Yerger v. Liberty Mutual Group, Inc.

Filing 80

ORDER: The court DENIES Yerger's motion to amend the complaint and to join additional parties 36 , GRANTS Liberty Mutual's motion to amend its answer 40 , GRANTS Yerger's motion to enlarge the time to file an additional declaration 61 , GRANTS Yerger's motion to file an additional declaration 58 , and DENIES Yerger's renewed motion to conditionally certify this action as a FLSA collective action under 29 U.S.C. § 216(b) 43 . Signed by Chief Judge James C. Dever III on 9/24/2012. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5: ll-CV-238-D

JENNIFER YERGER, et al.,
Plaintiffs,

v.

)
)
)

)

LffiERTY MUTUAL GROUP, INC.,
Defendant.

ORDER

)
)
)
)

On May 13, 2011, Jennifer Yerger ("Yerger" or "plaintiff') filed suit on behalf of herself

and all other similarly situated and consenting persons against Liberty Mutual Group, Inc. ("Liberty
Mutual" or "defendant"). Compl. [D.E. 2]. Yerger alleges that Liberty Mutual failed to pay
overtime wages in accordance with the Fair Labor Standards Act ("FLSA") and seeks reimbursement
for unpaid overtime. See id.

~

1. On June 3, 2011 , Yerger filed a motion asking the court to

conditionally certify this action as a FLSA collective action under 29 U .S.C. § 216(b) "for all [f]ield
[a]uditors employed by Liberty Mutual ... at any time in the three years prior to the date notice is
mailed until the date final judgment is entered ... who were not paid" overtime wages under 29
U.S.C. § 207(a)(1) [D.E. 6]. On November 15, 2011, the court denied Yerger's motion for
conditional certification [D.E. 35]. On December 7, 2011, Yerger moved to amend her complaint
and to join additional plaintiffs, PI. 's Mot. Amend & Join [D.E. 36], and filed a supporting
memorandum, Pl.'s Mem. Supp. Mot. Amend & Join [D.E. 37]. On December 15,2011, Liberty
Mutual moved to amend its answer, DeCs Mot. Amend Answer [D.E. 40], and filed a supporting
memorandum [D.E. 41]. On January 6, 2012, Yerger renewed her motion to conditionally certify
this action as a FLSA collective action under section 216(b), Pl.'s 2d Mot. Certify [D.E. 43], and

flIed a supporting memorandum, PI.' s Mem. Supp. 2d Mot. Certify [D.E. 44]. On January 13, 2012,
Liberty Mutual filed a memorandum opposing Yerger's motion to amend her complaint and to join
additional plaintiffs. Def.'s Mem. Opp'n Mot. Amend & Join [D.E. 46]. On January 20, 2012,
Yerger replied. PI.'s Reply Mot. Amend & Join [D.E. 47]. On January 30,2012, Liberty Mutual
flIed a memorandum opposing Yerger's renewed motion to conditionally certify this action. Def.' s
Mem. Opp'n 2d Mot. Certify [D.E.48]. On February 13,2012, Yergerreplied. PI.'s Reply 2d Mot.
Certify [D.E. 49]. On April 16, 2012, Yerger moved to file an additional declaration in support of
her renewed motion for conditional certification [D.E. 58], as well as a supporting memorandum
[D.E.59]. On May 8, 2012, Liberty Mutual responded in opposition [D.E. 60]. On May 10,2012,
Yerger moved to enlarge the time to file the additional declaration in support ofher renewed motion
for conditional certification [D.E. 61]. As explained below, the court denies Yerger's motion to
amend her complaint and to join additional parties, grants Liberty Mutual's motion to amend its
answer, grants Yerger's motion to enlarge the time to file an additional declaration, grants Yerger's
motion to flIe the additional declaration, and denies Yerger's renewed motion for conditional
certification.
I.

