
and
however,
documentary
that
evidence
BellSouth’s evidence to the contrary.
plaintiffs’
substantial
“successfully
engage”
Grayson, 79 F.3d at 1099 n.
17 (quotation marks and citation omitted) (considering employer’s
contradictory evidence but finding plaintiffs met the similarly
situated requirement).
20
AO 72A
(Rev.8/82)
BellSouth further argues that plaintiffs’ deposition testimony
shows
that
they
are
not
low-level
clerks
who
uniformly
lack
authority or discretion. Rather, BellSouth contends that Plaintiffs
“regularly perform exempt managerial duties.”
(Def.’s Mem. [80-1]
at 29.) However, closer inspection of the deposition testimony does
not clearly support BellSouth’s argument.
For example, BellSouth cites Philip Hoyle’s deposition as
evidence that some Field Managers have formally disciplined their
technicians without involving their area manager or Human Resources.
The cited incident involved a technician who was about to physically
attack Hoyle after Hoyle said the technician had made a ticket
error.
(Hoyle Dep. [64-11] at 306-307.)
When the approximately
300-pound technician came charging at Hoyle “like a bull,” Hoyle
immediately suspended him for the day in order to defuse the tense
situation and prevent a physical altercation.
(Id. at 307:4-14.)
As Hoyle explained, “There was no time to pick up the phone and say
pretty please to HR and call C.J. and all that.” (Id. at 307:11-13.)
Immediately afterwards, however, Hoyle notified Human Resources and
his area manager. (Id. at 307:15-19.) Elsewhere in his deposition,
Hoyle testified that Field Managers are required to consult with
Human Resources on every level of discipline, even at the first step
of verbal counseling.
(Id. at 292: 4-7.)
Hoyle also stated that if
a technician had recurring safety violations, he would notify his
21
AO 72A
(Rev.8/82)
area manager and Human Resources of the violations and “let them
make a decision” on whether to impose discipline.
17.)
(Id. at 283: 13-
The referenced incident thus appears to be an aberration from
the company’s discipline policies that Hoyle typically followed.
Another example BellSouth lists as a management duty regularly
performed by Field Managers is to prepare Individual Development
Plans
for
their
technicians
based
on
technician about her/his career goals.
129:2-132:2, Exh. 8.
a
discussion
with
each
See Tripodi Dep. [64-15],
What Joseph Tripodi actually said about these
plans is this:
Everybody had to have one. The company said that we had
to fill one out for everybody.
It’s basically an
interview. Where would you like to be at this time? And
it’s just an interview of where would the technician like
to be 30 years from now.
Retired.
Hey, good.
Good
answer. That type of thing.
(Tripodi Dep. [64-15] at 129:10-16.) Tripodi merely asked questions
from an interview form and then “sent it up the ladder.”
130:22 - 131:1-3.)
In Tripodi’s opinion, these plans were “just
more paperwork to do for no really apparent reason.”
7.)
(Id. at
(Id. at 129:6-
BellSouth fails to explain how this testimony qualifies as
exempt managerial work.
See 29 C.F.R. § 541.102 (2010) (defining
the term “management” for purposes of executive exemption).
22
AO 72A
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Finally,
BellSouth
argues
that
collective
treatment
is
inappropriate because the Court would have to undertake a highly
individualized, fact-intensive inquiry to determine whether each
employee is exempt under the FLSA.
The Eleventh Circuit has
repeatedly rejected this argument:
“Just because the inquiry is
fact-intensive
a
does
not
preclude
plaintiffs share common job traits.”
collective
action
where
Morgan, 551 F.3d at 1263.
Likewise, in Hipp, the Eleventh Circuit dismissed an insurance
company’s argument that an age discrimination lawsuit was ill-suited
for a collective action:
Liberty National also argues that each plaintiff’s case
was unique and required an individual analysis of his or
her working conditions. Like the plaintiffs in Grayson,
however, Plaintiffs in this case all held the same job
title, and they all alleged similar, though not identical,
discriminatory treatment.
Hipp, 252 F.3d at 1219.
As in these cases, the plaintiffs are all
considered Level One or First Level Managers,7 they share similar job
duties and daily routines, and they all allege the same unlawful
treatment–-namely, that BellSouth denied them overtime pay to which
they were entitled.
In any event, it is too early for the Court to
7
BellSouth’s evidence indicates that Field Managers or Level
One Managers in the I&M and the U-verse organizations are titled
“Manager Network Services,” whereas they hold the title of “Manager
Construction & Engineering” in the C&E group. (Anderson Decl. [646] at ¶¶ 4-6.) Regardless of their title, BellSouth admits that all
Field Managers are classified as exempt from overtime pay. (Def’s
Mem. at 5 n.4.)
23
AO 72A
(Rev.8/82)
determine whether or not a collective action in this case will be
procedurally cumbersome.
