O'Neal v. Emery Federal Credit Union et al
Filing
103
ORDER denying 91 Plaintiff McNeil's Motion for conditional certification. Signed by Chief Judge Susan J. Dlott. (wam1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LINDA O’NEAL, et al.,
Plaintiffs,
v.
EMERY FEDERAL CREDIT UNION,
et al.,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
Case No. 1:13CV22
Chief Judge Susan J. Dlott
ORDER DENYING PLAINTIFF
MCNEIL’S MOTION FOR
CONDITIONAL CERTIFICATION
This matter is before the Court on a Motion for Conditional Certification under § 216(b)
of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201, et seq., filed by Plaintiff BettyJean
McNeil on behalf of herself and all those similarly situated. (Doc. 91.) McNeil, who worked as
a loan processor for Emery Federal Credit Union for approximately three years, now moves the
Court to conditionally certify a plaintiff class pursuant to 29 U.S.C. § 216(b) consisting of all
employees who performed as loan processors for Defendants Emery Federal Credit Union and
Emery Financial Services, Inc. (collectively, “Emery”) from three years and sixty-one days from
the date of an order granting her motion. Defendants oppose McNeil’s motion. For the
following reasons, McNeil’s motion will be DENIED.
I.
BACKGROUND
A.
Procedural History
This case was originally filed nearly two years ago by Plaintiff Linda O’Neal on behalf of
herself and a class of similarly situated loan officers employed by Emery. O’Neal, who was
employed by Emery Federal Credit Union as a loan officer for approximately one year, claims
that Emery allowed her and all of its loan officers to work more than forty hours per workweek
without paying them overtime compensation and failed to pay them the applicable minimum
wage for all hours worked up to forty hours per workweek. On March 4, 2014, after denying
O’Neal’s first motion for conditional certification, the Court granted O’Neal’s second motion for
conditional certification under § 216(b) of the FLSA of a class of current and former loan
officers/loan originators employed by Emery during the preceding three-year period. O’Neal v.
Emery Fed. Credit Union, No. 1:13-cv-22, 2014 WL 842948, at *7 (S.D. Ohio Mar. 4, 2014).
Following conditional certification of the loan officer class, on September 22, 2014, the
Court granted O’Neal’s Motion for Leave to Amend the Complaint to include McNeil as a
named plaintiff and to add an FLSA collective class claim on behalf of loan processors similarly
situated to McNeil. McNeil asserts that Defendants treated her and similarly situated loan
processors as exempt from overtime and that they were paid a “set amount of compensation each
week or set piece-rate dollar amount for each loan file worked on, with some also receiving
nondiscretionary bonus pay.” (Second Amended Compl., Doc. 90 at PageID 775, ¶ 25.) McNeil
alleges Defendants routinely “suffered and permitted” her and others similarly situated to work
more than forty hours per week, failed to pay overtime compensation or minimum wages due,
and failed to keep accurate records of hours worked. (Id. at PageID 776, ¶ 28.)
On October 3, 2014, McNeil filed the Motion for Conditional Certification presently
before the Court. McNeil requests the Court issue an order granting conditional class
certification pursuant to § 216(b) of the FLSA for “all employees who performed as Loan
Processors for the Defendants [for] three years and sixty-one days from the Court’s order on this
Motion.” (Doc. 91 at PageID 784–85.) If her motion is granted, McNeil requests the Court to
order Defendants to provide her a list in electronic format of the names, addresses, phone
numbers, dates of employment, and email addresses of the members of the conditionally2
certified class. For those class members whose mailed notices are returned, McNeil requests the
Court to order the Defendants to provide the last four digits of those members’ social security
numbers to allow her to locate viable mailing addresses. Finally, McNeil seeks approval of her
proposed notice of claims and opt-in form and authorization for her to send the approved notice
and form to the loan processor class.
B.
Loan Processor Class
Plaintiff McNeil asserts that she has brought forth sufficient evidence to demonstrate that
the same illegal pay policy was applied to Emery’s loan processors, namely, that no loan
processor was paid for overtime for hours worked in excess of forty per workweek. In support of
her motion, McNeil has submitted her own declaration, nine declarations made by opt-in
Plaintiffs,1 and the Emery loan processor job description.
