Padan v. West Business Solutions, LLC

Filing 58

ORDER Granting Plaintiff's 7 Motion for Collective Action Certification. This action is conditionally certified as a representative collective action. Defendant shall identify all potential opt-in plaintiffs within 21 days from the filing date of this Order. Putative class members shall have 60 days from circulation of the notice of pendency to opt-in to this action. Signed by Chief Judge Gloria M. Navarro on 1/25/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TIFFANIE PADAN, individually and on
behalf of others similarly situated,

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Plaintiff,
vs.

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WEST BUSINESS SOLUTIONS, LLC,

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Defendant.

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Case No.: 2:15-cv-00394-GMN-CWH
ORDER

Pending before the Court is the Motion for Collective Action Certification and Court-

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Supervised Notice of Pending Collective Action (ECF No. 7) filed by Plaintiff Tiffanie Padan

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(“Plaintiff”). Defendant West Business Solutions, LLC n/k/a Alorica Business Solutions, Inc.

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(“Defendant”) filed a Response (ECF No. 26), and Plaintiff filed a Reply (ECF No. 27).

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Plaintiff filed two additional declarations in support of the instant Motion. (Allen Decl.,

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ECF No. 42-1; Grace Decl., ECF No. 42-2). Defendant filed a Response to Plaintiff’s newly

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filed declarations (ECF No. 45), and Plaintiff filed a Reply (ECF No. 48).

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I.

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BACKGROUND
Plaintiff brought this action against her former employer, Defendant West Business

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Solutions, LLC. (See Compl., ECF No. 1). Plaintiff was employed as a customer service

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representative at Defendant’s Reno, Nevada, call center from November 2013 to August 2014.

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(Id. ¶ 29). Plaintiff accuses Defendant, inter alia, of failing to pay regular or overtime wages in

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violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). (Id. ¶¶ 68–80).

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Plaintiff states that her job involved interacting with customers of Defendant’s clients

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through inbound and outbound telephone calls. (Padan Decl. ¶ 4, ECF No. 7-2). Moreover,

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Plaintiff claims that before she was able to clock-in, Defendant required her to start-up and log-

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in to its computer system, servers, and software programs. (Id. ¶ 6). Plaintiff explains that this

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process of logging-in took between five and fifteen minutes. (Id.). Additionally, Plaintiff states

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that Defendant required her to complete a three to ten minute log-out process after clocking-

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out. (Id. ¶ 7). Plaintiff claims that as a result, she and other hourly call center employees

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performed work before and after clocking-in for which they were not compensated or paid

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overtime wages. (Id. ¶¶ 5, 11).

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Plaintiff’s instant Motion requests that the Court issue an order conditionally certifying

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the collective action pursuant to 29 U.S.C. § 216(b). (Mot. Collective Action Cert. 1:18–2:4,

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ECF No. 7). Moreover, pursuant to Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989),

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Plaintiff requests that notice be given to all workers who failed to receive wages from

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Defendant in violation of the FLSA. (Id.). Plaintiff describes the proposed class as “[a]ll

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similarly situated current and former hourly customer service representatives who worked for

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Defendant at any time during the last three years.” (Compl. ¶ 44). Plaintiff asserts that “[t]he

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Class . . . will include several thousand members.” (Id. ¶ 49).

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II.

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LEGAL STANDARD
Section 216(b) of the FLSA provides that one or more employees may bring a collective

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action “on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C.

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§ 216(b). While a plaintiff may bring an action on behalf of himself and others similarly

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situated, “no employee shall be a party to any such action unless he gives his consent in writing

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to become such a party and such consent is filed with the court in which such action is

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brought.” Id. “Although § 216(b) does not require district courts to approve or authorize notice

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to potential plaintiffs, the Supreme Court held in Hoffman-La Roche that it is ‘within the

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discretion of a district court’ to authorize such notice.” McElmurry v. U.S. Bank Nat’l Ass’n,

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495 F.3d 1136, 1139 (9th Cir. 2007). “[P]laintiffs need show only that their positions are

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similar, not identical, to the positions held by the putative class members.” Grayson v. K Mart

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Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (alteration in original) (internal quotation marks

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omitted). “[P]laintiffs bear the burden of demonstrating a ‘reasonable basis’ for their claim of

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class-wide discrimination.” Id. at 1097. “The plaintiffs may meet this burden, which is not

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heavy, by making substantial allegations of class-wide discrimination, that is, detailed

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allegations supported by affidavits which successfully engage defendants’ affidavits to the

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contrary.” Id. (internal quotation marks omitted).

