Davenport v. Charter Communications, LLC

Filing 294

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Plaintiffs' motion to strike is DENIED. (Doc. No. #165 .) IT IS FURTHER ORDERED that Plaintiffs' motion to certify Counts II through V (Missouri Claims) of the first amended complaint as a class action is DENIED. (Doc. No. #140 .) Signed by District Judge Audrey G. Fleissig on 9/30/2014. (NEB)

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

Case No. 4:12CV00007 AGF

MEMORANDUM AND ORDER
Penny Davenport and three other named Plaintiffs brought this action on their own
behalf and on behalf of similarly situated call center employees who worked on an hourly
basis at Defendant Charter Communications, LLC (“Charter”). Plaintiffs claim that
Charter violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207; the state wages
and hours laws of Missouri, Kentucky, and Michigan; and Missouri common law, by
failing to pay them for the time it took them to access computer applications when
beginning to work and to close down computer applications at the end of work.1
Plaintiffs moved for conditional collective action certification under the FLSA, and
the Court granted Plaintiffs’ motion, requiring that notice be disseminated to putative
plaintiffs consisting of:
1

Following the Court’s ruling on Defendant’s Motion for Judgment on the Pleadings
(Doc. No. 218), the only claims remaining are Plaintiffs’ individual and class claims under
the FLSA (Count I), the Missouri Minimum Wage Law, Mo. Rev. Stat. ' 290.500, et seq.
(Count II), and Missouri common law (Counts II-V); and Plaintiff Rita Gentry’s individual
claim under the Kentucky Wages and Hours Act, Ky. Rev. Stat. § 337.010 et seq. (Count
VI).

All persons who, between September 25, 2009 and August 31, 2011 worked
as a nonsupervisory hourly employee whose primary duty was to respond to
incoming calls from a queue on Charter’s toll-free lines, commonly referred
to as “advisors,” “representatives,” or “agents,” 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, but excluding persons who were
hired by Defendant but worked only as trainees.
(Docs. No. 203-1 & 204.) To date, several hundred putative plaintiffs have filed consents
to join the FLSA collective action.
Plaintiff Davenport now moves (Doc. No. 140) to certify as class actions under
Rule 23(b)(3) her claim for violation of the Missouri Minimum Wage Law, Mo. Rev. Stat.
' 290.500, et seq., and her claims for breach of contract, quantum meruit, and unjust
enrichment under Missouri common law (collectively, the “Missouri Claims”). Unlike
the FLSA collective action, these Rule 23 class actions, if certified, will require individuals
to opt out of the suit or be bound by the judgment in the case. See Fed. R. Civ. P. 23(c)(3);
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 177 (1989) (Scalia, J., dissenting).
Charter opposes the motion for class certification and, in support of its opposition,
submits several declarations of putative class members. Plaintiffs move to strike these
declarations.2 Oral arguments were heard on the motion for class certification and the

2

Plaintiffs originally filed three motions for class certification relating to their claims
under Missouri, Kentucky, and Michigan law. (Docs. No. 140, 143 & 145.) Charter
filed a consolidated opposition to Plaintiffs’ three class certification motions and submitted
several declarations in support thereof. (Doc. No. 156-1.) On August 4, 2014, the Court
denied two of Plaintiffs’ motions for class certification, relating to Plaintiffs’ claims under
Kentucky and Michigan law. (Doc. No. 218.) Therefore, only Plaintiffs’ motion to
-2-

motion to strike on August 20, 2014, and the parties thereafter submitted supplemental
filings. For the reasons set forth below, the Court shall DENY both motions.
BACKGROUND
Davenport and the putative class members were call center agents, alternatively
known as “advisors,” “representatives,” or “agents,” employed at Charter’s call center in
Town & Country, Missouri during the relevant time period, whose primary duty was to
receive calls from Charter’s customers, not other Charter employees. The agents were
scheduled to work 40 hours per week.
Davenport alleges that Charter employed uniform policies and practices that
resulted in agents at its Town & Country call center working off the clock by performing
activities such as logging on and off computers, opening and closing applications, and
reading instructions before and after their paid shifts. Davenport alleges that these logon
and logoff activities were integral and indispensable to performance of the agents’ primary
work duties, and agents were not properly compensated for these activities by Charter. In
support of her allegations, Davenport offers her own declarations and the declaration of
another employee at the Town & Country call center, James Rachal, as well as Charter’s
corporate documents and deposition testimony by Charter’s corporate representative. On
August 31, 2014, Plaintiffs filed a notice of newly-discovered evidence in support of
Davenport’s class certification motion, and attached declarations of two other agents

