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denying conditional certification in part because plaintiffs declarations were deficient
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12 Civ. 7193 (PKC) 12 Civ. 7194 (PKC)
08-27-2013
DAVID FERNANDEZ, JIM AKASALA, JOSEPH SCUTTS, ROBERT LONGO and OSWALDO LEE, III, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. WELLS FARGO BANK, N.A., WELLS FARGO & COMPANY and WFC HOLDINGS CORPORATION, Defendant. JOSEPH SCUTTS, DAVID FERNANDEZ, JIM AKASALA, ROBERT LONGO, OSWALDO LEE, III and FARHAN HAROON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. WACHOVIA CORP., WACHOVIA BANK N.A., WELLS FARGO BANK, N.A., WELLS FARGO & COMPANY and WFC HOLDINGS CORPORATION, Defendants.
MEMORANDUM AND ORDER
:
Plaintiffs in the above-captioned cases move for preliminary certification as a collective action under the Fair Labor Standards Act ("FLSA") and for certification as a class action for claims brought under the New York Labor Law ("NYLL") and the Employee Retirement Income Security Act ("ERISA"). (12 Civ. 7193, Docket # 32; 12 Civ. 7194, Docket # 30.) Plaintiffs assert FLSA, NYLL and ERISA claims against Wells Fargo Bank, N.A., Wells Fargo & Company and WFC Holdings Corporation (collectively, "Wells Fargo"), and, in a separate action, against Wachovia Corporation and Wachovia Bank, N.A., (collectively, "Wachovia"), which were acquired by Wells Fargo in December 2008.
Plaintiffs have not come forward with evidence to establish that the putative members of the proposed NYLL class were denied overtime under a common policy, or that class-wide issued predominate over individual ones. They also have not made the modest factual showing required for preliminary certification as an FLSA collective action. Their motions are denied. BACKGROUND
A. The Financial Specialist and Personal Banker Positions.
Plaintiffs assert claims on behalf of themselves and others who worked as "financial specialists" at Wachovia and "personal bankers" at Wells Fargo. There is no dispute that the responsibilities of personal bankers and financial specialists are nearly identical. As discussed in greater detail below, their primary responsibilities centered on customer service and business generation. Plaintiffs contend that they also were required to open and close bank branches on business days and to work through meal breaks without compensation. According to plaintiffs, these responsibilities required them to work off-the-clock hours without receiving overtime pay.
Beginning in 2001, Wachovia's predecessor, First Union Corporation, reclassified financial specialists as covered by FLSA wage-and-hours laws, after previously classifying them as exempt. (Pl. Ex. 18.) The parties do not dispute that financial specialists and personal bankers are covered by state and federal wage-and-hour laws.
First Union and Wachovia executed an Articles of Merger on August 31, 2001. (Plaintiffs' Ex. 14.)
In 2008, Wells Fargo acquired Wachovia, and currently operates approximately 6,200 retail-banking branches in the United States. (Pls. Exs. 15-16.) After the acquisition, Wells Fargo changed the "financial specialist" title to "personal banker," while retaining "virtually identical" responsibilities. (See, e.g., Pl. Ex. 1, Akasala Dec. ¶ 1; Pl. Ex. 2, Fernandez Dec. ¶¶ 1-2.; Pl. Ex. 3, Scutts Dec. ¶ 1.)
B. Plaintiffs' Assertions of Unlawful Common Policies.
Plaintiffs rely heavily on the declarations of three individual plaintiffs: Jim Akasala, David Fernandez and Joseph Scutts. (Pl. Exs. 1-3.) Akasala worked as a financial specialist at a Wachovia branch in Manhattan beginning in March 2008, then at different Manhattan branches as a Wells Fargo personal banker until July 2011. (Akasala Dec. ¶ 1.) Fernandez worked as a Wachovia financial specialist in Manhattan from July 2007 until "sometime in 2010," then continued as a Wells Fargo personal banker until January 2011. (Fernandez Dec. ¶ 1.) Scutts worked as a Wachovia financial specialist in Manhattan from April 2007, then became a Wells Fargo personal banker before leaving the company in August 2011. (Scutts Dec. ¶ 1.)
According to plaintiffs, Wells Fargo and Wachovia both imposed a so-called "dual edge" policy of limiting available overtime while also delegating "onerous" responsibilities that could not be met in a 40-hour workweek. (See Akasala Dec. ¶¶ 14-15; Scutts Dec. ¶ 13; Fernandez Dec. ¶ 14.) As a consequence, plaintiffs assert, the defendants required financial specialists and personal bankers to perform uncompensated, off-the-clock work in order to complete their assignments. (See Akasala Dec. ¶ 19; Scutts Dec. ¶¶ 15, 16, 19; Fernandez Dec. ¶¶ 16, 17, 20.)
According to plaintiffs, financial specialists in New York were told not to record their overtime hours because management would not approve overtime. (Pl. Mem. at 19.) Managers had authority to override time entries. (Pl. Mem. at 19.) Plaintiffs assert that employee bonuses and performance evaluations were linked to "unattainable goals." (Pl. Mem. at 20.) Plaintiffs contend that these practices were uniformly enforced throughout the State of New York, and, separately, for the FLSA claims, what plaintiffs identify as the Northeast Region of Wells Fargo: New York, New Jersey, Connecticut, Pennsylvania and Delaware. They also contend that personal bankers and financial specialists were governed by identical performance criteria, which emphasized revenue goals and account generation, and that their hours were recorded using the same electronic timekeeping system. (Pl. Mem. at 14-15.)
Plaintiffs assert that defendants implemented additional, specific policies that unlawfully required financial specialists and personal bankers to perform off-the-clock work without overtime compensation.
They assert that bank branches throughout the State of New York and the Northeast Region "basically" employed a uniform procedure for security protocols at branch closings and openings. (Pl. Mem. at 9-10.) Each shift working the branches' opening or closing required approximately 30 minutes of work for which plaintiffs "typically" were not compensated. (Pl. Mem. at 10-11.) By way of example, plaintiff Jim Akasala worked at a Wells Fargo branch in New York City that opened at 8 a.m. and closed at 6 p.m. (Akasala Dec. ¶ 33.) Akasala asserts that when he was responsible for closing the branch, he clocked out at precisely 6 p.m., but remained at least an additional 30 minutes; similarly, when assigned to open the branch, he arrived 30-45 minutes prior to the opening time, yet routinely clocked in at 8 a.m., well after he began branch-opening duties. (Akasala Dec. ¶¶ 33-34.)