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The FLSA does not define “similarly situated.” A majority of courts have adopted a

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two-step approach for determining whether a class is “similarly situated.” See Fetrow-Fix v.

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Harrah’s Entm’t Inc., No. 2:10-cv-00560-RLH-PAL, 2011 WL 6938594, at *6 (D. Nev. Dec.

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30, 2011); Misra v. Decision One Mortg. Co., LLC, 673 F. Supp. 2d 987, 992–93 (C.D. Cal.

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2008); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004); Pfohl v.

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Farmers Ins. Grp., No. 2:03-cv-03080-DT-RC, 2004 WL 554834, at *2 (C.D. Cal. Mar. 1,

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2004). This approach involves notification to potential class members of the representative

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action in the first stage followed by a final “similarly situated” determination after discovery is

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completed.

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“Since this first determination is generally made before the close of discovery and based

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on a limited amount of evidence, the court applies a fairly lenient standard and typically grants

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conditional class certification.” Misra, 673 F. Supp. 2d at 993 (citing Leuthold, 224 F.R.D at

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467; Pfohl, 2004 WL 554834, at *2). At the initial notice stage, “a plaintiff need only make a

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‘modest factual showing sufficient to demonstrate that [the putative class members] were

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victims of a common policy or plan that violated the law.’” Id. (quoting Roebuck v. Hudson

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Valley Farms, Inc., 239 F. Supp. 2d 234, 238 (N.D. N.Y. 2002)). If the court “conditionally

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certifies” the class, putative class members are given notice and the opportunity to “opt-in” by a

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certain deadline. Id.

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The second stage determination is held after discovery is complete and the matter is

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ready for trial. Id. At this stage the court can make a factual determination on the similarly

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situated question by weighing such factors as “(1) the disparate factual and employment

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settings of the individual plaintiffs, (2) the various defenses available to the defendant which

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appear to be individual to each plaintiff, and (3) fairness and procedural consideration.” Id.

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(citing Pfohl, 2004 WL 554834, at *2). If the claimants are similarly situated, the collective

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action proceeds to trial. Id. If claimants are not similarly situated, the court decertifies the class

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and the opt-in plaintiffs are dismissed without prejudice. Id.

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III.

DISCUSSION

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A.

Plaintiff is Similarly Situated for Conditional Certification of a Collective Action

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Plaintiff seeks certification of a collective action for her claims under the FLSA alleging

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that Defendant “failed to pay its hourly customer service representatives for all time worked

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and . . . overtime wages at the rate of time-and-a-half for time worked in excess of forty (40)

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hours per week.” (Mot. Collective Action Cert. 6:17–19, ECF No. 7). Plaintiff submits two

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supporting declarations of former employees of Defendant’s Youngstown, Ohio, and San

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Antonio, Texas, call centers. (Allen Decl. ¶ 3, ECF No. 42-1; Grace Decl. ¶ 3, ECF No. 42-2).

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The declarants assert that they “had a similar experience as [Plaintiff] with respect to Defendant

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failing to pay [them] for off-the-clock work.” (Allen Decl. ¶ 6; Grace Decl. ¶ 6). Declarants

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also claim they were not paid wages for overtime performed. (Allen Decl. ¶ 8; Grace Decl. ¶ 8).

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The Complaint and declarations allege that Plaintiff and other hourly call center employees

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were subjected to the same practices concerning Defendant’s log-in and log-out procedures

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even though they worked on different client accounts.

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Defendant argues that the collective action cannot be certified because the proposed

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class members are not similarly situated. (Resp. 16:10–11, ECF No. 26). Defendant asserts that

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its customer service representatives work in different states on different line groups for

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different clients using different computer programs. (Id. 14:23–28). Moreover, Defendant

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asserts that, because customer service representatives use different computer programs, the

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amount of time it takes to log-on and log-off differs based on the employee’s line group. (Id.).