certify the Missouri Claims remains in this case, and Plaintiffs’ counsel confirmed at oral
argument that Plaintiffs’ motion to strike now relates solely to the declarations submitted in
support of Charter’s opposition to certification of the Missouri Claims.
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employed at Charter’s Town & Country call center, Katherine Fenerson and Valerie
Mason, who previously provided declarations in support of Charter. (Doc. No. 250-1.)
The specific policies and practices which Davenport alleges resulted in
off-the-clock work are as follows: (1) Charter’s written punctuality policy requiring
agents to be “prepared to begin at work at [their] designated start time,” which Davenport
alleges required agents to perform logon activities before clocking in so they were prepared
to take calls as soon as their shift began; (2) Charter’s schedule compliance goal requiring a
high percentage, such as 97%, of an agent’s clock-in and -out times to match that agent’s
assigned shift-start and -end times, which Davenport alleges was negatively impacted if
agents performed logon and logoff activities while clocked in; and (3) supervisor
instructions and training requiring agents to perform logon and logoff activities off the
clock so that agents would be fully ready and able to respond to calls from beginning to end
of paid shifts. Davenport asserts that, in accordance with these policies, she regularly
observed other agents performing logon and logoff activities off the clock, and Davenport
offers declarations from agents employed at call centers outside Missouri stating that they
were told by their trainers or supervisors that Charter’s policies requiring off-the-clock
logon and logoff activities were the same across all of Charter’s call centers.
In connection with her argument that supervisors instructed agents to perform logon
and logoff activities off the clock, Davenport testified in her deposition that she had six
different supervisors during the relevant time period, and at least some of these supervisors
told her to have “everything up and ready to go on [her] desk when [she] clocked in.”

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(Doc. No. 157-1 at 5, 11, 26.) Davenport testified that while some of her supervisors told
her or insinuated that she should “work without pay,” some did not. (Id. at 12-13.)
Davenport also testified that at least one of her supervisors, Steve Neifert, made
“adjustments” to her time card to “ensure that [she was] paid for all [her] time worked” in
that department.3 (Id. at 21).
Davenport testified that agents could clock in using a hard phone and immediately
begin getting paid, before logging onto the computer and loading applications, and that
clocking in through the hard phone took one minute. (Doc. No. 157-1 at 13-14.)
Davenport testified that agents were “discouraged” from using the hard phone. (Id. at 18.)
But at least on one occasion, July 27, 2010, Davenport’s supervisor instructed her to “log in
using the hard phone, pull up [her] programs and log into the Avaya system. When [she
was] ready to take calls, do a soft phone reset, then go available using the soft phone.” (Id.
at 48.) This was in response to an email by Davenport asking her supervisor whether she
had to “start the programs before [she could] login and get paid, so [she] actually work[ed]
off the clock before 8.” (Id. at 48.) Davenport testified that she was paid for all time
worked on July 27, 2010 and that she “understood at least by July 28th, 2010 that [she]
could always log into [her] hard phone to begin getting paid right away.” (Id. at 20.)
However, Davenport also testified that the same supervisor coached her that to meet her

3

Neifert was Davenport’s supervisor both before and after September 2011, the date on
which Davenport alleges Charter changed its policy to stop requiring or permitting
off-the-clock work. (Doc. No. 157-1 at 26.) It is unclear when Neifert made the
adjustments to ensure Davenport was paid for all time worked. (See id.at 21.)
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schedule compliance goal, she should clock in through the soft phone only after
performing logon activities. (Id. at 25.)
In connection with her argument that Charter’s schedule compliance goal pressured
employees to work off the clock, Davenport states that “[i]t was ‘technically feasible’ for
Agents to load their programs, applications and data during ‘aux time,’ which is paid time.”
(Doc. No. 142 at 5.) After July 2010, agents automatically received three minutes of
“buffer” pay for the time spent logging on to the computer before clocking in, and at all
relevant times, agents could be put into an “aux” state after clocking in and before clocking
out, during which they were paid but were unavailable for calls. The parties agree that
agents who performed logon and logoff activities during “aux” time were on the clock and
were paid, but the parties dispute whether using “aux” time for these activities negatively
affected agents’ schedule compliance scores.
Davenport argues that “Charter repeatedly trained and coached the Agents” not to
use paid “aux” time to perform logon and logoff activities because doing so “prohibited the
Agents from achieving their ‘compliance’ requirement.” (Doc. No. 142 at 5.) Davenport
also offers two Charter memoranda, dated October 6, 2008 and January 6, 2010, which
both state as to Charter’s policies regarding “aux” time:
Agents should be at their desk no earlier than the time their shift begins. At
this time, the agent should log into the computer. Once logged into
Windows, log into the Avaya soft phone first (which will also log into hard
phone). As the agent logs into other required programs, the agent may go
into Auxiliary (AUX) status in the soft phone to avoid taking calls until those
programs are available. If the agent is at his or her desk and unable to log
into the Avaya soft phone, the agent should log into the hard phone (to
indicate they are at their position) and contact the supervisor so an exception
-6-

