Free Statement - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Charles L. Chester ­ 002571 [email protected] John M. Fry - 020455 [email protected] Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a class consisting of others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS DEFENDANT'S CONTROVERTING STATEMENT OF FACTS AND OBJECTIONS TO PLAINTIFF'S STATEMENT OF FACTS IN SUPPORT OF PLAINTIFF'S MOTION FOR A FINAL FINDING OF WILLFULNESS UNDER THE FAIR LABOR STANDARDS ACT (Assigned to the Honorable Roslyn O. Silver) I. Objections A. Defendant objects to Plaintiff's Statement of Facts in Support of

Plaintiff's Motion for a Final Finding of Willfulness Under the Fair Labor Standards Act 11 pursuant to Rule 701, Fed. R. Evid. because it mischaracterizes the Court's November 9, 2005 Order. Discovery in the case had been framed based on the Court's adherence to the two-year statute of limitations. In the November 9, 2005 Order, the Court essentially reframed discovery based on a three-year statute of limitations. See also Defendant's Controverting Statement of Facts2 1, infra. B.
1

Defendant objects to PSOF 2 because it violates Local Rule 56.1(a) which

28

2

Hereinafter "PSOF __". Hereinafter "DCSOF __".
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requires "[a]s to each fact, the statement shall refer to a specific portion of the record where the fact may be found (i.e., affidavit, deposition, etc.)." PSOF 2 does not refer to or identify any portion of the record for its assertion that "subsequent discovery" has "further confirmed willfulness." In addition, the legal argument of counsel set forth in PSOF 2 is inadmissible opinion testimony. Federal Rules of Evidence 701 ­ 704. C. Defendant objects to PSOF 3 because it violates Local Rule 56.1(a).

PSOF 3 does not refer to or identify any portion of the record for its assertion that "ample evidence" proves Defendant knew or should have known it was violating the FLSA's overtime requirements. In addition, the legal argument of counsel set forth in PSOF 3 is inadmissible opinion testimony. Federal Rules of Evidence 701 ­ 704. D. Defendant objects to PSOF 4 pursuant to Rules 402 and 403, Fed.R.Evid.

The 1942 case and 1944 appeal cited by Plaintiff have no tendency to make it more probable that the Bank willfully misclassified Arizona Client Managers in 2001 ­ 2002 (sixty years later), or willfully encouraged off-the-clock work after March 2002. PSOF 4 is inadmissible pursuant to FRE 402. See also DCSOF 2, infra. E. Defendant objects to PSOF 5 pursuant to Rule 802, Fed.R.Evid. The sole

"evidentiary" support Plaintiff offers in support of PSOF 5 is the following statement from Plaintiff's expert's report (Plaintiff's Exhibit C) dated June 1, 2005: On May 31, 2005 I telephoned the U.S. Department of Labor, Wage-Hour Division and learned that they have initiated 79 compliance actions against the Bank during the past 10 years. Five of these are in Arizona. A very large percentage of these actions resulted in overtime violations of Section 7(a) of the FLSA. See also DCSOF 3, infra. F. Defendant makes the following objections to Plaintiff's Exhibit D,

submitted in support of PSOF 6, and therefore, to PSOF 6. See also DCSOF 4, infra. 1. Rule 402, Federal Rules of Evidence.

With the exception of five entries on Plaintiff's chart, the other ten entries are based upon alleged DOL "investigations" that were not concluded until well after October 2001. The undisputed evidence shows the Bank made the decision to convert
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Premier and Small Business Client Managers to overtime-eligible status by October 2001. See Defendant's Statement of Facts in Support of Motion for Decertification and Motion for Partial Summary Judgment filed June 26, 2006,3 59, 60. Therefore, even assuming arguendo Plaintiff was misclassified as exempt prior to March 2002, DOL investigations that were not even concluded (and some not even begun) until after the Bank's decision to convert was made are wholly irrelevant for purposes of demonstrating Defendant acted willfully before October 2001. Further, all fifteen of the "examples" listed on Plaintiff's Exhibit D are irrelevant--including those concluded prior to October 2001--because none relate to the Premier Banking or Small Business Banking divisions and Plaintiff provides no evidence from which the Court could conclude they involve job duties, legal claims, or facts even remotely similar to the Plaintiff and her allegations here. 2. Rule 403, Federal Rules of Evidence