Plaintiffs assert they were also required to perform uncompensated work during meal breaks due to the high volume of customer traffic during lunch periods. (See, e.g., Scutts Dec. ¶ 22; Fernandez Dec. ¶ 23; Akasala Dec. ¶ 30.) But, plaintiffs claim, company software would automatically deduct 30 minutes for employee meal breaks, thereby leaving plaintiffs uncompensated for work performed during that time. (See, e.g., Scutts Dec. ¶ 22; Fernandez Dec. ¶ 23; Akasala Dec. ¶ 30.)
Plaintiffs similarly assert that their responsibilities for generating business and participating in marketing ventures required them to work off the clock. They contend that this work occurred both within and outside of bank branches, "and was generally uncompensated work." (Pl. Mem. at 12.) It included "call nights" that were "generally unpaid" and lasted at least two hours a month. (Pl. Mem. at 12.) According to plaintiffs, business-generation was required of all financial specialists and personal bankers, and was described as such in published job descriptions. (Pl. Mem. at 12-13.) Plaintiffs assert that this work was mandatory, even when not compensated beyond employees' scheduled 40-hour weeks. (See, e.g., Scutts Dec. ¶ 20; Fernandez Dec. ¶ 21; Akasala Dec. ¶¶ 21, 23.)
C. Procedural Background.
Counsel to the plaintiffs previously asserted similar claims and unsuccessfully moved for certification of a national collective action of Wells Fargo personal bankers. Richardson v. Wells Fargo Bank, N.A., et al., 11 Civ. 738 (S.D. Tex.). In an unpublished Memorandum and Order dated February 2, 2012, the district court (Honorable Nancy F. Atlas, U.S.D.J.) concluded that plaintiffs had not come forward with sufficient evidence of a common nationwide policy and that individualized determinations were required to determine the circumstances of each plaintiff's injuries and damages. (Def. Ex. R-3 at 9-17.) It denied the plaintiffs' motion for conditional certification as a collective action. It appears that much of the evidence submitted by the parties on the current motion was obtained in the Richardson action.
In a Memorandum and Order dated July 9, 2013, this Court granted defendants' motion to dismiss one of plaintiff's ERISA claims, which asserted that defendants failed to make contributions for all employee hours worked. Fernandez v. Wells Fargo Bank, N.A., 2013 WL 3465856 (S.D.N.Y. July 9, 2013). It denied defendants' motion to dismiss claims asserting that defendants failed to keep and maintain the records required by ERISA. Id. at *5.
D. Plaintiffs' Proposed Class Definitions.
The plaintiffs move to certify the following classes as an FLSA collective action and Rule 23 class actions. As to the Wells Fargo FLSA collective action, they propose the following definition:
A collective action under section 216(b) of the FLSA consisting of all full-time Personal Bankers who worked at Wells Fargo bank in the Northeast Region (including New York, New Jersey, Connecticut, Pennsylvania and Delaware) in the three years preceding the filing of this lawsuit through the date of its disposition.(Pl. Mem. at 2.) Plaintiffs propose the following class for their NYLL and ERISA claims against Wells Fargo:
A Rule 23(b)(3) class of all full-time Personal Bankers employed by Wells Fargo in the state of New York during the six years prior to the filing of this action through the date of its disposition. Plaintiffs also seek to certify an ERISA Sub-Class within this main class of those class members who participated in Wells Fargo's 401k plan but failed to have the proper number of hours and/or compensation earned credited to their retirement accounts.(Id.) Lastly, plaintiffs propose the following class for their NYLL and ERISA claims against Wachovia:
A Rule 23(b)(3) class of all full time Financial Specialists employed by Wachovia in the state of New York during the six years prior to the filing of this action through the date of its disposition. Plaintiffs also seek to certify an ERISA Sub-Class within this main class of those class members who participated in Wachovia's 401k plan but have failed to have the proper number of hours and/or compensation earned credited to their retirement accounts.(Id.) DISCUSSION
I. PLAINTIFFS' MOTIONS FOR RULE 23(b)(3) CLASS CERTIFICATION OF THEIR NYLL CLAIMS ARE DENIED.
A. Rule 23 Standard.
"The burden of proving compliance with all of the requirements of Rule 23 rests with the party moving for certification." Levitt v. J.P. Morgan Sec., Inc., 710 F.3d 454, 465 (2d Cir. 2013). "A party seeking class certification must affirmatively demonstrate his compliance with the Rule - that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2552 (2011) (emphasis in original); see also In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 42 (2d Cir. 2006) ("A district judge is to assess all of the relevant evidence admitted at the class certification stage and determine whether each Rule 23 requirement has been met . . . ."). The movant must establish each prong of Rule 23 by a preponderance of the evidence. Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (collecting cases).
"In determining whether class certification is appropriate, a district court must first ascertain whether the claims meet the preconditions of Rule 23(a) of numerosity, commonality, typicality, and adequacy." Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir. 2008). A court "may then consider granting class certification where it 'finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.'" Id. at 202 (quoting Rule 23(b)(3)).
"Frequently [a court's] 'rigorous analysis' will entail some overlap with the merits of the plaintiffs underlying claim." Wal-Mart, 131 S. Ct. at 2551; accord Teamsters Local 445, 546 F.3d at 202 (a district court makes factual determinations when there is "overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement.") (quotation marks omitted). However, "in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement." In re IPO, 471 F.3d at 41. In Comcast Corporation v. Behrend, 133 S. Ct. 1426 (2013), the Supreme Court concluded that a class was wrongly certified given the overinclusiveness of plaintiffs' proposed damages methodology. Plaintiffs' damages model accounted for four possible categories of antitrust injury, rather than the single surviving category of antitrust injury that plaintiffs were pursuing. Id. at 1433. As a result, plaintiffs had failed to propose a method for connecting the legal theory of harm to its economic effect and thereby failed to prove predominance under Rule 23(b)(3). Id. at 1435. The Supreme Court also concluded that the district court and the court of appeals both erred in refusing to engage the merits of the case, insofar as they overlapped with the requirement to determine whether damages could be determined on a classwide basis. Id. at 1432-33. Without a nexus between damages and the underlying injury, "any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be." Id. (emphasis in original).