can be entered into eWFM. If no exception is entered, the agent’s
compliance will be impacted as the agent will be in AUX while logging into
the computer.
Grace Period
Agents are provided a 5-minute grace period for all Real Time Adherence
(RTA) alarms, including the start of each shift (no exceptions should be
entered if the agent is not more than five minutes late). Agents logging in
more than 5 minutes after their start time will be counted as late. If logging
in late is due to a computer not being available, a delay due to latency, or
other technical issues, agents will log into their hard phone immediately to
allow for appropriate time tracking. Agents who log in late for one of these
reasons, and who are concerned about being noted as late, should contact
their supervisor who will review the phone log in time, inform the agent of
the finding and, where appropriate, have an exception posted in eWFM by
the local WFM team.
***
Exceptions
Exceptions should be posted in eWFM RTA only when an agent is late by
more than five minutes (1) due to the request of management, or (2) because
the agent was on a call longer than the end of the agent’s shift, or (3) when
the agent’s break has been moved. When an agent exceeds the 5-minute
grace period, the agent should notify their supervisor, who will notify local
WFM. If the reason for exceeding the grace period was system related the
local WFM group will enter a code to the reflect [sic.] system was down.
(Note that exceeding a grace period will impact compliance, but may not
impact agent pay – pay determinations are made separately).
(Docs. No. 144-13 at 2-3 & 144-14 at 2-3.)
Davenport argues that the statement that “[i]f no exception is entered, the agent’s
compliance will be impacted as the agent will be in AUX while logging into the computer”
demonstrates that any time spent in the paid “aux” state, even the five-minute grace period,
negatively affected an agent’s schedule compliance score. Davenport also offers the
deposition testimony of Charter’s corporate representative that “[t]he only way AUX time

-7-

can negatively impact compliance if [sic.] there is not an exception that gets enter [sic.] to
account for the time. I will say, going back to what I said earlier, AUX zero or default
AUX will not negatively impact compliance.” (Doc. No. 142-2 at 28.) Davenport argues
that because exceptions were not available to account for logon and logoff activities,
absent technical difficulties, using any paid “aux” time to perform such activities
negatively impacted schedule compliance.
Davenport testified in her deposition that, consistent with the 2008 and 2010
Charter memoranda quoted above, Charter’s official policy was that, after clocking in,
agents would have a five-minute grace period of on-the-clock, paid “aux” time in order to
load their programs without being deemed late. (Doc. No. 157-1 at 12.) However,
Davenport testified that she was also told in “[e]very coaching every week” that “[i]f [she]
use[d] that five minutes in the morning when [she] log[ged] in, there’s no way [she could]
make [schedule] compliance for the rest of the day.” (Id.) The declarations of agents
Fenerson and Mason in Plaintiffs’ notice of newly-discovered evidence appear to go
further than Davenport to argue that, not only were agents trained to avoid using “aux”
time in order to meet schedule compliance goals, but Charter’s official policy of providing
a five-minute grace period of paid “aux” time during which employees would not be
deemed late was not even instituted until after the close of the class period in September
2011. (Doc. No. 250-2 & Doc. No. 250-3.)
Charter responds that the Fenerson and Mason declarations in Plaintiffs’ notice of
newly-discovered evidence contradict Davenport’s own testimony and the 2008 and 2010

-8-

Charter memoranda Davenport attached to her class certification motion, which all
referenced the five-minute grace period as existing prior to September 2011. And Charter
offers the declarations of other agents who testified that they were provided a five-minute
grace period to perform logon and logoff activities before September 2011.
Charter also disagrees with Davenport’s argument that using any paid “aux” time
negatively affected an agent’s schedule compliance. According to Charter, the only way a
schedule compliance score was affected was if the agent was in the “aux” state for longer
than five minutes without an “exception,” and Charter’s “aux” policy specifically allowed
agents to report technical difficulties as an “exception” to avoid any negative impact on
schedule compliance scores. However, Charter does not appear to contest that, absent
technical difficulties, spending more than five minutes of paid “aux” time to complete
logon and logoff activities would negatively affect agents’ schedule compliance (though
not their pay).
In any event, Charter disputes that any of the above mentioned policies required or
permitted agents to work off the clock. Rather, Charter maintains that it employed written
policies explicitly prohibiting off-the-clock work. One of these is Charter’s timekeeping
policy, which states that “[h]ourly employees may not under any circumstances, work ‘off
the clock’ (e.g., during meal periods or outside of the regular work schedule). If an hourly
employee performs work during a meal break or before or after the regular work schedule
and failed to obtain advance authorization from the supervisor, the employee must still
report all of the hours worked and will be compensated.” (Doc. No. 157-2 at 15.)

-9-

Another such policy is Charter’s Code of Conduct, which prohibits managers and
supervisors “from directing or encouraging nonexempt employees to misstate hours
worked on their timesheets,” and which directs employees that they “may not, under any
circumstances, work ‘off the clock,’” defined as “work that is performed but that is not
reported on your timesheet.” (Doc. No. 157-1 at 38.) Finally, Charter requires each of its
employees to certify on his or her time records that “I have accurately and completely
reported on this timesheet all hours that I worked during this pay period . . . .” (Doc. No.
157-1 at 45.)
Charter submits several declarations of putative class members in support of its
opposition to class certification (“new declarations”). Of these, only seven relate to the
Missouri Claims. These are the declarations of Steve Blumer (Doc. No. 156-4), Sharon
Hubbard (Doc. No. 156-15), Vincent McWilliams (Doc. No. 156-20), Jason Richardson
(Doc. No. 156-23), Julie Saletto (Doc. No. 156-25), Sean Schroeder (Doc. No. 156-26),
and Roger Terry (Doc. No. 156-27). All of these declarants insist that Charter has trained
them to record their hours worked accurately and has prohibited them from working off the
clock, in accordance with Charter’s timekeeping policy; that they have never interpreted
Charter’s punctuality policy to require off-the clock-work; and that they have never
considered it necessary to perform logon or logoff activities off the clock in order to meet
schedule compliance goals. Almost all of them also assert that they were offered a
five-minute grace period, which was sufficient to complete all logon and logoff activities,
and that if there was any delay or technical issue requiring them to spend more than five

