Porteous v. Capital One Services, LLC

Filing 54

ORDER. IT IS ORDERED, ADJUDGED, and DECREED that 43 the court's prior order be, and the same hereby is, VACATED. IT IS FURTHER ORDERED that 12 defendant's motion to dismiss be, and the same hereby is, DENIED, consistent with the Ninth Circuit's 50 memorandum. IT IS FURTHER ORDERED that 17 plaintiff's motion for circulation of notice be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that 38 defendant's motion to strike the declarations of Ayesha Elliott , Chidi Emetanjo, Cole Squires, and Natasha Porteous be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that the parties shall file a new discovery plan and scheduling order within 21 days of this order. Signed by Judge James C. Mahan on 6/12/2020. (Copies have been distributed pursuant to the NEF - JQC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NATASHA PORTEOUS,

Case No. 2:17-CV-2866 JCM (GWF)

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Plaintiff(s),

ORDER

v.
CAPITAL ONE SERVICES II, LLC,

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Defendant(s).

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Presently before the court is the matter of Porteous v. Capital One Services, LLC, case

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number 2:17-cv-02866-JCM-GWF. On July 7, 2018, the court granted Capital One Services II,

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LLC’s (“defendant”) motion and dismissed Natasha Porteous’s (“plaintiff”) putative class action

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in its entirety. (ECF No. 43). Plaintiff appealed (ECF No. 45), and the Ninth Circuit reversed on

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all counts (ECF No. 50).

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Notably, however, the Ninth Circuit reversed this court’s decision only as it pertains to

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defendant’s motion to dismiss. Id. The Ninth Circuit held that this court erred by considering the

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documents pertaining to plaintiff’s motion for circulation of notice, thus “engag[ing] in

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impermissible factfinding at the pleadings stage, fail[ing] to draw all reasonable inferences in favor

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of [p]laintiff, and impermissibly assum[ing] the truth of extrinsic documents for the purpose of

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contesting the allegations in the complaint.” Id. at 3. The Ninth Circuit did not consider plaintiff’s

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motion for circulation of notice. See generally id.

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Class certification under the Fair Labor Standards Act (“FLSA”) is often conducted in two

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steps. See, e.g., Sarviss v. Gen. Dynamics Info. Tech., Inc., 663 F. Supp. 2d 883 (C.D. Cal. 2009);

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Lewis v. Nevada Prop. 1, LLC, No. 2:12-CV-01564-MMD, 2013 WL 237098 (D. Nev. Jan. 22,

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2013). At the first step, the court engages in a less-stringent, preliminary determination of whether

James C. Mahan
U.S. District Judge

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to certify the class and circulate notice to potential opt-in plaintiffs. Sarviss, 663 F. Supp. 2d at

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903. Class certification is appropriate only when “putative class members were together the

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victims of a single decision, policy, or plan.” Id. (quoting Thiessen v. Gen. Elec. Capital

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Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). Opt-in plaintiffs must also be “similarly situated”

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to the named plaintiff and to one another. Lewis, 2013 WL 237098, at *7 (citations omitted). The

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first step analysis requires only “substantial allegations that the putative class members were

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subject to a single decision, policy, or plan that violated the law.” Id.

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The second step is more rigorous, at which time “courts use a stricter standard of ‘similarly

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situated’ by reviewing several factors, including (1) disparate factual and employment settings of

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the individual plaintiffs; (2) the various defenses available to the defendant which appear to be

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individual to each plaintiff; and (3) fairness and procedural considerations.” Sarviss, 663 F. Supp.

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2d at 903.

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Thus, the court properly considers the evidence available to it when determining whether

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certification requirements are met. Lewis, 2013 WL 237098, at *7 (“At the first stage, the court

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relies ‘primarily on the pleadings and any affidavits submitted by the parties,’ to decide ‘whether

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the potential class should be given notice of the action.’” (quoting Davis v. Westgate Planet

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Hollywood Las Vegas, No. 2:08–cv–00722–RCJ–PAL, 2009 WL 102735, at *9 (D. Nev. 2009)).

