Meadows v. NCR Corporation
Filing
295
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 3/4/2020: NCR's motion to decertify, 280 , is granted. A status hearing is set for March 18, 2020, at 9:30 a.m. [For further detail see attached order.] Notices mailed. (psm, ) Modified on 3/4/2020 (psm, ).
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL MEADOWS, et al.,
Plaintiffs,
v.
No. 16 CV 6221
Judge Manish S. Shah
NCR CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Meadows alleges that defendant NCR Corporation violated
the Fair Labor Standards Act by failing to pay him and his fellow customer engineers
the required overtime rate. I conditionally certified a collective action. More than
1,600 people opted in to the case. Both sides conducted extensive discovery before
NCR filed its motion to decertify, and that discovery reveals significant factual and
legal differences among the members of the proposed collective action. In light of
those differences, and for the reasons discussed further below, NCR’s motion is
granted. The collective action is decertified.
I.
Legal Standards
Collective actions allow for the efficient resolution “of common issues of law
and fact arising from the same alleged discriminatory activity.” Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 170 (1989). District courts have wide discretion in
managing collective actions, Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th Cir.
2010); Weil v. Metal Techs., Inc., 925 F.3d 352, 357 (7th Cir. 2019), and courts in this
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district have developed a two-step conditional certification process to aid in the
management of collective actions brought under the Fair Labor Standards Act. Jirak
v. Abbott Labs., Inc., 566 F.Supp.2d 845, 847 (N.D. Ill. 2008) (collecting cases); 29
U.S.C. § 216(b).
During the first step, if the plaintiff makes a modest factual showing that other
employees are similarly situated, the action is conditionally certified and notice is
issued. DeMarco v. Nw. Mem’l Healthcare, No. 10 C 397, 2011 WL 3510905, at *1
(N.D. Ill. Aug. 10, 2011); Jirak, 566 F.Supp.2d at 847–48; Ervin v. OS Rest. Servs.,
Inc., 632 F.3d 971, 974 (7th Cir. 2011). The first step “requires nothing more than
substantial allegations that the putative class members were together the victims of
a single decision, policy, or plan.” Jones v. Furniture Bargains, LLC, No. 09 C 1070,
2009 WL 3260004, at *2 (N.D. Ill. Oct. 9, 2009) (quoting Thiessen v. Gen. Elec. Capital
Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). Meadows made it past this first step.
[192].
The second step requires more. With the benefit of a “much thicker record than
it had at the notice stage,” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261
(11th Cir. 2008), courts in this district conduct a stringent, fact-specific review.
Hudgins v. Total Quality Logistics, LLC, No. 16 C 7331, 2019 WL 354958, at *3 (N.D.
Ill. Jan. 29, 2019). Plaintiffs bear the burden of producing sufficient evidence of “an
identifiable factual nexus that binds the plaintiffs together as victims of a particular
violation of the overtime laws.” See id.; Russell v. Ill. Bell Tel. Co., Inc., 721 F.Supp.2d
804, 812 (N.D. Ill. 2010); Strait v. Belcan Eng’g Grp., Inc., 911 F.Supp.2d 709, 718
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(N.D. Ill. 2012) (“[p]laintiffs bear the burden of demonstrating that they are ‘similarly
situated’”). During this step, courts ask “(1) whether the plaintiffs share similar or
disparate factual and employment settings; (2) whether the various affirmative
defenses available to the defendant would have to be individually applied to each
plaintiff; and (3) fairness and procedural concerns.” Camilotes v. Resurrection Health
Care Corp., 286 F.R.D. 339, 345 (N.D. Ill. 2012). “A unified policy, plan, or scheme …
is not necessarily required … especially if a collective action would promote judicial
economy because there is otherwise an identifiable factual or legal nexus.” Molina v.
First Line Sols. LLC, 566 F.Supp.2d 770, 787 (N.D. Ill. 2007). See also Campbell v.
City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018) (at the decertification stage,
plaintiffs must provide “substantial evidence that their claims arise out of a single
policy, custom or practice that leads to FLSA violations”).
The FLSA is interpreted “broad[ly] and comprehensive[ly] in order to
accomplish the remedial purposes of the Act.” Solis v. Intern. Detective & Protective
Service, Ltd. 819 F.Supp.2d 740, 747 (N.D. Ill. 2011); Tony & Susan Alamo Found. v.
Sec’y of Labor, 471 U.S. 290, 296 (1985). It must not be applied in a “narrow, grudging
manner.” Walling v. National Ice & Fuel Corp., 158 F.2d 28, 29 (7th Cir. 1946). The
standards for class certification under Rule 23 have largely merged with those for
certifying a collective action, Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772
(7th Cir. 2013), and under Rule 23, the commonality inquiry requires that the class
have a “common contention” that is “capable of classwide resolution—which means
that determination of its truth or falsity will resolve an issue that is central to the
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validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350 (2011). What matters “is not the raising of common ‘questions’—even
in droves—but rather, the capacity of a class-wide proceeding to generate common
answers apt to drive the resolution of the litigation.” Id. “[W]hen multiple managers
exercise independent discretion, conditions at different stores (or sites) do not present
a common question.” Bolden v. Walsh Const. Co., 688 F.3d 893, 896 (7th Cir. 2012).