In light of Comcast, it bears emphasizing that, in discussing plaintiffs' evidence of a common policy directed to members of the proposed classes, the Court's analysis does not go to the ultimate merits of plaintiffs' claims. All discussion of the parties' evidence is limited to their burden under Rule 23.
B. Application of Rule 23(a).
1. Plaintiffs Satisfy the Numerosity Requirement.
Rule 23(a)(1) requires a plaintiff to establish that "the class is so numerous that joinder of all members is impracticable." Plaintiffs assert, and defendants do not dispute, that there Wells Fargo and Wachovia employed "hundreds" of financial specialists and personal bankers in New York. This potential class of hundreds satisfies the numerosity requirement of Rule 23(a)(1).
2. Plaintiffs Have Not Established Commonality.
To satisfy the commonality requirement Rule 23(a)(2), a plaintiff must establish "questions of law or fact common to the class" by a preponderance of the evidence. Commonality "does not mean merely that [class members] have all suffered a violation of the same provision of law." Wal-Mart, 131 S. Ct. at 2551. Any common question "must be of such a nature that it is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. In Wal-Mart, where plaintiffs asserted a companywide policy of discrimination, the Supreme Court concluded that the company's delegation of discretion to local stores required individualized determinations of each class member's employment circumstances and whether each class member was injured as a result of discrimination. Id. at 2251-54. Plaintiffs contended that the defendant delegated broad discretion to local supervisors, thereby adopting a policy that facilitated acts of discrimination. Id. at 2254-55. But, the Supreme Court concluded, plaintiffs had "not identified a common mode of exercising discretion that pervades the entire company," and "demonstrating the invalidity of one manager's use of discretion will do nothing to demonstrate the invalidity of another's," Id. By contrast, if plaintiffs had identified a biased procedure or "significant proof" of a "general policy" of discrimination, Rule 23(a)(2) commonality would have been satisfied. Id. at 2253.
Plaintiffs have not established by a preponderance of the evidence that the personal bankers of Wells Fargo or the financial specialists of Wachovia were subject to a common, New York-wide policy to limit their recorded hours or require off-the-clock work.
a. Plaintiffs Have Cited No Meaningful Directives or Statements of Policy Concerning Off-the-Clock Work.
Nowhere in plaintiffs' papers do they cite a specific, concrete, management directive concerning plaintiffs' off-the-clock work or any purported requirement not to record hours worked. As discussed below, the representations in the individual plaintiffs' declarations do not attribute statements concerning compensation to specific individuals. Limited, anecdotal evidence concerning a de facto compensation policy is insufficient to establish commonality. See, e.g., Eng-Hatcher v. Sprint Nextel Corp., 2009 WL 7311383, at *3 (S.D.N.Y. Nov. 13, 2009) (denying FLSA and Rule 23 certification).
Plaintiffs argue that defendants enacted a policy that deemed overtime pay "no longer permissible." (See Pl. Ex. 70.) As evidence, they cite solely to an e-mail of May 26, 2010, sent by an individual named LaKeisha Rivers, who is identified in the signature line as store manager of a Wachovia branch at 99 Park Avenue. (Id.) The e-mail apparently attaches a copy of a June 2010 work schedule, and stated in relevant part, "Please note that when working a Saturday you will flex your time during the week as OT is no longer permissible." (Id.) This e-mail explicitly states that employees should "flex [their] time" if they worked Saturday, which is not equivalent to requiring them to work without overtime pay or to work off the clock. (Id.) Even if it were otherwise, there is no indication that this e-mail reflected a common New York-wide policy, as opposed to a single branch's policy concerning Saturday work and flex time in a single month.
Similarly, plaintiffs' memorandum states that financial specialists "in the state of New York were told not to record overtime because such additional overtime would not be approved," but the evidence cited in support consists of deposition testimony from Akasala that contains no such instruction, let alone such an instruction that applies throughout New York. (Pl. Mem. at 19, citing Pl. Ex. 4 at 11-13, 43-44.) Instead it recounts incidents in which Akasala said that he "wasn't properly compensated" for overtime and testimony about branch opening and closing procedures. (Pl. Ex. 4 at 11-13, 43-44.) It does not cite to any express instructions from management. This may be evidence of unlawful conduct directed toward Akasala personally, but it is not evidence of a common New York policy concerning overtime.
By contrast, defendants have come forward with evidence that Wells Fargo repeatedly told personal bankers that they should record all time worked. In a 2011 handbook, Wells Fargo stated, "If you're in a nonexempt position, you're responsible for submitting timely and accurate records of the hours you work." (Def. Ex. C-2 at 000828.) The same handbook stated that non-exempt employees "must take the required meal periods to which you're entitled during the workday," but added that "[i]f for any reason, on occasion, your supervisor requires you to work or stay at your workstation during your meal period, it's considered paid time and should be recorded as work time." (Id.) A separate 2011 guide stated that managers "will not" deny overtime pay "even if the overtime was unauthorized," and also forbade managers to permit employees to work off the clock." (Def. Ex. C-3 at 001233 (emphasis in original).) While these written policies do not foreclose the possibility of a de facto company policy to deny overtime or limit employees' time entries, the record offers no "significant proof" of a "general policy" to deny such pay or limit such entries. Wal-Mart, 131 S. Ct. at 2253. Thus, the plaintiffs do not satisfy the commonality requirement.
b. Plaintiffs Rely on Evidence that Predates the Proposed Class Period and Has No Obvious Connection to New York.
Much of plaintiffs' evidence has no direct application to their proposed class definitions, which, as noted, include financial specialists and personal bankers in the State of New York for a period that begins six years prior to the commencement of these actions on September 24, 2012. These problems are temporal (plaintiffs rely heavily on evidence that predates September 24, 2006 by years) and geographic (much of that evidence has no obvious application to New York).
Plaintiffs have submitted a battery of exhibits that relates to Wachovia's initial adoption of a salaried-with-overtime pay structure. According to plaintiffs, this pay structure violates the NYLL because it is inconsistent with a fluctuating workweek model that permits employers to vary from the time-and-a-half overtime pay requirement. See generally Anderson v. Ikon Office Solutions, Inc., 38 A.D.3d 317 (1st Dep't 2007) (applying FLSA regulation and authority to NYLL fluctuating workweek claim); 29 C.F.R. § 778.114 (regulation governing use of fluctuating workweek pay schemes). Plaintiffs argue that the salaried-with-overtime pay structure was adopted so that defendants could require employees to work more than 40 hours a week while receiving little-to-no overtime pay.