In her declaration, McNeil states that she worked as a loan processor for Emery from
mid-2010 through on or about June 17, 2013 out of an office in Irvine, California. (McNeil
Decl., Doc. 92-1 at PageID 800, ¶¶ 1–2.) McNeil’s primary job duties included collecting and
organizing all the necessary paperwork from Emery’s clients and its loan officers in order to
process mortgage loan applications. (Id. at PageID 800, ¶ 5.) Under Emery’s compensation plan
for her, Emery paid McNeil a set amount of $375 per file that had a loan that closed. (Id. at
PageID 800, ¶ 3.) McNeil was not required by Emery to report her hours worked, and her pay
was not based on hours worked. (Id.) She asserts that under her pay plan, “we” were not paid
any overtime for hours worked in excess of forty hours per week, and she usually worked on
average fifty hours per week. (Id. at PageID 800, ¶ 4.)
1
The Court refers to those individuals who have filed a “Consent to Join” the instant litigation as “opt-in
Plaintiffs” for purposes of its Order.
3
McNeil’s motion is supported by nine other declarations made by loan processor opt-in
Plaintiffs Kristen Jourdan, Amy Kalb, Chris Miller, Cristy Hansen, Dominic Notaro, Lisa
Deardorff, Amanda Graham, Ruth Vigna, and Lovie Johnson. Each opt-in Plaintiff asserts that
he or she was employed as a loan processor for Emery and performed the primary duties of
collecting and organizing necessary paperwork from Emery’s clients and its loan officers in
order to process mortgage loan applications. (Declarations, Doc. 92-1 at PageID 802, 804, 806,
808, 810, 812, 814, 816, 818.) The opt-in Plaintiffs state they were not required to report hours
worked, their pay was not based on hours worked, and they were not paid for any overtime
worked in excess of forty hours per workweek. (Id.) Each opt-in Plaintiff also asserts he or she
usually worked greater than forty hours per workweek without overtime compensation, although
the usual amounts of hours worked ranged from forty-five to fifty-five hours per workweek,
depending upon the individual. (Id.) In addition, the opt-in Plaintiffs claim there are
“numerous” other loan processors working for Emery nationwide. (Id.)
Most of the opt-in Plaintiffs worked in separate cities, the majority of which are in
Maryland. Opt-in Plaintiffs Jourdan, Hansen, and Notaro worked in an office in Forest Hill,
Maryland,2 although it is unclear whether these individuals worked at the same office. (Jourdan
Decl., Doc. 92-1 at PageID 802; Hansen Decl., Doc. 92-1 at PageID 808; Notaro Decl., Doc 92-1
at PageID 810.) Three opt-in Plaintiffs worked from offices in other cities in Maryland. (Kalb
Decl., Doc. 92-1 at PageID 804; Miller Decl., Doc. 92-1 at PageID 806; Deardorff Decl., Doc.
92-1 at PageID812.) Finally, three opt-in Plaintiffs worked in unique states: Graham worked out
of an office in in Highlands Ranch, Colorado, Vigna from an office in Valparaiso, Indiana, and
2
The city of “Forrest Hill, Maryland” is spelled slightly differently in each declarant’s sworn statement, but
the Court infers that this is the same city.
4
Johnson from an office in Norcross, Georgia. (Graham Decl., Doc. 92-1 at PageID 814; Vigna
Decl., Doc. 92-1 at PageID 816; Johnson Decl., Doc. 92-1 at PageID 818.)
Methods of compensation varied widely among the opt-in Plaintiffs, the differences as
distinct as some opt-in Plaintiffs being paid a salary and some being paid an hourly wage. To
illustrate, Kalb was paid a salary (the amount of which was not disclosed), whereas Miller was
paid a salary of $2,500 per month along with a nondiscretionary bonus of $50 to $140 per loan
based on the loans closed. (Kalb Decl., Doc. 92-1 at PageID 804; Miller Decl., Doc. 92-1 at
PageID 806.) Deardorff was paid an annual salary of $32,500 per year with a nondiscretionary
bonus of $150 per loan based on loans closed. (Deardorff Decl., Doc. 92-1 at PageID 812.)
In contrast, Graham was paid minimum wage for forty hours per week, and anything paid
was deducted from bonuses paid on loan files closed. (Graham Decl., Doc. 92-1 at PageID 816.)
Vigna was paid a set dollar amount for every file she worked on that was closed, and if none
were closed for a week, she was paid for twenty hours of work at minimum wage regardless of
the number of hours worked. (Vigna Decl., Doc. 92-1 at PageID 814.) At the end of her
employment, however, Vigna was paid $400 per loan closed. (Id.) Johnson, on the other hand,
was first paid a set dollar amount for forty hours per week regardless of hours worked. (Johnson
Decl., Doc. 92-1 at PageID 818.) In February 2013, Emery stated she “would report” weekly
hours worked, but could not report any more than forty hours regardless of the number of hours
worked. (Id.)