II.
Facts
Meadows and his fellow customer engineers are paid by the hour to repair ATM
machines and point-of-sale systems. [288-1] at 91:24–92:5; [288-8] at 16:17–17:2.1
(Point-of-sale systems include “registers, … pin pads, … printers … [b]asically
anything a retail store would use.” [288-6] at 40:9–11.) Customer engineers are “home
dispatched,” meaning that every morning they leave their homes and go directly to
the location of the first ATM or point-of-sale system they have been assigned to repair.
See [288-1] at 24:3–6; [288-4] at 28:2–4. Before they can leave, they have to know
where to go, and in order to learn where to go, they have to check in (on their phones
or laptops) with NCR’s central dispatchers. See, e.g., [281-13] at 30:12–17, 31:12–22;
[281-11] at 10:18–11:15.
This procedure is reflected in NCR’s written policies. The first thirty minutes
of a customer engineer’s commute (in both directions) are unpaid, [288-10] at 9; [2889] at 184:23–185:10; [281-52] at 42:2–15, so NCR’s customer engineer handbook
advises that, “[a]s a general rule,” at least thirty minutes before the start of their
1
Bracketed numbers refer to entries on the district court docket.
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shift, customer engineers should check in for their call assignments and “activate an
incident” or update their “whereabouts.” [288-10] at 8. See also id. at 4; [288-1] at
92:6–8 (customer engineers are required to comply with the handbook). According to
the handbook, this should take “no more than one or two minutes.” [288-10] at 8.
The handbook also says that “[a]ll work time is compensable time,” and that
customer engineers are “required to document and report all time worked.” [288-10]
at 7. Examples of prohibited off-the-clock work include answering work-related phone
calls, reading or responding to NCR email, and processing or ordering parts. [288-11]
at 15. With regard to pre-shift work, the handbook instructs that, “[b]efore the start
of [their] shift, [customer engineers] are prohibited from performing any work, other
than briefly checking [their] handheld mobile device 30 minutes before the start of
[their] shift (this is so that you can determine the location of your first assignment).”
Id. at 15. Supervisors are prohibited from “requiring, encouraging, or even
suggesting” that customer engineers work off-the-clock. Id.
Meadows says these rules are often broken. According to Meadows, customer
engineers often perform (and do not record time spent on) pre-shift tasks that go
beyond checking the location of their first job site. For instance, many customer
engineers spend time before their shift checking the details of their entire schedule
for the day, reviewing other emails, and fielding work-related calls, among other
things. See e.g., [281-8] at 35:23–36:25 (one customer engineer, Roy Bratt, checks his
email every morning); [281-10] at 31:16–34:3 (another customer engineer checks “to
see what kind of work I’m going to have on my plate for the day and see if I need to
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reach out to my service coordinator”); [281-11] at 10:18–11:15 (checks email, learns
where to go); [281-13] at 30:13–17, 31:12–22 (learns where to go); [281-16] at 24:20–
25:14 (checks schedule, email, texts); [281-25] at 86:15–87:17 (checks schedule, route
map); [288-15] at 28:8–29:5, 31:3–21 (checks email, calls service planner).2 Some
report taking longer than two minutes to complete these pre-shift routines. See, e.g.,
[288-15] at 29:15–20 (“5 to 15 minutes”); [281-8] at 36:4–10 (“it averages between five
minutes and probably twenty to twenty-five minutes”); [281-28] at 70:21–71:7 (often
only one to two minutes but sometimes five to fifteen minutes); [281-51] at 35:22–
36:10 (between one to five minutes to check emails both before and after shifts). And
in spite of the handbook’s instructions, many do not record their pre-shift work at all
because, for instance, they say recording time is a hassle, or that their managers do
not like it when they record that time. See, e.g., [288-15] at 48:2–12. Other customer
engineers say that NCR’s time recording system is only capable of recording time in
increments of seven minutes or more and that, as a result, it would be useless or
The list of pre-and-post-shift work activities includes processing parts, communicating with
colleagues, printing documents, “loading keys,” conversations between day-shift workers and
night-shift workers, closing out tickets, key audits, and more. See [281-7] at 69:8–25
(checking for first location); [281-44] at 114:9–115:5 (phone calls, emails, looking at work
orders); [281-45] at 38:5–38:18 (setting up route), 43:20–44:19 (coordinating with colleagues),
44:20–46:17 (responding to emails, coordinating with the control tower), 48:14–50:6 (ordering
parts); [281-18] at 102:25–103:19 (answering phone calls and emails, ordering parts); [28150] at 14:3–9 (phone calls); [281-38] at 10:12–22 (answer emails, phone calls); [281-8] at 60:9–
18 (checking email, loading and checking keys); [281-43] at 11:24–12:24 (closing calls,
processing parts); [281-46] at 11:10–12:14 (communications with colleagues); [281-12] at
88:13–89:9 (phone calls, emails, training course); [281-16] at 35:13–36:15 (parts
management); [281-46] at 61:13–67:9 (conversations between night shift and day shift
workers); [281-51] at 34:6–14 (emails); [281-35] at 41:18–45:21 (printing information, reading
manuals); [281-20] at 56:14–24 (closing out tickets), 61:11–62:10 (key audits); [281-52] at
44:18–45:8 (paperwork), 96:21–97:5 (training, cleaning van).