But the evidence submitted in support of this theory has a thin nexus to plaintiffs' proposed class definitions. As evidence of common policy, plaintiffs submit internal training materials that apparently date from in or around 2000 and 2001, when Wachovia and its predecessor, First Union, reclassified financial specialists from exempt to non-exempt. (Pls. Exs. 40-49.) Other evidence includes the summaries of employee focus groups from 2002 and 2003. (Pl. Ex. 50.) While evidence outside the limitation period could in theory reflect a policy that continues within the limitations period, plaintiffs have not come forward such evidence. Evidence that defendants endeavored to arrange employees' work schedules to reduce overtime when possible is not, without more, evidence of a policy to require uncompensated overtime. The evidence is too remote in time to support an inference of a common New York policy from 2006 through present.
Further, it is not clear who drafted the documents, to whom they were circulated, and where and/or whether they applied. The documents are not annexed to an affidavit or declaration based on personal knowledge. In an index attached to plaintiffs' memorandum of law, the materials are identified by generic titles and Bates stamps ranges, with no explanation or guidance as to their origins and when, where or how they were used. The documents have titles such as, "Agenda and Talking Points to Accompany FLSA Video," "FLSA Training for Financial Specialist Leaders," "Ideas from Highly Efficient Financial Specialists," "Role Plays with Points for FSL," " FLSA Presentation to State Leadership," "FS Work Hours Survey and Results Before Reclassification" and "FS Focus Group Documents," (Pl. Exs. 40-50.) With no basic information about their authorship or use, the Court is unable to link them to a class of New York employees during the relevant period.
Plaintiffs also rely on Rule 30(b)(6) deposition testimony of Constantine Santiano, identified as a Wells Fargo district manager for the I-45 South District in Texas, for the purposes of asserting a common policy in New York and the Northeast Region. (Pl. Ex. 6, at 4-5.) There is no explanation as to how a Texas district manager would have familiarity with a policy purportedly existing in New York and the Northern Region. As to certain other depositions, neither plaintiffs' index nor the transcript excerpts readily identify the deponents' titles or responsibilities. (Pl. Exs. 8-10.)
Because this evidence has only a tenuous connection to any policy in New York or the Northeast Region, it is afforded minimal weight.
c. While the Declarations Submitted by Akasala, Fernandez and Scutts Provide Some Evidence of a Policy to Deny Overtime and Require Off-the-Clock Work, They Also Contain Significant Factual Gaps.
Separately, plaintiffs' declarations include certain representations specific to New York, and, for the purposes of plaintiffs' motion for preliminary certification as an FLSA collective action, the Northeast Region.
Akasala states that during conference calls, other Wachovia financial specialists in New York noted the inability to meet sales goals within a 40-hour week, and states that he "was aware of financial specialists and personal bankers "who worked significant unpaid overtime" to hit mandatory sales goals. (Akasala Dec. ¶ 17.) He asserts that financial specialists and personal bankers in New York and other states in the Northeast Region received e-mails stating that "our overtime would not be approved" because it was not budgeted by the company. (Akasala Dec. ¶ 27.) Akasala states that "[i]t was clear to me that" financial specialists and personal bankers in New York and the Northeast Region received similar treatment. (Akasala Dec. ¶ 37.) Fernandez states that in phone conferences, financial specialists and personal bankers in New York were told not to record overtime because it would not be approved. (Fernandez Dec. ¶¶ 16-20.) Scutts states that personal bankers in the Northeast Region received e-mails "telling us overtime would not be allowed, but that we had to meet our goals." (Scutts Dec. ¶ 17.) He states that managers "discouraged recordation of overtime and rarely approved overtime," citing pressure from the company. (Scutts Dec. ¶ 19.) Scutts states that he informed managers that he was working without recording his time, and that management took no corrective actions. (Scutts Dec. ¶ 24.)
The statements contained in these declarations constitute relevant evidence of a policy to require off-the-clock work and to limit overtime. However, their value as proof of a common policy is limited because of the lack of detail concerning the underlying communications. Specifically, the declarations include no dates (not even approximations) of when these communications took place. They identify none of the speakers or participants in these communications. (See, e.g., Akasala Dec. ¶ 22 ("Financial Specialists and Personal Bankers were told on district and regional conference calls not to record any overtime."); Fernandez Dec. ¶ 18 ("We received emails directed to Personal Bankers in the Northeast Region telling us overtime would not be allowed, but we had to meet our goals.").) The failure to identify these individuals weighs against certification. See, e.g., Khan v. Airport Mgmt. Services, LLC, 2011 WL 5597371, at *4 (S.D.N.Y. Nov. 16, 2011) (denying motion to certify FLSA collective action when plaintiff failed to identify any of 40 individuals claimed to be subject to a common policy). Plaintiffs submit no e-mails that purportedly limited overtime availability. (Id.) There is no basis to determine how broadly such statements applied. The declarations consist largely of hearsay by declarants whose identities and status within defendants' hierarchy is not revealed beyond vague generalities. See, e.g., Barfield v. N.Y. City Health & Hosp. Corp., 2005 WL 3098730, at *1 (S.D.N.Y. Nov. 18, 2005) (disregarding hearsay evidence of compensation policy). They often rely on inference. (See, e.g., Akasala Dec. ¶ 15 ("It was clear that the sales goals were being set at least by the regional executives, and perhaps communicated from even over their heads.")).
As discussed, plaintiffs have submitted as evidence of official policy an e-mail dated May 26, 2010, sent by LaKeisha Rivers, who is identified as a store manager of a Wachovia branch on 99 Park Avenue. (Pl. Ex. 70.) Plaintiffs Akasala and Lee were recipients of the e-mail, which appears to have attached a work schedule for the branch's financial specialists for June 2010. (Id.) This e-mail did not compel employees to work without overtime and instead instructs them to use flex time, and there is no indication that it applied to more than a single branch for more than one month.
The declarations of the three individual plaintiffs constitute some evidence that they were not permitted to bill for overtime and that they were encouraged to work off the clock. However, the weight afforded to their declarations is counterbalanced the imprecision and lack of detail in their assertions, and the failure to provide basic details about the underlying communications. In light of these infirmities, the Court affords the plaintiffs' individual declarations limited weight.
d. Plaintiffs Treat Wachovia's Financial Specialists and Wells Fargo's Personal Bankers as Fully Interchangeable for All Purposes.
