Fenn v. Hewlett-Packard Company

Filing 42

MEMORANDUM DECISION AND ORDER granting 34 Motion to Strike; denying without prejudice 21 Motion to Certify Class. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KAREN FENN, on behalf of herself and
those similarly situated,
Plaintiff,

Case No. 1:11-CV-00244-BLW
MEMORANDUM DECISION AND
ORDER

v.
HEWLETT-PACKARD COMPANY,
Defendant.

INTRODUCTION
The Court has before it Plaintiff’s Motion for Conditional Certification of An
FLSA Collective Action (Dkt. 21), and Defendant’s Motion to Strike Declarations
Submitted in Support of Plaintiff’s Motion for Conditional Certification (Dkt. 34.) The
Court has determined that the motions are suitable for disposition without oral argument.
ANALYSIS
The FLSA provides a cause of action for an employee against an employer who
fails to pay overtime wages. 29 U.S.C. § 207(a), (o). An employee may sue “for and in
behalf of himself . . . and other employees similarly situated.” Id. § 216(b). This is known
as a collective action, and proceeds on an opt-in basis. Id.; see also Hoffman-La Roche
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Inc. v. Sperling, 493 U.S. 165, 169 (1989). The district court may authorize named
plaintiffs in an FLSA collective action to send notice to all potential plaintiffs to facilitate
this process. Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th
Cir. 2000). The district court has discretion whether certification of a § 216(b) collective
action is appropriate. Edwards v. City of Long Beach, 467 F. Supp. 2d 986, 989 (C.D.
Cal. 2006) (Citing Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D.Cal.
2004).
Although the Ninth Circuit has not articulated a single standard to guide the
“similarly situated” analysis, a majority of courts adopt a two tiered approach. See, e.g.,
Khadera v. ABM Indus. Inc., No. C08-0417 RSM (W.D. Wash. Feb. 19, 2010); Colson v.
Avnet, Inc., No. 09-603-PHX-MHM (D. Ariz. Jan. 27, 2010); Davis v. Westgate Planet
Hollywood Las Vegas, LLC, No. 2:08-cv-00722-RCJ-PAL (D. Nev. Jan. 12, 2009);
Goudie v. Cable Commc’ns, Inc., No. 08-CV-507-AC (D. Or. Oct. 14, 2008); Hoffman v.
Securitas Sec. Servs., No. CV07-502-S-EJL (D. Idaho Aug. 27, 2008); Edwards, 467 F.
Supp. 2d at 990.
Under the two-step approach, “the first step is for the court to decide, based
primarily on the pleadings and any affidavits submitted by the parties, whether the
potential class should be given notice of the action.” Edwards, 467 F. Supp. 2d at 990
(internal quotation marks omitted). Given the lack of discovery and limited evidence
available to the court at this early stage in the proceedings, “this determination is usually
made under a fairly lenient standard and typically results in conditional class
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certification.” Id. (internal quotation marks omitted). Indeed, “[p]laintiff need not show
that his position is or was identical to the putative class members’ positions; a class may
be certified under the FLSA if the named plaintiff can show that his position was or is
similar to those of the absent class members.” Id. (quoting Freeman v. Wal-Mart Stores,
Inc., 256 F. Supp. 2d 941, 945 (W.D. Ark. 2003)). Unsupported assertions of widespread
violations do not fulfill Plaintiff’s burden though. Id. Ultimately, all the plaintiff needs
to show, “is that some identifiable factual or legal nexus binds together the various claims
of the class members in a way that hearing the claims together promotes judicial
efficiency and comports with the broad remedial policies underlying the FLSA.”
Wertheim v. Arizona, 1993 WL 603552, at *1 (D. Ariz. Sept. 30, 1993).
The second phase of the two-step approach occurs once discovery is complete and
the case is ready for trial. At that time, the party opposing § 216(b) collective action
treatment may move to decertify the class. Id. at 990 n.1.
1.