Yerger seeks to amend her complaint, see PI.'s Mot. Amend & Join, and Liberty Mutual
seeks to amend its answer, see Def.'s Mot. Amend Answer. Each party filed a motion to amend by
the deadline set forth in the scheduling order [D.E. 34]. Thus, Federal Rule of Civil Procedure 15
governs the analysis. See NourisanRug Com. v. Parvizian, 535 F.3d 295,298-99 (4th Cir. 2008).
Rule 15 provides that a party may amend its pleading once as a matter of course within
twenty-one days after service, or, if the pleading requires a response, within twenty-one days after
service ofthe response or service ofa motion under Rule 12(b), (e), or (t). Fed. R. Civ. P. 15(a)(1).
2

Otherwise, a party may amend its pleading only with the written consent of the opposing party or
with leave ofcourt. Fed. R. Civ. P. 15(a)(2). A court should freely grant leave to amend a complaint
or answer unless ''the amendment would be prejudicial to the opposing party, there has been bad
faith on the part of the moving party, or the amendment would [be] futile." Laber v.

Harv~,

438

FJd 404, 426 (4th Cir. 2006) (en banc) (quotation omitted); see Steinburg v. Chesterfield Cnty.
PlanningComm'n, 527 F.3d 377, 390 (4thCir. 2008). Whether to grant leave to amend a complaint
or answeris committed to the sound discretion ofthe trial court. Steinburg, 527 FJd at 390; United
States v. Pittman, 209 F.3d 314, 316 (4th Cir. 2000).
As for Yerger's motion to amend her complaint, Yerger first seeks to amend her complaint

to join as named plaintiffs Judith L. Byrd ("Byrd"), Kerry S. Heavens ("Heavens"), Deavon Pressley

("Pressley"), and Alechia Dawn Buffalo ("Buffalo"), all ofwhom are Liberty Mutual field auditors.
Pl.'s Mot. Amend & Join 1; Pl.'s Mem. Supp. Mot. Amend & Join 6-7; see [D.E. 36-1] "6-9.
Yerger also asks for Byrd to serve as a representative of the proposed class. See [D.E. 36-1] "
14-16.
Federal Rule ofCivil Procedure 20(a)(I) governs joinder ofplaintiffs. See Fed. R. Civ. P.
20(a)(1). Rule 20(a)(I) provides that
[p]ersons may join in one action as plaintiffs if:

(A) they assert any right to reliefjointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and
(B) any question oflaw or fact common to all plaintiffs will arise in the action.

Id. District courts enjoy ''wide discretion" when deciding whether to permit joinder under Rule 20.
Aleman v. Chugach SUPl>ort Servs.. Inc., 485 F.3d 206, 218 n.5 (4th Cir. 2007).

3

Under the FLSA, an employee may bring an action to recover unpaid overtime wages "for
and in behalf ofhimself ... and other employees similarly situated." 29 U.S.C. § 216(b). Section
216(b)'s "similarly situated" standard for conditional certification is related to Rule 20's "same
transaction, occurrence, or series of transactions or occurrences" standard for joinder ofplaintiffs.
Both measure the degree of similarity between the plaintiff's position and the position of another
individual, be it a potential class member or a proposed additional plaintiff. Section 216(b)' s
standard, however, is more lenient than Rule 20's. See Grayson v. K Mart Corp., 79 F.3d 1086,
1095-97 (11th Cir. 1996); Flavel v. Svedala Indus.. Inc., 875 F. Supp. 550,553 (E.D. Wis. 1994);
accord Pl.'s Mem. Supp. 2d Mot. Certify 8. Thus, if a plaintiff fails to meet section 216(b)'s
flexible, elastic standard as to a class ofindividuals, the plaintiffnecessarily fails to satisfy Rule 20' s
stricter standard as to any individual in that class. See, ~ Stone v. First Union Corp., 216 F.R.D.
540,549 (S.D. Fla. 2003), reversed on other grounds, 371 F.3d 1305 (11th Cir. 2004).
The court has held that Yerger failed to satisfy section 216(b)' s "similarly situated" standard.
See [D.E. 35] 8-11. In so holding, the court explained, among other things, that "Yerger's work [as
a field auditor in Johnston County, North Carolina for Liberty Mutual's commercial markets
business unit] was much less complex than the work offield auditors in states where Liberty Mutual
did not contract with the state to service involuntary market pool participants." Id. 3; see [D.E. 28-3]
~ 12; [D.E.