In order to satisfy Rule 23, plaintiffs must come forward with evidence that "affirmatively demonstrate[s]" compliance with the rule, and must "prove that there are in fact . . . common questions of law or fact, etc." Wal-Mart, 131 S. Ct. at 2551 (emphasis in original). It is plaintiff's burden to come forward with evidence that pertains to each of its two proposed classes. Levitt, 710 F.3d at 465.
For the purposes of this discussion, the Court accepts arguendo the plaintiffs' assertion that the responsibilities of Wachovia financial specialists and Wells Fargo personal bankers were substantially identical. Such a similarity does not relieve plaintiffs of their burden to come forward with evidence of commonality specific to each of the two classes.
Instead of submitting evidence to support Rule 23(a)(2) commonality for each of their two proposed classes, plaintiffs have often lumped together evidence of Wells Fargo policies with evidence concerning Wachovia. (See, e.g., Pl. Mem. at 9-15, 20-26.) Plaintiffs discuss the two interchangeably. Plaintiffs have not established commonality between Wells Fargo's personal bankers by relying on evidence of Wachovia financial specialists, particularly when such evidence predates by years the Wachovia-Wells Fargo transaction. This flaw runs throughout plaintiffs' submissions. In their memoranda, plaintiffs frequently assert a common policy between Wells Fargo and Wachovia but only cite evidence that applies to one of the entities. But plaintiffs have proposed two distinct classes, bringing claims against two distinct defendants. Plaintiffs have not met their burden by citing to evidence concerning one defendant, and then, generally and in a sweeping manner, attributing the identical practice to a second.
It is also apparent from plaintiffs' submissions that Wachovia and Wells Fargo did, in fact, implement pay policies that varied in material respects. According to plaintiffs, after the acquisition, "Wells Fargo immediately dispensed with the 'salaried with overtime' pay scheme used by Wachovia," and provided traditional time-and-a-half overtime pay. (Pl. Mem. at 7, citing Pl. Ex. 10 at 86-87.) This is a fundamental difference that goes to the compensation of the proposed plaintiff classes. Under the salaried-with-overtime model, employees received a fixed salary, with the premise that their hours vary week to week, and that if an employee works more than 40 hours in a given week, their time pay is half the hourly average. See generally 29 C.F.R. § 778.114. Wells Fargo, by contrast, paid hourly wages with time-and-a-half overtime. (Pl. Ex. 10 at 86-87.) Therefore, even if their assigned tasks were similar, they were paid under dissimilar compensation models.
Plaintiffs' proposed class definitions also appear to incorporate persons and positions that, according to plaintiffs' own chronology of events, could not exist. The proposed Wachovia class consists of "all full time Financial Specialists employed by Wachovia in the state of New York during the six years prior to the filing of this action through the date of its disposition." (Pl. Mem. at 2.) This would encompass Wachovia financial specialists from 2006 through present. But, according to plaintiffs, after the Wells Fargo acquisition, the financial specialist position ceased to exist sometime after November 2009, when all financial specialists became personal bankers. (Pl. Mem. at 3.) As proposed by plaintiffs themselves, the Wachovia class of financial specialists encompasses several years during which the financial specialist position had been eliminated. At the same time, the proposed Wells Fargo class of personal bankers would include individuals who worked for Wells Fargo prior to the Wachovia transaction. It is not apparent from this record whether the personal banker position even existed prior the transaction, and if it did, whether the position was governed the same policies pre- and post-transaction.
Because the plaintiffs have not attempted to tailor the evidence to their two proposed classes, they have not satisfied their burden of providing Rule 23(a)(2) commonality.
e. Plaintiffs Have Not Come Forward with Evidence Sufficient to Establish Common New York Policies as to Compensation for Certain Tasks.
Plaintiffs assert that financial specialists and personal bankers in New York were governed by a policy that required them to perform certain tasks without full compensation. Specifically, they assert that they were required to open and close bank branches, work through pre-scheduled meal breaks and perform marketing and business-generation tasks without recording their time.
In addition to the infirmities already discussed, plaintiffs fail to come forward with evidence of a common policy to deny payment for work performed on these tasks. While plaintiffs have come forward with some evidence that employees had uniform responsibilities concerning the opening and closing of branches and business generation, they have directed the Court to no evidence of a common policy that required such work to be performed off the clock and without overtime pay. Plaintiffs' evidence on off-the-clock work consists of individualized and particular incidents, the characterizations of which are often qualified. As a result, they have failed to come forward with evidence that defendants enforced a common policy concerning denial of overtime pay.
Opening and closing procedures. Plaintiffs contend that financial specialists and personal bankers were subject to a common policy wherein they were required to open and close bank branches without pay. Their evidence of a common policy consists mainly of security procedures that offer guidance concerning high-duress and ambush-type situations; this guidance does not address compensation. (Pl. Exs. 55; Pl. Ex. 6, Santiano Dep. at 96.) A Rule 30(b)(6) witness testified that it was company policy to pay financial specialists for time spent on branch openings and closings. (Pl. Ex. 6, Santiano Dep. at 96-97.)
While plaintiffs' declarations describe certain anecdotal experiences concerning payments for work performed at opening and closing, they do not speak to a common New York policy. For example, Fernandez states that he was told by his manager "that whatever was on your schedule, that is what [you] should put down" in the time records, and that the schedule "usually" did not include opening and closing duties. (Fernandez Dec. ¶ 12.) "I usually was not paid for time spent on opening and closing procedures though they were required by my job," Fernandez states. (Id.) But this statement concerning a specific understanding with a manager is qualified by the assertion that he "usually" was not paid for these tasks. Plaintiff Scutts's statements are nearly word-for-word identical. (Id.; Scutts Dec. ¶ 11.) These statements support a conclusion that payment for work at opening and closing varied on a case-by-case, incident-by-incident basis, and were not determined by a single, common New York-wide policy. Akasala attributes the compensation approach to a general understanding, and does not identify a specific policy or person who limited overtime availability: "It was understood that we were not to record that time if it was not on our schedule, which was often the case." (Akasala Dec. ¶ 32.) Akasala states that "typically we were not compensated for the time spent performing these duties," but he makes no statement that management issued instructions to that effect. (Id.)
