Davenport v. Charter Communications, LLC

Filing 172

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's motion for an order conditionally certifying a collective action under the FLSA is GRANTED. (Doc. No. 58.) IT IS FURTHER ORDERED that the Court conditionally certifies a cl ass of all of Defendant's present and former non-exempt call center employees who held or hold the job title, "advisor," and who were hired and had completed training before September 1, 2011, and who worked at Defendant Charter Commun ications, LLC's call centers located in Town and Country, Missouri; Walker, Michigan; Louisville, Kentucky; Greenville, South Carolina; Vancouver, Washington; Rochester, Minnesota; Fond du Lac, Wisconsin; and Worcester, Massachusetts. The conditionally certified class shall not include persons who were hired by Defendant but worked only as trainees. SEE ORDER FOR COMPLETE DETAILS. Signed by District Judge Audrey G. Fleissig on 3/27/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PENNY DAVENPORT, individually and
on behalf of a class of others similarly
situated, et al.
Plaintiffs,
v.
CHARTER COMMUNICATIONS, LLC,
Defendant.

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Case No. 4:12CV0007 AGF

MEMORANDUM AND ORDER
This is an action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et
seq., to recover unpaid wages and overtime compensation. Plaintiff, Penny Davenport,
and other similarly situated persons, were employed as customer service representatives
at call centers operated by Defendant Charter Communications, LLC. Plaintiff moves,
pursuant to § 16(b) of the FLSA, for conditional certification1 of a class consisting of
Defendant’s former and current employees who, at any time in the last three years,
staffed dedicated telephone lines at Defendant’s eight call centers. In addition, Plaintiff
seeks approval of a form of notice to be sent to Defendant’s past and present employees
and provide them the opportunity to “opt in” as plaintiffs in this litigation. In support of
her motion, Plaintiff offers declarations from eleven current and former employees who
1

Plaintiff also seeks, in separate motions, to certify a class action under Federal Rule
of Civil Procedure 23 for state law statutory claims under the laws of the eight states in
which its call centers are based. See, e.g., Missouri Minimum Wage Law (MMWL), Mo.
Rev. Stat. §290.500 et seq. None of the state law claims are the subject of the instant
motion.

worked at three of Defendant’s eight call centers in Town and Country, Missouri;
Louisville, Kentucky; and Walker, Michigan.
Defendant opposes conditional certification on several grounds, but its chief
objection is that Plaintiffs have not demonstrated that the members of the proposed class
were subject to substantially similar policies or practices with respect to the alleged
underpayments.
For the reasons set forth below, the Court grants the motion for conditional
certification.
BACKGROUND
Defendant, a broadband service provider, operates eight customer service call
centers, in eight states.2 At each call center, toll-free customer support telephone lines
are staffed by exempt, salaried employees and non-exempt, hourly employees. Plaintiffs,
employed as “advisors,” respond to incoming calls from customers on the toll free lines.
As non-exempt, hourly employees the advisors are entitled to receive overtime
compensation.
At the beginning of each work shift, Plaintiff Davenport3 and other advisors were
required to log in to their phones, boot up their computers, and open various programs

2

The call centers are located in Town and Country, Missouri; Walker, Michigan;
Louisville, Kentucky; Greenville, South Carolina; Vancouver, Washington; Rochester,
Minnesota; Fond du Lac, Wisconsin; and Worcester, Massachusetts.
3
Apart from her allegations regarding the login/logout process, Davenport’s
employment history with Defendant is not particularly relevant here, but the Court will
summarize it briefly. Beginning in February 2008, Defendant employed Davenport at its
Town and Country call center. After an initial training period, Plaintiff was employed as
an advisor, a position she held at the Town and Country call center until she was
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and applications used in responding to calls. An advisor must be logged in to the phone
system to receive customer calls, and once logged in to the phone, the advisor is on the
clock.
There are two login methods. An advisor may log in to the phone itself and then
boot up the computer and open needed software programs and applications. This method
is known as the “hard phone.” In the alternative, an advisor employing the “soft phone”
method first boots up her computer, opens the necessary programs and applications, and
then logs in to the phone system through the computer. Both login options are also
available for logging out at the end of a shift and before and after unpaid meal breaks.
II. Plaintiff’s Allegations
Plaintiff asserts that Defendant requires use of the “soft phone” method in order to
assure that an advisor is ready to receive calls as soon as she has logged into the phone
and to maximize the number of calls taken during a shift. Plaintiff also asserts that use of
either login method results in approximately one minute of unpaid time at the beginning
of each shift or upon returning from each unpaid meal break. Plaintiff further contends
that use of the “soft phone” method results in approximately three minutes of unpaid time
at the end of a shift and at the start of unpaid meal breaks.