Such a concern is better suited at the
second stage of certification, after notice has been sent and the
Court has a better idea of how many individuals will comprise the
class.
See Morgan, 551 F.3d at 1261 (noting that issues of
procedural considerations are factored into the court’s decision at
the second stage).
The Court concludes that plaintiffs’ substantial allegations
and evidentiary support provide a reasonable basis for their claim
that
there
are
other
similarly
unlawfully denied overtime wages.
Grayson, 79 F.3d at 1097.
situated
employees
who
were
See Morgan, 551 F.3d at 1259;
The Court’s conclusion is in accord with
two other district courts which have certified collective actions of
AT&T Field Managers alleging identical FLSA overtime pay violations.
See Luque v. AT&T Corp., 2010 WL 4807088, at *1 (N.D. Cal. Nov. 19,
2010)
(granting
motion
for
conditional
collective
action
certification); Perkins v. S. New England Tel. Co., 669 F. Supp. 2d
212, 218-222 (D. Conn. 2009) (certifying FLSA collective action
based on more stringent second stage factors, as well as granting
Class 23(b)(3) certification).
Although these cases are from
district courts in other circuits and are not controlling, the Court
finds their analysis and reasoning persuasive.
24
AO 72A
(Rev.8/82)
As plaintiffs have
satisfied their burden at this initial stage, they are entitled to
conditional certification of a collective action under the FLSA.
III.
Notice
In conjunction with the decision to certify a conditional
collective action, the Court authorizes the issuance of notice to
the putative class members.
See Morgan, 551 F.3d at 1261 n.40
(“District courts following the two-step Hipp approach should treat
the initial decision to certify and the decision to notify potential
collective
action
members
as
synonymous.”).
Plaintiffs
have
submitted a proposed Notice of Court Certification of Collective
Action.
(Heisler Decl., Exh. B [27-4].)
notice on various grounds.
BellSouth objects to this
(Def’s Mem. [80-1] at 38-40.)
The Court
agrees with several of BellSouth’s objections and therefore amends
the proposed notice as follows.
A.
Definition Of The Class
First, BellSouth contends that the class is not adequately
defined.
The proposed notice is addressed to the following class:
ALL FIELD MANAGERS (LEVEL ONE MANAGERS WITH FIELD
TECHNICIANS) EMPLOYED BY BELLSOUTH AT ANY TIME BETWEEN
DECEMBER 2006 AND THE PRESENT.
(Heisler Decl., Exh. B [27-4] at 1.)
Because “Field Manager” and
“Field Technician” are not official BellSouth job titles, BellSouth
argues that putative class members will be unable to determine if
they can opt into the lawsuit.
25
AO 72A
(Rev.8/82)
The Court disagrees.
It is undisputed that Field Managers are
actually Level One Managers who supervise field technicians.
The
plaintiffs’ declarations uniformly state that Level One Managers are
also known as Field Managers because they work with technicians in
the field.
(See, e.g., Lawson Decl. [27-5] at ¶ 3; Phillips Decl.
[27-8] at ¶ 3; Coffman Decl. [27-12] at ¶ 3; Borchetta Decl. [27-15]
at ¶ 3.)
Moreover, despite lack of official notice, more than three
dozen Level One Managers have joined the action since it was filed.
BellSouth also submitted its own declarations from twenty-five Level
One Managers, and retained a research firm to contact 662 Field
Managers in a telephone survey for purposes of this lawsuit.
These
numbers indicate that putative class members (as well as BellSouth)
are sufficiently aware of what the term “Field Manager” encompasses.
Accordingly,
plaintiffs’
definition
of
their
class,
as
proposed, will be permitted.
B.
Inclusion Of A Signature Line For The Court
The Court does agree, however, with BellSouth’s objection to
the placement of a signature line for the Court on the notice.
The
undersigned’s signature on the notice could be perceived as an
implicit judicial endorsement of the action’s merits.
See Hoffman-
LaRoche, Inc. v. Sperling, 493 U.S. 165, 174 (1989) (cautioning that
trial courts “must be scrupulous to respect judicial neutrality” and
“avoid even the appearance of judicial endorsement of the merits of
26
AO 72A
(Rev.8/82)
the action” when sending notice of a collective action); Luque, 2010
WL 4807088, at *7 (removing court’s signature line from proposed
notice).
The signature line should therefore be deleted from the
notice.
C.
Statement That The Court Has Authorized The Notice
Next, BellSouth objects to the following paragraph inserted at
the end of the notice:
THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE
FEDERAL DISTRICT COURT, THE HONORABLE JUDGE JULIE E.
CARNES. THE COURT HAS NOT YET EXPRESSED ANY OPINION ABOUT
THE MERITS OF THE CLAIMS ASSERTED OR THE DEFENSES RAISED,
AND YOU SHOULD NOT INTERPRET THE SENDING OF THIS NOTICE AS
ANY INDICATION OF THE COURT’S OPINION OF THE ULTIMATE
OUTCOME OF THE CASE. PLEASE DO NOT CONTACT THE COURT OR
THE COURT CLERK WITH QUESTIONS ABOUT THIS LAWSUIT OR
NOTICE.