-10-

minutes performing logon or logoff activities, they were able to report the issue and receive
an exception. Charter also refers to declarations of putative class members previously
submitted in support of its earlier-filed oppositions to conditional certification of Plaintiffs’
FLSA claim (“old declarations”). (Docs. No. 31 & 94.) The old declarants similarly
insist that they were never trained or instructed to perform logon or logoff activities off the
clock.
Two of the old declarants are Fenerson and Mason, who, as discussed above, have
now provided contrary evidence as part of Plaintiffs’ notice of newly-discovered evidence.
In response to Plaintiffs’ notice of newly-discovered evidence, Charter also provides
supplemental declarations from some of the old declarants reaffirming that they were never
trained or instructed to perform logon or logoff activities off the clock, that they were at all
relevant times afforded a five-minute grace period of “aux” time to perform logon and
logoff activities on the clock without being deemed late, and that they never believed that
performing logon or logoff activities during paid “aux” time prevented them from meeting
their schedule compliance goals. (See Doc. No. 289.)
Plaintiffs move separately to strike the old declarations4 and the seven new
declarations relating to the Missouri Claims. Plaintiffs ask the Court to strike the new
declarations because Charter failed to disclose these witnesses in its initial Rule 26(a)(1)

4

Although Plaintiffs’ motion to strike asks the Court to strike both the new and old
declarations, at oral argument, Plaintiffs’ counsel appeared to treat the motion as directed
toward only the new declarations, without mentioning the old declarations. Nevertheless,
the Court will address the motion’s broader request to strike both the new and old
declarations.
-11-

disclosures or in any supplement thereto, and only identified the witnesses after Plaintiffs
filed their motion for class certification. Plaintiffs argue that because Charter employed
all of the witnesses, it could and should have identified them earlier, and by failing to do so,
Charter denied Plaintiffs a fair opportunity to depose the witnesses or test their evidence
before briefing on the motion for class certification closed. Plaintiffs also ask the Court to
strike the old declarations on the ground Charter has refused to produce discovery
pertaining to these previously-disclosed witnesses, and the withheld information is needed
to effectively depose these witnesses.
Charter does not dispute that the new declarants were not disclosed in its Rule
26(a)(1) disclosures, or any supplement thereto, but asserts that almost all of the new
declarants were disclosed through other discovery and prior court filings. Charter also
challenges Plaintiffs’ assertion of prejudice by pointing out that Plaintiffs have never
attempted to depose the new declarants, including during the 30-day extension of time the
Court granted Plaintiffs to file their reply in support of class certification. With respect to
the old declarants, Charter argues that Plaintiffs never specifically requested discovery
with respect to these witnesses, instead only issuing broad requests for documents
regarding all potential class members; Plaintiffs never moved to compel the withheld
discovery; and Plaintiffs never sought to depose these witnesses either.
DISCUSSION
Plaintiffs’ Motion to Strike
Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a

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witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In determining whether a
Rule 26(a) violation is “substantially justified or harmless,” courts are directed to consider
“(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the
ability of the party to cure the prejudice; (3) the extent to which introducing such testimony
would disrupt the trial; and (4) the moving party’s bad faith or willfulness.” Rodrick v.
Wal-Mart Stores East, L.P., 666 F.3d 1093, 1096-97 (8th Cir. 2012) (internal citations and
quotations omitted).
Under the Federal Rules of Civil Procedure, the failure to make a timely disclosure
is equivalent to a failure to disclose. Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008
(8th Cir. 1998). In addition, an incomplete or evasive disclosure is treated as a failure to
disclose. See Fed. R. Civ. P. 37(a)(4). “When a party fails to provide information or
identify a witness in compliance with Rule 26(a) . . . the district court has wide discretion to
fashion a remedy or sanction as appropriate for the particular circumstances of the case.”
Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008).
The Court finds that Charter satisfied its disclosure obligations with respect to two
of the new declarants, Jason Richardson and Roger Terry, who were previously disclosed
by way of declarations in support of Charter’s opposition to Plaintiffs’ motion for
conditional certification, filed on March 21, 2012. (Doc. No. 31-2 at 6-9 & Doc. No. 31-9
at 26-30.) The Court concludes that these prior declarations sufficiently identified

