Fox v. TTEC Servs. Corp.

KASEY FOX, Individually and on Behalf of All Others Similarly Situated, et al. PLAINTIFFS v. TTEC SERVICES CORP. DEFENDANT

Case No. 4:19-cv-00037-KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

March 22, 2021

ORDER

Before the Court is plaintiffs' motion for conditional certification, for disclosure of contact information, and to send notices filed by plaintiffs Lakesha Scott, Mashaya Jordan, Brandi Henson, Yvette Davis, or Vivian Koker-Thomas, each individually and on behalf of all others similarly situated (collectively, "moving plaintiffs") on March 27, 2020 (Dkt. No. 49). For the reasons set forth herein, the Court grants in part and denies in part the motion (Dkt. No. 49).

I. Factual And Procedural History

On January 17, 2019, plaintiff Kasey Fox, individually and on behalf of all others similarly situated, filed a complaint against her employer, defendant TTEC Services Corp. ("TTEC"), alleging wage-and-hour claims under the Fair Labor Standards Act of 1938 ("FLSA"), as amended, 29 U.S.C. § 201 et seq., and the Arkansas Minimum Wage Act ("AMWA"), Ark. Code Ann. § 11-4-201 et seq. (Dkt. No. 1). A first amended complaint was filed on November 22, 2019, which added Rejia Foots, Lakesha Scott, Temisha Daniel, Mashaya Jordan, Brandi Henson, Yvette Davis, Antionette Lane, and Latrice Peterson-Davis as named plaintiffs (Dkt. No. 37). In addition, eight opt-in plaintiffs have filed consents to join this action: Kendra Russell, Marvin Newsom, Kirstie Kelly,¹ Darius Johnson, Ralanda Wanda K. Richard, Tasha Ponnell, Gina James, and Vivian Koker-Thomas (collectively, "opt-in plaintiffs") (Dkt. Nos. 18, 24, 32, 34, 35, 48).

The amended complaint alleges that plaintiffs were, within the three years preceding the filing of this action, employed by TTEC as hourly-paid healthcare advocates, hourly-paid customer service representatives, and salaried supervisors at call centers in Arkansas (Id., ¶ 1). Plaintiffs claim that, in violation of the FLSA and AMWA, TTEC required that hourly-paid employees provide uncompensated ("off the clock") overtime work and that salaried supervisors have been misclassified as exempt from the overtime requirements of the FLSA (Id., ¶29).

On March 27, 2020, moving plaintiffs filed a motion for conditional certification pursuant to 29 U.S.C. § 216(b), for approval and distribution of notice, and for disclosure of contact information (Dkt. No. 49). In their motion, moving plaintiffs seek conditional certification of the following class of individuals: "All hourly paid Healthcare Advocates employed after January 17, 2016." (Id., ¶ 3). TTEC responded in opposition to the motion (Dkt. No. 56). Moving plaintiffs replied to TTEC's opposition (Dkt. No. 57).

On April 10, 2020, the Court granted TTEC's motions to compel arbitration of Ms. Fox, Temisha Daniel, Rejia Foots, Gina James, Darius Johnson, Kirstie Kelly, Antionette Lane, Marvin Newsom, Latrice Peterson-Davis, Tasha Ponnell, Ralanda Wanda K. Richard, and Kendra Russell (collectively with Kasey Fox, "the Fox Plaintiffs") (Dkt. No. 53). TTEC did not move to compel arbitration of and therefore the Court did not stay the claims of moving plaintiffs Lakesha Scott, Mashaya Jordan, Brandi Henson, Yvette Davis, or Vivian Koker-Thomas.

Because the claims asserted by moving plaintiffs are not stayed, the Court considers the present pending motion for conditional certification as brought before the Court by these remaining moving plaintiffs.

II. Legal Standard

Under the FLSA:

An action to recover the liability prescribed . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction 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.

z

29 U.S.C. § 216(b).

District courts in the Eighth Circuit, including this one, have routinely utilized a two-step approach to determine whether certification of a collective action is appropriate. See, e.g., McChesney v. Holtger Bros., No. 4:17-CV-824-KGB, 2019 WL 118408, at *2 (E.D. Ark. Jan. 7, 2019); Cruthis v. Vision's, No. 4:12-CV-244-KGB, 2013 WL 4028523, at *1 (E.D. Ark. Aug. 7, 2013); Watson v. Surf-Frac Wellhead Equip. Co., No. 4:11-CV-843-KGB, 2012 WL 5185869, at *1 (E.D. Ark. Oct. 18, 2012). Under this approach, a district court first determines whether the putative collective action members are similarly situated (i.e., whether they were subject to a common employment policy or plan), and then, at the conclusion of discovery, the district court provides an opportunity for the defendant to move to decertify the collective action, pointing to a more developed record to support its contention that the opt-in plaintiffs are not, in fact, similarly situated to the named plaintiffs. See Smith v. Frac Tech Servs., Ltd., No. 4:09CV000679JLH, 2009 WL 4251017, at *1 (E.D. Ark. Nov. 24, 2009).