In addition, defendants have come forward with billing records reflecting that between January and June 2010, plaintiff Fernandez clocked out after the branch's closing time on approximately 60 days, often at 6:15 or 6:30 p.m., but occasionally at 8 p.m. or 9 p.m., and that he clocked in as early as 7:15 a.m. (Def. Ex. M-21 at 260-263.) Defendants offer similar evidence for plaintiffs Scutts and Lee. (Def. Exs. M-30-31; Def Exs. M-25-26.) Such evidence weighs against inferring a common, New York-wide policy to deny overtime for the work of opening and closing branches.
Plaintiffs have come forward with some evidence that they personally may not have always been compensated for work performed at opening and closing, but not evidence that these pay variations reflect a common New York policy capable of classwide resolution.
Meal breaks. Plaintiffs state that they often were required to work through pre-scheduled lunch breaks to address customer-service needs. According to plaintiffs, employees were "generally" unpaid when they managed responsibilities during their lunch periods, specifically because defendants used pre-generated time records that automatically deducted 30-minute lunch breaks. (Pl. Mem. at 24-25.) Individual employees were unable to override these time entries, plaintiffs assert.
Plaintiffs' evidence of a common, New York-wide policy is thin. It consists of plaintiffs' statements that lunch breaks were automatically deducted by a default schedule, and that individual employees could not alter their time records. (Akasala Dec. ¶ 30.) Fernandez states that he "generally was not compensated for working through lunch," and that "more often than not [he] worked through lunch." (Fernandez Dec. ¶ 23; see also Scutts Dec. ¶ 22 ("I generally was not compensated for working through lunch.").) Plaintiffs submit time records for Scutts, Fernandez and Akasala. (Pl. Exs. 32-33, 61.) The records consist of columns containing dates, numbers of hours worked, and lengthy codes that apparently indicate who entered and approved these time entries. (See, e.g., Pl. Ex. 32 at 264.) Plaintiffs assert that these entries establish that management automatically deducted lunch breaks from their hours worked. (Pl. Mem. at 24-25.) While these time records reflect that employee schedules allotted times for meal breaks, they do not otherwise provide evidence that they worked through lunch without compensation.
This evidence does not support plaintiffs' assertion that employees throughout the State of New York or the Northeast Region were subject to a common policy of denying compensation for time worked during lunch breaks. It may constitute some evidence that these individual plaintiffs may not have received full pay for work performed on some lunch breaks, and that they were unable to personally override time entries. It is not meaningful evidence of a statewide or regional policy, and requires individualized analysis of each employee's circumstances. Plaintiffs have failed to establish commonality by a preponderance of the evidence.
Marketing responsibilities. Plaintiffs assert that they were tasked with marketing and business-generating duties that required them to work without compensation. These activities included client visits and conducting educational seminars. (E.g., Pl. Ex, 1, Fernandez Dec. ¶ 3.) Plaintiffs maintain that business generation was a critical aspect of employee performance reviews. Plaintiffs' Exhibit 24 contains a battery of internet postings for job openings at Wells Fargo in 2011 and 2012, which noted that personal bankers were expected to "reach out to the community" by "visiting businesses, conducting educational seminars, and being active in the community." Plaintiffs also note that the Wells Fargo jobs postings stated that "[p]ersonal bankers are expected to exceed challenging sales and referral goals" by encouraging customers to use other bank products. (Pl. Ex. 24; emphasis added by plaintiffs.) Plaintiffs also rely on internal job descriptions for personal bankers and financial specialists as evidence of common responsibilities. (Pl. Ex. 21 & 22.)
Separately, plaintiffs cite a document titled "Store Manager Pre-Season Meeting Planner," apparently dated November 23, 2009, which, they claim, is evidence of a companywide Wells Fargo policy of requiring personal bankers to work off the clock. (Pl. Ex. 26.) The document consists of motivational techniques to be used at 15-minute meetings to discuss "your team's efforts and expectations for Jump into 2010." (Id.) Apparently in error, the plaintiffs' memorandum of law cites certain statements not contained in the cited exhibit as submitted to the Court. (Pl. Mem. at 26 n.170-74, citing Pl. Ex. 26.) These statements include guidance as to "brainstorming" business generation through "community activities" and building "relationships with local high schools," as well as encouragement "to execute on Saturday plans." (Pl. Mem. at 26.)
But this evidence goes toward employee expectations concerning business generation and does not speak to compensation issues. It does not automatically follow that policies that required personal bankers to market products and generate new business also deprived them of appropriate compensation.
Plaintiffs cite the Rule 30(b)(6) testimony of Teresa Swanson, identified as a vice president for human resources with oversight for payroll and "data services" at Wells Fargo. (Pl. Ex. 10 at 62-63.) Swanson stated that she "do[es] not know" whether time spent "[r]eaching out in the community by visiting businesses" should have been reflected on a personal banker's time entries. (Pl. Ex. 10 at 192.) However, elsewhere in her deposition, Swanson testified that personal bankers should record all time that they were working, including community outreach. When asked whether time spent visiting businesses and reaching out to the community should be recorded, Swanson stated, "If they're working, they should be logging their time." (Def. Ex. B-1 at 188.) When asked again if such tasks should be logged, Swanson qualified the statement somewhat, saying, "Yeah, I don't know because I don't know what they are asking them to do," and then stated, "Yeah, I don't know what context, I don't know what they're doing. This is not anything we - this isn't mine. I don't know anything about this." (Def. Ex. B-1 at 189.) When asked whether employees should record entries for time spent "[r]eaching out in the community by visiting businesses," she responded, "We tell people to record all their working time." (Def. Ex. B-1 at 189-90.) In response to the same question, Swanson answered, "I don't know if by reaching out in the community or visiting a business is going to Subway for lunch. I don't know what the means. I have no interpretation of that. Any time worked should be logged." (Def. Ex. B-1 at 190.) Viewed in context, the statement highlighted by plaintiffs is consistent with Swanson's testimony that personal bankers were expected to bill time spent working, while also hesitating to draw bright lines in response to plaintiffs' questions as to which types of activities might be compensable as community outreach. It does not support a common companywide policy to deny or limit compensation for time spent on marketing and business generation work.
Plaintiffs also rely on the Rule 30(b)(6) deposition testimony of Constantine Santiano, the district manager in Texas, who testified, among other things, that Wachovia's financial specialists were expected to reach designated sales targets and that sales goals accounted for 50-70% of evaluations. (Pl. Ex. 6 at 85-86.) Again, plaintiffs do not attempt to explain how a district manager in Texas came to have personal knowledge of New York and Northeast Regional policies during the relevant period. Even at that, the testimony is evidence of Wachovia's performance expectations for financial specialists and not its compensation policies.