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Richardson and Terry as individuals with discoverable information, the subjects of that
information, and Charter’s intent to rely on that information in accordance with Rules
26(a)(1)(A) and (e)(1)(A). See Fed. R. Civ. P. 26(e)(1)(A) (requiring a party to
supplement its Rule 26(a) disclosure “if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in
writing”) (emphasis added). Furthermore, Plaintiffs concede that previously disclosed
declarations satisfy disclosure obligations under Rule 26(a)(1)(A) and 26(e)(1)(A) because
Plaintiffs state in their reply brief that their own disclosure obligations were satisfied by
such prior declarations. See Doc. No. 171 at 8-9 (“In accordance with Rule 26(e)(1)(A),
each time that Plaintiffs identified a person whose knowledge they intend to use to support
their claims, Plaintiffs promptly provided Defendants a sworn declaration describing that
person[’]s relevant knowledge.”).
Charter argues that four more of the new declarants, Steve Blumer, Vincent
McWilliams, Sean Schroeder, and Julie Saletto, were also previously disclosed in an
organizational chart and/or other documents produced by Charter in discovery. The
organizational chart includes Blumer, McWilliams, and Schroeder’s names and job titles,
along with a few other employees, and the other documents are training attendance sheets
listing the names of the declarants among numerous other employees but with no
additional identifying information.

(Doc. No. 169-1 at 3-4, 9-24.) The Court is not

convinced these documents sufficiently identified the four declarants, or that they provided
Plaintiffs with sufficient notice of the discoverable information possessed by the declarants

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or Charter’s intent to rely on that information. And Charter does not contend that it ever
previously disclosed the remaining new declarant, Sharon Hubbard, through prior
discovery or otherwise.
Nevertheless, the Court concludes that Charter’s tardy disclosure of these new
declarants did not prejudice Plaintiffs. After receiving Charter’s opposition to class
certification, and the new declarations in support thereof, Plaintiffs sought and were
granted a 30-day extension of time in which to file their reply in support of class
certification, but Plaintiffs’ motion did not mention the new declarations or assert any need
for discovery relating to the new declarants. (Doc. No. 159.) Nor did Plaintiffs seek to
depose the new declarants during the extended period of time before which their reply was
due, or seek any further extension of time to complete such depositions. Had Plaintiffs
done so, they could have cured the prejudice they now claim to suffer.
Plaintiffs suggest that they did not request depositions prior to filing their reply brief
because it was unrealistic for Plaintiffs’ counsel to take 28 depositions prior to filing their
reply brief, and because Charter refused to produce the documents necessary for Plaintiffs
to conduct any meaningful depositions. Plaintiffs also rely on Charter’s refusal to
produce documents as the basis for their motion to strike the old declarations.
The Court is mindful that, at the time the motion for class certification was being
briefed, the number of new declarations at issue was much greater. But given that
Plaintiffs also never sought to depose the old declarants, many of whose identities
Plaintiffs have known since March 21, 2012, the Court doubts whether Plaintiffs would

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have deposed any of the new declarants even if they were identified earlier. Moreover, to
the extent Plaintiffs required additional documents to depose either the old or new
declarants, their proper recourse, after attempting in good faith to reach agreement with
defense counsel, was a motion to compel. Plaintiffs’ failure to file such a motion, or to
otherwise seek those documents specifically related to the new and old declarants,
undercuts their claim of prejudice. For these reasons, the Court does not find that
sanctions are warranted with respect to either the new or old declarations, and the Court
will deny Plaintiffs’ motion to strike.
Plaintiff Davenport’s Motion for Class Certification Under Rule 23
“The class action is an exception to the usual rule that litigation is conducted by and
on behalf of the individual named parties only. To come within the exception, a party
seeking to maintain a class action must affirmatively demonstrate his compliance with
Rule 23.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (citations omitted).
Rule 23(a) sets out four threshold requirements for class certification – (1) sufficiently
numerous parties, (2) common questions of law or fact, (3) typicality of claims or defenses,
and (4) adequacy of representation. See Fed. R. Civ. P. 23(a). A class action plaintiff
“must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).”
Comcast Corp., 133 S. Ct. at 1432. The provision at issue here is Rule 23(b)(3), which
requires a court to find that “the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action
is superior to other available methods for fairly and efficiently adjudicating the

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controversy.” Fed. R. Civ. P. 23(b)(3). In order to obtain class certification, Plaintiffs
have “the burden of showing that the class should be certified and that the requirements of
Rule 23 are met.” Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013)
(citation omitted).
The Court’s analysis will focus on the commonality requirement of Rule 23(a)(2)
and the predominance and superiority requirements of Rule 23(b)(3). Charter does not
dispute that the proposed class is sufficiently numerous. Charter does argue that
Davenport cannot demonstrate typicality, but for largely the same reasons that she cannot
demonstrate commonality. The only unique typicality argument Charter raises, which
Charter also raises to contest adequacy of representation, is that because some agents in the
Town & Country call center were already compensated by Charter for off-the-clock work,
these putative class members may be subject to defenses that do not apply to Davenport.
In light of the Court’s disposition today, it need not address this contention.
Additionally, some of the arguments Charter raises in opposition to class
certification are no longer pertinent as they are directed at Plaintiffs’ Kentucky and
Michigan class claims that have since been dismissed by the Court. (Doc. No. 218.) As
such, this Court will address only those objections directed to the remaining Missouri
Claims.
Class Definition
At oral argument, Charter agreed that its prior objection to the class definition in this
case is no longer at issue in light of the parties’ agreement regarding the definition of the