terminated in December, 2011, for bringing a gun to work. Plaintiff has testified at
deposition that her employment experience with Defendant was not typical, because she
was discriminated against. Plaintiff believes she was treated differently with respect to
unpaid work and that she faced more challenges meeting her performance metrics, or
compliance thresholds, because of this discrimination.

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Plaintiff offers eleven very similar declarations from present and former
employees at three of Defendant’s call centers stating that Defendant maintained the
same “ready to work,” “compliance” (or “schedule adherence”), and “end of shift”
policies and practices at each of the centers. Plaintiff further states that these uniform
policies resulted in unpaid work. Plaintiff alleges that the “ready to work” and “time
keeping” policies were included in the employee handbook disseminated to all of
Defendant’s employees. With respect to the other five call centers, the declarants state
that at the time they received their training they were told by trainers or, in one case, a
supervisor that the policies at their call centers regarding login and logout procedures
were the same at all of Defendant’s call centers.
In addition to the policies and training directives to use the soft phone method,
Plaintiff also asserts that off-the-clock work was necessary to meet Defendant’s required
“compliance thresholds” with respect to “schedule adherence.” By way of these schedule
adherence measures, Defendant tracks the accuracy of an advisor’s clock-in and clockout times and requires some percentage, for example 97%, of these times to match an
advisor’s assigned shift-start and -end times. Plaintiff contends that advisors were
threatened with discipline, disciplined, or discharged for failing to meet these thresholds.
Plaintiff also asserts that she “regularly observed” others working off the clock.
III. Defendant’s Arguments
In response, Defendant asserts that the policies, procedures, and management
practices central to Plaintiff’s allegations vary from location to location. Defendant

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contends that there are differences between policies effective at Town and Country,
Walker, and Louisville, the three call centers where the declarants work.
Defendant further argues that each facility has implemented its own training
procedures for advisors. Defendant points out, for example, that the training process at
the Walker call center differs from Louisville’s, but asserts that all training protocols
ensure that advisors are fully paid. Defendant contends that during the Louisville training
protocol, advisors learn to log in to the hard phone before they even start their computers.
In addition, Defendant asserts that the training in Louisville does not include any specific
discussion about the “ready to work” policy, other than urging advisors to arrive by their
scheduled start time.
Defendant offers declarations from employees at the other five call centers
referenced in the complaint and notes that Plaintiff offers no declarations or other direct
evidence with respect to these other call centers. Defendant further asserts that none of
the policies about which Plaintiff complains apply in these other centers. Defendant
challenges Plaintiff’s claim that she was told to log in to her other programs and
applications before logging in to her phone. Defendant points out that Plaintiff’s claim is
inconsistent with testimony from employees at the other five call centers stating that,
consistent with Defendant’s written policy, they were instructed to log in to the phone
first regardless of whether they used the hard or soft phone method to do so. With
respect to knowledge of routines or procedures followed by other advisors at her call
center or others, Defendant notes that Plaintiff admitted in her deposition that she had no

