Case 4:12-cv-00613-GKF-PJC Document 28 Filed in USDC ND/OK on 04/30/13 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA NANCY CHAPMAN, individually and on behalf of a class of those similarly situated, v. Plaintiff, BOK FINANCIAL CORPORATION, and BOKF, NA, Defendants. ORDER Case No. 12-cv-613-GKF-PJC This matter comes before the court on the Motion for Conditional Collective Action Certification filed by plaintiff Nancy Chapman. (Doc. #25. For the reasons set forth below, the court grants the motion. I. Background Plaintiff was a loan officer employed by defendant BOKF through its Bank of Texas division. In 2009 and 2010, BOKF classified loan officers as exempt from the Fair Labor Standards Act overtime requirements. (Doc. #25 at 4; Doc. #26 at 3. BOKF does not require exempt employees to track their hours, but, pursuant to BOKF s Human Resources Policy & Practice Manual, non-exempt employees must accurately record hours worked. Id. Beginning January 1, 2011, BOKF reclassified all loan officers as non-exempt, making them eligible for overtime. Id. Plaintiff asserts that BOKF did not treat her, or other similarly situated current and former BOKF loan officers, as overtime eligible even after the reclassification. (Doc. #25 at 4. BOKF reclassified all loan officers as non-exempt in response to a Department of Labor ( DOL Opinion Letter, which withdrew two previous Opinion Letters and concluded:
Case 4:12-cv-00613-GKF-PJC Document 28 Filed in USDC ND/OK on 04/30/13 Page 2 of 7 Based upon a thorough analysis of the relevant factors, the Administrator has determined that mortgage loan officers who perform the typical duties described above have a primary duty of making sales for their employers and, therefore, do not qualify as bona fide administrative employees exempt under section 13(a(1 of the Fair Labor Standards Act, 29 U.S.C. 213(a(1. Opinion Letter Fair Labor Standards Act (FLSA, FLSA2010-1, 2010 WL 1822423 (Dep t of Labor Mar. 24, 2010 (withdrawing Opinion Letter FLSA2006-31 and an Opinion Letter dated February 16, 2001, 2001 WL 1558764. 1 Plaintiff alleges that loan officers routinely worked in excess of 40 hours per week both before and after the reclassification, but were not compensated for all of their overtime hours worked. (Doc. ##25 at 5, 25-4 6, 25-5 9, 25-6 10, 25-7 9. Plaintiff seeks conditional collective action certification of her FLSA claim pursuant to 29 U.S.C. 216(b. II. Discussion A. Fair Labor Standards Act Collective Actions The Fair Labor Standards Act permits collective actions to be brought for and in behalf of similarly situated employees: An action to recover the liability prescribed in either of the preceding sentences 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. 29 U.S.C. 216(b. Section 216(b is an opt-in class action mechanism that provides for a class action where the complaining employees are similarly situated. Thiessen v. Gen. Elec. Capital 1 In a case now before the D.C. Circuit Court of Appeals, the Mortgage Bankers Association alleged that many members of the financial services industry, relying on the 2006 Opinion Letter, classified mortgage loan officers as exempt employees. Memorandum Opinion, Mortgage Bankers Ass n v. Solis et al., Doc. #42 in Case No. 11-cv-73-RBW at 8 (D.D.C. June 6, 2012. The Mortgage Bankers Association also alleges that the Department of Labor did not utilize the required Administrative Procedure Act s notice and comment process before issuing the 2010 Opinion Letter and withdrawing the 2006 Opinion Letter. Id. at 11. - 2 -
Case 4:12-cv-00613-GKF-PJC Document 28 Filed in USDC ND/OK on 04/30/13 Page 3 of 7 Corp., 267 F.3d 1095, 1102 (10th Cir. 2001. Section 216(b collective actions differ from class actions certified under Federal Rule of Civil Procedure 23. Id. at 1102 n.3. District courts have discretion to determine whether to certify a 216(b collective action. The overriding question in certifying a collective action is whether the original plaintiffs and the opt-in plaintiffs are similarly situated. Thiessen, 267 F.3d at 1102. Although district courts have devised varying approaches to this question, the Tenth Circuit expressly endorsed a two-stage ad-hoc approach. See id. at 1105. First, a court typically makes an initial notice stage determination of whether plaintiffs are similarly situated. Id. at 1102. During this first stage, plaintiffs face the relatively light burden of making substantial allegations that the putative class members were together the victims of a single decision, policy, or plan. Id. If a court determines that a collective action should be certified for notice purposes, putative class members are given notice and the opportunity to opt-in. The action then proceeds as a representative action throughout discovery. Kaiser v. At The Beach, Inc., 2010 WL 5114729, at *3 (N.D. Okla. Dec. 9, 2010. During the second stage, after discovery closes, a defendant may file a motion to decertify the collective action. Thiessen, 267 F.3d at 1102 03. Upon ruling on the motion to decertify, the court then makes a second determination, utilizing a stricter standard of similarly situated. Id. at 1103. If the claimants are indeed similarly situated, the district court allows the representative action to proceed to trial. Kaiser, 2010 WL 5114729, at *4. If the claimants are not similarly situated, the district court decertifies the class, the opt-in plaintiffs are dismissed without prejudice, and the class representatives i.e. the original plaintiffs proceed to trial on their individual claims. Id. (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995, overruled in part on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003. - 3 -