The opt-in Plaintiffs who worked in the same city of Forrest Hill, Maryland were also
compensated differently. Jourdan, who worked in Forrest Hill, Maryland from April 2012
through on or about September 2013, first was paid a salary not based on hours worked along
with a commission for loans closed. (Jourdan Decl., Doc. 92-1 at PageID 802.) Later, she was
5
paid $350 per loan closed. (Id.) Hansen, who worked in Forrest Hill, Maryland from February
2012 through on or about April 2014, was paid $8.25 per hour for twenty hours a week, with a
nondiscretionary bonus based on loans closed. (Hansen Decl., Doc. 92-1 at PageID 808.)
Hansen also asserts that there would be workweeks for which she was not paid minimum wage
for all hours worked up to forty hours. (Id.) Lastly, Notaro, who worked in Forrest Hill,
Maryland from October 2012 through on or about April 2014, was paid $9.00 per hour for
twenty hours per week along with a nondiscretionary bonus based on loans closed. (Notaro
Decl., Doc. 92-1 at PageID 810.)
In addition to the ten declarations, McNeil also relies upon the Emery loan processor job
description, which classifies the position as non-exempt and states the weekly hours for the
position vary. (Loan Processor Job Description, Doc. 100 at PageID 880–81.) The job
description identifies principle duties and responsibilities of the position, including reviewing
and verifying borrower documentation. (Id.) In addition, the job description identifies the
person to whom the employee reports to as the “Team Mgr, National Proc Mgr.” (Id.)
Defendants responded to McNeil’s Motion for Conditional Certification by filing an
opposition memorandum and the affidavit of Alex Fernandez, who is currently employed by
Emery as its national loan processing manager and has held the role since 2009. (Fernandez
Decl., Doc. 99-1 at PageID 857–58.) Fernandez oversaw the work of all loan processors
employed by Emery prior to its mortgage division shutdown on March 7, 2014. (Id. at PageID
857, ¶ 5.) All of Emery’s loan processors, except for a small group of corporate loan processors,
worked on teams led by team managers. (Id. at PageID 857, ¶ 6.) Each team manager
determined the hours of work for the loan processors on their team, methods for recording and
verifying hours the loan processors worked, working arrangements (such as whether one could
6
work from home or from an office), and compensation. (Id. at PageID 857–58, ¶ 6.) Because
Emery did not have a rigid policy or practice regarding compensation arrangements for its loan
processors, compensation practices varied. (Id. at PageID 857–58, ¶¶ 6, 8)
Fernandez was told by Emery’s human resources employees that loan processors were to
be paid overtime compensation for hours worked over forty in a week. (Id. at PageID 858, ¶ 8.)
As part of their job duties, loan processors generally would not have needed to observe or
interact with team managers or loan processors on other teams, and would not have reason to
know how members of other teams operate or are compensated. (Id. at PageID 858, ¶ 9.)
II.
ANALYSIS
A. Conditional Certification
Although the FLSA does not prescribe a procedure for instituting and managing a
collective action, courts within the Sixth Circuit generally employ a two-stage process in
deciding whether to certify a collective class. O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d
567, 583 (6th Cir. 2009). The first stage, conditional certification, often occurs before discovery
has begun. O’Neal v. Emery Fed. Credit Union, No., No. 1:13-cv-22, 2014 WL 842948, at *2
(S.D. Ohio Mar. 4, 2014). At this stage, a court will conditionally certify a class if the plaintiff
demonstrates by a “modest factual showing” that she is “similarly situated” to the employees she
seeks to notify of the pending action. Id. (citing White v. MPW Indus. Servs., Inc., 236 F.R.D.
363, 367 (E.D. Tenn. 2006)). “[C]ourts use a ‘fairly lenient standard’ that ‘typically results in
conditional certification of a representative class’ when determining whether plaintiffs are
similarly situated during the first stage of the class certification process.” White v. Baptist
Memorial Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012) (citing Comer v. Wal-Mart
Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).)
