BELL v. CITIZENS FINANCIAL GROUP, INC. et al
Filing
110
MEMORANDUM and ORDER denying 87 Motion to Certify Class, pursuant to Federal Rule of Civil Procedure 23, and 89 Motion to Certify Class, pursuant to Federal Rule of Civil Procedure 23. Signed by Chief Judge Gary L. Lancaster on 6/6/11. (map)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JUSTIN BELL and KEITH
COSTANZA on behalf of
themselves and similarly
situat
employees,
aintiffs,
v.
Civil Action No. 10-0320
CITIZENS FINANCIAL GROUP,
INC., RBS CITIZENS, N.A.
d/b/a CITIZENS BANK,
CITIZENS BANK OF
PENNSYLVANIA d/b/a
CITIZENS BANK,
Defendants.
MEMORANDUM
Gary L. Lancaster,
Chief Judge.
June 6, 2011
This is an action brought pursuant
Standards Act of 1938,
Pennsylvania
("PMWA"),
Laws ch.
Minimum
Wage
Act,
201,
§
43
(" FLSA"),
et
P.S.
§
Fair Labor
333.101,
and the Massachusetts Minimum Fair Wage Act,
151, § lA & IB
Kei th Costanza,
employees,
de
29 U.S.C.
to the
("MMFWA").
Plaintiffs,
et
Mass Gen.
Justin Bell and
on behalf of themselves and similarly situated
bring
a
class/ collecti ve
ndants, Citizens Financial Group,
Bank of Pennsylvania
improperly
the
("Citizens"),
classifying
assistant
lawsuit
alleging
RBS Citizens,
have a
branch
that
and Citizens
standard practice of
managers
("ABMs")
as
exempt
from
MMFWA.
the
overtime
requirements
of
the
FLSA,
PMWA,
and
intiffs seek declaratory and injunctive relief,
pay and prejudgment interest,
liquidat
back
Ie damages,
and t
and
attorneys' fees and costs.
suant
Plaintiffs have moved for class certification
to
ral Rule of Civil Procedure 23
[Doc.
No.
class
certification hearing was held by the court on March 25,
2011.
court
and
raised
incompatibil
sua
MMFWA
sponte
y of actions
sta te wage laws.
certify
the
under the PMWA
A
The
87]
("Rule 23")
at
dual
For t
[Doc.
the
filed
89] .
No.
hearing
the
under both
potential
the
FLSA and
low we will not
reasons set forth
Rule 23 classes.
BACKGROUND
1.
Justin
Bell
was
approximately October,
located
in
izens
as
2007 until August,
Monroeville,
an
.ABM
employed by Citizens
PA.
from
Keith
an ABM
from
2008 in a bank branch
Costanza
approximately
as
was
employed
October,
2004
by
until
August, 2009 in two different bank branches in Boston, MA.
Plaintiffs
allege
that
their
imary
ies
did
not
lude exempt duties such as managing either of their assigned
bank branches or any departments or subdivisions of those bank
branches.
their
time
Plaintiffs
forming
allege
the
that
same
2
they
spent
non-exempt
the
duties
majority
as
of
hourly
personal
ban
allege that
hire
or
rs
t
tellers
at
the
Plaintiffs
branches.
y did not have the authority to do as
fire
hiring,
and
other
firing,
employees;
advancement
make
or
recommendations
other
changes
follows:
as
in
to
empl
s'
status; perform job evaluations of other employees; adjust rates
of payor hours of work for other emplo
other empl
business
si
work in relation to
of
anchi
exercise
direct the work of
eSi
management or general
t
ir
judgment
with respect to significant matters; or rna
or
discret
decisions regarding
the branch's financial budget.
Pla
in
iffs were paid a weekly salary and often worked
excess
of
40
hours
estimated
45
to
50
contends he wor
Plaintiffs
per
hours
wee k.
in
a
Bell
typical
contends
he
workweek.
worked
an
Costanza
an estimated 45 hours in a typical workweek.
did
not
receive
any
compensation
for
hours
worked
over 40 in a workweek.
Citizens
operates
Pennsylvania,
New Jersey,
New Hampshire,
New York,
contend
that
Citizens
classifying all ABMs
ABMs
spending a
exempt
personal
as
bank
Delaware,
Connecticut,
Rhode Island,
has
a
overtime
branches
and
Mas sachuset ts,
and Vermont.
corporate wide
exempt
large percentage of their t
banker
throughout
teller
related
it e
practice
a
rna j 0 r i t Y
of
0
f
performing non
duties,
opening new accounts and handling customer business.