"To establish that conditional certification is appropriate, the plaintiffs must provide 'some factual basis from which the court can determine if similarly situated potential plaintiffs exist.'" Robinson v. Tyson Foods, Inc., 254 F.R.D. 97, 99 (S.D. Iowa 2008) (quoting Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574, 577 (N.D. Iowa 2005)). Plaintiffs' burden at the "notice" stage is "lenient" and "requires only a modest factual showing; it does not require the plaintiff[s] and the potential class members to show that they are identically situated." Resendiz-Ramirez v. P & H Forestry, LLC, 515 F. Supp. 2d 937, 941 (W.D. Ark. 2007) (citing Kautsch v. Premier Commc'ns, 504 F. Supp. 2d 685, 689-90 (W.D. Mo. 2007)). Still, "'more than mere allegations' are required" for plaintiffs to carry their burden. Tegtmeier v. PJ Iowa, L.C., 208 F. Supp. 3d 1012, 1019 (S.D. Iowa 2016) (quoting Robinson, 254 F.R.D. at 99).

"Typically, district courts will make the determination of whether to conditionally certify a class based solely on the affidavits presented by the plaintiffs." Huang v. Gateway Hotel Holdings, 248 F.R.D. 225, 227 (E.D. Mo. 2008) (citing Rappaport v. Embarq Mgmt. Co., No. 607CV468ORL19DAB, 2007 WL 4482581, at *4 (M.D. Fla. Dec. 18, 2007)). Factors to be considered include: (1) whether plaintiffs all held the same job titles; (2) whether plaintiffs worked in different geographical locations; (3) the extent to which the claimed wage-and-hour violations occurred during different time periods and by different decision makers; and (4) whether plaintiffs all alleged similar, though not identical, wage-and-hour violations. See McChesney, 2019 WL 118408, at *2 (citing Stone v. First Union Corp., 203 F.R.D. 532, 542 (S.D. Fla. 2001)). "The Court does not need to determine whether class members are actually similarly situated until the 'merits stage' of the litigation, when defendants typically move to decertify the class." Tinsley v. Covenant Care Servs., LLC, No. 1:14CV00026 ACL, 2015 WL 1433988, at *1 (E.D. Mo. Mar. 27, 2015) (citing Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp. 2d 1014, 1017 (E.D.Mo. 2010)). At this stage, the district court also does not "make any credibility determinations or findings of fact with respect to contrary evidence presented by the parties." Israsena v. Chalak M&M AR1 LLC, No. 4:15CV00038 JLH, 2015 WL 13648567, at *2 (E.D. Ark. Oct. 14, 2015) (quoting Chin v. Tile Shop, LLC, 57 F. Supp. 3d 1075, 1083 (D. Minn. 2014)).

III. Analysis

A. The Parties' Arguments

In support of the instant motion, plaintiffs Yvette Davis and Brandi Henson submitted nearly identically worded declarations (Dkt. Nos. 49-7 and 49-8). Plaintiffs' counsel, Mr. Josh Sanford, also submitted a declaration (Dkt. No. 49-6). Ms. Davis states that "Defendant's primary business purpose is to offer customer contact management services to its customers . . . [and] Defendant employs various hourly-paid employees at its call centers to accomplish this goal." (Dkt. No. 49-7, ¶5). Ms. Davis claims that she and other healthcare advocates were "required to arrive for our scheduled shifts 15 minutes early in order to boot-up our computers and log into Defendant's various computer networks and software programs . . . [but] were not clocked into Defendant's time and attendance software, and therefore not making an hourly wage." (Id., ¶10). Ms. Davis claims that "[a]dditional compensation deficiencies would arise when we experienced pre-shift technical difficulties or connectivity issues . . . [and] at the end of [moving plaintiffs'] shift[s]." (Id., ¶¶ 12, 14). Ms. Davis claims that this "resulted in healthcare advocates such as [her] not being paid for all time worked, including overtime." (Id., ¶ 14). Specifically, Ms. Davis states that "[d]efendant's pay policies applied to all healthcare advocates" and that she and other hourly-paid employees regularly worked in excess of 40 hours per workweek (Id., ¶¶ 15-16). Ms. Brandi Henson's affidavit makes identical claims (Dkt. No. 49-7).

Plaintiffs also request that the Court ratify their proposed notices and notice process as it pertains to potential opt-in plaintiffs: plaintiffs would send notice to potential opt-in plaintiffs via the United States Postal Service and e-mail, or alternatively via United States Mail and text message (Dkt. Nos. 49-1; 49-3), along with a consent to join collective action (Dkt. Nos. 49-2; 49-4), and the Court would set a 90-day opt-in period. Plaintiffs would also distribute a reminder postcard via United States Mail, and plaintiffs would send a follow-up notice by email or alternatively text message (Dkt. Nos. 49, ¶ 9; 49-5). Plaintiffs would also require TTEC to post the notice in a conspicuous location at its call centers in the same area in which it posts government-required notices (Dkt. No. 49, ¶ 10). Finally, plaintiffs ask that the Court...