Plaintiffs cite this testimony for the proposition that "financial performance goals were the same for all [Financial Specialists] at Wachovia and [Personal Bankers] at Wells Fargo," (Pl. Mem. at 13) but the testimony, on its face, pertains solely to Wachovia employees. (Pl. Ex. 6 at 82.)
Plaintiffs have not established commonality by a preponderance of the evidence as to denial of compensation for time spent in marketing and business-generation work.
3. Plaintiffs Have Not Established Typicality.
Rule 23(a)(3) typicality "requires that the claims of the class representatives be typical of those of the class, and 'is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.'" Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (quoting In re Drexel Burnham Lambert, 960 F.2d 285, 291 (2d Cir. 1992)). "The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3)." Id. "When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993).
For the reasons discussed in reviewing plaintiffs' commonality arguments, the plaintiffs have failed to satisfy the typicality requirement. Plaintiffs have not come forward with evidence that plaintiffs' claims are typical of the proposed plaintiff class.
4. Plaintiffs Have Established Adequacy.
Rule 23(a)(4) requires plaintiffs to prove that "the representative parties will fairly and adequately protect the interests of the class." An adequacy analysis considers "whether: 1) plaintiff's interests are antagonistic to the interests of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct litigation." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000).
Were plaintiffs able to meet the other requirements of Rule 23, there is no evidence of possible conflict between the individual plaintiffs and the proposed class. Plaintiffs are represented by experienced counsel with a history of work in employment-related cases. (Pl. Exs. 11-13.)
5. Plaintiffs Have Not Established Predominance Under Rule 23(b)(3).
Had plaintiffs satisfied the requirements of Rule 23(a), their motion for class certification would still be denied for the additional reason that they have failed to prove by a preponderance of the evidence that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Rule 23(b)(3). "If anything, Rule 23(b)(3)'s predominance criterion is even more demanding than Rule 23(a)." Comcast Corp., 193 S. Ct. at 1432. "The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). If there are numerous, significant questions specific to individual class members, plaintiffs will not satisfy the predominance requirement. See id. at 624.
Plaintiffs have failed to come forward with evidence sufficient to establish predominance for many of the reasons discussed in regard to their failure to establish commonality. Without meaningful evidence of a New York-wide policy at Wachovia or Wells Fargo, a determination of liability turns on highly individualized, employee-by-employee analysis of what they were told by management and how any time-recording practices were applied. It may be that individual branches took different approaches to matters such as meal-break work duties, opening and closing duties, and time spent on business generation, or it may be that not even individual branches had such policies and that liability would center on employee-specific, stand-alone incidents.
Even if the plaintiffs had come forward with evidence concerning a common policy, they would still be required to offer that some approach to damages satisfies the preponderance requirement. See generally Comcast, 133 S. Ct. at 1433. If there were a common policy to refuse compensation for work performed through meal breaks, or to deny payment for work performed opening and closing branches, a class-wide damages calculation might be a straightforward proposition.
However, even in plaintiffs' own description of events, their representations concerning compensation and the recording of time are qualified. According to plaintiffs, they sometimes received overtime pay, but sometimes did not. They propose no method for ascertaining damages on a class-wide basis, seemingly viewing any damages variations within the class as minor and immaterial.
As noted, Fernandez and Scutts both state that they "generally" were not compensated for working through lunch and "more often than not" worked through lunch. (Fernandez Dec. ¶ 23; see also Scutts Dec. ¶ 22; Pl. Mem. 24-25.) They characterize work performed outside the office as "generally uncompensated work." (Pl. Mem. at 12.) Call nights were "generally unpaid." (Pl. Mem. at 12.) Fernandez and Scutts state that if they substituted for a co-worker, that additional time worked would "usually appear" on their schedules. (Fernandez Dec. ¶ 21; Scutts Dec. ¶ 20.) Both state that they "usually" were not paid for performing opening and closing tasks. (Fernandez Dec. ¶ 21; Scutts Dec. ¶ 11.) In a deposition, Fernandez testified that sometimes he was paid overtime and sometimes was not. (Def. Ex. A-2 at 11-15.) When asked to explain the variations, he stated, "Again it all depends on what the schedule was. I adhered to what the schedule was, and if that is what it was, then that is what I would abide by." (Def. Ex. A-2 at 13.) Scutts testified that he was paid overtime in "certain isolated circumstances." (Def. Ex. A-3 at 60.) Defendants have collected numerous qualifications that plaintiffs used in this and other actions concerning off-the-clock work and compensation practices. (Def. Mem. at 29-31.) Defendants also have come forward with evidence that the plaintiffs recorded time for work performed when opening and closing branches. (Def. Ex. M-21, M-30, M-31; Def Exs. M-25, M-26.)
With such qualified and vague statements concerning when they were denied overtime pay and when they were not, plaintiffs have not come forward with a meaningful approach to gauging damages on a class-wide basis. In essence, plaintiffs posit that sometimes they received full and lawful compensation, and sometimes they did not. They suggest no theory as to why these variations in compensation arose, make no concrete representations as to how often they occurred, and propose no class-wide metric for assessing damages.
Based on the numerous individual issues raised in plaintiffs' evidence as to both liability and damages, the plaintiffs have not proposed a class that is "sufficiently cohesive to warrant adjudication by representation." Amchem Prods., 521 U.S. at 623. They have failed to establish predominance under Rule 23(b)(3).
C. In Light of this Court's Ruling on Defendants' Motion to Dismiss, There Is No Need to Rule on Certification of Plaintiffs' ERISA Claims.
Plaintiffs move to certify "an ERISA Sub-Class within the main class of those class members who participated in Wells Fargo's 401k plan but failed to have the proper number of hours and/or compensation earned credited to their retirement accounts." As noted, this Court granted in part defendants' motion to dismiss plaintiffs' ERISA claims, specifically as they related to credit to employee retirement accounts. See Fernandez, 2013 WL 3465856, at *2-7. Plaintiffs' remaining ERISA claims are directed toward defendants' recordkeeping practices and do not fall within the proposed ERISA subclass. Because plaintiffs' ERISA claims have been dismissed, there is no need to address the proposed certification of this subclass.