28-6] ~ 5. Nevertheless, "Yerger exhibited a lack ofconfidence in her decision-making"

and consequently "exercised less discretion and independent judgment than her peers." [D.E.35]
3-4, 10 (quotation omitted); see [D.E. 7-3] ~7; [D.E. 28-6] ~ 6. Given the unique nature ofYerger's
individual work, the court did not conclude merely that Yerger was not similarly situated to a broad,
nationwide class offield auditors working in any ofLiberty Mutual's three business units. Nor did
the court conclude merely that Yerger was not similarly situated to a narrow class of field auditors
4

in Liberty Mutual's commercial markets business unit and located in Johnston County, North
Carolina. Rather, the court concluded that Yerger's "specific work as a field auditor in [Johnston]
County, North Carolina, was substantially different from the work of other Liberty Mutual field
auditors." [D.E. 35] 10. Stated differently, Jennifer Yerger is not similarly situated to any Liberty
Mutual field auditor other than Jennifer Yerger.
Because Yerger fails section 216(b)'s "similarly situated" standard as to all other Liberty
Mutual field auditors, she necessarily fails Rule 20's "same transaction, occurrence, or series of
transactions or occurrences" standard as to all other Liberty Mutual field auditors, regardless ofthe
nature, scope, and complexity ofthe other field auditors' practices, and regardless ofthe other field
auditors' job titles, pay grades, business units, and geographic locations. See Stone, 216 F.R.D. at
549; see also Grayson, 79 F.3d at 1095-97; Flavel, 875 F. Supp. at 553. Moreover,joinder would
prejudice Liberty Mutual given the potential for jury confusion over fact-intensive claims concerning
the FLSA's administrative exemption.

~,~,

Mike v. Safeco Ins. Co. of Am., 274 F. Supp. 2d

216,220-21 (D. Conn. 2003). Thus, the court declines to join Byrd, Heavens, Pressley, and Buffalo
as named plaintiffs to Yerger's complaint
Opposing this conclusion, Yerger makes several arguments. First, Yerger contends that ''the
Court's [November 15,2011] order denying conditional certification is not a final order which
conclusively decided the issue of whether the FLSA claims of the four putative plaintiffs are
similarly situated to plaintiff Yerger's FLSA claim." Pl.'s Reply Mot. Amend & Join 3 (quotation
omitted). Rather, Yerger contends that the order was preliminary, and is subject to the court's review
and revision. See id.
The court may review and revise its November 15, 2011 order. Yerger, however, has
provided no new evidence or argument persuasively suggesting that the court should. In support of

5

her motion to amend and to join additional parties, Yerger provided one supplemental declaration
from Yerger [D.E. 37-1] and one supplemental declaration from Byrd [D.E. 43-1], 1 and otherwise
relied on evidence submitted with her previous motion for conditional certification. See PI.' s Mem.
Supp. Mot. Amend & loin 1-3,6-7; Pl.'s Reply Mot. Amend & loin 1-2, 6-7 & n.2. Neither
supplemental declaration addresses the unique nature ofYerger's auditing work. The declarations
suggest that Yerger's high volume oflow-complexity audits ofinvoluntary market pool participants
is not atypical among Liberty Mutual field auditors. See [D.E. 37-1] ~ 12 & Ex. H; [D.E. 43-1] ~~
3,9-13 & Ex. H. But like the evidence Yerger submitted with her fust motion for conditional
certification, Yerger's and Byrd's supplemental declarations altogether "faiID to rebut the substantial
evidence that . . . Yerger perfonned smaller, less complex audits, and yet still exercised less
discretion and independent judgment than her peers." [D.E. 35] 10; see [D.E. 37-1] W1-12 & Ex.
H; [D.E. 43-1]

