Johnson v. Academy Mortgage Corporation
Filing
43
MEMORANDUM DECISION and Order granting 40 Motion to Certify Class. Signed by Judge Ted Stewart on 11/1/12. (jlw)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
TERESA JOHNSON, on behalf of herself
and other persons similarly situated,
Plaintiff,
MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFF’S
REFILED MOTION TO
CONDITIONALLY CERTIFY A
COLLECTIVE ACTION AND FOR
COURT ASSISTED NOTICE
vs.
ACADEMY MORTGAGE
CORPORATION, a Colorado corporation,
Case No. 2:12-CV-276 TS
Defendant.
This matter is before the Court on Plaintiff’s Refiled Motion to Conditionally Certify a
Collective Action and for Court Assisted Notice. For the reasons discussed below, the Court will
grant the Motion.
I. BACKGROUND
This dispute arises from the alleged failure of Defendant Academy Mortgage Company to
pay Plaintiff—and other similarly situated employees—overtime compensation for hours worked
in excess of 40 hours in one work-week. Plaintiff alleges that Defendant’s failure to pay
1
overtime constituted a violation of the Fair Labor Standards Act (“FLSA”) as found in 29 U.S.C.
§ 207.
II. DISCUSSION
Under the FLSA, an employee may bring a collective action on behalf of “similarly
situated” employees.1 The Tenth Circuit has approved a two-step approach to determine whether
putative class members are similarly situated.2 “In utilizing this approach, a court typically
makes an initial ‘notice stage’ determination of whether plaintiffs are ‘similarly situated.’”3 At
this early stage, “a court ‘require[s] nothing more than substantial allegations that the putative
class members were together the victims of a single decision, policy, or plan.’”4 Then, “[a]t the
conclusion of discovery (often prompted by a motion to decertify), the court [] makes a second
determination, utilizing a stricter standard for similarly situated.”5
A.
SUBSTANTIAL ALLEGATIONS
As an initial matter, Defendant argues that Plaintiff’s Motion should be denied because
identifying putative plaintiffs will required a fact-intensive approach. Specifically, Defendant
argues that the question of whether the putative plaintiffs are exempt from the FLSA overtime
requirements will be a fact-intensive inquiry that is inappropriate for collective action treatment.
1
29 U.S.C. § 216(b).
2
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001).
3
Id. (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)).
4
Id. (quoting Bayles v. Am. Med. Response of Colo., Inc., 950 F. Supp. 1053, 1066 (D.
Colo. 1996)).
5
Id. at 1102-03.
2
Defendant’s argument is premature. This argument is better addressed in the second step
of the two-step approach approved in Thiessen. At the first step, all that is required is that
Plaintiff provide substantial allegations that the putative class members were the victims of a
single decision, policy, or plan. Therefore, this argument does not provide a basis to deny
Plaintiff’s Motion.
Defendant next argues that Plaintiff has failed to provide the substantial allegations
required. The Court disagrees. As stated, the Court must determine whether plaintiffs are
“similarly situated.” “In doing so, a court ‘require[s] nothing more than substantial allegations
that the putative class members were together the victims of a single decision, policy, or plan.’”6
This is a lenient standard.7
Plaintiff’s Complaint, along with her affidavit, provide evidence that each of the putative
plaintiffs were paid on a salaried basis, were classified as exempt, and were not paid overtime for
hours worked over 40 hours. Plaintiff states that she believes that all of the underwriters at
Academy Mortgage Corporation were performing the same job duties and were subject to the
same pay plan. Plaintiff learned this information from conversations with other underwriters,
interactions with underwriters at a regional meeting, receiving emails concerning instructional
information or policies and procedures, and reviewing company personnel policies that were
available on the company’s intranet.
Defendant argues that this is insufficient, describing Plaintiff’s allegations as
6
Id. at 1102 (quoting Bayles, 950 F. Supp. at 1066).
7
Id. at 1103.
3
“conclusory.” In support, Defendants cite to Bernard v. Household International, Inc.8 In
Bernard, however, the plaintiffs had failed to provide sufficient evidence “that defendant has a
company-wide policy resulting in potential FLSA violations.”9 Rather, “[t]he incidents
highlighted in the allegations and declarations instead focus on the acts of supervisors at [two]
individual offices . . . .”10
Defendant argues that “Academy Mortgage is even more geographically diverse than the
company in Bernard, with 111 offices in 23 states, and at least 38 underwriters spread throughout
these offices; only nine underwriters are located in Utah.”11 A review of Bernard demonstrates
that it was not the geographical diversity that concerned the court, it was the fact that the plaintiff
there had failed to present evidence of a company-wide policy. Plaintiff’s evidence does not
suffer from the same flaw. Rather, Plaintiff provides evidence of a company-wide policy and
provides support for her belief that such a policy existed. Therefore, the Court must similarly
reject this argument.
B.
NOTICE
The United States Supreme Court, in Hoffman-La Roche v. Sperling, clarified that under
§ 216(b) district courts have discretion in deciding whether to order notice to potential
8
231 F. Supp. 2d 433 (E.D. Va. 2002).
9
Id. at 435.
10
Id.
11
Docket No. 41, at 6.
4
plaintiffs.12 Hoffman explained that “[b]y monitoring preparation and distribution of the notice, a
court can ensure that it is timely, accurate, and informative. Both the parties and the court benefit
from settling disputes about the content of the notice before it is distributed.”13
In this case, Plaintiff has submitted a proposed notice, to which Defendant has lodged
various objections. Rather than sort through these objections, and Plaintiff’s responses thereto,
the Court will direct the parties to meet and confer to attempt to resolve the objections to the
notice. Plaintiff shall then re-submit the notice to the Court and the Court will provide
Defendant an opportunity to file any additional objections that may remain.
III. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Refiled Motion to Conditionally Certify a Collective Action
and for Court Assisted Notice (Docket No. 40) is GRANTED.
Within fourteen (14) days of this Order, the parties are to meet and confer regarding the
proposed notice. At the end of that fourteen (14) day period, Plaintiff is direct to submit an
amended notice to the Court. If any objections remain, Defendant must file those objections
within fourteen (14) days after the amended notice is submitted to the Court.
12
See 493 U.S. 165, 170-72 (1989).
13
Id. at 172.
5
DATED November 1, 2012.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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