Free Motion for Partial Summary Judgment - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 331-2

Filed 01/27/2006

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO CASE NO. 03-cv-02485 MSK-PAC Camille Melonakis-Kurz, individually and on behalf of other similarly situated employees, Plaintiff, v. Heartland Home Finance, Inc., Defendant.

AFFIDAVIT OF MICHELE R. FISHER ________________________________________________________________________ 1. My name is Michele R. Fisher and I am one of the attorneys representing the

Plaintiffs in the above-captioned matter. 2. Plaintiffs are 956 loan officers who worked for Defendant Heartland Home

Finance ("Defendant") at its approximately 67 branch offices in 31 states. 3. With respect to the timesheets set forth in Exhibit 7, these represent a sampling of

timesheets that reflected overtime hours worked in the column setting forth the weekly totals. There are several timesheets that were omitted that add up to more than 40 hours per week but the additional hours were not reflected in the weekly total column. 4. With respect to Exhibit 13, which shows a sampling of payroll records subject to

docking, these records were initially produced electronically by Defendant. Plaintiff exported this information from Plaintiffs' database to identify those payroll records produced by Defendant that were subject to docking.

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5.

Because Defendant failed to specifically respond to each instance of docking,

Plaintiffs reviewed the electronic payroll records previously produced by Defendant, and sent Defendant Exhibit 13, setting forth 159 situations during the relevant timeframe where Defendant docked Plaintiffs' pay. Plaintiffs omitted paychecks that covered the first and last weeks a loan officer worked. Defendant has not responded with any further explanation. 6. With respect to Exhibit 26, there are several additional timesheets that reflect

falsification to show 40 hours or less but Plaintiffs are not burdening the Court with the additional exhibits since they are already providing the Court with extensive testimony about the falsification of timesheets. 7. Attached are true and correct copies of the following: Excerpts from deposition transcript of Donald Flynn dated April 8, 2004; Excerpts from deposition transcript of Donald Flynn dated August 17, 2005; Excerpts from deposition transcript of Thomas Beck dated August 17, 2005; Excerpts from deposition transcript of Jay Dunsing dated January 6, 2006; Excerpts from deposition transcript of Rachelle Schuster dated April 8, 2004; Excerpts from deposition transcript of Rachelle Schuster Ott dated August 22, 2005; Sampling of timesheets from 32 offices in 10 states where the hours reflect over 40 per week; Declarations from 205 individuals and transcripts from 24 individuals setting forth Defendant's practice of falsifying timesheets; Transcripts Agostini at 10-11, 35-36, 86-89, 130-32

Exhibit 1 Exhibit 2

Exhibit 3

Exhibit 4 Exhibit 5

Exhibit 6

Exhibit 7

Exhibit 8

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Alawan at 31-33, 39 Berman at 9-13, 63-64, 140-42 Clark at 27-29, 38-40, 64-65 Cousino at 9-13, 15-16, 26-29 Dary at 10-11 Donahoo at 79-81 DiBlasi at 39-40, 47-48 Fleck at 20-23 Gaddis at 10-12 Gleason at 15-16, 30-31, 36-37, 135-36, 155-58 Gunn at 8-11, 37-41 Horton at 52-54, 58-60, 62-63 Howard at 38-43, 52-53 Johnson at 7-8, 34-35, 37-38, 83-84 Kirkland (manager) at 8, 23-25, 27, 32, 103-04, 112-13 Lambros at 10-12, 79-85 Miles at 7-12, 31-32, 46, 48-49 Provost at 13-18, 53-58 Reynolds (manager) at 16, 37-41, 64, 102-03 Roddy at 11-14, 34-35 Rodriguez at 26-28, 40-42 Schwiderson at 31-32, 64-67, 72 Ziemack at 87 Exhibit 9 46 Declarations and 18 transcripts from Plaintiffs and managers setting forth examples of complaints to upper management about Defendant's unlawful overtime practices: Transcripts Agostini at 33-34,91, 130-32 Alawan at 20-21, 40-42 Berman at 140-42 Bias at 35-36 Cousino at 15-16 Dary at 42-44, 68 Donahoo at 84-86, 104 Gaddis at 8-9 Gleason at 22-23, 37-39, 48, 136, 145-46 Gunn at 8-11, 13, 18-19, 40-42, 46-47 Hines at 107 Janda (manager) at 6, 42-43 Jarold (manager) at 5-6, 10-15 Johnson at 7-9, 38-39, 83-85 Kirkland (manager) at 8, 23-25, 27, 32, 103-04. 112-13. Lambros at 16-18 Roddy at 11-14, 36-42, 44-46, 50-53, 69-70