7
Due to this lenient standard, “district courts within the Sixth Circuit typically do not
consider the merits of the plaintiff’s claims, resolve factual disputes, make credibility
determinations, or decide substantive issues when deciding whether to conditionally certify a
class.” O’Neal v. Emery Federal Credit Union, No. 1:13-cv-22, 2013 WL 4013167, at *5 (S.D.
Ohio Aug. 6, 2013). Nonetheless, “the court should exercise caution in granting conditional
certification, because the Sixth Circuit Appellate Court has held ‘that a conditional order
approving notice to prospective co-plaintiffs in a suit under § 216(b) is not appealable.’” Id.
(citing Snide v. Discount Drug Mart, Inc., No. 1:11-cv-244, 2011 WL 5434016, at *4 (N.D. Ohio
Oct. 7, 2011)). If a plaintiff meets her evidentiary burden and the class is conditionally certified,
the plaintiff is permitted to solicit opt-in notices to potential plaintiffs, and discovery proceeds.
Id.
At the second stage of the proceedings, which occurs after all class plaintiffs have optedin and after all or most of discovery has been conducted, the defendant may file a motion to
decertify the plaintiff class. Id. At this stage, the district court will employ a stricter standard to
determine whether the plaintiff class members are similarly situated. Id. (citing Baptist Mem’l,
699 F.3d at 877).
B.
Similarly Situated Employees
This case is currently at the first stage of the two-step process for determining whether to
certify the loan processor class. The Court must now examine the evidence submitted by McNeil
to determine whether she has succeeded in demonstrating by a modest factual showing that
similarly situated employees exist. To meet her evidentiary burden at the first stage of the
certification process, McNeil must provide the Court with sufficient evidence to support an
8
inference that she and the proposed class of loan processors were “victims of a common policy
or plan that violated the law.” O’Neal, 2014 WL 842948 at *2 (citing White, 236 F.R.D. at 367).
Plaintiffs can demonstrate they are similarly situated by showing that “their claims are
unified by common theories of defendants’ statutory violations, even if the proofs of these
theories are inevitably individualized and distinct.” O’Brien, 575 F.3d at 585. “While the
evidentiary threshold for demonstrating that similarly situated employees exist is not high at this
initial stage, a plaintiff must demonstrate a factual nexus — that is, something more than ‘bare
allegations’ — to warrant conditional certification and the delivery of notice to potential class
members.” Id. (citing Allen v. Payday Loan Store of Ind., Inc., 2:13CV262, 2013 WL 6237852,
at *7 (N.D. Ind. Dec. 3, 2013)). “A court may deny a plaintiff’s right to proceed collectively
only if the action arises from circumstances purely personal to the plaintiff, and not from any
generally applicable rule, policy, or practice.” Noble v. Serco, Inc., No. 3:08-76-DCR, 2009 WL
3154252, at *3 (E.D. Ky. Sept. 28, 2009) (citing Murton v. Measurecomp, LLC, No.
1:07CV3127, 2008 U.S. Dist. LEXIS 108060, at * 11 (N.D. Ohio June 9, 2008)).
Although McNeil and the nine opt-in Plaintiffs’ job duties are similar and all assert they
were not paid overtime wages for hours worked in excess of forty per week, McNeil’s
evidentiary showing is insufficient to meet her burden in two respects. First, McNeil has not
come forward with sufficient evidence that she and all Emery loan processors were compensated
according to the same compensation plan. Second, McNeil has not demonstrated that the loan
processor class was subject to the same, company-wide, FLSA-violating policy.
1.
Compensation
The Court will first consider the issue of whether the proposed loan processor class was
subject to the same compensation structure. McNeil argues that Emery loan processors were
9
paid a “set” amount of compensation, which demonstrates they are similarly situated. She also
argues that variation in damages is a question of manageability of a class, which is a
consideration for the second step of the certification process.
The evidence reflects that compensation methods varied widely among the small group of
loan processor opt-in Plaintiffs and mirror Emery’s de-centralized management of this position.
Each team manager who supervised a loan processor determined that employee’s hours of work,
how hours were recorded and verified, and the compensation methods for that particular
employee. (Fernandez Decl., Doc. 99-1, at PageID 857–858.) Of the ten declarations submitted
in support of McNeil’s motion, compensation methods varied widely and included piece-rate
only payment, salary payment, and hourly payment.3 A loan processor’s method of
compensation was also subject to change. For example, Vigna’s compensation shifted from a set
dollar amount per file closed, and if none were closed in one week, payment for twenty hours of
work at minimum wage, to a flat rate of $400 per loan closed. (Doc. 92-1 at PageID 814.) Loan
processors were also compensated for different hourly schedules: Vigna appears to have been
hired to work twenty hours per week, whereas Graham was paid minimum wage for forty hours
per week. (Id. at PageID 814, 816.)