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Indeed, “[w]here significant discovery has been completed at the time of class certification, ‘some

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courts have skipped the first-step analysis and proceeded directly to the second step.’” Sarviss,

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663 F. Supp. 2d at 903.

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Accordingly, the court considers the declarations that both parties provide when

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adjudicating plaintiff’s motion for circulation.1 The court has already discussed the shortcomings

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in plaintiff’s allegations, and that analysis applies with equal if not greater force to plaintiff’s

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motion for circulation. For instance, the court previously found that “plaintiff’s theory as to how

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defendant calculated and tracked hourly call center employees’ time worked has shifted over

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time.” (ECF No. 43 at 9). And, regardless of which theory plaintiff advanced, it is belied by

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defendant’s evidence:

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James C. Mahan
U.S. District Judge

The court denies defendant’s motion to strike. (ECF No. 38).
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[D]efendant offers unequivocal evidence that hourly
employees, including plaintiff and the putative class members,
manually enter their time into defendant’s web-based timekeeping
system Workday. (ECF Nos. 28–38). In other words, defendant
does not calculate employee wages based upon the time employees
are logged into the phone system. Id. Although the company tracks
the phone log to track employees’ daily activities and time taking
calls, the phone system does not function as a time clock, and it is
not used for reporting time to payroll, nor is it used to determine
how much an employee is paid. Id.

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Rather, employees are responsible for manually entering all
of their time worked into defendant’s timekeeping system, including
any overtime. Id. Further, employees and managers receive
handbooks and attend annual training outlining the company’s
timekeeping policies and expectations. Id.

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Id. Further, defendant presented the “Overview of Guidelines,” which instructs employees as

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follows:
All time worked will be paid. Associates cannot be allowed to work
during unpaid breaks . . . In order to be paid, associates must enter
all time worked in Workday Time Tracking [sic], the official time
tracking system of record . . . Start and stop times should reflect
when associates actually begin and end work, not the hours they are
scheduled to work . . . associates should enter their time daily . . .
Managers should only adjust associate’s Workday Time Tracking
entries if the timecard does not reflect the hours the associate
actually worked . . . Managers cannot withhold overtime from
associates, even if they worked overtime without permission.

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Id. at 9–10 (quoting ECF No. 29-1 at 3–4). The court also analyzed defendant’s policy of paid

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“prep time” for employees to perform certain pre-shift work duties, such as logging into and out

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of their computers and reviewing daily memos, company emails, and program and script updates.

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Id. at 10–11.

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Several of plaintiff’s allegations are belied by records of her arrival at work. Id. at 11. For

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instance, a vast majority of plaintiff’s self-reported start times fell within the paid prep period. Id.

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Further, “plaintiff self-reported that she began working before she even entered the building for

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35% of the shifts that she worked.” Id. Finally, “plaintiff never denies that plaintiff and members

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of the putative class were responsible for manually recording their time worked into defendant’s

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timekeeping system.” Id. (citing ECF Nos. 6; 15; 17; 19; 39; 40).

James C. Mahan
U.S. District Judge

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Thus, the court finds that plaintiff has not shown a single employer policy or that she is

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similarly situation to potential opt-in plaintiffs. Plaintiff’s motion for circulation is denied. (ECF

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No. 17). Consistent with the Ninth Circuit’s memorandum (ECF No. 50), plaintiff may proceed

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on her individual claims against defendant.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the court’s prior order

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(ECF No. 43) be, and the same hereby is, VACATED.
IT IS FURTHER ORDERED that defendant’s motion to dismiss (ECF No. 12) be, and the
same hereby is, DENIED, consistent with the Ninth Circuit’s memorandum (ECF No. 50).
IT IS FURTHER ORDERED that plaintiff’s motion for circulation of notice (ECF No. 17)
be, and the same hereby is, DENIED.

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IT IS FURTHER ORDERED that defendant’s motion to strike the declarations of Ayesha

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Elliott, Chidi Emetanjo, Cole Squires, and Natasha Porteous (ECF No. 38) be, and the same hereby

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is, DENIED.

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IT IS FURTHER ORDERED that the parties shall file a new discovery plan and scheduling
order within 21 days of this order.
DATED June 12, 2020.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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