3
Plaintiffs
including
Specifically,
plaintiffs
all
that
Citizens
s
olated the PMWA and MMFWA as follows:
(1) Citizens uniformly classified
state overt
laws;
ABMs
(2) Citizens maintained a standardized
description
the ABM position;
exempt
from
job title and
job
ABMs routine
spent approximately 80% to 100% of
their t
rforming non-exempt personal banker and
teller duties;
(3 )
(4 ) ABMs
and
routinely worked more
t
n
In
submitted declarat
Pennsylvania,
of
support
this
submitted
51
submitted
32
de
worked by
87.56%.
rations
t
week;
compensate
have
plaintiffs
declarations
51
average percent of t
was
did not
contention,
The average number of hours worked by
duties
in a
from over 80 putative class members.
plaintiffs
was 48.46, and
hours
40
ABMs were all paid a salary that
them
r overtime worked.
(5 )
hours
as
32
average percent of time
from
For
ABMs.
For
ABMs.
Pennsyl
ABMs
spent performing non-
Massachusetts,
The
average
was
iffs
p
number
49.72,
and
of
Massachusetts
ABMs
the
spent perfo
ng non-exempt duties was
88.91%.1
Plaintiffs also
st that the court take note that Citizens
recently reclassifi
a large number of ABMs as non-exempt, and
modified the
job duties of other ABMs to increase their
supervision and responsibilities.
Ci tizens contends t
t any
staffing changes it made are irrelevant to class certification.
[Doc. Nos. 104 and 105].
1
4
ions for ABM job
Plaintiffs also submitted job descr
vacancies
Delaware,
post
in
New
Pennsylvania,
York,
Massachusetts,
Each job posting describes the same
and New Jersey.
position and duties:
Overall
responsibility
for
daily
operations,
including management of Teller (including Tel r
Manager) and Customer Se
ce staff to a Tier II
branch.
P
sales
leadership to ensure
franchise growth through
rsonal example and
regular monitoring of team sales results.
Under
guidance of Branch Manager may
re, fire,
and counsel staff.
ews teller work schedule.
Schedules
Bankers/Customer
Service
Representati ves
to
ensure
adequate
coverage.
Respons Ie for
ing branch
compliance with
all bank policies and procedures and
res
branch
r internal audits.
Monitors branch
service quality levels
and coaches staff to
achieve appropriate levels.
Responds to complex
customer complaints and questions.
Coordinates
special events such as Customer Appreciation Day.
Opens and/or closes branch.
Reports to Branch
Manager.
C
izens
admits
that
regardless of branch location,
as exempt from overt
Citizens
also
does
accurately descr
contends
t
all
ABMs
are
a
sa
ry,
and that all ABMs are classified
requirements under the
not
paid
contest
that
the
PMWA and MMFWA.
above
job
posting
s the job duties of an ABM; however, Citizens
their
policy
is
compliant
with
applicab
laws.
Citizens contests class certificat
pursuant to Rule 23 on the
grounds
of
that
it
is
the
decision
the
individual
Branch
Managers in control of their individual branches to depart with
Ci tizens'
lawful policy,
and such decisions are not driven from
5
any
centralized
corporate
or
policy
job
boilerplate
descriptions.
II.
PROCEDURAL BACKGROUND
Plaintiff Justin Bell
commenced this
10, 2010 seeking reI
f under the FLSA.
29,
Justin
2010,
amended
plaintiffs
Bell
class/collective action
the FLSA,
PMWA, and MMFWA.
action on March
[Doc. No.1].
and
Ke
complaint
[Doc. No. 12].
h
On Ap
filed
Costanza
seeking
1
an
relief
under
Plaintiffs moved for
conditional certification for a collective action under the FLSA
on June 16,
court
2010.
entered
[Doc.
an
conditional certi
No.
order
20].
On September 2,
granting
plaintiffs'
2010,
this
motion
for
cation for a collective action under t
FLSA
for the following class: "All Assistant Branch Managers employed
at Citizens Bank retail branches during any workweek since March
10,
2007 who were paid a salary and classifi
exempt from the FLSA's overtime pay mandates.
On
October
ABMs.
6,
2010,
notices
were
mailed
to
by Defendants as
[Doc.
/I
2,669
No.
55].
identified
The consent deadline to become a party plaintiff was set
for December 6,
plaintiffs'
2010.
FLSA
aim.
Approximately 479 individuals opted into
[Doc.
Nos.
3-7,
13-15,
66,
68-73,
76,
80 82, 85, 92-93].
aintiffs filed motions for class certification under
the PMWA and MMFWA on December 19, 2010.
6
[Doc. Nos.
8
and 89].
Plaintiff Justin Bell seeks Rule 23
llowing
class:
"All
Citizens
Bank
retail
workweek
since
March
Assistant
branches
10,
2007
r
ass certification
Branch
in
Managers
employed
Pennsylvania
who
were
paid
the
at
during
any
salary
and
a
assified by Defendants as exempt from the PMWA's overtime pay
mandates."