2
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impossible to record their shorter bursts of pre-shift work. See [281-20] at 44:4–10,
54:23–55:7; [288-15] at 18:6–16.
At least some of the managers that were deposed say that (in accordance with
the handbook) they regularly tell their customer engineers to record all of their time
worked. [281-27] at 77:11–23; [281-21] at 33:17–34:6; [281-15] at 67:15–68:6. At least
some of the customer engineers say that they are aware that they are supposed to
accurately report all of the time they spend working. [281-19] at 32:25–33:23; [28113] at 49:7–15. Others confirmed that they are paid for the time they record, even if
it amounts to overtime (and even if they bill the time recorded to an “administrative”
code) that was not preapproved by a manager. [281-7] at 42:11–23; [281-43] at 84:9–
85:4; [281-49] at 95:2–9; [281-16] at 28:3–28:8.
At the same time, at least one customer engineer says that his current
manager lets him record no more than ten or fifteen minutes of work before leaving
his house and that his previous manager did not allow him to record any time at all
for pre-shift activities. [281-40] at 89:19–90:25. See also [281-12] at 10:10–11:23
(another manager says that, although he tells his current customer engineers not to
answer emails or calls outside of their shift, those same policies were not enforced by
his previous manager.) In addition, at least a few customer engineers reported
working during their lunch break, [281-11] at 13:21–14:18 (one took “critical calls”
during lunch, but acknowledged that was her choice); [288-14] at 73:22–74:9 (another
customer engineer sometimes looked at upcoming job tickets during lunch), and
others said they performed (and did not record) work on their days off. [281-46] at
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62:8–63:10; [281-51] at 65:4–23; [281-40] at 59:10–24; [281-38] at 10:8–22; [281-8] at
54:13–55:12.
In January of 2018—a month after notice of this lawsuit issued to customer
engineers around the country—NCR started measuring productivity using something
called the “Five Star” program. [281-34] at 102:21–24. The Five Star program
assesses customer engineers’ performance using metrics like utilization, productivity,
“revisits,” and “re-trips,” among other things, and compares their performance
against that of other customer engineers around the world. [288-3] at 35:3–37:8. At
least one customer engineer was under the impression that he would get a raise if he
had a high Five Star rating. [288-16] at 67:17–19.
Some customer engineers reported believing that the program discourages
engineers from recording time that is not related to a specific work order (e.g.,
reviewing general emails, fielding calls, etc.) because such time counts against some
of the metrics that are used to calculate one’s overall Five Star score. [281-12] at
67:23–69:11; [281-16] at 28:20–29:8, 53:5–54:11. One manager reported being
evaluated based on the Five-Star ratings of the customer engineers that he oversees.
[281-13] at 113:5–20; [281-12] 67:12–16. NCR’s representatives, however, say that
not recording time does not improve one’s overall Five Star score. See [288-13] at
56:21–59:15; [281-34] at 96:23–97:21, 101:25–102:20. Instead, they say that the Five
Star program accounts for, and seeks to minimize, the incentive to work off-the-clock.
See [288-8] at 78:2–79:13; [288-13] at 56:3–57:23.3 Some managers allowed customer
None of the witnesses provided a complete explanation of how the Five Star program works.
For instance, Zeid Isho, a field operations senior manager for NCR, says that the calculations
3
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engineers to bill for the complained-of pre-and-post-shift work so long as they billed
it as “administrative time.” [281-23] at 64:3–17 (one manager said he scheduled
administrative time “all the time” so that his customer engineers could do things like
clean their vehicles or complete training); [281-49] at 95:2–96:13 (noting that while
some managers approved administrative time, those same managers occasionally
denied requests to bill administrative time); [281-11] at 52:8–25 (one customer
engineer remembered being allowed to bill as administrative time hours he spent
installing shelving in his van); [281-16] at 28:3–8 (one customer engineer confirmed
he was paid if he recorded his time using the administrative code). At least one
manager confirmed that time spent on things like training did not affect the Five Star
rating at all. [288-13] at 26:1–28:6.
The customer engineers gave different reasons for not recording their time.
Some said they did so as a “matter of survival,” to “be a good employee,” [281-19] at
43:19–25, or to “help out” their coworkers. [281-40] at 60:10–15; [281-38] at 15:22–
16:11; [281-10] at 54:8–54:24; [281-41] at 75:16–76:2; [281-12] at 22:9–24; [281-37] at
57:23–58:22; [281-46] at 57:13–58:8. Others said it was in part because their
managers did not allow them to use an administrative code to bill the time they spent
on pre- and post-shift work. [281-37] at 68:22–72:8; [281-16] at 44:12–22. Some cited
pressure from their managers to deliver results, [281-49] at 16:19–17:13, and others
mentioned the Five Star program specifically. [281-41] at 64:12–65:12, 67:2–14; [281-
behind the Five Star program were “basically system generated” and that there were “a lot
of algorithms and mathematical equations that go on in the background of the 5 star
program.” [288-8] at 77:6–21.