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proposed opt-in class under the FLSA. The FLSA class definition may be modified to
define the Missouri class as follows:
All persons who, from the beginning of the relevant statutes of limitations5
through September 1, 2011, worked as a nonsupervisory hourly employee
whose primary duty was to respond to incoming customer calls from a queue
on Charter’s toll-free lines, commonly referred to as “advisors,”
“representatives,” or “agents,” who were hired and had completed training
before September 1, 2011, and who worked at Charter’s call center located in
Town and Country, Missouri, but excluding persons who were hired by
Charter but worked only as trainees.
This definition would exclude hourly employees with job titles such as Escalation
Specialists and Tier 2 employees, who according to Charter’s evidence, took escalation
calls from Charter employees or technicians but did not respond to customer calls through
a queue (Doc. No. l56-20 at 4 & Doc. No. 156-23 at 4), and would also exclude Senior
Advisors and Customer Service Leads, who did not take incoming calls. (Doc. No. 156-4
at 4 & Doc. No. 156-12 at 1-2).6
Rule 23(a)(2) Commonality and Rule 23(b)(3) Predominance
Rule 23(a)(2) requires a plaintiff to show that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). As the Supreme Court has explained,
“any competently crafted class complaint literally raises common questions,” but “[w]hat

5

The relevant statutes of limitations are two years for Missouri Minimum Wage Law
claim, and five years for breach of contract, quantum meruit, and unjust enrichment claims.
See Mo. Rev. Stat. §§ 290.527, 516.120.
6

Charter offers evidence that these other hourly positions, which did not involve
responding to customer calls through a queue, may not have been subject to Charter’s
schedule compliance goals. (Doc. No. 156-1 at 24.) Under the more limited class
definition, this evidence is irrelevant.
-18-

matters to class certification is not the raising of common questions—even in droves—but,
rather the capacity of a classwide proceeding to generate common answers apt to drive the
resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
(emphasis in original) (citations omitted). In other words, Plaintiffs’ claim must “depend
upon a common contention . . . of such a nature that . . . determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the [individual plaintiff’s]
claims in one stroke.” Luiken, 705 F.3d at 377 (quoting Dukes, 131 S.Ct. at 2551). Even
a single common question that meets this standard satisfies Rule 23(a)(2), and where
Plaintiffs identify at least one common question, differences between class members’
claims are less relevant. Dukes, 131 S. Ct. at 2556 (“We consider dissimilarities not in
order to determine (as Rule 23(b)(3) requires) whether common questions predominate,
but in order to determine (as Rule 23(a)(2) requires) whether there is even a single common
question.”) (emphasis in original).
The Rule 23(b)(3) predominance inquiry is “far more demanding than the
requirement of commonality.” Luiken, 705 F.3d at 377 (citation omitted). Rule 23(b)(3)
“permits certification only if the court finds that the questions of law or fact common to
class members predominate over any questions affecting only individual members.”
Comcast, 133 S. Ct. at 1430. “The predominance inquiry requires an analysis of whether
a prima facie showing of liability can be proved by common evidence or whether this
showing varies from member to member.” Halvorson v. Auto-Owners Ins. Co., 718 F.3d

-19-

773, 778 (8th Cir. 2013) (citing Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th
Cir. 2010)).
The Court finds that while Davenport has arguably demonstrated commonality, she
fails to demonstrate predominance. As discussed above, Davenport argues that Charter
employs several policies and practices that systematically result in agents performing
logon and logoff activities off the clock in order to maximize their time on the telephone.
Davenport proffers evidence that at least some of the policies about which she complains,
namely Charter’s official policies regarding punctuality and schedule compliance, were
commonly applied to all class members, and that spending paid “aux” time on logon and
logoff activities, absent technical difficulties, would commonly lower all class members’
schedule compliance scores to some degree. See, e.g., Ginsburg v. Comcast Cable
Commc’ns Mgmt. LLC, No. C11-1959RAJ, 2013 WL 1661483, at *4 (W.D. Wash. Apr.
17, 2013) (holding that commonality, unlike predominance, was satisfied where “[t]he
classwide practice at issue is Comcast’s alleged pressure to maximize time spent on the
telephone and minimize other types of work[, and] Plaintiffs have provided some evidence
of that pressure, and some evidence that upper management applied that pressure in such a
way that it reached [call center agents]”); Pryor v. Aerotek Scientific, LLC, 278 F.R.D. 516,
525 (C.D. Cal. 2011) (“Applying Dukes, several courts have found that the fact an
employee challenges a policy common to the class as a whole creates a common question
whose answer is apt to drive the resolution of the litigation.”) (citing Dukes, 131 S.Ct. at
2551 and subsequent cases).