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actual knowledge of the routines or procedures followed by anyone else and was unable
to identify a single other employee who she had observed working off-the-clock.
APPLICABLE LAW
Pursuant to Section 7 of the FLSA, an employer may not subject a non-exempt
employee to a work week in excess of 40 hours unless the employee is compensated for
her time with additional pay of at least one and one half times her regular hourly wage.
29 U.S.C. § 207. The FLSA also provides that any employer who violates this restriction
“shall be liable to the employee or employees affected in the amount of their . . . unpaid
overtime compensation . . . and in an additional equal amount as liquidated damages.” 29
U.S.C. § 216(b). An action to recover overtime pay and liquidated damages may be
maintained “by any one or more employees for and in [sic] behalf of himself or
themselves and other employees similarly situated.” Id.
A collective action under § 216(b) differs from a class action under Federal Rule
of Civil Procedure 23. Davis v. Novastar Mortg., Inc., 408 F. Supp. 2d 811, 814-15
(W.D. Mo. 2005). A primary distinction is that under Rule 23 class members must optout to avoid being bound by the judgment. Id; see also Grayson v. K Mart Corp., 79 F.3d
1086, 1096 (11th Cir. 1996) (noting that the “similarly situated” standard is considerably
less stringent than Rule 23(b)(3) class action standards).
The FLSA does not define the term “similarly situated.” And the Eighth Circuit
Court of Appeals has not enunciated a standard under § 216(b) for determining whether
potential opt-in plaintiffs are “similarly situated.” However, the district courts in this
Circuit uniformly apply a two-step analysis. See, e.g., Fry v. Accent Mktg. Serv., L.L.C.,
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No. 4:13 CV59 CDP, 2013 WL 4093203, at *2 (E.D. Mo. Aug. 13, 2013); Parker v.
Rowland Express, Inc., 492 F. Supp. 2d 1159, 1164-65 (D. Minn. 2007); Davis, 408 F.
Supp. 2d at 814-15; Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574 (N.D. Iowa
2005); McQuay v. Am. Int’l Group., Inc., No. 4:01CV00661 WRW, 2002 WL 31475212,
at *2 (E.D. Ark. Oct. 25, 2002).
Plaintiff moves for conditional certification under the first of those steps. See
Davis, 408 F. Supp. 2d at 815. At the first step in the process, a plaintiff’s burden is not
onerous, Kautsch v. Premier Communications, 504 F. Supp. 2d 685, 688 (W.D. Mo.
2007), and the court does not reach the merits of a plaintiffs’ claims. See Smith v.
Heartland Auto. Servs., Inc., 404 F. Supp. 2d 1144, 1149 (D. Minn. 2005).
Conditional certification at the first, or notice, stage requires “nothing more than
substantial allegations that the putative class members were together the victims of a
single decision, policy or plan.” Davis, 408 F. Supp. 2d at 815 (citation omitted). A
plaintiff can meet this burden by “making a modest factual showing sufficient to
demonstrate that [she] and potential plaintiffs together were victims of a common policy
or plan that violated the law.” Ondes v. Monsanto Co., No. 4:11CV197 JAR, 2011 WL
6152858, at *3 (Dec. 12, 2011) (citations omitted). Perhaps most importantly, a plaintiff
need not show that members of the conditionally certified class are “actually similarly
situated.” Fast v. Applebee’s Int’l, Inc., No. 06-4146-CV-C-NKL, 2007 WL 1796205, at
*3 (W.D. Mo. June 19, 2007); see also Dernovish v. AT & T Operations, Inc., No. 09–
0015–CV–W–ODS, 2010 WL 143692, at *1 (W.D. Mo. Jan.12, 2010).