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12] at 66:11–68:5; [281-18] at 73:18–74:5; [281-36] at 22:5–23:18; [281-16] at 28:20–
29:13, 53:2–55:10. When one customer engineer was asked why he might not record
time spent helping out other customer engineers on the weekend, he said, “[t]hat’s a
good question,” and that he did “not have a good answer.” [281-22] at 39:11–40:5.
These differences are an illustrative (but not comprehensive) representation of those
identified during discovery.
NCR operates in all fifty states, and splits the states into more than 70
geographic territories. [172-2] ¶ 4; [172-4] ¶ 4. Each customer engineer operates
within one territory, and each territory has a designated territory manager that
oversees as many as fifty customer engineers. Id. Territory managers control the
work schedules of their customer engineers. [281-24] at 15:20–16:8, 38:13–39:8,
39:12–23; 49:22–51:1; [281-23] at 31:22–32:8, 74:3–14; [288-10] at 7 (“[m]anagers
have discretion to set schedules and control the hours of work” and take into
consideration “[v]arious factors, such as workloads, operational efficiency, and
staffing needs”). In California and Washington, customer engineers’ entire commute
is compensated, [281-23] at 61:6–15, and some customer engineers in New York are
paid according to collective bargaining agreements negotiated by their union
representatives. [281-3] at 22–23. Other customer engineers are on special
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assignments that require them to be on call 24 hours a day (and are paid differently
as a result). [281-10] at 47:15–48:6; [281-23] at 45:2–24.
III.
Analysis
At this stage of the conditional certification inquiry, Meadows is required to
identify a factual or legal nexus that binds him and the other plaintiffs together as
“victims of a particular violation of the overtime laws.” Hudgins, 2019 WL 354958 at
*3; Camilotes, 286 F.R.D. at 345; Russell, 721 F.Supp.2d at 812. At the last stage
(conditional certification), I found that NCR had not yet “eliminate[d] the possibility
that [it] … had an unwritten policy or an unofficial practice of encouraging off-theclock work.” [192] at 5. Relying on a thin record and resolving reasonable inferences
in Meadows’s favor, it remained possible that NCR was “requiring the performance
of significant tasks before and after shifts while requiring CEs to clock in and clock
out based on their arrival and departure times.” [192] at 4.
Based on the additional evidence both sides dug up during discovery, I find
that Meadows has failed to produce sufficient evidence that this case should continue
as a collective action. See Hudgins, 2019 WL 354958 at *3; Camilotes, 286 F.R.D. at
345. The two most compelling nationwide factual or legal nexuses Meadows has
identified are the handbook and the Five Star program. Page four of the handbook
makes clear that its rules apply to a uniform, identifiable subset of employees, [2881] at 4, but one would have to stop reading there to conclude the policy bound those
employees “as victims” of the violations alleged. Hudgins, 2019 WL 354958 at *3;
Camilotes, 286 F.R.D. at 345; Russell, 721 F.Supp.2d at 812. Page fifteen, titled “‘Off
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the Clock’ Work is Prohibited,” describes most of the practices complained about,
makes clear that each is strictly prohibited, and includes a general prohibition
against any and all off-the-clock work by instructing customer engineers to record
any and all time worked. [288-1] at 15.
Even if the handbook underestimates the amount of time it takes customer
engineers to check the location of their first job site each morning, it also
unequivocally states that all time spent working must be recorded. See [288-1] at 15
(customer engineers are “prohibited from performing any work, other than briefly
checking [their] handheld mobile device” each morning, and must record all time
worked). Nothing in it explicitly prohibits or excepts the few minutes it takes to
determine the location of the customer engineer’s job; that time, if worked, should be
recorded. See id.4
Meadows identified one customer engineer that believed that NCR would not compensate
any time spent on a task that amounted to less than three minutes. [288-1] at 56:12–57:1.
When asked whether he believed that was an NCR policy, he said he did not know. Id.
Another testified that a former manager had told him that any time spent on tasks that
amounted to less than either seven or five minutes (the customer engineer could not
remember which) was not compensable. [281-20] at 44:3–25. See also [288-15] at 17:6–16 (a
third customer engineer testified that NCR’s time recording software did not register entries
of five minutes or less); [288-1] at 62:3–63:11 (one of NCR’s corporate representatives testified
that any work performed at home is compensable and should be recorded so long as it took
more than two minutes to complete). This testimony is insufficient at this stage to identify a
factual or legal nexus that binds the members of the collective together as victims of any
policy or practice, written or unwritten. The first two customer engineers’ experiences were
dependent on their interactions with their individual managers, which suggests that
collective treatment of these claims would not be both efficient and fair. With regard to the
third customer engineer’s testimony (and that of NCR’s corporate representative), Meadows’s
legal support amounts to an argument that decertification should not occur just because
individualized damages calculations will be necessary. See [288] at 18–19. That may be true,
but during this second stage, Meadows had the burden of identifying a sufficient factual
nexus that tied the members of the collective together as victims. He has not described the
policies or mechanisms that allegedly prohibited recording small amounts of time in
sufficient detail to survive a motion to decertify. Having had the benefit of discovery, he was
4
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For purposes of a motion to decertify, I do not need to decide the merits of
Meadows’s claims, but cannot ignore them completely. Otherwise, Meadows and his
fellow customer engineers could claim to be bound by a factual nexus that bears no
relationship whatsoever to the legal violations alleged in his complaint. See Comcast,
569 U.S. at 28 (class certification analysis, like collective certification analysis, “will
frequently overlap with the merits of the plaintiff’s underlying claim because a class
determination generally involves considerations that are enmeshed in the factual and
legal issues comprising the plaintiff’s cause of action”) (cleaned up). Meadows cannot
survive a motion to decertify by pointing to a patently lawful written policy that
applies uniformly to the entire collective. The handbook is not a sufficient nexus
because it does not tie Meadows and the other customer engineers together as victims
of any violations.