-20-

However, the central question of liability in this case is not whether Charter’s
policies were commonly applied but whether the policies commonly resulted in agents
performing logon and logoff activities off the clock. See Mo. Rev. Stat. ' 290.527
(creating right of action only where employer “pays any employee less wages than the
wages to which the employee is entitled”). Unlike many of the cases cited by Davenport,
including those involving donning and doffing at meat processing plants, in this case,
Davenport does not allege that Charter’s compensation system inherently fails to account
for logon or logoff activities. Nor could she. Charter’s compensation policies expressly
require that agents account for, and are paid for, all work performed, including logon and
logoff activities, and expressly prohibit supervisors from directing or encouraging agents
to misstate hours worked on their timesheets. Cf. Bouaphakeo v. Tyson Foods, Inc., 564
F. Supp. 2d 870, 909 (N.D. Iowa 2008) (certifying class where plaintiffs purported to
demonstrate by “common evidence that Tyson’s compensation system cannot account for
even the basic or standard [protective equipment] employees need to don, doff, and clean,”
and such evidence “would establish a prima facie case for the class”), aff’d, No. 12-3753,
__ F.3d __, 2014 WL 4197378 (8th Cir. Aug. 25, 2014); Perrin v. Papa John’s Int’l, Inc.,
No. 4:09CV01335 AGF, 2013 WL 6885334, at *7 (E.D. Mo. Dec. 31, 2013) (certifying
class based on plaintiffs’ common evidence that “Defendants’ vehicle reimbursement
policy [did] not reasonably approximate Plaintiffs’ vehicle expenses,” which would prove
class-wide liability under state wage laws).

-21-

Rather, Davenport’s theory of liability is that certain de facto policies, namely,
Charter’s practices emphasizing punctuality and schedule compliance, indirectly resulted
in off-the-clock work. In support of that theory, Davenport puts forth evidence that, at
best, suggests that she and some of her fellow agents responded to the pressures of
Charter’s punctuality and schedule compliance policies by working off the clock, and that
they were instructed and trained to do so by some, but not all, of the supervisors at
Charter’s Town & Country call center.7
Even without reaching any contrary evidence, Davenport’s is the very kind of
individualized evidence that precludes certification under Rule 23(b)(3). Proof that some
agents were individually pressured to and did work off the clock in response to Charter’s
punctuality and schedule compliance policies does not prove liability on behalf of the class
as a whole. When the Court also considers Charter’s evidence, suggesting that some
agents never performed logon and logoff activities off the clock, were never trained or
instructed to do so, did not believe that off-the-clock work was necessary to meet
punctuality or schedule compliance goals, and were able to complete logon and logoff
activities within a five-minute grace period to avoid being deemed late, or receive
exceptions for delays exceeding five minutes, it only confirms that the questions critical to

7

The Court notes that Davenport’s evidence also suggests that some of her supervisors
did not instruct her to work off the clock, that at least one supervisor made adjustments to
her timecard to ensure that she was paid for all time worked, that it was possible to clock in
through the hard phone to avoid working off the clock, and that though some supervisors
discouraged her from clocking in through the hard phone, at least one of her supervisors
instructed her to do so. Therefore, even with respect to Davenport alone, Charter’s
alleged de facto policies were not uniform but varied at least to some degree.
-22-

resolution of the putative class members’ claims are not susceptible to classwide proof. In
short, Davenport has not shown that she will be able to demonstrate, on a classwide basis,
that Charter’s policies commonly resulted in off-the-clock work. See, e.g., Pryor, 278
F.R.D. at 532 (“[W]hile the policies about which Pryor complains are common, how those
policies affect members of the class depends on the individual circumstances of each
Aerotek employee. Once the factfinder determines what Aerotek’s policies are, that does
not answer the ultimate question in the case—whether Aerotek’s time reporting policies
resulted in the undercompensation of and failure to pay overtime to putative class
members. This is not merely a question of damages, it is a question of liability.”);
Ginsburg, 2013 WL 1661483, at *6 (“Even if the court considered only Plaintiffs’
anecdotal evidence, it would likely conclude that the common questions Plaintiffs raise do
not predominate over questions about what policies Comcast’s many supervisors imposed
on [call center agents], and the many ways in which [agents] responded to those policies,”
and Comcast’s “own anecdotal evidence, consisting of 50 declarations from its current
[agents] . . . insist[ing] that Comcast has trained them to record their work time accurately
and has forbidden them to work off the clock[,] [and] . . . assert[ing] that the ‘preshift’
period is adequate to complete all preliminary work” further demonstrates “that many of
the questions critical to the resolution of class members’ claims are not susceptible of
classwide proof.”); Coleman v. Jenny Craig, Inc., No. 11cv1301–MMA (DHB), 2013 WL
6500457, at *6, *8, *13 (S.D. Cal. Nov. 27, 2013) (holding that plaintiffs’ claim that they
had to work off the clock to fulfill defendant’s policies to “never turn a client away” and to

-23-

“make sure there are always two staff members in the Centre at all times,” notwithstanding
written policy forbidding off-the-clock work, could not satisfy commonality or
predominance because it required “individualized assessment” that was “not susceptible to
common proof”).
Davenport correctly asserts that the Court need not resolve at the certification stage
whose declarants are more credible or more representative of the class; that is a question
for the jury.8 But the Court does need to resolve at this stage whether the nature of the
evidence required to prove the Missouri Claims “will vary from class member to class
member.” Doyel v. McDonald’s Corp., No. 4:08-CV-1198 CAS, 2010 WL 3199685, at
*4 (E.D. Mo. Aug. 12, 2010). That is the “key factor” courts look to “in assessing whether
common issues predominate over individual issues.” Id. And where, as here, plaintiffs
“will need to present evidence that varies from class member to class member” in order
“[t]o establish their claims,” they “cannot satisfy Rule 23(b)(3).” Id. at *5 (“[P]laintiffs’
off-the-clock allegations would require the Court to look at each shift of each class member
and determine whether that employee worked off the clock, for how long, and did he report
the time worked. Plaintiffs offer the Court no answer to resolve the off-the-clock claim on
a classwide basis[.]”).