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At first-stage certification the court exercises its discretion to determine whether a
collective action is appropriate, see Heartland, 404 F. Supp. 2d at 1149 (citation omitted),
but makes no “credibility determinations or findings of fact with respect to contrary
evidence presented by the parties at this initial stage.” McCallister v. First Banks, Inc.,
No. 4:13CV561 HEA, 2014 WL 988448, at *2 (E.D. Mo. Mar. 13, 2014) (citing Ahle v.
Veracity Research Co., No. 09-00042, 2009 WL 3103852, at *3 (D. Minn. Sept. 23,
2009). “Once the Court conditionally certifies the class, potential class members are
given notice and the opportunity to opt-in.” Dernovish, 2010 WL 143692, at *3 (internal
quotations and citation omitted); Parker, 492 F. Supp. 2d at 1159.
At the second step of the process, which usually occurs after the close of discovery
when the factual record is more fully developed, the defendant may move to decertify the
class. See Beasly v. GC Services LP, 270 F.R.D. 442, 444 (E.D. Mo. 2010). “At that
time, applying a stricter standard, the court makes a factual determination on the similarly
situated question.” Ondes, 2011 WL 6152858, at *2 (internal quotation omitted). To
maintain certification of the class, the plaintiff will be required to show, and a court is
better able to assess, whether the class members are, in fact, “similarly situated.”
Dernovish, 2010 WL 143692, at *3; see also Davis, 408 F. Supp. 2d at 815. Even at that
juncture, however, “class members need not be identically situated” in order to meet the
requirements for certification. Fast, 2007 WL 1796205, at *4.

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DISCUSSION
I. Conditional Certification
Upon review of Plaintiff’s allegations, the Court is satisfied that Plaintiff has
cleared the relatively low hurdle required for first-stage conditional certification.
Plaintiff has adequately alleged that she and the other employees she seeks to represent
were required to perform similar work without pay, and she has adequately described the
work and the processes of logging in and logging out in sufficient detail to permit the
proposed members of the collective action who performed similar tasks to be identified
and notified of the action. See, Simmons, No. 4:10CV00625 AGF, 2011 WL 855669, at
*3 (Mar. 9, 2011) (conditionally certifying a collective action involving unpaid overtime
at call center despite defendant’s claims that login requirements could differ among
trainees, supervisors and customer service representatives); Bishop v. AT&T Corp., 256
F.R.D. 503, 507 (W.D. Pa. 2009) (conditionally certifying a collective action involving
unpaid overtime at call centers and noting that “[e]numerating the specifics of how each
call center accounts for employee work hours does not counter an allegation of a common
policy of denying payment for such hours”); Busler v. Enersys Energy Products, Inc., No.
09–00159–CV–W–FJG, 2009 WL 2998970, at *3 (W.D. Mo. Sept. 16, 2009)
(conditionally certifying a collective action, despite potential distinctions among
plaintiffs, because plaintiffs presented enough evidence at initial stage that employees
were similarly situated and subject to a common practice).
The declarations from eleven employees from three call centers, stating that the
ready to work policy and the performance metrics associated with clocking in and out
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essentially require Plaintiffs to work off-the-clock, meet the required standard. The Court
notes that at least some support for the declarants’ statements is found in a handbook
distributed to each employee. Further, most of the declarants in Plaintiff’s affidavits aver
that the trainer or supervisor who trained them advised that the directive to use the soft
phone process to log in and log out applied at the other facilities. Based on this evidence,
the Court cannot conclude that Plaintiff’s assertions regarding a uniform policy are
unfounded.
In the Court’s view, Plaintiff has satisfied the requirement that she make a modest
factual showing to support her allegations. And this is not a case where a plaintiff has
failed to provide any competent evidence of a company-wide policy. See Wacker v.
Personal Touch Home Care, Inc., No. 4:08CV93 CDP, 2008 WL 4838146, at *4 (E.D.
Mo. Nov. 6, 2008) (holding that where there is no evidence of a company-wide policy,
company-wide certification is inappropriate ); Garner v. Regis Corp., No. 03–5037–CV–
SW–SWH, 2004 WL 5455905, at *2 (W.D. Mo. Aug. 5, 2004) (same).
Defendant contends that the declarations here exhibit the same deficiencies as
those offered and found wanting by the court in Settles v. General Elec., Case No. 1200602-CV-W-BP, slip opinion at 1 (W. D. Mo. February12, 2013). In Settles, the court
refused to conditionally certify an FLSA class, relying in part on the deficiency of certain
declarations submitted in support of the motion to certify. Id., slip op. at 5-6.
Specifically, the court found the plaintiff failed to offer “evidence that any managers
knew about or facilitated the illegal overtime practices of which he complains and, thus,