The only other written nationwide policy alleged is the Five Star program.
That program did not come into existence until two months after this collective action
was conditionally certified. See [281-34] at 102:21–24. There are instances when
prejudice would result from declining to decertify a collective based on a policy that
did not exist when the collective was conditionally certified, see Blakes v. Illinois Bell
Tel. Co., No. 11 CV 336, 2013 WL 6662831, at *9 (N.D. Ill. Dec. 17, 2013) (denying
required to produce more than the disjointed testimony of a few witnesses in order to justify
the continuance of a nation-wide class. See also Sandifer v. U.S. Steel Corp., 678 F.3d 590,
593 (7th Cir. 2012), aff’d, 134 S. Ct 870 (2014) (“[i]t is only when an employee is required to
give up a substantial measure of his time and effort that compensable working time is
involved”); Comcast Corp. v. Behrend, 569 U.S. 27, 28 (2013) (class certification analysis, like
collective certification analysis, “will frequently overlap with the merits of the plaintiff’s
underlying claim”) (cleaned up).
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modification because modifying the certified collective could have “ensnare[d] opt-in
plaintiffs in a theory of liability the implicates them in a practice of hiding time from
their employer” that was not present when the class was certified), but those
circumstances are not present here. The claims that were conditionally certified were
based in part on the idea that some customer engineers were not reporting their time.
No unfair surprise would be visited upon the members of the collective if Meadows is
allowed to advance those same theories based on both the Five Star program and the
handbook (as opposed to simply the handbook or some other unwritten policy or
practice, as was proposed during the collective certification stage). Neither side has
asked to expand the collective to include persons not contemplated at the conditional
certification stage, either. NCR has not demonstrated that it would suffer any
prejudice, in part because it designed the Five Star program and has access to the
information it needs to defend itself against the claim.
In any event, Meadows’s new claims fail because the Five Star program does
not bind the customer engineers as victims, either. Despite having access to
comprehensive discovery, Meadows failed to produce evidence that explains how,
exactly, the Five Star program works. That in turn makes it difficult to determine
whether the program encourages violations of the FLSA in the ways Meadows
alleges, and whether NCR will have individualized defenses. A few of NCR’s customer
engineers seem to think they are able to improve their productivity metrics by not
recording work that they perform outside of their shifts, see, e.g., [281-12] at 67:2–22;
[281-16] at 28:20–29:18, 53:5–54:11, but NCR’s managers say the program eliminates
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any such incentive by balancing a “utilization” metric against a “productivity” metric.
See [288-8] at 76:11–79:13; [288-13] at 56:21–58:16 (under-reporting time might
benefit a customer engineer with regard to one of the metrics but would hurt them
under others); [281-34] at 96:24–97:21, 101:18–102:20. If Meadows wished to rely on
the Five Star program as a factual nexus to survive this motion to decertify, the
burden was on him to produce evidence sufficient to show it tied him and his fellow
customer engineers together as victims of violations of the overtime laws. Hudgins,
2019 WL 354958 at *3; Camilotes, 286 F.R.D. at 345. Instead, what he has produced
amounts to the type of “substantial allegation” that sometimes survives the first stage
of the certification process, see Jones, 2009 WL 3260004 at *2, but that falls short of
the identification of a legal or factual nexus that is necessary to survive a motion to
decertify. See, e.g., Camilotes, 286 F.R.D. at 345; Russell, 721 F.Supp.2d at 812;
Campbell v. City of Los Angeles, 903 F.3d 1090, 1118 (9th Cir. 2018) (at the
decertification stage, plaintiffs must provide substantial evidence that their claims
arise out of a single policy, custom or practice that leads to FLSA violations).
Even if there were sufficient evidence that the Five Star program works the
way that Meadows says it does, I find persuasive the decisions of other courts that
have declined to find that programs like the Five Star program are a sufficient legal
or factual nexus simply because of the risk that they might incentivize employees to
work off-the-clock in an effort to maximize their score. See Brickey v. Dolgencorp.,
Inc., 272 F.R.D. 344, 347–48 (W.D.N.Y. 2011) (“[t]he Court declines to hold that
facially-lawful policies, which encourage store management to make productive use
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of employees’ time …, can form the equivalent of a common policy or plan that violates
the law merely because they indirectly might encourage the minimization of
overtime”); Eng-Hatcher v. Sprint Nextel Corp., No. 07 CIV 7350, 2009 WL 7311383,
at *4 (S.D.N.Y. Nov. 13, 2009). Encouraging efficiency during working hours is not
the same thing as encouraging unpaid overtime work, and a policy that does the
former does not bind together as victims the people subject to that policy.