8

For this reason, the Court also need not address Plaintiffs’ argument that Charter’s
declarants who provided supplemental testimony in response to Plaintiffs’ notice of
newly-discovered evidence are not credible because their declarations contained certain
inaccuracies regarding when the lawsuit was filed and whether any decisions or rulings
have been made with respect to it. (See Doc. No. 290 at 3-4 & Doc. No. 293.)
-24-

Davenport also rests heavily on her assertion that this Court and others have
certified state law claims for unpaid overtime wages resulting from de facto policies and
practices requiring off-the-clock work, notwithstanding the presence of written policies
forbidding off-the-clock work. But the Court does not rest its decision on the presence of
Charter’s written policies forbidding off-the-clock work. The Court agrees that if
Davenport demonstrated that she would be able to put forth evidence that any of the
punctuality or schedule compliance policies or practices at issue commonly resulted in
off-the-clock work, she may be able to show commonality and predominance, regardless
of Charter’s facially compliant timekeeping policy, code of conduct, and timesheet
certification requirement. But as discussed above, Davenport has not made this showing.
Therefore, the cases she cites are distinguishable. See, e.g., Rikard v. U.S. Auto
Protection, LLC, 287 F.R.D. 486, 490-93 (E.D. Mo. Nov. 30, 2012) (recognizing its
decision was a “close one” but holding that because plaintiffs demonstrated that “they will
be able to adduce generalized proof [that] Defendants’ company-wide practices and
procedures” of “managers allegedly encouraging and/or requiring Plaintiffs to work
beyond their shifts in order to meet established sales goals” resulted in class-wide
overtime, the fact that plaintiffs “allege to have worked differing amounts of overtime”
under “different payment plans” and “different managers” did not defeat certification)
(emphasis added); Nicholson v. UTi Worldwide, Inc., No. 3:09-cv-722-JPG-DGW, 2011
WL 1775726, at *8 (S.D. Ill. May 10, 2011) (pre-Dukes case holding that where the “Court
is confident the parties can devise some way of presenting . . . evidence in an efficient,

-25-

admissible form” to commonly demonstrate that defendant had “uniform policies of
requiring or allowing work without pay,” class certification was appropriate,
notwithstanding individual issues regarding amounts of damages).9
Rule 23(b)(3) Superiority
The second inquiry under Rule 23(b)(3) requires courts to determine whether a class
action is “superior to other available methods for fairly and efficiently adjudicating the
controversy,” considering:
(A) the class members’ interests in individually controlling the prosecution
or defense of separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against class members; (C)
the desirability or undesirability of concentrating the litigation of the claims
in the particular forum; and (D) the likely difficulties in managing a class
action.
Fed. R. Civ. P. 23(b)(3)(A)-(D). The Court notes that, in relation to the first factor, “there
is evidentiary value to the fact that [several] employees have affirmatively opted in to the
FLSA claim rather than filing their own suits.” Rikard, 287 F.R.D. at 493. Nevertheless,
for the reasons discussed above, and particularly with regard to the last factor, a class
action would not be the superior method for resolving the claims of all Charter agents at the
Town & Country call center for unpaid overtime wages. Without common proof of

9

Davenport also cites cases involving unopposed motions for class certification for
settlement purposes where there was less discussion of evidence rebutting plaintiffs’
assertion of a policy uniformly resulting in unpaid overtime. See, e.g., Simmons v. Enter.
Holdings, Inc., No. 4:10CV00625 AGF, 2012 WL 718640, at *1-2 (E.D. Mo. Mar. 6,
2012); Kritzer v. Safelite Solutions, LLC, No. 2:10-cv-0729, 2012 WL 1945144, at *3-4
(S.D. Ohio May 30, 2012). Because in this case Charter puts forth evidence that the
policies did not commonly result in unpaid overtime for putative class members,
Davenport’s reliance on these cases is misplaced.
-26-

policies resulting in work without pay, the litigation would devolve into a series of
mini-trials involving each class member’s interpretation of, training regarding, and
response to the punctuality and schedule compliance policies, which contravenes the
efficiency goals of class certification. See Doyel, 2010 WL 3199685, at *9 (finding no
superiority where case “would devolve into a series of mini-trials for each class member
and each instance of alleged time shaving or off-the-clock work.”).
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ motion to strike is DENIED. (Doc.
No. 165.)
IT IS FURTHER ORDERED that Plaintiffs’ motion to certify Counts II through
V (Missouri Claims) of the first amended complaint as a class action is DENIED. (Doc.
No. 140.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 30th day of September, 2014.

-27-