(Heisler Decl., Exh. B [27-4] at 2.)
BellSouth contends that the
statement that the notice “has been authorized by the federal
district court” could be construed as a judicial endorsement of
plaintiffs’ case. This sentence clearly pertains only to the notice
itself, however, and is immediately followed by the disclaimers that
the Court “has not yet expressed any opinion about the merits of the
claims asserted,” and that sending of the notice does not indicate
the Court’s opinion about the case’s outcome.
Read as a whole, the
paragraph does not imply that the Court believes plaintiffs’ claims
are meritorious.
27
AO 72A
(Rev.8/82)
The Court agrees with BellSouth, however, that this paragraph
should be moved to the first page of the notice.
The Court
instructs plaintiffs to amend the notice so that this paragraph is
directly under the caption “William Lawson, et al. v. BellSouth
Telecommunications, Inc., U.S. District Court for the Northern
District of Georgia.”
Further, the Court sees no need for the undersigned’s name to
appear on the notice, as long as the putative class members are
aware that the notice has been authorized by a federal judge.
Accordingly, in addition to moving this paragraph, as explained
above, the plaintiffs shall modify the paragraph, with strike-outs
showing language to delete and underlining showing language to add,
to read as follows:
THIS NOTICE AND ITS CONTENTS HAVE BEEN AUTHORIZED BY THE
A FEDERAL DISTRICT COURT IN THE NORTHERN DISTRICT OF
GEORGIA, THE HONORABLE JUDGE JULIE E. CARNES. THE COURT
HAS NOT YET EXPRESSED ANY OPINION ABOUT THE MERITS OF THE
CLAIMS ASSERTED OR THE DEFENSES RAISED, AND YOU SHOULD NOT
INTERPRET THE SENDING OF THIS NOTICE AS ANY INDICATION OF
THE COURT’S OPINION OF THE ULTIMATE OUTCOME OF THE CASE.
PLEASE DO NOT CONTACT THE COURT OR THE COURT CLERK WITH
QUESTIONS ABOUT THIS LAWSUIT OR NOTICE.
D.
Notice’s Omission Of Obligations Of Class Members
Fourth, BellSouth argues that the proposed notice fails to
advise putative class members that they might be deposed or have to
testify in court, should they opt in.
28
AO 72A
(Rev.8/82)
It is important for putative
class members to understand that certain time commitments and
activities may be required if they join the lawsuit.
The district
courts in both Luque and Perkins sent out notices which included a
sentence informing putative class members about this possibility.
See Luque, 2010 WL 4807088, at *7 (including statement in notice
that class members “might be required to provide information”)
(quotation marks omitted); Wittels Decl., Exh. U [87-22] at 4.
The
Court adopts the language used in the Perkins notice and instructs
plaintiffs to add the following sentence to the end of the first
paragraph in section III, titled “Effect of Joining this Lawsuit”:
While this suit is pending, you may be required to
participate in it by, among other things, responding to
written questions, sitting for depositions, and/or
testifying in court.
Last, BellSouth correctly points out that the notice does not
specify
a
time
limit
for
potential
class
members
to
opt
BellSouth’s suggested 30-day response period is too brief.
in.
Both
Luque and Perkins imposed a 60-day deadline from the date of
mailing, and the Court finds this to be reasonable.
See Luque, 2010
WL 4807088, at *7; Wittels Decl., Exh. U [87-22] at 5.
The proposed
notice already contains the following paragraph under section II:
TO JOIN THE LAWSUIT, YOU MUST SIGN, DATE AND MAIL THE
“CONSENT TO JOIN” FORM TO PLAINTIFFS’ COUNSEL. IF THE
FORM IS NOT TURNED IN, YOU WILL NOT BE A PART OF THIS
LAWSUIT.
29
AO 72A
(Rev.8/82)
(Heisler Decl., Exh. B [27-4] at 2).
Plaintiffs are instructed to
add the following sentence to the end of that paragraph:
YOUR “CONSENT TO JOIN” FORM MUST BE POSTMARKED NO LATER
THAN [date 60 days from mail date] IN ORDER FOR YOU TO BE
INCLUDED IN THE LAWSUIT.
CONCLUSION
Plaintiffs have met their lenient burden at the notice stage to
show
that
they
are
similarly
situated
to
other
employees.
Accordingly, the Court GRANTS plaintiffs’ Motion for Conditional
Collective Action Certification and Issuance of Notice to the
Collective Action Class [27], subject to the amendments the Court
has made to the proposed notice.
The Court also ORDERS BellSouth to
provide plaintiffs the names and contact information of class
members, within twenty-one (21) days of this Order.
SO ORDERED, this 16th day of August, 2011.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
30
AO 72A
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