Meadows might still prevail if he could show an unwritten practice or policy
that resulted in the Five Star program (or the handbook, or any other written policy)
being applied in a way that violates the FLSA. See Russell, 721 F.Supp.2d at 815
(“lawful written (or verbal) policies will not shield the company from liability if
plaintiffs can show other company-wide practices that may have been contrary to
those policies and violated the FLSA”); Brand v. Comcast Corp., No. 12-1122, 2012
WL 4482124, at *5 (N.D. Ill. Sept. 26, 2012) (holding that collective actions may be
certified based on allegations that a company has an unwritten policy that violates
the FLSA). This was the inference that justified conditional certification. The
certification could remain in place if Meadows identified circumstantial evidence that
there was a “pattern to the frequency, manner or duration of … pre-shift and postshift activities.” Elder v. Comcast Corp., No. 12 C 1157, 2015 WL 3475968, at *9 (N.D.
Ill. June 1, 2015). Another way might be to produce evidence of a nationwide culture
or attitude that encouraged overtime work without pay.
But the evidence he has produced shows the opposite. Each individual
customer engineers’ description of their reasons for working off-the-clock varied
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considerably. So did the work they performed. Some worked off the clock for personal
reasons, some did so because they did not believe their individual managers would
apply NCR’s policies as written, and only some believed they might obtain a higher
Five Star rating. Some checked their email, some prepared their tools, and others
made calls. Meadows has produced evidence that customer engineers were
performing plenty of off-the-clock work, but that evidence has not revealed any
pattern that supports an inference that NCR had a common policy or practice, the
legality of which would be efficient to assess via a collective action.
Another problem with Meadows’s theory is that individual managers retain
the discretion to approve both overtime work and other billing practices (such as the
use of an “administrative” code) that significantly reduce the pressure customer
engineers might feel to work off-the-clock. As a result, whether Meadows and his
fellow customer engineers were encouraged to work off-the-clock depends on the
individual circumstances of each manager-engineer relationship and interaction.
“Alleged FLSA violations stemming from the enforcement decisions of individual
supervisors, rather than a company-wide policy or plan” are not appropriate for
collective treatment. Adair v. Wisconsin Bell, Inc., No. 08-C-280, 2008 WL 4224360,
at *7 (E.D. Wis. Sept. 11, 2008); Salinas v. O’Reilly Auto., Inc., No. CIV.A.3:04-CV1861-B, 2005 WL 3783598, at *1 (N.D. Tex. Nov. 17, 2005) (plaintiff had failed to
make the minimal evidentiary showing required for conditional certification when
the plaintiff’s evidence showed only “that a handful of [defendant’s] managers have
committed possible FLSA violations in a variety of different ways”). The questions
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that need to be answered in such circumstances are not the sort of broadly applicable
inquiries that help drive collective action litigation forward in a productive, efficient
way. See Boelk v. AT & T Teleholdings, Inc., No. 12-CV-40-BBC, 2013 WL 261265, at
*12 (W.D. Wis. Jan. 10, 2013) (“[a]lthough plaintiffs and other technicians submitted
declarations stating that they often worked through meal breaks because of the meal
break restrictions, the productivity rating system or a combination of both, it is clear
from the deposition testimony of plaintiffs and other technicians that the reason for
doing so depended on the circumstances, which varied on a day-to-day basis”).
For similar reasons, I grant the motion to decertify insofar as it addresses
claims of work that occurred during mealtime and on days off. Meadows has not
pointed to any evidence that suggests claims pertaining to off-the-clock work during
meal hours or on days off should be treated any differently than pre-shift and postshift work. No aspect of the Five Star program or the handbook applies in any way
that is unique to mealtime hours or days off. His mealtime work claims center around
the allegation that customer engineers received calls, text messages, and emails
during their lunch breaks, but do not include facts that suggest NCR required them
or encouraged them to answer those calls, texts, or emails. See [288] at 11, 21. And
again, as was the case with customer engineers that reported working pre-shift and
post-shift, each individual customer engineer’s explanation of their decision to work
off-the-clock points to individualized rationalizations motivated by things like the
demands of their schedule and the expectations of their individual managers—not
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the existence of a nationwide policy or practice, the legality of which could be
determined all at once.
The factors sometimes used to assess motions to decertify support
decertification here: “(1) whether the plaintiffs share similar or disparate factual and
employment settings; (2) whether the various affirmative defenses available to the
defendant would have to be individually applied to each plaintiff; and (3) fairness and
procedural concerns.” Camilotes, 286 F.R.D. at 345 (N.D. Ill. 2012); Mielke v. Laidlaw
Transit, Inc., 313 F.Supp.2d 759, 762 (N.D. Ill. 2004).
