Lynne Coates v. Farmers Group, Inc. et al

REPLY

N.D. Cal.November 24, 2015

PLTF’S REPLY ISO MOTION FOR EQUAL PAY ACT Case No. 5:15-CV-01913-LHK CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LORI J. COSTANZO (SBN 142633) GABRIELLE KORTE (SBN 209312) COSTANZO LAW FIRM 111 North Market Street, #910 San Jose, California 95113 Tel: (408) 993-8493 Fax: (408) 993-8496 Email: lori@costanzo-law.com gabrielle@costanzo-law.com LORI E. ANDRUS (SBN 205816) ANDRUS ANDERSON LLP 155 Montgomery Street, Suite 900 San Francisco, California 94104 Tel: (415) 986-1400 Fax: (415) 986-1474 Email: lori@andrusanderson.com Attorneys for Plaintiff, the Proposed Classes, and the Aggrieved Employees UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION LYNNE COATES, on behalf of herself and all others similarly situated and aggrieved, Plaintiff, vs. FARMERS GROUP, INC., FARMERS INSURANCE EXCHANGE, and FARMERS INSURANCE COMPANY, INC., Defendants. Case No: 5:15-CV-01913-LHK CLASS ACTION PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE Judge: Hon. Lucy H. Koh Date: December 10, 2015 Time: 1:30 p.m. Courtroom: 8, 4th Floor E-FILED Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 1 of 21 PLTF’S REPLY ISO MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 A. As It Was In Wellens, EPA Conditional Certification Is Routinely Granted.....................................................................................................................2 B. Plaintiff’s And Class Members’ Actual Job Content Is Substantially Similar. ...............................................................................................5 C. The Merits Of Coates’ EPA Claim Should Not Be Decided At This Stage.........................................................................................................................9 D. The “Intermediate” Standard Does Not Apply And The Court Need Not Consider Manageability.........................................................................11 E. The Claims Litigation Department Is A Single Establishment..............................13 F. Many Cases Cited By Farmers Are Inapplicable Or Easily Distinguishable. .....................................................................................................14 G. Farmers Does Not Object To Plaintiff’s Notice And Notice Plan.........................15 II. CONCLUSION................................................................................................................. 15 Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 2 of 21 PLTF’S REPLY ISO MOTION FOR EQUAL PAY ACT Case No. 5:15-CV-01913-LHK CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES FEDERAL CASES Adams v. Inter-Con Sec. Sys., Inc. 242 F.R.D. 530 (N.D. Cal. 2007)...............................................................................................12 Alvarez v. Farmers Ins. Exch. No. 14-CV-00574-WHO, 2014 WL 4685031 (N.D. Cal. Sept. 19, 2014) ................................12 Angelo v. Bacharach Instrument Co. 555 F.2d 1164 (1977).................................................................................................................15 Benedict v. Hewlett-Packard Co. No. 13–CV–00119–LHK, 2014 WL 587135 (Feb. 13, 2014)...................................................15 Chao v. A-One Medical Servs., Inc. 346 F.3d 908 (9th Cir. 2003) .....................................................................................................14 Chapman v. Fred’s Stores of Tenn., Inc. No. 2:08–cv–01247–HGD, 2013 WL 1767791 (N.D. Ala. Mar. 15, 2013)................................5 Connor v. Office of the Attorney General of Texas No. A-14-CV-961 LY, 2015 WL 1004304 (W.D. Tex. Mar. 5, 2015) .......................................9 Creely v. HCR ManorCare, Inc. 789 F. Supp. 2d 819 (N.D. Ohio 2011)................................................................................12, 13 Diaz v. S&H Bondi’s Dep’t Store No. 10 CIV. 7676 PGG, 2012 WL 137460 (S.D.N.Y. Jan. 18, 2012).........................................4 E.E.O.C. v. Port Authority of New York and New Jersey 768 F.3d 247 (2d. Cir. 2014) .......................................................................................................9 Ebbert v. Nassau Cnty. No. 05CV5445(FB)(AKT), 2007 WL 2295581 (E.D.N.Y. Aug. 9, 2007)..................................5 EEOC v. Madison Comm. Unit Sch. Dist. No. 12 818 F.2d 577 (1987)...................................................................................................................15 Falcon v. Starbucks Corp. 580 F. Supp. 2d 528 (S.D. Tex. 2008) .......................................................................................12 Forsberg v. Pac. Nw. Bell Tel. Co. 840 F.2d 1409 (9th Cir. 1988) ...................................................................................................14 Foschi v. Pennella No. CV-14-01253-PHX-NVW, 2014 WL 6908862 (D. Ariz. Dec. 9, 2014)............................15 Garner v. G.D. Searle Pharm. & Co. 802 F. Supp. 418 (M.D. Ala. 1991) .......................................................................................5, 14 Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 3 of 21 PLTF’S REPLY ISO MOTION FOR EQUAL PAY ACT Case No. 5:15-CV-01913-LHK CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Grumbine v United States 586 F. Supp. 1144 (D.D.C. 1984)..............................................................................................14 Gunther v. Washington Cnty. 623 F.2d 1303 (9th Cir. 1979) ...................................................................................................15 In re Wells Fargo Home Mortgage Overtime Pay Litig. 