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fails to establish that the employees were victims of a single decision, policy or plan.”
Id., slip op. at 6.
The Court does not agree that the declarations offered here suffer from the same
deficiencies as those in Settles. The declarants in this case have stated that specific
supervisors and trainers knew about and directed them to follow procedures resulting in
unpaid work. Unlike Settles, this is not a case “[w]here there is no evidence, even
contested, that managers failed to follow FLSA policies or affirmatively directed and
approved alleged improper practices.” Id. at 7; see also Garner, 2004 WL 5455905,
at*2-3.
Defendant has also argued that the affidavits filed by Plaintiff with respect to the
practices at other call centers are not competent or sufficient, and should be stricken, as
they are based on inadmissible hearsay and are not based on personal knowledge. The
main remaining assertion Defendant challenges4 is the statement made by the declarants
that when they first began their employment with Charter, “the trainers said that the same
policies [regarding logging in and out] applied throughout all of Charter’s call centers.”
See, e.g., Affidavit of Justin Ansell, at ¶ 5, Doc. No. 58-3 at 2.
4

Defendant originally filed a motion to strike the two affidavits Plaintiff filed in support
of her initial motion for conditional certification. Doc. No. 26. But Plaintiff thereafter
amended her complaint, and filed an amended motion for conditional certification as well
as new affidavits. By Order dated August 7, 2012 (Doc. No. 68), the Court directed that
Defendant’s motion to strike would be deemed to apply to the amended motion for
conditional certification. The new affidavits differed substantially from the prior two
affidavits, rendering moot most of the objections asserted by Defendant in its motion to
strike. But Defendant did challenge as inadmissible hearsay declarants’ statements that at
the time of training, the trainer or supervisor advised them that the practices regarding
logging in and out about which they were advised were the same throughout all call
centers in the company.
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Assuming, without deciding, that Defendant is correct that the requirements of
Rule 56(e) apply at this stage, the Court cannot agree that the affidavits should be
stricken. Defendant does not allege that the facts set forth in the affidavits “cannot be
presented in a form that would be admissible in evidence,” as Rule 56(c) requires. Rule
56(c)(2) (emphasis added). Plaintiff may well be able to present testimony from the
trainers or supervisors following discovery. In any event, the declarants do have
personal knowledge of the training provided to them, and their statements that the trainers
or supervisors who provided the training advised them that the same policies applied
throughout Charter’s call centers are likely admissible under Rule 801(d)(2)(C) or (D) of
the Federal Rules of Evidence, as statements made “by a person whom the party
authorized to make a statement on the subject,” or “by the party’s agent or employee on a
matter within the scope of that relationship and while it existed.” FRE 801(d)(2)(C) and
(D). It is fair to assume that Defendant did not have people provide training who were
not authorized to speak regarding the company’s training procedures.
As such, at this stage and on this record, Defendant’s motion to strike the
affidavits will be denied. Whether the facts set forth in the declarations will ultimately be
admissible and sufficient to prove Plaintiff’s allegations are questions for another day.
See, e.g., Schmaltz v. O’Reilly Auto. Stores, Inc., No. 4:12–CV–1056–JAR, 2013 WL
943752, at *2 (Mar.11, 2013) (describing the standard as a “modest factual showing,
based upon the pleadings and affidavits, that the proposed class were victims of a single
decision, policy, or plan”) (quoting Ondes, 2011 WL 6152858, at *3 (citations omitted)).