II. PLAINTIFFS' MOTIONS FOR PRELIMINARY CERTIFICATION AS AN FLSA COLLECTIVE ACTION ARE DENIED.
As set forth in the text of the FLSA:
An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.29 U.S.C. § 216(b). District courts have discretion to implement section 216(b) "'by facilitating notice to potential plaintiffs' of the pendency of the action and of their opportunity to opt-in as represented plaintiffs.'" Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). "In a collective action under FLSA - unlike in a class action under Federal Rule of Civil Procedure 23 - only plaintiffs who affirmatively opt in to the case can benefit from the judgment or be bound by it." Damassia v. Duane Reade, Inc., 2006 WL 2853971, *2 (S.D.N.Y. Oct 5, 2006) (Lynch, J.). Although orders facilitating notice are often referred to as orders "certifying" a collective action, the FLSA does not contain a certification provision. Id. "Certification" is simply "the district court's exercise of the discretionary power . . . to facilitate the sending of notice to potential class members." Myers, 624 F.3d at 555 n.10.
In determining whether to exercise its discretion to send notice to potential class members, courts in this Circuit conduct a two-phase inquiry. Id. at 554-55 (reviewing the two-phase inquiry and deeming it "sensible" for evaluating certification under section 216(b)); see also Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 367-68 (S.D.N.Y. 2007). At the first phase, the court makes a preliminary determination as to whether potential opt-in plaintiffs are "similarly situated" to the named plaintiffs. See Myers, 624 F.3d at 555; Damassia, 2006 WL 2853971 at *3. Plaintiffs' burden at this initial stage is "minimal," id., requiring only a "'modest factual showing' that they and potential opt-in plaintiffs 'together were victims of a common policy or plan that violated the law.'" Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.)). No showing of numerosity, typicality, commonality and representativeness is required. See Lynch, 491 F. Supp. 2d at 369; Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007) ("The 'similarly situated' standard . . . is thus considerably more liberal than class certification under Rule 23.") (quotation marks omitted).
If the plaintiffs meet their burden, the court conditionally certifies the collective action and authorizes the plaintiffs to send notice to potential collective action members. See id. at 368. Court-authorized notice is preferred because "[b]oth the parties and the court benefit from settling disputes about the content of the notice before it is distributed" and because such notice "serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the action." Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 172 (1989). After receiving the court-approved notice, potential members may elect to opt in by filing consent forms with the Court. See Lynch, 491 F. Supp. 2d at 368.
After discovery, typically on the defendant's motion for decertification, courts engage in the second phase of analysis. See id.; Iglesias-Mendoza, 239 F.R.D. at 367. During the second stage, the court determines on a full record, and under a more stringent standard, whether the additional plaintiffs are, in fact, similarly situated. See Damassia, 2006 WL 2853971 at *3. If the court concludes that all plaintiffs are similarly situated, the collective action proceeds to trial; otherwise, the collective action is decertified and the claims of the opt-in plaintiffs are dismissed without prejudice. See Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006).
In the present case, while a motion for certification under Rule 23 requires a more rigorous analysis than preliminary certification of a collective action, for many of the reasons previously discussed, plaintiffs have failed to make the "modest factual showing" required to show that potential opt-in plaintiffs "were victims of a common policy or plan that violated the law." Myers, 624 F.3d at 555.
There is a disconnect between the forceful assertions set forth in plaintiffs' memoranda, the record submitted in support of their motion and the definition of the proposed collective action. In contrast to the proposed class, the proposed collective action would encompass the Northeast Region of Wells Fargo, beginning three years prior to the initiation of this action. Similar to the record in support of plaintiffs' Rule 23 motions, they do not submit meaningful evidence of a policy directed to the Northeast Region of Wells Fargo. The Northeast Region - consisting of New York, New Jersey, Connecticut, Pennsylvania and Delaware - is seldom discussed. Much of the evidence submitted in support of the collective action falls outside of the relevant time period - which, for FLSA purposes, is identified as "the three years preceding the filing of this lawsuit through the date of its disposition." (Pl. Mem. at 2.) Aside from the Rivers e-mail regarding use of flex time, which applied for one month at one Wells Fargo branch in Manhattan, plaintiffs submit no communication that might support a formal or de facto compensation policy to deny overtime pay. (Pl. Ex. 70) As discussed, plaintiffs' declarations omit key details concerning the identities of speakers and participants, and even approximate dates, when instructions allegedly were issued concerning off-the-clock work and denial of overtime. (Pl. Exs. 1-3.) Again, plaintiffs have conflated the policies of Wachovia and Wells Fargo, with little emphasis given to timely, geographically relevant evidence "of a common policy or plan that violated the law" in the Northeast Region of Wells Fargo, beginning in September 2009 and continuing through the present. Myers, 624 F.3d at 555.
Defendants devote significant attention to arguing that plaintiffs' motion for a collective action is barred by the unpublished decision in Richardson v. Wells Fargo Bank, N.A., 11 Civ. 738 (N.D. Tex., Feb. 2, 2012), in which Judge Atlas denied preliminary certification of a nationwide collective action consisting of Wells Fargo personal bankers. While many of the infirmities discussed in that opinion also plague the present motions, that decision implicated a different plaintiff asserting claims directed toward a national policy, and not a state or regional policy. --------
Plaintiffs argue that the evidence in support of a common policy is similar to evidence that has warranted recognition as a collective action, particularly in Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 401 (S.D.N.Y. 2012) (Koeltl, J.). In Winfield, plaintiffs submitted four affidavits by employees who claimed they were explicitly instructed not to report overtime, discouraged from reporting overtime or had timesheets altered by branch managers. Id. Plaintiffs also offered significant evidence of a de facto policy to refuse overtime, including several informal communications between managers and employees about limits on overtime. Id. at 405-06. They identified the names of managers and submitted e-mails that reflected a de facto policy. Id. Judge Koeltl distinguished the action before him from actions where the challenged practices appeared facially lawful or movants suffered from evidentiary deficiencies, as is the case here. Id. at 406-07.
Plaintiffs have not made the "'modest factual showing' that they and potential opt-in plaintiffs 'together were victims of a common policy or plan that violated the law.'" Myers, 624 F.3d at 555. Their motion for preliminary certification is denied. CONCLUSION
Plaintiffs' motions for class certification and preliminary certification as a collective action are DENIED. (12 Civ. 7193, Docket # 32; 12 Civ. 7194, Docket # 30.) The Clerk is directed to terminate the motions.
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
August 27, 2013