~~

1-13 & Ex. H. In fact, Byrd's supplemental declaration supports the court's

conclusion that Yerger is not similarly situated to any other Liberty Mutual field auditor. Byrd
repeatedly asserts that "[a]n audit is an audit," and that "all auditors [are] interchangeable,"
regardless ofthe scope, content, or complexity oftheir audit practice, and regardless oftheir job title,
pay grade, business unit, or geographic location. [D.E. 43-1]

~~

9-13. In light of such alleged

unifonnity, Yerger's atypical lack of discretion and independent judgment reinforces the court's
conclusion that lennifer Yerger is not similarly situated to any Liberty Mutual field auditor other
thanlennifer Yerger. Accordingly, nothing in Yerger's and Byrd's supplemental declarations merits

Yerger actually submitted Byrd's supplemental declaration in connection with Yerger's
renewed motion for conditional certification [D.E. 43]. Nevertheless, the court will consider Byrd's
supplemental declaration in deciding Yerger's motion to amend and to join additional parties.
1

6

reconsideration of the court's November 15,2011 order.2
Second, Yerger contends that the November 15, 2011 order was not "an actual determination
as to whether the work performed by plaintiff Yerger was 'similarly situated' to the work performed
by" Byrd, Heavens, Pressley, and Buffalo. Pl.'s Reply Mot. Amend & Join 3 (emphasis removed);
see id. 4 (arguing that the court should not inquire "into the different positions and tasks of the
putative plaintiffs" (quotation omitted)).

The difference between Yerger's first and second

arguments is semantic. In any event, the two arguments fail on the same principle: "A plaintiff has
the burden of showing a 'reasonable basis' for [her] claim that there are other similarly situated
employees." Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). Yerger
has failed to carry her burden of proving that she is similarly situated to any other Liberty Mutual
field auditors. See [D.E. 35] 3-4, 10-11. Thus, she necessarily fails to demonstrate that her claims
against Liberty Mutual arise out of the same transaction, occurrence, or series of transactions or

2 On April 16,2012, Yerger moved to file a declaration from Kathryn Cobb ("Cobb") in
support ofYerger's renewed motion for conditional certification [D.E. 58, 58-1]. The court grants
Yerger's motion to file Cobb's declaration. In her declaration, Cobb states that she ''was on the
phone all the time to speak with [her] immediate supervisor about what determination [she] should
make if that determination was not routine. [She] also contacted an employee at NCCI or an
employee at the internal underwriting department of Liberty Mutual doing business as Summit
Consulting, Inc. if that determination was not routine and [ifher] manager was not able to supply
the answer for [her]." [D.E. 58-1] ~ 14. Although Yerger cites Cobb's statement to demonstrate that
Yerger's inability to exercise discretion and independent judgment is not unique among Liberty
Mutual field auditors, Cobb's statement recites language almost identical to that of six other
declarations already filed in this case. See [D.E. 30-1] ~ 6; [D.E. 30-2] ~ 6; [D.E. 30-3] ~ 6; [D.E.
30-4] ~ 6; [D.E. 30-5] ~ 6; [D.E. 30-6] ~ 6. Other parts ofCobb' s declaration likewise copy portions
of declarations already filed in this case. Compare [D.E. 58-1], with [D.E. 30-1, 30-2,30-3,30-4,
30-5,30-6]. Such verbatim, conclusory recitation suggests that Cobb signed her declaration without
significant reflection. See [D.E. 35] 9. Moreover, the declarations fail to address the previously
discussed unique circumstances of Yerger's employment, including her day-to-day activities and
interactions with her supervisor. Cf. Mike, 274 F. Supp. 2d at 220-21. Accordingly, Cobb's
declaration carries minuscule evidentiary weight, and does not alter the court's conclusion.