The potential PMWA class consists of
[ Do c. No. 12].
approximately 853 individuals.
Plaintiff
certification
Managers
for
Keith
the
employed
[Doc. No. 88 1].
Costanza
following
at
seeks
class:
Citizens
Rule
"All
Bank
23
class
Assistant
Branch
retail
Massachusetts during any workweek since March 10,
paid a
salary and classified by Defendants as
[MMFWA]'s
overtime
pay
mandates."
[ Do c .
branches
2008 who were
exempt
No.
in
from the
12].
The
potential MMFWA class consists of approximately 674 indi
duals.
[Do c. No. 8 8 -1] .
On
plaintiffs'
March
25,
2011,
motions
for
Rule
PMWA and MMFWA.
this
23
court
class
held
a
hearing
certification
on
under
the
[Do c. No. 103].
III. DISCUSSION
Plaintiffs have moved for both opt-in FLSA collective
action
certification
and
opt-out
certification in the same case.
2011
hearing
on
aintiffs'
Rule
23
class
action
As addressed at the March 25,
motions
7
for
class
certification
under the PMWA and MMFWA,
created
by
bringing
we find that a potential conflict is
the
federal
and
state
Neither party has expressly addressed
actions in the same case.
the potential incompatibility of actions dual
the
FLSA
However,
and
state
collective/class
wage
laws
in
their
filed under both
respective
briefs.
we will address this issue sua sponte because we find
the issue of incompatibility to be of significant me
The
addressed
Court
the
of Appeals
issue
of
for
the
Third
incompatibility
t.
Circuit
of
FLSA
has
not
collective
actions that are filed in conjunction with Rule 23 class actions
where
the
plaintiff
pled
original
over the state law class action.
provided guidance in De
301
(3d Cir.
2003),
matter
However,
v.
A~encio
subject
jurisdiction
the court of appeals
Tyson Foods,
Inc.,
342 F.3d
when it determined that the district court
did not properly exercise supplemental jurisdiction over a state
law opt-out
action that was
opt-in action.
The
in conjunction with an
FLSA
Id. at 312.
court
mandate an opt-in c
decision."
filed
Id.
at
of
appeals
stated
that
the
decision
to
ss or an opt-out class is a "crucial policy
311.
The court of appeals then found that
the "inordinate size of the state-law class,
the different terms
of proof required by the implied contract state law claim,
and
the general federal interest in opt in wage actions" caused the
state law claims to predominate.
8
Id.
at
312.
There fore,
the
court
of
appeals
discretion
court
of
in
exe
that
sing
appeals
state-law
t
held
the
supplemental
characterized
class
district
action
abused
its
rd.
The
jurisdiction.
plaintiffs'
in
court
attempt
conjunction
to
certify
t
FLSA
with
collective action as a "second line of attack when the FLSA opt
in pe
od yielded a smaller than desired federal class."
While
De
Asencio
directly address t
Asencio,
the
provides
the
necessitate
instant
same
the
Additionally,
matter
invo
the
sister
does
same
allegations
di scovery,
not
Unli
De
overtime
cIa
All of the claims
and
would
testimony,
appear
and
to
witnesses.
gal analysis would appear to be the same for
district
incompatibility
the
and state law.
factual
same
s
all claims set forth in this case.
our
it
question now before this court.
presented under both federal
involve
direction,
rd.
courts,
issues
that
Accordingly, we must look to
many
are
of
very
which
have
addressed
similar
to
the
deci sion
in
De
instant
matter.
er
the
court
of
appeal s'
numerous district courts within
Appeals
parallel
the
Court of
jurisdiction of t
the Third Circuit have dismissed state claims that
federal
inherent
claims
set
L.P.,
forth
in
incompatibility between
and opt-out class actions.
Co.,
Asencio,
527
F.Supp.2d
See e.g.
439,
452
9
the
same
case because of
opt-in
collective
actions
Ellis v.
Edward D.
Jones &
(W.D.
Pa.
2007);
Woodard v.
FedEx Freight East,
Burkhart-Deal
2357735,
at
Stem,
457
Hewitt
v.
*2
Inc.,
(W.O.
Pa.
F.Supp.2d
Associates,
11,
June
522,
Inc.,
Aug.
06-166,
(D.N.J.
Co.,
U.S.A.
July 17,
Inc.,
2008)
Rule
2006);
No.
(allowing
23
class
concerns);
(7th Cir.
Himmelman v.
Inc. ,
Pa.
07-1747,
Pa.
2008);
2008
2006);
2006
WL
Aug.
04 - 4100,
07 1687,
the
2347875,
at
11,
action
No.