268 F.R.D. 604 (N.D. Cal. 2010)...............................................................................................14 Jarvaise v. Rand Corp. 212 F.R.D. 1 (D.D.C. 2002)...................................................................................................5, 14 Kassman v. KPMG LLP No. 11 CIV. 03743 LGS, 2014 WL 3298884 (S.D.N.Y. July 8, 2014)............................. passim Kress v. PricewaterhouseCoopers, LLP 263 F.R.D. 623 (E.D. Cal. 2009) ...............................................................................................12 Lang v. Kohl’s Food Stores, Inc. 217 F.3d 919 (7th Cir. 2000) .....................................................................................................14 Litty v. Merrill Lynch & Co. No. CV 14-0425 PA PJWx, 2014 WL 5904907 (C.D. Cal. Aug. 4, 2014) ...............................15 McClean v. Health Sys., Inc. No. 11-03037-CV-S-DGK, 2011 WL 6153091 (W.D. Mo. Dec. 12, 2011) .............................12 Moore v. Publicis Groupe SA No. 11 CIV. 1279 ALC AJP, 2012 WL 2574742 (S.D.N.Y. June 29, 2012)........................4, 14 Morisky v. Pub. Serv. Elec. & Gas Co. 111 F. Supp. 2d 493 (D.N.J. 2000) ............................................................................................12 Mulhall v. Advance Sec., Inc. 19 F.3d 586 (11th Cir. 1994) .....................................................................................................13 Myers v. Hertz Corp. 624 F.3d 537 (2nd Cir. 2010) ....................................................................................................14 Ray v. Motel 6 Operating, Ltd. P’Ship No. 3-95-828, 1996 WL 938231 (D. Minn. Mar. 18, 1996)......................................................12 Rehwaldt v. Elec. Data Sys. Corp. No. 95-876, 1996 WL 947568 (W.D.N.Y. 1996)......................................................................14 Rochlin v. Cincinnati Ins. Co. No. IP00-1898CHK, 2003 WL 21852341 (S.D. Ind. July 8, 2003) ........................................4, 5 Ruffin v. Los Angeles Cnty. 607 F.2d 1276 (9th Cir. 1979) ...................................................................................................14 Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 4 of 21 PLTF’S REPLY ISO MOTION FOR EQUAL PAY ACT Case No. 5:15-CV-01913-LHK CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Spaulding v. Univ. of Washington 740 F.2d 686 (9th Cir. 1984) .....................................................................................................15 Till v. Saks, Inc. No. C 11-00504 SBA, 2013 WL 5755671 (N.D. Cal. Sept. 30, 2013) .....................................15 Velasquez v. HSBC Finance Corp. 266 F.R.D. 424 (N.D. Cal. 2010)...............................................................................................15 Villa v. United Site Services of California, Inc. No. 5:12-CV-00318-LHK, 2012 WL 5503550 (N.D. Cal. Nov. 13, 2012).................................4 Vinole v. Countrywide Home Loans, Inc. 571 F.3d 935 (9th Cir. 2009) .....................................................................................................14 Waters v. Turner, Wood & Smith Ins. Agency, Inc. 874 F.2d 797 (11th Cir. 1989) ...................................................................................................14 Wellens v. Daiichi Sankyo, Inc. No. 13-CV-00581-WHO, 2014 WL 2126877 (N.D. Cal. May 22, 2014).........................2, 3, 11 STATUTES 29 U.S.C. § 206(d)(1) ....................................................................................................................13 OTHER AUTHORITIES Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. Law Rev. 458, 460 (Apr. 2001) .............................................................1 Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 5 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Ongoing discovery, undertaken after the filing of Plaintiff’s Motion for Equal Pay Act Conditional Collective Action Certification and Authorization of Notice (“Motion”), Docket No. 56, confirms that: 1) Plaintiff is similarly situated to other Farmers’ female employees working in the Claims Litigation Branch Legal Offices (“BLOs”) across the country; and 2) Farmers’ male- dominated corporate culture fosters rampant “second generation” gender discrimination.1 For example, John Buratti, currently a Division Attorney and a member of the six- member, all-male top management team for Farmers’ Claims Litigation Department, was unable to explain why he paid attorney less than her male counterpart, 2 See Deposition of John Buratti (“Buratti Tr.”), pp. 148:23-149:4, Reply Decl., Exh. A. When asked “ ” Mr. Buratti responded: “ ” Id., pp. 151:21-152:3. Asked why , after being promoted to Salary Grade was only earning $ more than the minimum salary for that Salary Grade, Mr. Buratti testified that was “ .” Id. at pp. 154:18-155:9. Mr. Buratti’s attitude is endemic to Farmers: the women attorneys employed there, even high performers like , should be “ ,” despite the fact that they are earning thousands less than men performing the same work. In another striking example, a trial attorney with years of experience, and who has tried at least cases to juries while working for Farmers, is earning $ per 1 “Second generation” discrimination is described as “[u]nequal treatment [] result[ing] from cognitive or unconscious bias, rather than deliberate, intentional exclusion.” Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. Law Rev. 458, 460 (Apr. 2001) (citations omited), attached as Exhibit I to the Andrus Reply Declaration in Support of Plaintiffs’ Motion for Equal Pay Act Collective Action Certification and Authorization of Notice (“Reply Declaration” or “Reply Decl.”), filed herewith. It involves “social practices and patterns of interaction among groups within the workplace that, over time, exclude nondominant groups.” Id. 2 Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 6 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 year less than her male counterpart.3 See Reply Decl., ¶ 4; Declaration of J. Dean Rice in Opposition to Motion for Equal Pay Act Conditional Collective Action Certification and Authorization of Notice (“Rice Declaration” or “Rice Decl.”), Dkt. No. 60-42, ¶ 3. Another top performer in Farmers’ Claims Litigation, ,4 is earning $ and $ less than her two male counterparts in the BLO. See Reply Decl., ¶ 5. This pattern of undervaluing female employees was not the only revealing information to