Although courts in this district have approved conditional certification for a class of
plaintiffs where the compensation policy or structure was uniform, such as when this court
conditionally certified the loan officer class in O’Neal, 2014 WL 842948 at *5, McNeil has not
come forward with evidence of a uniform compensation structure for the loan processor class.
Compare Crowley v. Paint & Body Experts of Slidell, Inc., No. 14-172, 2014 U.S. Dist. LEXIS
3
Although Plaintiffs have not raised the argument of misclassification because Defendants do not dispute
the loan processor job is classified as non-exempt, the proposed class certainly raises concerns about classifying a
mix of salaried and hourly workers as similarly situated.
10
75472, at *8 (E.D. La. June 3, 2014) (finding that plaintiffs failed to put forth substantial
allegations that the putative class members were victims of a single decision, policy, or plan
where they worked very different hours, were paid at dissimilar rates, received overtime pay in
different manners, and where allegations covered different time periods) with Wolfram v. PHH
Corp., No. 1:12-cv-599, 2012 WL 6676778, at *2 (S.D. Ohio Dec. 21, 2012) (certifying class
where plaintiffs had the same job title, position and primary duties, were classified as exempt,
were subject to the same compensation method, and routinely worked over forty hours per week
without overtime pay); Heibel v. U.S. Bank Nat. Ass’n, No. 2:11-cv-593, 2012 WL 4463771, at
*5 (S.D. Ohio Sept. 27, 2012) (granting conditional certification where plaintiffs produced
sufficient evidence suggesting they generally performed the same basic duties and were
compensated in the same manner during the period in question); Lewis v. Huntington Nat’l Bank,
789 F. Supp. 2d 863, 868 (S.D. Ohio 2011) (granting conditional certification where the class
members performed the same job functions and were compensated in accordance with one of
two payment plans, both of which implemented the same system for commissions). The Court
finds that the wide variety of compensation methods precludes a finding that the loan processor
class is similarly situated.
2.
Common Policy or Plan
Second, McNeil has not come forward with sufficient evidence to establish that the
members of the proposed loan processor class were “victims of a common policy or plan that
violated the law.” O’Neal, 2014 WL 842948 at *2 (citing White, 236 F.R.D. at 367). Plaintiffs
whose declarations contain facts that support an inference that they have actual knowledge of
company-wide employment practices typically succeed in obtaining conditional certification.
O'Neal, 2013 WL 4013167, at *8. McNeil asks the Court to infer from the declarations made by
11
her and the other opt-in Plaintiffs that Emery has a policy that loan processors were allowed to
work more than forty hours per week to complete their job duties without being paid overtime
compensation.
The Court is unable to infer such a policy existed, as none of the opt-in Plaintiffs’
statements demonstrate they have actual knowledge that their experience was not unique. See
O’Neal, 2013 WL 4013167 at *11. As the Court articulated in denying Plaintiff O’Neal’s first
motion for conditional certification, the sworn statements of opt-in Plaintiffs must include some
statement from which the Court can infer they have actual knowledge their experiences were not
unique. Id. at *9. In denying O’Neal’s first motion for conditional certification of a loan officer
class, the Court found three sworn statements and two loan officer agreements with dissimilar
compensation terms were insufficient to support an inference that Emery had a uniform policy
with respect to loan officer compensation and hours worked. Id. at *11.
In contrast, when O’Neal came forward with additional evidence in support of her second
motion for conditional certification, the Court found O’Neal met her evidentiary burden.
O’Neal, 2014 WL 842948 at *5. O’Neal supported her second motion with three new
declarations, which included “observations of, and interactions and conversations with, other
Emery loan officers in their offices” to support the inference that the opt-in loan officer Plaintiffs
had actual knowledge their experiences were not unique. Id. The additional statements included
facts from which the Court could draw an inference that other Emery loan officers were not
consistently paid minimum wage for all hours worked up to forty hours per week, and that they
sometimes worked more than forty hours per week without being paid overtime compensation.
Id. The opt-in loan officer Plaintiffs also came forward with evidence that loan officers worked
more than the hours specified in Loan Officer Agreements and that the Agreements limit the loan
12
officer’s compensation to forty or fewer hours per workweek at minimum wage, regardless of
the hours worked, if the earned commission is less than that amount. Id. While O’Neal’s
showing was not great, the evidence was sufficient to create an inference that there were
similarly situated loan officers nationwide. Id.