2006); Aquilino
2006 WL 2023539 ,
WL
4279818
led
FLSA col
move
to
*2
at * 3
-A-Car
2008
dual
WL
Pocono Health
Continental Cas. Co.,
------------------------
(D.N.J.
No.
(M.D.
Otto v.
(M.D.
06-267,
at *2
No.
2008);
524
190
2006); but see
Ervin v.
2011)
178,
Inc.,
5,
No.
2006 WL 2347873,
Home
F.R.D.
Citifinancial,
(D.N.J.
v.
250
(W.O.
cti ve
forward
Pa.
action
spite
OS Restaurant Services,
Sept.
Inc.,
12,
and
compat
632
the
ility
F. 3d 971
(rejecting the inherent incompatibility argument
and finding that the FLSA does not prevent state law claims for
related relief to be
In 1947,
FLSA
Congress enacted the opt-in provision of the
response "a national emergency spawned by out-of-control
litigation
Ellis,
led in the same federal proceeding).
of
527
employee
F.Supp.2d
desired
to
control
"absent
individuals
minimum
at
the
450
of
not
requiring
p
intiffs
to
opt-in
10
overtime
their
Otto,
to
claims."
omitted).
litigation
have
wi thout their input or know ledge. "
By
and
(citations
volume
would
wage
and
Congress
ensure
rights
that
litigated
457 F. Supp. 2d at 524.
the
collective
action,
Congress
intended
affirmatively
to
limit
asse
right,'
to
and
by
affected
'free [
Roche,
493
FLSA
'in
of
173
165,
(1989)).
Congress
litigation
purpose
of
such
lly
created
claims
a
their
own
of
(quoting
By adding
the
lling under the
mechanism
that
avoids
representative
through
those
burden
the
opt-in requirement to wage and overtime claims
FLSA,
to
527 F.Supp.2d at 451
Ellis,
U.S.
claims
employees
employers
representative actions.'"
Hoffmann-La
"private
opt-out
actions.
lowing a
Rule
23
opt-out
action
to
proceed
in the
same lawsuit as an opt-in FLSA action would allow plaintiffs to
evade
the
requirements
of
the
FLSA
by
permitting
litigation
through a representative action and bringing unnamed plaintiffs
into
would
FLSA
the
lawsuit.
Otto,
"essentially
opt-in
457
nullify
scheme
and
Congress's
would
FLSA]'s opt-in requirement."
Owe n s - I 11 in 0 is,
that there is a "fundamental,
523.
Moreover,
"eviscerate
the
it
creating
intent"
the
purpose
of
[the
at 524; see also
Id.
5 13 F. 2 d 2 8 6 , 2 8 8
Inc.,
the class action
F.Supp.2d at
( 5th Ci r . 1 97 5 )
irreconcilable dif
( s t at in g
rence between
scribed by Rule 23 and that provided for by
the FLSA").
Accordingly,
courts within the
Third
Circuit,
we
agree
with
the
majority
of
jurisdiction of the Court of Appeals
and
find
that
the
11
incompatibility
dist
ct
for the
between
the
opt-in
that
collective
the
p
action
intiffs'
and the
Rule
23
opt-out
claims
class
cannot
action
proceed
aintiffs'
pursuit
subsequent
to
collective
action
[because]
the
close
to
class
be
certi
cation
under
the
of
opt-in
period
We
for
merely
a
"second
line
Rule
23
FLSA
attack
the FLSA opt in period yielded a smaller than
sired
De Asencio, 342 F.3d at 312.
Conclusion
Accordingly,
we
will
deny
plaintiffs'
class certification pursuant to Rule 23,
the
class
of
federal class."
IV.
of
as
such
aims.
actions in so far as they overlap with their FLSA
find
is
Pennsylvania
and Massachusetts
An appropriate order
lows.
12
r
which seek to certify
classes
claims.
motions
for
state
law wage
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JUSTIN BELL and KEITH
COSTANZA on behalf of
themselves and simi
ly
situated employees,
Plaintiffs,
v.
Civil Action No. 10-0320
CITIZENS FINANCIAL GROUP,
INC., RBS CITIZENS, N.A.
d/b/a CITIZENS BANK,
CITIZENS BANK OF
PENNSYLVANIA d/b/a
CITIZENS BANK,
Defendants.
ORDER
AND
consideration
NOW,
of
this
plaintiffs'
p~
day
of
motions
June,
class
pursuant to Federal Rule of Civil Procedure 23
2011,
upon
certification
[Doc. Nos. 87 and
89], IT IS HEREBY ORDERED that the motions are DENIED.
BY THE COURT:
--F------1---=-e_AA/~_,
cc;
All Counsel of Record
C. J.
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