come out of recent discovery activities. As explained herein, the depositions of several of Farmers’ declarants (and frequently the declarations themselves) provide further evidence that Farmers’ Claims Litigation attorneys are similarly situated, regardless of which Salary Grade or BLO they occupy. Plaintiff’s Motion should be granted. A. As It Was In Wellens, EPA Conditional Certification Is Routinely Granted. Plaintiff’s evidence is of the same type and quantity found to justify conditional certification in other Equal Pay Act (“EPA”) cases. See, e.g., Wellens v. Daiichi Sankyo, Inc., No. 13-CV-00581-WHO, 2014 WL 2126877 (N.D. Cal. May 22, 2014). Wellens, a recent EPA case brought in this district, dealt with many of the same issues arising in this case. For example, defendant Daiichi Sankyo, Inc. (“DSI”) argued that it was improper to include six different job titles in the class definition and that the job duties for the various positions differed greatly. Id. at *5. The district court disagreed, stating “Defendant…misperceives the question relevant to this conditional certification stage: are plaintiffs similarly situated with respect to their EPA allegations? Here, they are.” Id. (citation omitted). That DSI may pay different wages for different positions (within set ranges), that job duties vary between divisions and job titles, and that different positions are compensated differently based on location, are not factors that defeat conditional certification. Instead, whether the disparate factual and employment settings of the individual plaintiffs means that this case cannot proceed collectively, or would need to be prosecuted with subclasses for each of the job titles or geographic locations, is a matter to be determined at the second stage of the certification process. 3 Though is known for “bring[ing] her best to bear on every case she handles,” she is also commended for her “ ,” in a classic illustration of second-generation sexism. See Reply Decl., Exh. J at D000049918-19 (emphasis supplied). Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 7 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. (emphasis in original) (internal quotation marks and citation omitted). The defendant in Wellens also argued—as Farmers does here—that compensation decisions were made on an individualized basis, but, again, the district court held that such arguments are more appropriately addressed at the second stage of conditional certification. Id. at *3 (“DSI has not shown that individualized decisions or situations would negate plaintiffs’ allegations of widespread compensation disparity based on gender in light of the pay scales and ranges uniformly used by DSI for all positions.”). Wellens is directly on point, yet Farmers does not attempt to distinguish it, or address the guidance Wellens offers in any manner. See generally Defendants’ Opposition to Plaintiff’s Motion for Equal Pay Act Conditional Collective Action Certification and Authorization of Notice (“Opposition” or “Opp.”), Dkt. No. 60-3. Kassman v. KPMG LLP, No. 11 CIV. 03743 LGS, 2014 WL 3298884 (S.D.N.Y. July 8, 2014) provides another instance of EPA conditional certification in factual circumstances similar to those presented here. In Kassman, female client service professionals employed in KPMG’s tax and advisory job functions in the positions of Associate, Senior Associate, Manager, Senior Manager/Director and Managing Director were determined to have substantially similar responsibilities and qualifications.5 Id. at *2. Like KPMG, Farmers’ “compensation policies are set at high levels and applied across job titles, function groups and geographic locations.” Id.; see Reply Decl., Exh. K; Buratti Tr., p. 238:11-23, Reply Decl., Exh. A. Also like KPMG, Farmers has “firm-wide salary bands, which establish uniform compensation ranges” and “has a firm-wide policy for awarding merit-based increases in compensation.” Id.; see also Declaration of Lori E. Andrus In Support Of Plaintiff’s Motion for Equal Pay Act Collective Action Certification And Authorization of Notice (“Andrus Declaration” or “Andrus Decl.”), Dkt. 53-3, Exh. ZZ. Like KPMG, Farmers’ Managing Attorneys have limited discretion in the specific dollar amounts of salaries, annual bonuses and raises.6 See footnote 14, infra. 5 The named plaintiff, Donna Kassman, a Senior Tax Manager employed by KPMG for over seventeen years, who received positive performance reviews, made $50,000 less than her male comparator, even though she held a law degree and he did not. Id. at *2. 6 Id. (“Specific pay amounts are not dictated by these policies, but are determined by the partners in each of KPMG’s offices based on factors specific to location and employee.”). Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 8 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Quickly dispatching with several of the same arguments raised by Farmers, the district court in Kassman held that “it is not necessary for the purposes of conditional certification that the prospective class members all performed the same duties as the named plaintiffs.” Id. at *7, (quoting Diaz v. S&H Bondi’s Dep’t Store, No. 10 CIV. 7676 PGG, 2012 WL 137460, at *5, n.6 (S.D.N.Y. Jan. 18, 2012) (internal quotation marks omitted)). Ultimately, the proper inquiry during conditional certification is whether the named plaintiffs and the other potential members of the proposed collective are similarly situated with respect to their allegations that the law has been violated. Other factual variances that may exist between the plaintiff and the putative class do not defeat conditional class certification. Such variances are more appropriately analyzed during the second–decertification–stage. Id. (emphasis in original) (internal quotation marks and citations omitted).7 In another illustrative EPA case, Moore v. Publicis Groupe SA, No. 11 CIV. 1279 ALC AJP, 2012 WL 2574742 (S.D.N.Y. Jun. 29, 2012), the district court rejected the defendant’s claims that certification was improper because “the proposed class held four different job