Plaintiff's Exhibit D should be rejected pursuant to Rule 403, Fed.R.Evid., because both Plaintiff's summary, and its source documents, are confusing and misleading. The source documents consist of incomplete documents, incomplete files regarding investigations, and documents heavily redacted without explanation of the reason for the redactions or who redacted them. By way of example only, Plaintiff submitted in support of entries 1 ­ 3 on her summary only the first page of what appears to be a longer report regarding Fort Campbell, Kentucky. The page does not identify its author, is not signed, and contains no findings, recommendations, or conclusions regarding Fort Campbell. Plaintiff's summary chart is itself confusing and--more troubling--inaccurate in critical respects. See also DCSOF 4, infra. 3. Rules 901(b)(7) and 1005, Federal Rules of Evidence

Plaintiff does not even attempt to authenticate Exhibit D's source documents.

3

Hereinafter "DSOF __".
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4.

Rule 802, Federal Rules of Evidence

Because the source documents are inadmissible, Exhibit D is mere hearsay. 5. Rules 701 ­ 704, Federal Rules of Evidence

The eighth column of Plaintiff's summary solely contains arguments of Plaintiff's counsel. This is inadmissible opinion testimony. G. PSOF 7 is based solely upon Plaintiff's Exhibit D. Therefore, Defendant

incorporates all of its objections to Plaintiff's Exhibit D set forth in paragraph F supra. H. PSOF 8 is based solely upon Plaintiff's Exhibit D. Therefore, Defendant

incorporates all of its objections to Plaintiff's Exhibit D set forth in paragraph F supra. I. PSOF 9 is based solely upon Plaintiff's Exhibit D. Therefore, Defendant

incorporates all of its objections to Plaintiff's Exhibit D set forth in paragraph F supra. J. PSOF 10 is based solely upon Plaintiff's Exhibit D. Therefore, Defendant

incorporates all of its objections to Plaintiff's Exhibit D set forth in paragraph F supra. K. Defendant objects to PSOF 11 pursuant to Rules 402 and 403,

Fed.R.Evid. See also DCSOF 5, infra. L. Defendant objects to PSOF 12 because it is inadmissible evidence

pursuant to Rule 408, Fed.R.Evid. See also Hudspeth v. Commissioner of Internal Revenue Service, 914 F.2d 1207, 1213 (9th Cir. 1990) (Rule 408, providing that evidence of compromise is not admissible to prove liability for a claim, applies to cases in which party seeking to introduce evidence of compromise was not involved in original compromise). See also DCSOF 6, infra. M. Defendant objects to PSOF 13 pursuant to Rules 403 and 701,

Fed.R.Evid., because it grossly mischaracterizes the relationship between Lloyd Aubry and the Bank. See also DCSOF 7-9, infra. N. Defendant objects to PSOF 14 pursuant to Rules 403 and 701,

Fed.R.Evid. See also DCSOF 10, infra. O. Defendant objects to PSOF 15 pursuant to Rules 403 and 701,

Fed.R.Evid., and Local Rule 56.1(a). See also DCSOF 11, infra.
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P.

Defendant objects to PSOF 16 pursuant to Local Rule 56.1(a). The legal

argument of counsel set forth in PSOF 16 is inadmissible opinion testimony pursuant to Federal Rules of Evidence 701 ­ 704. Q. Defendant objects to PSOF 17 pursuant to Rules 403 and 701,

Fed.R.Evid., and Local Rule 56.1(a). See also DCSOF 12, infra. Defendant also objects to PSOF 17 pursuant to Rules 402 and 403, Fed.R.Evid., because whether the Bank kept Mr. Aubry "in the loop" regarding any actions taken by the Bank subsequent to the conference call is irrelevant. Nothing required the Bank to do so, nor does the failure to do so permit an inference of willful behavior. R. Defendant objects to PSOF 20 pursuant to Local Rule 56.1(a).