The evidentiary showing in support of Plaintiff McNeil’s motion for conditional
certification of the loan processor class does not include evidence from which the Court can infer
the opt-in Plaintiffs have actual knowledge their experiences were not unique. As discussed
supra, it is undisputed that management of the loan processor position was decentralized and
compensation practices varied widely. Even the opt-in Plaintiffs who worked in the same city of
Forest Hill, Maryland fail to demonstrate that they worked in the same office, interacted with one
another, or were aware of the compensation practices in their office. (See Declarations, Doc. 921 at PageID 802, 808, 810.) None of the opt-in Plaintiffs attest to personally observing any other
loan processor work more than forty hours per week or discussing his or her hours of work or
compensation with other loan processors within their office or in other offices. Rather,
Defendants assert and it remains undisputed that loan processors would have no reason to
interact with other loan processors or have knowledge of other loan processors’ compensation or
hours worked. The complaint is also not sufficiently detailed with respect to the alleged
statutory violation that the Court can infer a uniform policy with respect to uncompensated hours
worked by loan processors. Thus, it is unreasonable to infer that McNeil and the opt-in Plaintiffs
would have learned during the normal course of employment how the company operates and
what the company policies were with respect to how loan processors, nationwide, were
compensated. For these reasons, McNeil has failed to provide support for her allegations that
13
Defendants had a pay policy that resulted in the denial of overtime pay to its loan processors.
See O’Neal, 2013 WL 4013167 at *9.
The Court is also unable to infer from the opt-in Plaintiffs’ declarations that there was
any knowledge on the part of Emery team managers about the opt-in Plaintiffs or other loan
processors working more than forty hours per week or being instructed to do so to establish such
a policy existed. Plaintiffs’ declarations do not include any statement that management was
aware of or had knowledge of loan processors’ off-the-clock activities. This factor was of “key
significance” in Richardson v. Wells Fargo Bank, N.A., No. 4:11-cv-738, 2012 WL 334038, at
*4 (S.D. Tex. Feb. 2, 2012). There, the district court denied conditional certification where
managers had little or no knowledge of subordinates’ alleged off-the-clock work activities, and
where there was no evidence managers acted uniformly nationwide in failing to follow written
overtime policies. Id.; see Adair v. Wisconsin Bell, Inc., No. 08-C-280, 2008 WL 4224360, at *7
(W.D. Wis. Jan. 25, 2013) (denying conditional certification where plaintiffs’ statement did not
provide factual support for the conclusion that the employer was aware of and permitted its
employees to perform work outside of their job without pay on a widespread basis.) Although
the opt-in Plaintiffs assert they had a practice of working more than forty hours per week, the
Court cannot infer that this was a common policy attributable to their employer.4
4
Johnson’s declaration included a statement that “[i]n February 2013, Emery stated we would report our
weekly hours worked, but we could not report any more than 40 hours regardless of the number of hours worked.”
(Doc. 92-1 at PageID 818) Even if this statement could be construed to infer knowledge on the part of Emery
management of her off-the-clock activities, no other opt-in Plaintiff stated that he or she was directed to not properly
record hours worked. Thus, standing alone, Johnson’s declaration is insufficient to meet the evidentiary burden for
conditional certification. See Adair, 2008 WL 4224360 at *7 (“Alleged FLSA violations stemming from the
enforcement decisions of individual supervisors, rather than a company-wide policy or plan are not appropriate for
collective treatment.”)
14
Despite the fact that McNeil need only make a modest factual showing to satisfy the
similarly situated requirement of § 216(b) at the conditional certification phase, she has not done
so. Because McNeil has not made the showing required for conditional class certification under
29 U.S.C. § 216(b), the Court need not consider her proposed notice to collective class members.
III.
CONCLUSION
Although the Court has found the loan processors are not similarly situated to advance
their claims in this litigation, they are not precluded from attempting to form a new or different
class in another lawsuit. This case is now at the stage where the parties should proceed with the
previously conditionally-certified loan officer class.
For the foregoing reasons, Plaintiff McNeil’s Motion for Conditional Certification (Doc.
91) is DENIED.
IT IS SO ORDERED.
S/Susan J. Dlott__________________
Chief Judge Susan J. Dlott
United States District Court
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?