titles [including Vice President and Senior Vice President] . . . worked in diverse practice and industry segments, and had varying levels of responsibilities, numbers of employees reporting directly to them, and years of experience.” Id. at *10. The court explained: “Defendants’ arguments are more appropriate after discovery is finished. Then, Defendants can attack the validity of Plaintiffs’ assertions and the Court will be in a better position to determine whether all class members are indeed similarly situated.” Id. at *11. The same is true here. In another case remarkably similar to this one, Rochlin v. Cincinnati Ins. Co., No. IP00- 1898CHK, 2003 WL 21852341 (S.D. Ind. Jul. 8, 2003), the district court granted conditional certification on behalf of a class of insurance defense attorneys who claimed that their employer treated males preferentially in promotions and pay. Id. at *1. The female attorneys were 7 Facing similar arguments regarding the individualized nature of employment settings and factual background of each plaintiff in Villa v. United Site Services of California, Inc., No. 5:12-CV- 00318-LHK, 2012 WL 5503550 (N.D. Cal. Nov. 13, 2012), this Court granted conditional certification, explaining: “Plaintiff has alleged that he and the other class members are ‘similarly situated’ because they were subject to Defendant’s alleged common policy of deducting time from employees’ pay without confirming whether they had indeed taken their off-duty breaks. This suffices for conditional certification of a FLSA collective action.” Id. at *14. Likewise, Plaintiffs here allege that they are subject to a “single decision, policy or plan” of unequal pay. Id. at *13. Farmers ignores Villa entirely. Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 9 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employed in ten locations across three departments: the Headquarters Claims Department, the Legal Department (in-house counsel), and the Field Claims Department. Id. at *2. The job duties of the named plaintiffs varied: some had executive or managerial responsibilities,8 while others handled workers’ compensation litigation. Id. at **2-5. One of the named plaintiffs provided Claims Department oversight for the Trial Division, while the plaintiff assigned to the Trial Division was responsible for defending lawsuits brought against the insureds. Id. Despite these non-identical job duties, and despite the fact that there were no “written materials that would describe the various positions, salary ranges of those positions and possibilities for advancement,” and no company handbook, the district court held that “plaintiffs have alleged a company-wide policy of discrimination against women” and was satisfied that “plaintiffs have introduced evidence that all departments share similar job functions.” Id. at **5, 14.9 B. Plaintiff’s And Class Members’ Actual Job Content Is Substantially Similar. For all Farmers’ bluster that Plaintiff has failed to show that class members are similarly situated with respect to the “actual job content and performance,” Opp., at pp. 1-3, 10, Farmers completely disregards the evidence Plaintiff submitted regarding Farmers’ project. See Andrus Decl., Exhs. DD (Dkt. No. 49-7) and EE (Dkt. No. 49-9 & 10). The purpose of the project was described as: “ 8 Rochlin thus defeats Farmers’ argument that attorneys with supervisory duties cannot be included in Plaintiffs’ class. Opp. at p. 2, 9. 9 Still more district court opinions support conditional certification of this EPA case. See, e.g., Ebbert v. Nassau Cnty., No. 05CV5445(FB)(AKT), 2007 WL 2295581, at *1 (E.D.N.Y. Aug. 9, 2007) (conditionally certifying EPA claims for a class of dispatchers [Police Communication Officers and Police Communication Office Supervisors] on minimal evidence); Jarvaise v. Rand Corp., 212 F.R.D. 1, 4 (D.D.C. 2002) (granting EPA conditional certification covering female employees in two offices); Garner v. G.D. Searle Pharm. & Co., 802 F. Supp. 418, 422-23 (M.D. Ala. 1991) (conditionally certifying EPA claims brought by female medical sales representatives based on declarations identifying male comparators earning more, and holding “[t]o impose a strict standard of proof on the plaintiffs at this stage would unnecessarily hinder the development of collective actions and would undermine the ‘broad remedial goals’ of the anti-discrimination provisions of the FLSA.”) (citation omitted); Chapman v. Fred’s Stores of Tenn., Inc., No. 2:08– cv–01247–HGD, 2013 WL 1767791 (N.D. Ala. Mar. 15, 2013) (granting conditional certification and noting that “[w]hile [district managers] make the initial salary decisions, their decisions are subject to review at a higher level in many cases and are limited by corporate policy and pay scales.”). Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 10 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ” Id., Exh. EE at D000002444, Reply Decl., Exh. L. This “ ” Id., Exh. EE at D000002450 (emphasis supplied).10 . See Deposition of Craig Hartsuyker (“Hartsuyker Tr.”), Reply Decl., Exh. B, pp. 146:25-147:14; Andrus Decl., Exh. EE at D000002450. , see Reply Decl., ¶ 21, Exhs. M and N, see Hartsuyker Tr., p. 167:7-10, Reply Decl., Exh. B; Deposition of Christina Sanabria (“Sanabria Tr.”), pp. 40:24-42:7, Reply Decl., Exh. C.11 Andrus Decl., Ex. DD at D000002671-72.12 Farmers’ claims otherwise are specious. Ironically, the uniform nature of the management of BLOs is even supported by the declarations submitted by Farmers in conjunction with the Opposition.13 For example, the 10 The explanation continues: “ ” Andrus Decl., Exh. EE at D000002450. Though complexity increases with experience, all Claims Litigation attorneys are subject to “the expectation [] that you are handling your files from inception to verdict.” See Sanabria Tr., p. 42:6-7, Reply Decl., Exh. C. 12 Farmers’ claims that PIP attorneys and BI attorneys do completely different work is contradicted by their own internal documents, which show “ . See Reply Decl., Exh. O. Additionally, testimony of Farmers’ declarants and internal documents show that PIP attorneys go to trial, make court appearances, take depositions and do motion work. See Sanabria Tr., pp. 81:21-82:9, Reply Decl., Exh. C; Buratti Tr., p. 202:12-20, Reply Decl., Exh. A; Reply Decl., Exh. P at D000046403-05. 