With regard to the first factor, courts typically consider the “location, job
duties, supervision, and policies or practices that bind the plaintiffs’ claims together,”
in addition to whether there was a uniform compensation plan and common
supervision. Camilotes, 286 F.R.D. at 345 (N.D. Ill. 2012); Blakes, 2013 WL 6662831,
at *10. NCR’s customer engineers’ factual and employment settings are unique. They
start their day at home and travel to remote locations spread about their geographic
territory. They do not congregate together in the same place in order to perform their
assigned tasks. They are all doing something similar once they arrive—fixing ATM
machines and point-of-sale systems—but they are performing their functions in
isolated places, tethered to NCR only by their communications with their managers
and central dispatchers. Their schedules are dictated by their individual managers
and the unique repair needs of the customers in their geographic region. Their
individual managers retain discretion to approve overtime pay and to authorize them
to record time spent on work unrelated to any individual assignment. There is no
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common supervision (at least not of all or even most of the members of the nationwide
collective action). Each of the customer engineers may have been provided with worksupplied email addresses, phones, and laptops, and each may have used those items
to communicate with their managers and their central dispatchers, but the fact that
all of them communicated via the same medium is of little use in determining whether
the content and context of those communications bound them together as victims.
The customer engineers did many different types of off-the-clock work, see [281-7] at
69:8–25 (checking for first location); [281-44] at 114:9–115:5 (phone calls, emails,
looking at work orders); [281-45] at 43:20–44:19 (coordinating with colleagues); [2818] at 60:9–18 (loading and checking keys), for many different reasons. See [281-19] at
43:19–25 (as a “matter of survival” and to “be a good employee”); [281-37] at 68:22–
72:8 (NCR did not allow them to use a certain billing code); [281-49] at 16:19–17:13
(managers expected results); [281-22] at 39:11–40:5 (unsure why). Some of the
collective action members were also paid differently because they were subject to
collective bargaining agreements or were on special assignments to work for a single
client, among other reasons. Their factual and employment settings were different.
The first factor weighs in favor of decertification.
With regard to the second factor, some of the defenses NCR has put forth are
unsound. Determining whether NCR violated the FLSA with respect to customer
engineers in New York might depend on the terms of the collective bargaining
agreements in place there, but that is not a sufficient reason to avoid a collective
action here, in part because the FLSA rights Meadows seeks to assert are
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“independent of the collective-bargaining process.” Barrentine v. Arkansas-Best
Freight Sys., Inc., 450 U.S. 728, 745 (1981). See also Brooklyn Sav. Bank v. O’Neil,
324 U.S. 697, 707 (1945) (waiver is not a valid defense to an FLSA action); Caserta v.
Home Lines Agency, Inc., 273 F.2d 943, 946 (2d Cir. 1959) (estoppel is not a valid
defense because the obligation to comply with the FLSA “is the employer’s and it is
absolute”).
But when decisions made by individual managers affect the pressures that
employees feel to work off the clock, see Camilotes, 286 F.R.D. at 352, Kuznyetsov v.
W. Penn Allegheny Health Sys., Inc., No. CIV.A. 10-948, 2011 WL 6372852, at *6
(W.D. Pa. Dec. 20, 2011) (“[t]he individual supervisors had discretion with regard to
whether a meal break was missed and how a meal break deduction would be
cancelled”), and because it remains to be seen whether those managers (and by
extension, NCR) had actual or constructive knowledge of any work performed off-theclock, Camesi v. Univ. of Pittsburgh Med. Ctr., No. CIV.A. 09-85J, 2011 WL 6372873,
at *9 (W.D. Pa. Dec. 20, 2011), the analysis of at least some of NCR’s affirmative
defenses requires further individualized inquiry. Meadows says that evidence that
NCR knew, or should have known, that customer engineers were performing work
off-the-clock “can be found in NCR’s own policies, admissions, and data.” [288] at 23.
But Meadows carries the burden at this stage, and he has failed to cite to the policies,
admissions, or data that might show NCR had such knowledge. Vague and
unsubstantiated assertions that NCR’s affirmative defenses do not require
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individualized inquiry are insufficient. The second factor, too, weighs in favor of
decertification.
With regard to fairness and procedural concerns, this factor weighs in favor of
decertification because this case presents a “myriad of individualized factual issues”
that will require complex proceedings and extensive judicial resources without
resulting efficiencies, and because continuing this action as a collective will risk
significant unfairness to NCR. See Camilotes, 286 F.R.D. at 353. Meadows has offered
very little in the way of thoughtful trial planning. He has not explained how to
minimize or eliminate the difficulties associated with managing a collective action of
nearly 1,600 customer engineers in a case where his claims depend on using the
collective testimony of those engineers to encourage the trier of fact to draw an
inference about the existence of a nationwide, unwritten policy or practice. Meadows
mentions things like “class-wide data” (which could help simplify damages
calculations but would not help establish liability, see [288] at 15), the use of
subclasses (which would also not help establish liability because the unwritten
policies or practices Meadows’s alleges exist would have affected all customer
engineers equally), and bifurcation (which, again, would simplify the damages
portion of the case but would not avoid the complexities underlying Meadows’s
theories of liability), but does not elaborate in any helpful way as to how those
mechanisms would simplify the initial determination of liability. See [288] at 7. In
circumstances like these, where Meadows’s theories are largely dependent on
circumstantial
inferences
drawn
from
22
voluminous
individual
testimony,
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“[g]enerically stating that unspecified mechanisms may exist is not sufficient to allay
manageability and fairness concerns.” Camilotes, 286 F.R.D. at 354.