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Ziemack at 10-13, 84 Exhibit 10 Defendant's standard Employment Agreement containing loan officer job description; Additional documents evidencing overtime hours worked; Defendant's Response to Plaintiffs' Interrogatories Set III; Plaintiffs' letter to Defendant attaching spreadsheet of those subject to docking; Heartland Home Finance "The Basics" document setting forth how to perform loan officer job; Phone scripts for loan officers; Production goals documents, and warnings and termination notices for failing to produce; Email from defense counsel dated November 17, 2005 setting forth July 31, 2002 as date that Defendant changed its compensation plan for loan officers; Documents referring to "sales;" Excerpts from deposition transcripts of 10 managers stating their loan officers either worked or may have worked overtime hours. Benson (rough draft) at 4, 10, 14-15 Block at 13, 27 Flynn, Patrick at 6-8, 13 Heath at 6-7, 27 Jerold at 5-6, 8-9 Kopronica at 6, 8-11, 58-59 Notaro at 5-6, 9-10 Pusey at 5, 24-25 Reynolds at 16, 65, 68 Westbeld at 6, 10 Exhibit 20 Exhibit 21 Casas v. Conseco, 2002 WL 507059 (D. Minn. Mar. 31, 2002); Federal Register, Vol. 69, No. 39, Apr. 23, 2004 Rules and Regulations, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Final Rule pp. 22122-22148;

Exhibit 11 Exhibit 12 Exhibit 13

Exhibit 14

Exhibit 15 Exhibit 16

Exhibit 17

Exhibit 18 Exhibit 19

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Exhibit 22

Department of Labor Opinion letter dated August 19, 2005 stating that the duties requirement for the administrative exemption were the same in the new August 23, 2004 regulations; Excerpts from transcripts of 8 of Defendant's managers regarding production goals; Benson (rough draft) at 4, 13-17, 23-24 Block at 13, 50 Heath at 6, 24, 27 Janda at 6, 20-21 Jerold at 5-6, 18-19 Modell at 7, 14 Notaro at 5-6, 29-30 Pusey at 5, 28

Exhibit 23

Exhibit 24

5 Declarations and 4 transcripts from managers stating they were instructed by corporate to either falsify timesheets or not pay overtime for hours worked; Transcripts Jerold at 5-6, 10-15, 26 Kirkland at 8, 112-13 Pusey at 5, 12-19, 30-31 Reynolds at 16-17, 37-41, 64, 68-69, 102-03

Exhibit 25 Exhibit 26

Sample timesheet reflecting only 40 hours per week; Excerpts from deposition transcripts of 5 managers stating they had no understanding that overtime compensation would be paid because Defendant never informed them that loan officers should be compensated for overtime hours if they worked them. Benson (rough draft) at 4, 8, 11, 13 Janda at 6, 25-26 Jerold at 5-6, 27-28 Modell at 7, 20-21 Notaro at 5-6, 11-12, 17, 26

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FURTHER AFFIANT SAYETH NOT. Dated: 01/27/06 s/Michele R. Fisher Michele R. Fisher

Subscribed and sworn to before me this 27th day of January 2006. s/Courtney N. Hauboldt Notary Public

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