13 Declaration of Craig Hartsuyker In Opp. To Mot. For Equal Pay Act Cond. Collective Action Cert. And Auth. Of Notice (“Hartsuyker Decl.”), Dkt. No. 60-38; Declaration of Edward Hoagland In Opp. To Mot. For Equal Pay Act Cond. Collective Action Cert. And Auth. Of Notice Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 11 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Managing Attorneys each admit that they assign salaries and raises according to the “guidelines” and within the “budgets” they are provided by superiors within Farmers’ organization.14 In reality, the BLOs are all governed by the same corporate policies Plaintiff proffered in support of the Motion. Claims Litigation attorneys in all BLOs are expected to use the same Litigated Case Management Guidelines. See Andrus Decl., Exhs. OO through SS (Dkt. Nos. 51- 1, 2, 4, 6, 8, & 10); Buratti Tr., p. 233:4-16 (Litigated Case Management Guidelines still in effect), Reply Decl., Exh. A; Hartsuyker Tr., pp. 92:9-93:18, Reply Decl., Exh. B; Sanabria Tr., pp. 78:13-79:2 (Litigated Case Management Guidelines “provide[] the framework for case handling and case management.”), Reply Decl., Exh. C. The annual compensation memos (defining salary ranges within salary grades nationwide) apply to all BLOs. See Reply Decl., Exh. K; Buratti Tr., p. 238:11-23, Reply Decl., Exh. A. The same Short Term Incentive Program (“STIP”) Plan (for setting annual bonuses) applies to all BLOs. See Andrus Decl., Exh. ZZ; Buratti Tr., pp. 159:23-161:10, Reply Decl., Exh. A; Deposition of Lucy Williams-Abrego (“Williams-Abrego Tr.”), p. 156:17-20, Reply Decl., Exh. D. All Managing Attorneys follow the same performance review procedure, and use the same rating categories.15 See Andrus Decl., (“Hoagland Decl.”), Dkt. No. 60-39; Declaration of Rick Pedersen In Opp. To Mot. For Equal Pay Act Cond. Collective Action Cert. And Auth. Of Notice (“Pedersen Decl.”), Dkt. No. 60-41; Rice Declaration; Declaration of Mark Miller In Opp. To Mot. For Equal Pay Act Cond. Collective Action Cert. And Auth. Of Notice (“Miller Decl.”), Dkt. No. 60-40; Declaration of Christina M. Sanabria In Opp. To Mot. For Equal Pay Act Cond. Collective Action Cert. And Auth. Of Notice (“Sanabria Decl.”), Dkt. No. 60-43; Declaration of Anne Shaw in Opp. to Mot. For Equal Pay Act Cond. Collective Action Cert. and Auth Of Notice (“Shaw Decl.”); Declaration of Stacey Upson In Opp. To Mot. For Equal Pay Act Cond. Collective Action Cert. And Auth. Of Notice (“Upson Decl.”), Dkt. No. 60-45; Declaration of Lucy Williams-Abrego In Opp. To Mot. For Equal Pay Act Cond. Collective Action Cert. And Auth. Of Notice (“Williams- Abrego Decl.”), Dkt. No. 60-46; Declaration of John Buratti In Opp. To Mot. For Equal Pay Act Cond. Collective Action Cert. And Auth. Of Notice (“Buratti Decl.”), Dkt. No. 60-47. 14 See Hartsuyker Decl., ¶ 25, 27; Sanabria Decl., ¶¶ 5, 7; Hoagland Decl., ¶ 9, 10, 12; Williams- Abrego Decl., ¶¶ 9-10; Upson Decl., ¶¶ 9, 12; Pedersen Decl., ¶¶ 15, 16, 18. Supervising Attorney Mark Miller’s admission in this regard is particularly blunt: “[Managing Attorney] Hollenbeck and I have discretion to assign percentage increases to attorneys based on their performance each year, so long as we remain within our assigned budget for the BLO as a whole and we stay within the constraints of the salary grade system.” Miller Decl., ¶ 16 (emphasis supplied); Hoagland Decl., ¶ 10 (“I am careful about staying within the allotted range.”). Mr. Miller also explains that he must seek approval to fill vacancies. See Miller Decl., ¶ 15; Upson Decl., ¶ 8. Division Attorneys approve all new hires, salaries and raises. See Buratti Tr., pp. 96:19-20, 103:16-105:7, Reply Decl., Exh. A; Sanabria Tr., p. 50:3-5, Reply Decl., Exh. C. 15 All BLOs are also required to go through a “calibration” process during year-end performance reviews to “ Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 12 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhs. BBB, CCC, FFF (Dkt. Nos. 53-7 & 9, 54-3); Buratti Tr., pp. 39:4-17, 179:1-7, Reply Decl., Exh. A; Williams-Abrego Tr., pp. 157:6-159:19, Reply Decl., Exh. D. When scrutinized, the declarations cannot conceal the fact that Farmers’ Claims Litigation Department operates under a highly-centralized and regulated structure. See Andrus Decl., Exh. III (Dkt. 54-11). Further discovery has also revealed that Farmers’ WC attorneys are similarly situated. Farmers’ WC attorneys are located only in California, organized in a state-wide BLO headed by Managing Attorney Williams-Abrego.16 See Williams-Abrego Tr., pp. 27:24-28:15, 32:11-18, Reply Decl., Exh. D; Reply Decl., Exh. R. Ms. Williams-Abrego has explained that WC attorneys—like other Claims Litigation attorneys—handle cases from beginning to end, review medical records, take depositions, issue subpoenas, work with experts, conduct legal research, prepare pleadings, argue motions, present evidence at hearings and trial, participate in roundtables, attend status conferences, and attend mandatory settle conferences. See Williams- Abrego Decl., ¶ 6; Williams-Abrego Tr., pp. 51:8-54:24, 58:15-17, Reply Decl., Exh. D. Identical job titles and job profiles apply uniformly to PIP attorneys, BI attorneys, Law and Motion attorneys,17 and WC attorneys, across Salary Grades. See Williams-Abrego Tr., pp. 58:18-59:3, Reply Decl., Exh. D; Sanabria Tr., p. 38:9-20, Reply Decl., Exh. C; Buratti Tr., p. 206:6-8, Reply Decl., Exh. A; Carter Tr., pp. 28:22-29:3, Reply Decl., Exh. F. There are no customized job profiles in effect. See Buratti Tr., pp. 194:5-17, 205:8-11, 206:9-13, Reply Decl., Exh. A; Williams-Abrego Tr., p. 136:10-13, Reply Decl., Exh. D. Additionally, soft tissue cases are typically handled by attorneys in Salary Grades 35-36; there is no separate job profile for soft tissue attorneys. See Buratti Tr., pp. 198:9-200:5, Reply Decl., Exh. A.18 ” See Reply Decl., Exh. Q; Buratti Tr., pp. 113:23-114:22, Reply Decl., Exh. A; Miller Decl., ¶ 14. 