Case 4:12-cv-00613-GKF-PJC Document 28 Filed in USDC ND/OK on 04/30/13 Page 4 of 7 B. Plaintiff Makes Substantial Allegations That Loan Officers Were Victims of a Misclassification As Exempt Employees. This case is at the first stage. The allegations in the Amended Complaint and the four declarations meet the requirement of substantial allegations that loan officers were victims of a single policy. Thiessen, 267 F.3d at 1102; (Doc. ##9, 25-4, 25-5, 25-6, 25-7. Here, a single policy categorically treating all loan officers as exempt existed before January 1, 2011. And plaintiff alleges BOKF maintained a policy of treating loan officers as ineligible for overtime after January 1, 2011. (Doc. #9 24. Defendants manageability concerns are not relevant to this inquiry and can be handled at the second stage. Defendants argue that because the parties agree that neither the employer nor the employees have kept time records, an individual inquiry will be necessary to determine whether and how much overtime occurred. The court acknowledges that many courts have taken the position that where an individual inquiry will be required, the matter is not proper for a collective action. See, e.g., Archer v. Freedmont Mortg. Corp., 2013 WL 93320, at *3 (D. Md. Jan. 7, 2013 (holding in loan officer case that conditional class certification is inappropriate in this case because it would require substantial individualized determinations for each class member. ; Mike v. Safeco Ins. Co. of America, 274 F. Supp. 2d 216, 220-221 (D. Conn. 2003. However, courts in the Tenth Circuit have refused to even consider the individualized nature of factual inquiries at the notice stage, holding that such evaluation is not appropriate until the second stage analysis. Geer v. Challenge Fin. Investors Corp., 2005 WL 2648054, at *4 (D. Kan. Oct. 17, 2005 (collecting cases; see also Thiessen, 267 F.3d at 1103 (stating that disparate factual settings of individual plaintiffs are factors to be considered at the second stage analysis. officers. The court, therefore, conditionally certifies an opt-in class of similarly situated loan - 4 -
Case 4:12-cv-00613-GKF-PJC Document 28 Filed in USDC ND/OK on 04/30/13 Page 5 of 7 C. Parameters of The Opt-In Class. Plaintiff seeks conditional collective action certification for current and former loan officers employed by defendants. (Doc. #25 at 2. Plaintiff alleges two separate FLSA violations: first, loan officers were misclassified before January 1, 2011; and second, loan officers were instructed not to track overtime hours after being classified as non-exempt. These allegation involve two different, but somewhat overlapping groups of loan officers. All parties agree that the January 1, 2011 reclassification applied to all loan officers then employed by defendants. (Doc. #26 at 3. Thus, any loan officer who was employed by defendants before January 1, 2011 may have been misclassified as exempt. Loan officers hired after January 1, 2011 do not have a claim under the misclassification theory. Thus, the class includes all loan officers employed by defendants before January 1, 2011 who could opt-in within the three year statute of limitations applicable to willful violations, 29 U.S.C. 255(a. However, plaintiff fails to allege a uniform nation-wide policy concerning the second alleged FLSA violation. Those allegations only concern activities in the Bank of Texas division in the Dallas/Ft. Worth area. See Doc. ##25-4, 25-5, 25-6, 25-7. Thus, conditional certification based on the second alleged FLSA violation is be limited to loan officers in the Dallas/Ft. Worth area. The second group must include all loan officers employed by defendants in the Dallas/Ft. Worth area whether hired before or after January 1, 2011, and who can opt-in within the three year statute of limitations, 29 U.S.C. 255(a. - 5 -
Case 4:12-cv-00613-GKF-PJC Document 28 Filed in USDC ND/OK on 04/30/13 Page 6 of 7 Accordingly, conditional collective action certification is granted for: (1 all loan officers nation-wide employed by defendants after April 30, 2010 and before January 1, 2011; and (2 all Dallas/Ft. Worth area loan officers employed by defendants after April 30, 2010. 2 D. Objections To The Proposed Opt-In Notice. The court has the power and duty to ensure fair and accurate notice, but will not alter plaintiff s proposed notice unless such alteration is necessary. See Sloan v. Renzenberger, Inc., 2011 WL 1457368, at *4 (D. Kan. Apr. 15, 2011. Defendants raise three objections: (1 requesting the notice advise putative members they might be liable for costs associated with the lawsuit; (2 requesting the notice advise putative members they might have to travel to Tulsa to give a deposition or provide trial testimony; and (3 limit the opt-in period to sixty days rather than ninety days. The court concurs that putative members should be advised they could be liable for costs in the event they do not prevail. The notice shall include the following in Section 5 How To Participate In This Lawsuit :.If you choose to join this lawsuit, you will be bound by the judgment or any settlement of this action. If you do not prevail, you could be held liable for costs associated with this lawsuit. While the suit (emphasis on added language. The court overrules defendants other objections because such alterations are not necessary to provide fair and accurate notice. 2 Defendants shall provide plaintiffs with the names and address of the employees in these two categories. However, the statute of limitations runs until an opt-in notice is filed, and some conditionally certified class members claims will be untimely depending on the applicable statute of limitations and when their cause of action accrued. - 6 -
Case 4:12-cv-00613-GKF-PJC Document 28 Filed in USDC ND/OK on 04/30/13 Page 7 of 7 E. Defendants Requested Communication Restrictions. Finally, defendants request plaintiff s counsel be restricted from initiating communication with potential class members. (Doc. #26 at 13-14. Defendants provide no case-specific reason to limit such communication. Cf. Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981 ( the mere possibility of abuses does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action. Defendants request is denied. III. Conclusion WHEREFORE, the Motion For Conditional Collective Action Certification (Doc. #25 is granted. Plaintiff s counsel may send the approved, revised Notice to all loan officers nationwide employed by defendants after April 30, 2010 and before January 1, 2011 and all Dallas/Ft. Worth area loan officers employed by defendants after April 30, 2010. The Opt-In Consent Forms must be provided within 90 days of the Notice date. DATED this 30th day of April, 2013. - 7 -