7

occurrences as those ofByrd, Heavens, Pressley, and Buffalo. See Stone, 216 F.R.D. at 549; see also
Grayson, 79 F.3d at 1095-97; Flavel, 875 F. Supp. at 553.
Hoping to avoid this conclusion, Yerger asserts that her burden of proving that she is
similarly situated to Byrd, Heavens, Pressley, and Buffalo, or to any other Liberty Mutual field
auditor, applies only at the second, decertification step ofsection 216(b)' s two-step analysis, which
the court did not reach in its November 15,2011 order. See Pl.'s Reply Mot. Amend & Join 4.
Yerger is incorrect. 3 Albeit with different degrees ofleniency, section 216(b)' s "similarly situated"
standard applies to both the first and the second steps ofthe section's class certification process. See
Acevedo v. Allsup's Convenience Stores. Inc., 600 F.3d 516, 519 (5th Cir. 2010) (per curiam)
("First, the court determines whether the putative class members' claims are sufficiently similar to
merit sending notice of the action to possible members ofthe class. . .. Second, after discovery is
largely complete and more information on the case is available, the court makes a final determination
ofwhether all plaintiffs are sufficiently similarly situated to proceed together in a single action.");
Morgan, 551 F.3d at 1260-61 (holding that at the conditional certification phase, "[a] plaintiffhas
the burden of showing a 'reasonable basis' for his claim that there are other similarly situated
employees"); Anderson v. Cagle's. Inc., 488 F.3d 945, 952-53 (lIth Cir. 2007) ("[A]t the initial
stage, courts apply a fairly lenient standard for determining whether the plaintiffs are truly similarly

To support this argument, Yerger cites O'Brien v. Ed Donnelly Enters.. Inc., 575 F.3d 567
(6th Cir. 2009). Pl.'s Reply Mot. Amend & Join 4. Yerger's reliance on O'Brien is misplaced. In
O'Brien, the district court conditionally certified the proposed class at step one of section 216(b)'s
two-step analysis. See O'Brien, 575 F.3d at 573, 583. At step two, however, the district court
decertified the class. rd. No party challenged the district court's conditional certification at step one.
The appeal concerned only the district court's decertification at step two. See id. Thus, the Sixth
Circuit discussed section 216(b)' s "similarly situated" standard in connection with the district court's
decertification at step two not because section 216(b)'s "similarly situated" standard applies only at
step two, but because the district court's decision to decertify at step two was the only issue before
the court. See id. at 583-87.
3

8

situated. . .. The similarly situated standard. at the second stage is less lenient than at the first ...
." (quotations omitted»; see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-D3
(10th Cir. 2001).
In short, because Yerger has failed to demonstrate that she is similarly situated to any other
Liberty Mutual field auditor, including Byrd, Heavens, Pressley, and Buffalo, she necessarily fails
Rule 20's "same transaction, occurrence, or series of transactions or occurrences" standard. as to
Byrd, Heavens, Pressley, and Buffalo. See Stone, 216 F.R.D. at 549; see also

Grayso~

79 F.3d at

1095-97; Flavel, 875 F. Supp. at 553. Yerger therefore cannot join Byrd, Heavens, Pressley, and
Buffalo as named plaintiffs in this case, see Fed. R. Civ. P. 20(a)(1)(A), and the court denies
Yerger's motion to amend her complaint to do so.
Yerger next seeks to amend her complaint to defme in the alternative the class she purports
to represent. See Pl.'s Mot. Amend & Join 1-2; [D.E. 36-1.]

W14-16; see also Pl.'s Mem. Supp.