16 The statewide WC BLO was created to generate consistency in the WC practice across California. See Williams-Abrego Tr., pp. 103:13-104:1, Reply Decl., Exh. D. 17 Contrary to Farmers’ sophistry, Law and Motion attorneys argue motions in court, prepare discovery, participate in roundtables, and assist with depositions. Buratti Decl., ¶ 17; Deposition of Keever Rhodes, pp. 121:17-123:12, 123:7-11, Reply Decl., Exh. E; Deposition of Sandra Carter (“Carter Tr.”), pp. 76:19-20, 366:5-13, 379:24-380:17, Reply Decl., Exh. F. 18 Plaintiff agrees that the audit specialists who “review and process legal bills,” Opp. at 3, should be excluded from the Class definition. Plaintiff’s Counsel attempted to reach agreement with Farmers’ Counsel on this point, but the issue was not resolved. See Reply Decl., ¶ 2; Hartsuyker Tr., pp. 70:25-75:10, Reply Decl., Exh. B. Plaintiff has submitted herewith a Revised [Proposed] Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 13 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Given this plentiful documentary and testimonial evidence of Plaintiff Coates’ and the putative class members actual job duties, E.E.O.C. v. Port Authority of New York and New Jersey, 768 F.3d 247 (2d. Cir. 2014), Opp. at pp. 1, 3-5, is readily distinguishable. There, the Second Circuit emphasized “the EEOC’s complaint and incorporated interrogatory responses rely almost entirely on broad generalizations drawn from job titles and divisions, and . . . the unsupported assertion that all Port Authority nonsupervisory attorneys had the same job, to support its ‘substantially equal’ work claim.” Id. at 256. In addition, unlike the plaintiff in Port Authority, Plaintiff Coates has not had three years in which to investigate her claim, but rather is still in the early stages of discovery. Farmers’ reliance on Port Authority for its precedential value in this case is thus misplaced. See Connor v. Office of the Attorney General of Texas, No. A-14-CV-961 LY, 2015 WL 1004304, at *3 (W.D. Tex. Mar. 5, 2015). C. The Merits Of Coates’ EPA Claim Should Not Be Decided At This Stage. Although the gross disparity in pay between Andy Lauderdale and Plaintiff Coates19 is what initially led Ms. Coates to complain to her supervisor about unequal compensation, the Opposition’s singular focus on Mr. Lauderdale as her comparator is a calculated diversion. Opp., pp. 6-7. Plaintiff Coates has also identified Farmers’ attorney employee Dan Schaar as a comparator, see Complaint at ¶ 30(a) and Motion at pp. 6-7, and the evidence demonstrates that Mr. Schaar was paid more than Ms. Coates for doing the same or substantially similar work. Farmers’ Opposition does not argue otherwise, and thus concedes the point.20 Comparing Dan Schaar and Lynne Coates, Plaintiff states a prima facie case under the Order Granting Equal Pay Act Conditional Collective Certification and Authorization of Notice, excluding individuals responsible for auditing vendor and legal bills. 19 In addition to Mr. Lauderdale’s base salary of $ in 2013, he earned a “ ” (bonus) of $ ( % of his base salary), bringing his total compensation to $ for that year, compared to Plaintiff Coates’ $ . See Reply Decl., Exhs. S and T. Mr. Lauderdale’s % bonus was above his “ ” of % for that year. Id., Exh. S. In contrast, Ms. Coates’ of $ (representing % of her base salary) was below her % for the year. Id., Exh. T. 20 Nor does Farmers attempt to contradict the evidence showing that each of the Opt-in Plaintiffs (Carter, Rhodes, Storey, Morgan, Neves, Torigian, and Wasson) has at least one male comparator with comparable education and experience, and doing the same work, but earning more. See Andrus Decl., ¶¶ 8-14. Plaintiff provides comparator information for the recent opt-in plaintiffs, Kim Carlton, Chiquita Hartman, and Celeste Stokes, in the Reply Declaration. Id., ¶¶ 6-8. Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 14 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EPA. Plaintiff Coates graduated law school in 1992. See Complaint, ¶ 17. Mr. Schaar graduated 16 years later, in 2008. See Reply Decl., Exh. U. Id., Exh. V. Ms. Coates had, by that point, completed three or four jury trials and two bench trials, each of which she first chaired. See Deposition of Lynne Coates (“Coates Tr.”), pp. 37:22-38:5, 340:20-21, Reply Dec., Exh. G. Despite the fact that Ms. Coates had sixteen years more experience than Mr. Schaar, and the fact that she had been employed by Farmers for a total of eight years, see Complaint, ¶¶ 18- 30, compared to Mr. Schaar, who had been there less than two years, in 2013, Dan Schaar’s total compensation was $ , compared to Plaintiff Coates’ $ . See Reply Dec., Exhs. W at D000035200 and T at D000035194. In April 2014, that pay disparity increased when Mr. Schaar’s base salary rose to $ , exceeding Ms. Coates’ base salary of $ . Id., Exh. W at D000035200. Id. On this evidence, Plaintiff’s prima facie case is made. When the merits of the claims are Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 15 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 eventually decided, Farmers will likely argue that Ms. Coates and her male comparators were compensated differently for a reason other than sex, but consideration of Farmers’ defenses is improper at this stage.21 See Wellens, 2014 WL 2126877, at *4 (“At this early stage and before the completion of discovery, plaintiffs do not need to have full and complete evidence demonstrating the existence or impact of the alleged [discriminatory compensation] policy.”). D. The “Intermediate” Standard Does Not Apply And The Court Need Not Consider Manageability. The “intermediate” standard, which has not been adopted in the Ninth Circuit, is not applicable. On the contrary, it is the “‘fairly lenient standard’ that applies in this Circuit to determine whether the potential plaintiffs should be notified of the action….” Alvarez