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Although Defendant offers evidence of contrary company-wide policies, the Court
cannot weigh evidence at this juncture. See Loomis v. CUSA LLC, 257 F.R.D. 674, 676
(D. Minn. 2009) (noting that the court does not make credibility determinations or
findings of fact with respect to contradictory evidence submitted by parties at this initial
stage). Similarly, Defendant contends that statements from Plaintiff’s deposition
contradict her allegations, but the Court also is unable to make credibility determinations
at this stage. See id. These and Defendant’s other arguments regarding uniform
management policies go to the merits of Plaintiff’s claims; they are not yet ripe for
resolution. See Dernovish, 2010 WL 143692 at *2 (conditionally certifying collective
action involving call center telephone representatives being required to log in to computer
systems before start of shift, despite arguments by defendant that their written policies
prohibited such practices and that employees have different managers and job
requirements; these arguments go to merits, and plaintiffs made adequate showing of
being similarly situated because they were all required to log in before they could work).
Finally, Defendant argues that a grant of certification here will create an
unmanageable nationwide class. Defendant also contends that this case is unlike the few
cases in which nationwide classes have been conditionally certified.
The Court does not agree with either assertion. At this stage, it is premature to
assess the size and manageability of an opt-in class. Once the number of class
participants is more certain, the Court will be in a position to make those assessments.
Moreover, this case is quite similar to Nicholson v. UTi Worldwide, Inc., where a
nationwide class was certified based upon the declarations of employees who worked at
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only one of the employer’s facilities. No. 3:09-cv-722 JPG-DGW, 2011 WL 250563, at
*4 (S.D. Ill. Jan. 26, 2011). Although that case is not binding on this Court, the
distinction drawn there is instructive and has been relied upon in this District as well.
The declarations submitted in Nicholson, like those submitted in the current case,
contained statements regarding practices at the facilities where the declarants worked and
assertions that trainers from other facilities had informed them that the same practices
were followed at those other facilities. Id. By contrast, in Andrews v. Appletree
Answering Serv., the court refused to certify a multi-facility class where the only
evidence of a uniform company-wide policy was the plaintiffs’ experience of receiving
calls diverted to them from other company facilities. No. 4:11CV2227 RWS; 2012 WL
2339322, at *3 (E.D. Mo. June 19, 2012). In refusing to certify on the basis of such
allegations, the court noted that the plaintiffs had failed to demonstrate that they had
personal knowledge of the policies at other locations. Id., at *3. The court noted,
however, “substantial allegations that putative class members were the victims of a single
decision, policy or plan” could be shown “where the declarants had been informed of
similar practices in other locations.” Id.; but see Wynn v. Express, LLC, No. 11 C 4588,
2012 WL 874559, at *3 (N.D. Ill. Mar. 14, 2012) (noting that declarations from
individuals at eleven facilities would be insufficient to support conditional certification of
a class including all of defendant’s facilities). In light of the reasoning set forth above the
Court is convinced, at this juncture, that conditional certification with respect to
employees at all eight call centers is appropriate.