Mot. Amend & Join 2-3. Yerger seeks to define the class as follows:
[A]ll field premium auditors who have filed a timely consent to sue pursuant to 29
U.S.C. § 216(b) whose Job Grade was 13 or less who were employed by Liberty
Mutual . . . in [Liberty Mutual's] Commercial Markets strategic business unit,
[Liberty Mutual's] Liberty Mutual Agency Corporation ... strategic business unit,
and/or [Liberty Mutual' s] indirect but wholly owned subsidiary, Summit Consulting,
Inc.... ,at any time in the time period from May 13,2008 to January 1,2011, and
who were not paid wages at the overtime rate required by 29 U.S.C. § 207(a)(1).
In the first alternative, ... all field premium auditors who have filed a timely consent
to sue pursuant to 29 U.S.C. § 216(b) whose Job Grade was 13 or less who were
employed by Liberty Mutual ... in [Liberty Mutual's] Commercial Markets strategic
business unit and/or [Liberty Mutual's] Liberty Mutual Agency Corporation ...
strategic business unit at any time in the time period from May 13, 2008 to January
1,2011, and who were not paid wages at the overtime rate required by 29 U.S.C. §
207(a)(l).
In the second alternative, . . . all field premium auditors who have filed a timely
consent to sue pursuant to 29 U.S.C. § 216(b) whose Job Grade was 13 or less who

9

were employed by Liberty Mutual ... in [Liberty Mutual's] Commercial Markets
strategic business unit at any time in the time period from May 13,2008 to January
1,2011, and who were not paid wages at the overtime rate required by 29 U.S.C. §
207(a)(I).
[D.E. 36-1] W14-16.
Yerger seeks to amend her complaint so that she can renew her motion to conditionally
certify this action as a FLSA collective action under section 216(b). See Pl.'s 2d Mot. Certify 1-2.
As explained, however, Yerger is not similarly situated to any of the classes she defines in her
proposed amended complaint. Thus, even if Yerger amended her complaint, the action still could
not be conditionally certified under section 216(b). The court therefore rejects Yerger's proposed
amended complaint as futile.

See,~,

Laber, 438 F.3d at 426; Steinburg, 527 F.3d at 390.

Opposing this conclusion, Yerger contends that her and Byrd's supplemental declarations
provide sufficient "new evidence to justify amending [Yerger's] complaint in the manner proposed
...." PI.' s Reply Mot. Amend & Join 10. As explained, Yerger's new evidence cannot bear the
evidentiary weight she seeks to place on it. Yerger's proposed amended complaint is futile, and her
motion to amend the complaint therefore fails.
As for Liberty Mutual's motion to amend its answer, Liberty Mutual seeks to withdraw three

of its alleged affirmative defenses and to add one previously unalleged affirmative defense. Def.' s
Mot. Amend Answer 1-2; see [D.E. 40-1]. Liberty Mutual's proposed changes do not relate to
Yerger's motion to amend her complaint and to join additional parties. See Def.'s Mot. Amend
Answer 1-2. Liberty Mutual represents that "counsel for plaintiff has indicated [that] plaintiffhas
'no strong objections' to Liberty Mutual's request to amend its Answer ...." Id. 2. Yerger has not
filed a memorandum opposing Liberty Mutual's motion to amend. Moreover, granting Liberty
Mutual's motion to amend its answer would not prejudice Yerger, the motion was not made in bad

10

faith, and the amendment is not futile. Accordingly, the court grants Liberty Mutual's motion to
amend its answer.

II.
Yerger has renewed her motion to conditionally certify this action as a FLSA collective
action under section 216(b). See PI.' s 2d Mot. Certify. Yerger, however, predicates her motion on
the court granting her motion to amend and to join additional parties. See id. 1-2 (seeking
conditional certification based exclusively on the proposed amended complaint). Because the court
denies Yerger's motion to amend and to join additional parties, Yerger's renewed motion for
conditional certification likewise fails. Cf. [D.E. 35].

m.
Accordingly, the court DENIES Yerger's motion to amend the complaint and to join
additional parties [D.E. 36], GRANTS Liberty Mutual's motion to amend its answer [D.E. 40],
GRANTS Yerger's motion to enlarge the time to file an additional declaration [D.E. 61], GRANTS
Yerger's motion to file an additional declaration [D.E. 58], and DENIES Yerger's renewed motion
to conditionally certify this action as a FLSA collective action under 29 U.S.C. § 216(b) [D.E. 43].

SO ORDERED. This..1i.- day of September 2012.

11