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Defendant also argues that Plaintiff has failed to show a nationwide policy exists because

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Plaintiff’s experience and observations were confined to Defendant’s Reno, Nevada, call

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center. (Id. 16:23–25). Defendant contends that its company policies and procedures at each of

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its call centers strictly prohibit off-the-clock work, and Plaintiff’s declaration fails to allege

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sufficient facts demonstrating that any of its call centers outside of Nevada deviated from those

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policies. (Id. 11:5–12; 15:5–7). Finally, Defendant argues that Plaintiff’s supporting

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declarations “make different allegations than what [Plaintiff] has asserted in her declaration.”

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(Resp. to Pl.’s Newly Filed Decl. 6:8–9, ECF No. 45).

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In cases where courts declined to conditionally certify a putative class, extensive

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discovery justified a detailed factual inquiry otherwise reserved for the second “decertification”

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stage. See, e.g., Luksza v. TJX Companies, Inc., No. 2:11-cv-01359-JCM-GWF, 2012 WL

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3277049, at *8 (D. Nev. Aug. 8, 2012) (“[W]here the parties have had an opportunity to

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conduct pre-certification discovery, courts tend to hold plaintiffs to a higher standard of

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proof.”). Because the instant litigation is at the first “notice” stage and there has been no

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significant discovery, the Court will apply the lenient standard to Plaintiff’s motion, requiring

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only that Plaintiff “make substantial allegations that the putative class members were subject to

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a single decision, policy, or plan that violated the law.” Lewis v. Nevada Property 1, LLC, No.

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2:12-cv-01564-MMD-GWF, 2013 WL 237098, at *7 (D. Nev. Jan. 22, 2013).

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The Court finds Plaintiff and her two supporting declarants have made a sufficient

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threshold showing that they are similarly situated to the putative class members for purposes of

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conditional certification of a nationwide class and first stage notice. Declarants employed at

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Defendant’s Ohio and Texas call centers claim that they were similarly situated insomuch as

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they were subject to the same off-the-clock employment practices as Plaintiff in Nevada. (Allen

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Decl. ¶ 6; Grace Decl. ¶ 6). They claim that this policy or practice actually existed

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notwithstanding Defendant’s written policies and procedures and the contrary declarations of

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Defendant’s call center supervisors, trainers, and other customer service representatives. (Id.;

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Reply in Supp. of Pl.’s Newly Filed Decl. 2:15–21, ECF No. 48). Defendant’s arguments to

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the contrary are more appropriate for the second stage determination. See Harris v. Vector

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Mktg. Corp., 716 F. Supp. 2d 835, 841 (N.D. Cal. 2010) (“[S]everal courts have indicated that

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individualized inquiries . . . are better to address at the second stage of certification rather than

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the first.”). Further, thirty-seven opt-in plaintiffs located in ten different states have joined this

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case to date by filing consents to join the litigation. (See ECF Nos. 32–34, 36, 39, 40–41, 43–

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44, 46–47, 49–52, 54–55). Although it is not clear at this stage whether the opt-in plaintiffs

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worked at Defendant’s call centers in each of those ten states, together with the declarations

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these notices suggest that Defendant’s hourly customer service employees in other states and

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locations were subject to the same policy or practice. The Court finds that this makes

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nationwide circulation of notice proper.

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B.

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Proposed Notice
The parties have collectively negotiated a proposed notice. (Notice of Right to Join

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Lawsuit, ECF No. 27-1). In addition, the parties have stipulated that notice shall be sent to all

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putative class members via U.S. Mail and e-mail with a sixty-day opt-in period. (Reply 2:18–

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20, ECF No. 27). The Court approves of the proposed notice and agrees that an opt-in period

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of sixty days is reasonable.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion for Collective Action Certification

(ECF No. 7) is GRANTED.
IT IS FURTHER ORDERED that this action is conditionally certified as a
representative collective action.

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IT IS FURTHER ORDERED that Defendant identify all potential opt-in plaintiffs and

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their last known addresses, telephone numbers, e-mails, and the dates and location(s) of

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employment within twenty-one days from the filing date of this Order.

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IT IS FURTHER ORDERED that Plaintiff is authorized to disseminate the agreed

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notice (Notice of Right to Join Lawsuit, ECF No. 27-1) to the prospective collective action

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class by U.S. Mail and e-mail.

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IT IS FURTHER ORDERED that putative class members shall have sixty days from
circulation of the notice of pendency to opt-in to this action.
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DATED this _____ day of January, 2016.

___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

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