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Defendant also contends that any class conditionally certified here should not
include employees who were hired after September 1, 2011. Plaintiff agrees that such a
restriction is appropriate. Plaintiff also has admitted that no off-the-clock work was
required or performed during training. On the basis of the record and Plaintiff’s
admissions regarding the correction of the FLSA violations alleged here on and after
September 1, 2011, the Court will exclude from the conditionally certified class all
persons hired on and after September 1, 2011 and all person still in training on that date.
See Fenn v. Hewlett-Packard Co., No. 1:11–cv–00244–BLW, 2012 WL 1883530, at *4-5
(D. Idaho May 17, 2012) (holding that a plaintiff’s admission that an employer’s alleged
unlawful compensation practices ended at a certain date, restricts the class definition to
the time period prior to that date). Finally, because the log in requirements did not apply
to trainees, the Court will exclude from the conditional class any employees who were
employed by Defendant but only worked as trainees.
The record establishes and Plaintiff does not deny that as a result of a new time
keeping system implemented on September 1, 2011, the FLSA violation alleged here was
cured on that date. Therefore, this suit only addresses time worked before September 1,
2011, by members of the conditionally certified class.
II. Notice to Class Members
Defendant also objects to portions of Plaintiff’s proposed Notice to Putative Class
Members. (Doc. No. 58-7.)
Defendant first asserts that the 120 day opt-in period Plaintiff requests is
excessive. The Court agrees that a four month opt-in period is excessive and not
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necessary here, especially given the restricted class definition adopted by the Court.
Accordingly the Court approves a sixty day opt-in period. See, e.g., Greenwald v.
Phillips Home Furnishings, Inc., 2009 WL 1025545 (E.D. Mo. April 15, 2009)
(approving a 45-day opt-in period); Martinez v. Cargill Meat Solutions, 265 F.R.D. 490,
501 (D. Neb. 2009) (holding that 45-days “is sufficient time for putative plaintiffs to
consider their options and, if desired, seek the assistance of outside counsel in deciding
whether to join this lawsuit”); Boyle v. Barber & Sons, Co., 2004 WL 5897946, at *5-6
(W.D. Mo. May 21, 2004) (approving a 30-day opt-in period).
Defendant also objects to the internal posting of Plaintiff’s notice on the ground
that there is no evidence that Defendant’s current employees, who are most likely to see a
posted notice, are difficult to locate or reach by way of first-class mail. The Court agrees
that notice by way of first-class mail notice is sufficient here. Martinez, 265 F.R.D. at
500-01 (refusing internal posting on the ground that “[t]here is no evidence personal
mailing will be an unreliable means of delivering notice”).
Finally, Defendant objects to Plaintiff’s suggestion that it be required to provide
counsel with the phone numbers and e-mail addresses of its employees. Plaintiff notes
that these additional contact methods are requested because the possibility exists that the
addresses Defendant has for former employees will no longer be accurate. The Court
sees no reason, however, that Plaintiff should be provided both e-mail addresses and
personal telephone numbers and finds the prospect of providing personal telephone
numbers to Plaintiff to be unduly invasive of employees’ and former employees’ privacy.
For these reasons, the Court approves the provision of email addresses, in addition to
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mailing addresses, but does not approve Plaintiff’s request for personal telephone
members.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for an order conditionally
certifying a collective action under the FLSA is GRANTED. (Doc. No. 58.)
IT IS FURTHER ORDERED that the Court conditionally certifies a class of all
of Defendant’s present and former non-exempt call center employees who held or hold
the job title, “advisor,” and who were hired and had completed training before September
1, 2011, and who worked at Defendant Charter Communications, LLC’s call centers
located in Town and Country, Missouri; Walker, Michigan; Louisville, Kentucky;
Greenville, South Carolina; Vancouver, Washington; Rochester, Minnesota; Fond du
Lac, Wisconsin; and Worcester, Massachusetts. The conditionally certified class shall
not include persons who were hired by Defendant but worked only as trainees.
IT IS FURTHER ORDERED that Plaintiff’s motion to facilitate class notice and
approve her Notice to Putative Class Members and Proposed Consent to Join (Doc. Nos.
58-5 and 58-6) is GRANTED in part and DENIED in part as follows:
a) Plaintiff’s Notice to Putative Class Members is amended to provide for
an opt-in period of 60 days rather than 120 days,
b) the paragraphs entitled “DESCRIPTION OF THE LAWSUIT” and
“WHO DOES THIS LAW SUIT AFFECT?” are stricken from the proposed
notice. The parties shall confer and within seven days of the date of this Order
submit to the Court replacement paragraphs incorporating the definition of the
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class conditionally certified by the Court. If the parties are unable to agree on
replacement language for the stricken paragraphs they shall each file their
proposed language at that time. Apart from these paragraphs, no other changes or
objections to the proposed notice will be permitted; and
c) Plaintiff’s Proposed Consent to Join is approved as submitted.
IT IS FURTHER ORDERED that Defendant shall provide to Plaintiff’s counsel
within fourteen (14) days of the date of this Order, and in readable electronic format, the
mailing addresses and email addresses of all putative members of the conditionally
certified class.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 27th day of March, 2014..

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