v. Farmers 21 For this reason, Farmers’ assertion that Plaintiff Coates was paid less than Mr. Lauderdale because she was a “HEAT Support Attorney” is a red herring. Opp. at pp. 6-7, 22-23. First, this is a disputed issue of fact that can only be determined on the merits after full discovery has been completed. Second, Plaintiff’s offer letter refers to her position as “Trial Attorney,” not “HEAT Support Attorney.” See Andrus Decl., Exhs. X, GG, and HH (Dkt. Nos. 48-5, 57-33 & 34). Third, even if the trier of fact ultimately determines that Farmers classified Ms. Coates as a “support” attorney, she has submitted ample evidence that she was doing all of the same tasks as her male counterparts—taking depositions, making court appearances, handling mandatory settlement conferences and mediations, participating in roundtables, even trying a case—and the nomenclature used to describe her position is of no great importance. See Coates Tr., pp. 120:22- 121:1, 121:25-122:2, 161:12-17 (“[T]he type of work that we were doing on the files was identical.”), 167:4-12 (Coates and Schaar “did the same type of work”), 167:13-18 (“There was a routine way that files are [] handled within the office, and everyone followed the guidelines that were given to us.”), 339:9-12, 436:3-24, Reply Decl., Exh. G; Reply Dec., Exh. Z; Reply Decl., Exh. AA at D000030114 ( ); Andrus Decl., Exhs. JJ ( ), KK ( ; MM ( ”) (Dkt. Nos. 50-3, 5, & 9). Additionally, Managing Attorney Sanabria testified that the HEAT Support Attorney takes depositions, makes court appearances, reviews medical records, meets with clients, writes motions, drafts and responds to discovery, argues motions, appears at mediations, and works with experts. See Sanabria Tr., pp. 136:13- 137:21, Reply Decl., Exh. C. This testimony is in keeping with Ms. Sanabria’s declaration, in which she explained that the HEAT Support Attorney “goes to trial with [the HEAT Attorney] as an active participant, examining witnesses and sharing in all aspects of the trial.” Sanabria Decl., ¶ 4. In any event, Farmers’ claim that Mr. Lauderdale had greater “responsibility” requires a factual determination to be made later in the case. Kassman, 2014 WL 3298884, at *6. Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 16 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ins. Exch., No. 14-CV-00574-WHO, 2014 WL 4685031, at *3 (N.D. Cal. Sept. 19, 2014). Farmers urges the Court to apply an “intermediate” standard because some discovery has taken place, Opp. at pp. 16-17, but courts in this Circuit have declined to advance past the first stage analysis even where “Plaintiffs have received 75,000 pages of documents produced during discovery . . . . plaintiffs have conducted Fed. R. Civ. P. 30(b)(6) depositions on a variety of subjects, and [defendant] has deposed several plaintiffs and all but one of the declarants supporting plaintiffs’ motion.” Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 628 (E.D. Cal. 2009); cf. Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 498 (D.N.J. 2000) (applying stricter standard on conditional certification where discovery was “completed”).22 Even if an “intermediate” standard governed, “[t]he standard against which Plaintiffs’ evidence will be evaluated remains lenient, with the burden focused on advancing their own original allegations of a sufficiently similar class, not on refuting Defendants’ arguments and defenses.” Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011) (emphasis supplied); see also McClean v. Health Sys., Inc., No. 11-03037-CV-S-DGK, 2011 WL 6153091, at *7 (W.D. Mo. Dec. 12, 2011) (“Plaintiffs need not produce significant evidence of how the rounding practice operates in practice. Rather, it is sufficient that they present evidence of a common policy or plan affecting the class of plaintiffs that they seek to represent.”) (emphasis added). As discussed infra, Sections I.B. and I.C., Plaintiff has supplemented her detailed allegations with proof of Farmers’ uniform policies and practices, and evidence of the widespread gender-based pay disparities. That is sufficient, even under an “intermediate” standard. Arguing that the Court should consider manageability when ruling on conditional certification, Farmers cites a handful of cases from other districts. Opp., p. 21, n.28. None of the 22 Farmers also cites Ray v. Motel 6 Operating, Ltd. P’Ship, No. 3-95-828, 1996 WL 938231 (D. Minn. Mar. 18, 1996), Opp. at 16, which is “case law inapplicable to the [two-stage] approach adopted by the court for evaluating conditional certification.” Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 537 (N.D. Cal. 2007); see also Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 539 (S.D. Tex. 2008) (disapproving of Ray even at the second stage analysis because “[i]t simply cannot be that an employer may establish policies that create strong incentives for managers to encourage or allow employees to work off-the-clock, and avoid a FLSA collective action [where] a large number of employees at a number of different stores are affected”). Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 17 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cases cited involved the EPA, and each of the cases is either factually distinguishable and/or applies a procedural standard different from the two-stage procedure applied in this district.23 E. The Claims Litigation Department Is A Single Establishment. Farmers’ argument that Plaintiff cannot meet the EPA’s “single establishment” requirement (29 U.S.C. § 206(d)(1)), Opp. at pp. 5, 19-21, is both weak and premature. First, courts widely recognize that: [C]entral control and administration of disparate job sites can support a finding of a single establishment for purposes of the EPA. The hallmarks of this standard are centralized control of job descriptions, salary administration, and job assignments or functions. Courts reason that narrow construction of the word ‘establishment’ could make proof of discrimination more difficult, thus frustrating congressional intent. Kassman, 2014 WL 3298884, at *8 (internal quotation marks omitted) (citing Mulhall v. Advance Sec., Inc., 19 F.3d 586, 591 (11th Cir. 1994)). Kassman is analogous to the present case. Here, plaintiffs have: presented sufficient evidence that [Farmers’ Claims Litigation] offices nationwide may be considered one establishment for purposes of conditional certification under the EPA. Specifically, Plaintiffs have presented evidence that job responsibilities [are] generally the same across offices, compensation policies [are] firm-wide and ultimate compensation decisions [are] made by centralized leadership. 