Meadows has presented no plans for managing the large number of witnesses
that would need to testify or the potentially voluminous documents that would likely
be necessary to establish liability on a class-wide basis for the theories he relies on.
If the case were as simple as reading a handbook or the terms of the Five Star
program—or if the case depended only on the testimony of a few executives that were
allegedly responsible for the unlawful unwritten practices or policies—this type of
sweeping assurance might be enough. But what Meadows proposes is relying on the
testimony of many different customer engineers to establish a pattern of experience
so uniform as to create an inference that such an unlawful, unwritten policy or
practice exists. That is a valid theory as a matter of law, but as a matter of trial
procedure and judicial efficiency, it presents significant difficulties. Meadows’s
briefing does not suggest there are ways to eliminate those difficulties.
At most, Meadows provides unpersuasive assurances that he and his fellow
customer engineers would limit their presentation to the trial testimony of a
representative subset of the collective. His briefing says only that, at some point in
the future, “comparisons between a representative sample of Plaintiffs’ ES Mobility
and Workday data will reveal an average amount of time Plaintiffs performed off-theclock work.” [288] at 25. Meadows gives no reason why that sampling could not have
been explained in greater detail as part of his response, but one reason may be that
such sampling will not prove as easy as Meadows says it will. Sample evidence will
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support group adjudication only if “each class member could have relied on that
sample to establish liability if he or she had brought an individual action.” Tyson
Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046 (2016). See also Solsol v. Scrub, Inc.,
No. 13 CV 7652, 2017 WL 2285822, at *8 (N.D. Ill. May 23, 2017). The problem for
Meadows is that, to the degree the deposition testimony hints at the existence of an
unwritten policy or procedure, that unwritten policy or procedure played out only in
the context of individual manager-engineer relationships around the country.
Sampling would be of little help because the other members of the collective could not
rely on representative testimony to establish that the same violation occurred in their
case; whether it did would depend on whether their managers approved overtime or
took other actions to alleviate any pressures they might have felt to work off-theclock.
There are some instances when sample evidence can be a trustworthy and
efficient proxy for a larger body of evidence but, at the least, such sampling usually
requires the use of statistical methods to create a random assortment of collective
members as witnesses. See Espenscheid, 705 F.3d at 774. Meadows has not provided
any insight into what type of sampling methods he might use or how he might go
about selecting a truly random, representative sample of customer engineers to
testify. His ability to do that has been at least partially undermined by the fact that
only thirty-six of the eighty-one plaintiffs that NCR subpoenaed actually appeared
for their depositions. See [277] at 4. That low turnout casts doubt on Meadows’s ability
to obtain testimony from anyone other than the representatives most interested in
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winning the case—a subset that is not representative of the collective as a whole. Nor
has Meadows explained how the selection of representative candidates would assuage
concerns that other customer engineers were underreporting their time for any of the
many benign reasons that were suggested during their depositions. See Espenscheid,
705 F.3d at 774 (“plaintiffs have not explained how their representative proof would
distinguish such benign underreporting from unlawful conduct by DirectSat”).
That each customer engineer might require an individualized damages
hearings is not a sufficient reason in and of itself to decertify. Rule 23 permits class
certification even if separate hearings will be necessary to establish damages, so long
as liability can be established for the class as a whole. See Butler v. Sears, Roebuck &
Co., 727 F.3d 796, 800 (7th Cir. 2013); Arreola v. Godinez, 546 F.3d 788, 801 (7th Cir.
2008) (“the need for individual damages determinations does not, in and of itself,
require denial of his motion for certification”). But special masters are only helpful
“once liability is established,” see Espenscheid, 705 F.3d at 775, and here, the factual
complexities extend not only to the issue of damages but to the threshold issue of
liability as well. Again, having failed to identify a nationwide written policy or
practice that binds the customer engineers together as victims, Meadows theory
depends on producing enough customer engineers to testify that a trier of fact will be
able to infer the existence of a nationwide unwritten policy or practice that violates
the FLSA. The use of circumstantial evidence to encourage this type of inference is
permissible, but Meadows has not marshaled enough evidence to suggest that it is
possible here.
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Given the factual complexities the evidence has revealed, the importance of the
relationship between each customer engineer and his or her manager, the discretion
each manager retained to award overtime work and discourage off-the-clock work,
the lack of sufficient evidence of any nationwide unwritten policy or practice that
might explain the numerous instances of off-the-clock work that Meadows has
identified, and the absence of any meaningful explanation for how Meadows might
overcome these factual issues via efficient trial management or thoughtful sampling,
the three factors together favor decertification. See Camilotes, 286 F.R.D. at 353.
Meadows has failed to identify a factual or legal nexus that binds him and the other
plaintiffs together as “victims of a particular violation of the overtime laws.” Hudgins,
2019 WL 354958 at *3; Camilotes, 286 F.R.D. at 345; Russell, 721 F.Supp.2d at 812.
He may continue to pursue his claim individually, but the FLSA collective action
must be decertified.
IV.
Conclusion
NCR’s motion to decertify, [280], is granted. A status hearing is set for March
18, 2020, at 9:30 a.m.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: March 4, 2020
26
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