Conditional Certification

Plaintiff Karen Fenn alleges that she and other past and present customer service
representatives (“CSRs”) at Hewlett-Packard (“HP”) were not paid for all hours worked
beyond forty hours per week. In a nutshell, Fenn complains that HP required CSRs to
arrive early and leave late so they could load and shut down computer applications. Fenn
contends that CSRs were required to spend this extra time on the job without pay.
In support of her complaint, Fenn offers five declarations, including her own.
Each declarant states that he or she worked for HP at one of HP’s call centers in the
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United States (2 in Idaho, 1 in Iowa, 1 in Colorado, and 1 in Michigan). Fenn, Shaul,
Bishop, Buonanni, and Bryant Declarations, Dkts. 21-3 – 21-7. Each declaration states
essentially the same thing with respect to unpaid work – CSRs were required to work
extra time loading and shutting down their computer applications without pay. Id. Each
declarant makes the general assertion that HP told them to work the extra time without
pay. Id. Each declarant then explains that many other CSRs worked at their respective
locations, ranging from 85-1500 per location.
HP responds, in part, by producing the declaration of HP’s compensation manager,
Jennifer Miner. Miner states that HP “maintains information on timecards which state,
among other things, that ‘non-exempt HP employees are paid for actual hours worked
each pay period.’” Miner Decl., ¶ 5, Ex. 1 at p. 4, Dkt. 27-2. Miner goes on to state that
HP’s global policies do not detail the minutiae of time recording for each employee
because HP is a large global corporation with diverse business activities. Id. at ¶ 6.
Miner states that HP uses a decentralized time keeping policy which relies upon local and
business group level management for implementation. Id.
HP also produced the declaration of Lori Stanfield, an Operations Manager for HP
in Boise, Idaho. Stanfield states that she is, and was during the time-frame of the
allegations in this case, responsible for overseeing the pre-sales program where plaintiff
Fenn worked. Stanfiled Decl., ¶ 3. Fenn’s supervisor reported to Stanfield. Id. Stanfield
states that individual team supervisors are responsible for reminding their agents about
proper treatment of time worked. Id. at ¶ 6. Stanfield notes that soon after HP acquired
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Electronic Data Systems, the predecessor company where Fenn worked, Stanfield sent an
email to all Boise supervisors explaining that “employees need to be paid for the time
they spend booting up, reading emails, signing up for OT, and shutting down.” Id. at ¶ 7,
Attachment 1. Stanfield also declares that she sent an email of “talking points” to the
supervisors regarding the timekeeping procedures. Id. at ¶ 8. Attached to the email was a
memo. Id., Attachment 2. The body of the memo states that “all working time must be
paid time.” Id. The memo details how HP wants to ensure that employees are properly
paid, and it gives some “paid vs. unpaid” scenarios. Id. At the top of the memo, it states
“Do Not Distribute,” but Fenn’s direct supervisor, Marc Militello, states that he instructed
his team that the time used to start up their computer tools and applications and prepare
for work should be recorded as paid time. Militello Decl., ¶ 6. HP also suggests that
there are differences among sites, supervisors and business groups with respect to shift
times, required duties, etc.
Under these circumstances, the Court cannot make a determination whether
conditional certification of a § 216(b) collective action is warranted. Specifically, the
Court cannot determine whether Plaintiff’s position was similar to those of the absent
class members. The Court cannot determine whether some identifiable factual or legal
nexus binds together the various claims of the class members, or whether a few rogue
managers required employees to work off the clock.
Earlier, HP filed a motion requesting that it be provided the opportunity to briefly
depose Plaintiff and the other four Declarants regarding the issues raised in Plaintiff’s
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Motion for Conditional Certification. HP suggested that testimony on the issue of
certification would be helpful to the Court in determining whether Plaintiff could meet
her burden that there are other “similarly situated” aggrieved persons. The Court denied
the motion, but stated that once the Motion for Conditional Certification was fully
briefed, the Court would have a better understanding of the issues in this case, and that
the Court may need to allow the depositions before making its decision. The Court now
has the benefit of HP’s response to the Motion for Conditional Certification, which did, in
fact, raise questions about whether Plaintiff is similarly situated with others. Moreover,
Plaintiff did not file a reply brief responding to those questions in any way.
For these reasons, the Court will deny the Motion for Conditional Certification
without prejudice, and allow the parties to conduct limited discovery on the issue of
certification. Plaintiff may then file another motion to conditionally certify the action.
As general guidance to the parties, the Court notes that it would expect the second
motion for conditional certification to address the issues raised by HP in its response
brief. For example, the Court needs to know whether HP had a policy regarding CSRs
working off the clock or whether HP simply had a few rogue managers who required offthe-clock work. Alternatively, Plaintiff may be able to discover that HP’s policy
preventing off-the-clock work was a policy honored largely in the breach – meaning that
although it was the stated policy, it was not followed to any significant degree. The Court
also needs to know the distinction between CSRs who worked directly for HP and those
who worked for contractors, and whether this distinction affects the rights of the potential
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class members. Finally, as stated below, the Court would expect declarations which
adhere to the requirements of the pertinent rules and statutes.
Discovery on the above-mentioned issues must be conducted within sixty days of
the date of this order. The Court will require the parties to meet and confer and provide
the Court with a joint discovery plan within fourteen days of the date of this Order. If the
parties cannot agree on a joint plan, the parties must contact Jeff Severson, the Law Clerk
assigned to this case, to set up a time for the Court to address the parties disagreements
and order a discovery plan.
2.

Motion to Strike

HP asks the Court to strike the declarations relied upon for Plaintiff’s Motion for
Conditional Certification. First, HP contends that the declarations are not based on
personal knowledge. HP asserts that the declarants’ statements that they and other CSRs
at their locations were told to begin and end their shifts off the clock are conclusory and
without personal knowledge because they are not supported by any documentation or
specific names of the supervisors who told them to do it. These concerns will likely be
fleshed out in the limited discovery the Court is allowing the parties to conduct.
However, HP also contends that the Court should strike the declarations because
they do not comply with 28 U.S.C. § 1746. Section 1746 provides that whenever any
matter is required or permitted to be established by a sworn declaration in writing, this
may be achieved by an unsworn declaration in writing which contains the statement,“I

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declare . . . under penalty of perjury that the foregoing is true and correct.” 28 U.S.C.
§ 1746. The declarations submitted by Plaintiff do not contain this specific language.
Instead, they indicate that the declarants make the declarations pursuant to 28 U.S.C.
§ 1746.
Plaintiff responded to the motion to strike by indicating that the declarants will
provide additional declarations which are identical in substance, but contain the necessary
specific language required by 28 U.S.C. § 1746. However, Plaintiff never filed the
amended declarations. Under these circumstances, the Court will strike the declarations.
Plaintiff may file additional declarations if and when she files another motion for
conditional certification.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Conditional Certification of An FLSA Collective
Action (Dkt. 21) is DENIED without prejudice. The parties shall conduct
limited discovery related to the certification issue as explained above. The
parties shall meet and confer and provide the Court with a joint discovery
plan within fourteen days of the date of this Order. If the parties cannot
agree on a joint plan, the parties must contact Jeff Severson, the Law Clerk
assigned to this case, to set up a time for the Court to address the parties
disagreements and order a discovery plan.

2.

Defendant’s Motion to Strike Declarations Submitted in Support of

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Plaintiff’s Motion for Conditional Certification (Dkt. 34.) GRANTED.

DATED: December 12, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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