23 Plaintiff has provided more than sufficient evidence of Farmers’ nationwide uniform compensation policies. Contra Syrja v. Westat, Inc., 756 F. Supp. 2d 682, 688 (D. Md. 2010) (denying conditional class certification for unpaid overtime claims as not appropriate where plaintiffs could set their own hours and could not show that “a national directive existed”); Basco v. Wal-Mart Stores, Inc., No. CIV.A. 00-3184, 2004 WL 1497709, at *7 (E.D. La. Jul. 2, 2004) (alleged national “corporate policy to keep employee wage costs low” not appropriate for conditional class certification where the effects of the policy were particularized); Sheffield v. Orius Corp., 211 F.R.D. 411, 413 (D. Or. 2002) (plaintiffs sought redress for violations caused in part by independent companies defendant later acquired, cutting against finding a “national policy to deny workers overtime and minimum wages”); Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991) (conditional class certification inappropriate where plaintiffs did not submit evidence of even a “colorable basis” for their claim). Plaintiffs’ EPA claims also do not require a highly individualized unpaid overtime inquiry. Contra Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364 (D.S.C. 2012) (where no record of hours worked existed in FLSA overtime claim, conditional certification inappropriate for putative plaintiffs who required week-by-week and employee-by-employee evidentiary showings); Purdham v. Fairfax Cty. Pub. Sch., 629 F. Supp. 2d 544 (E.D. Va. 2009) (denying conditional certification for unpaid overtime claims involving “volunteers” and coaches where no county-wide guidelines for payment or work hours existed; the amount of hours worked at each school varied; and the amount of supplemental pay received varied). Farmers’ advocacy notwithstanding, questions of manageability, or whether individual issues predominate, are properly addressed during the more stringent stage-two analysis. See Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 828 (N.D. Ohio 2011). Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 18 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id.24 Moreover, in EPA cases, whether multiple locations of business can be a “single establishment” is a question reserved for the second-stage de-certification inquiry. See Moore, 2012 WL 2574742, at *11 (citing Jarvaise, 212 F.R.D. at 4 and Garner v. G.D. Searle Pharm. & Co., 802 F. Supp. 418, 422-23 (M.D. Ala. 1991)). Even were such an inquiry required at this stage, as in Moore, Plaintiff has substantiated that her duties were generally the same as Claims Litigation attorneys in all BLOs: “[t]hey all [have] similar responsibilities, regardless of location, and they allege they [are] subject to the same unlawful discriminatory pay practice.” Id. at *11. Although Farmers cites to a handful of cases finding that plaintiffs had not proven multiple locations should be considered a single establishment, all of those cases were decided after the close of discovery on summary judgment, making them inapplicable here.25 F. Many Cases Cited By Farmers Are Inapplicable Or Easily Distinguishable. Farmers packs its Opposition with inapposite authority, citing several cases that do not involve conditional certification, or do not involve the EPA at all. None of the following cases presents an obstacle to conditional certification here: Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409 (9th Cir. 1988) (summary judgment); Ruffin v. Los Angeles Cnty., 607 F.2d 1276 (9th Cir. 1979) (same); Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797 (11th Cir. 1989) (same; noting “heavy burden” on summary judgment); Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009) (Rule 23); In re Wells Fargo Home Mortgage Overtime Pay Litig., 268 F.R.D. 604 (N.D. Cal. 2010) (same); Myers v. Hertz Corp., 624 F.3d 537 (2nd Cir. 2010) (same); Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919 (7th Cir. 2000) (plaintiff lost her EPA 24 See also Chao v. A-One Medical Servs., Inc., 346 F.3d 908, 916 (9th Cir. 2003) (holding that two separate companies were a “single enterprise” for purposes of the FLSA because they “performed related activities under common control for a common business purpose”); Rehwaldt v. Elec. Data Sys. Corp., No. 95-876, 1996 WL 947568, at *6, n.4 (W.D.N.Y. 1996) (granting EPA conditional certification and holding “courts in recent years have adopted a more functional approach in determining the relevant establishment for employers with physically dispersed operations”) (citing cases); Grumbine v United States, 586 F. Supp. 1144, 1148 (D.D.C. 1984) (holding, in EPA case brought by government lawyers, that entire Civil Service was an “establishment”). 25 See Opp. at p. 5, n.8, and pp. 19-20, n.27, citing Bartelt v. Berlitz Sch. of Languages of Am., 698 F.2d 1003 (9th Cir. 1983), Foster v. Arcata Assocs., Inc., 772 F.2d 1453 (9th Cir. 1985), and Toomey v. Car-X Assocs. Corp., No. 12 C 4017, 2013 WL 5448047 (N.D. Ill. Sept. 30, 2013). Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 19 of 21 Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 20 of 21 PLTF’S REPLY ISO PLAINTIFF’S MOTION FOR Case No. 5:15-CV-01913-LHK EQUAL PAY ACT CONDITIONAL COLLECTIVE ACTION CERTIFICATION AND AUTHORIZATION OF NOTICE 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorneys for Plaintiff, the Proposed Classes and the Aggrieved Employees Case 5:15-cv-01913-LHK Document 68 Filed 11/24/15 Page 21 of 21