Defendant also objects to PSOF 20 pursuant to Rules 802 and 701, Fed.R.Evid., because the statements contained therein are out-of-court opinions of Plaintiff's counsel offered to prove the truth of the matters asserted in PSOF 20. See also DCSOF 15, infra. S. Defendant objects to PSOF 21 pursuant to Rules 402 and 403,

Fed.R.Evid. See also DCSOF 16 and 17, infra. T. Defendant objects to PSOF 24 pursuant to Rules 402 and 403,

Fed.R.Evid. PSOF 24 is based upon information obtained from client managers "in late 2003 and early 2004 and as a result of this lawsuit having been filed." [PSOF 24, pg. 9, lns. 1-2] Therefore, PSOF 24 is irrelevant and confusing for purposes of demonstrating willfulness in the form of prior knowledge of alleged off-the-clock work. See also DCSOF 21-25, infra. U. Defendant objects to PSOF 25 pursuant to Rules 402 and 403,

Fed.R.Evid. PSOF 25 is based upon statements made "in 2003 and 2004." [PSOF 25, f.n. 24] Therefore, PSOF 25 is irrelevant for purposes of demonstrating willfulness in the form of prior knowledge of alleged off-the-clock work. Defendant further objects to PSOF 25 pursuant to Local Rule 56.1(a). See also DCSOF 26, infra. V. Defendant objects to PSOF 26 pursuant to Local Rule 56.1(a). Defendant
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also objects to PSOF 26 pursuant to Rules 802 and 701, Fed.R.Evid., because the statements contained therein are out-of-court opinions of Plaintiff's counsel offered to prove the truth of the matters asserted in PSOF 26. See also Paragraph T, supra. W. Defendant objects to PSOF 27 pursuant to Rule 802, Fed.R.Evid. and, to

the extent in Plaintiff's Exhibits N and P Ms. Hutton is purporting to convey what other opt-ins allegedly told her, Rule 805 (hearsay within hearsay). See also DCSOF 27, infra. X. Defendant objects to PSOF 28 pursuant to Rules 402, 403 and 802,

Fed.R.Evid., because Opt-in Massignani does not identify who allegedly told her to consider hours worked in excess of forty a "personal investment" in her career, thus neither Defendant nor the Court can corroborate the veracity of the statement. Based upon the context of her averment, it is highly likely that, assuming only for the sake of argument such a statement was even made, it was made by a market manager in Texas, while Ms. Massignani was working and living in Texas. See Plaintiff's Exhibit R, ¶¶ 3, 15. Y. Defendant objects to PSOF 32 ­ 41 pursuant to Local Rule 56.1(a).

Further, Defendant objects to PSOF 32-41 pursuant to Rule 802, Fed.R.Evid. Further, the statements contained in PSOF 32 ­ 41 are out-of-court statements of Plaintiff's counsel offered to prove the truth of the matters asserted in PSOF 32 - 41. Further, Defendant objects to PSOF 32-41 pursuant to Rule 701, Fed.R.Evid., because they consist of arguments by Plaintiff's counsel. See also Paragraphs A through X, supra. II. Controverting Statement of Facts ("DCSOF") 1. What the Court actually said on November 9, 2005, was:

This being a collective action, then I would allow those individuals for whom there is sufficient evidence to get to a the jury--meaning that there is a genuine issue of material fact to go to the jury on willfulness, and that's something that is really a dispositive issue. I will conditionally allow the issue of willfulness to go forward, but for Arizona only. Of course in the nature of dispositive motion, that matter will be brought to the attention of this Court, to determine whether or not there are genuine issues of material fact to go to the jury on each of the individuals. Now I can't
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decide that today, without getting into detail, because--and I think as both parties know, that has not been adequately briefed to the Court. [Exhibit A hereto, at pg. 21, lns. 6-20 (emphasis added).] 2. No court has ever concluded Defendant or its predecessor by

merger ever violated the Fair Labor Standards Act. Exhibit B hereto. 3. Regarding PSOF 5, Plaintiff's expert did not have a single shred of

information--written or otherwise--about 69 of these 79 alleged actions other than the hearsay telephone conversation referenced in paragraph E, supra.4 Mr. Clemons also admitted he was told the 79 "compliance actions" included Family Medical Leave Act investigations and conciliations instead of investigations, and that he had no idea whether 69 of these contacts resulted in a conclusion that the Bank violated the FLSA. In fact, Plaintiff's expert admitted that the 69 contacts between the DOL and Defendant about which he had no information had no bearing at all on his conclusions. [Exhibit C (Oran Clemons Depo. taken March 28, 2006, pgs. 35-37, 45-47)] 4. Plaintiff's own evidence on administrative activity shows:

· The only information (purportedly from the Department of Labor) Plaintiff provides to substantiate the first example on her chart (Plaintiff's Exhibit D) is "[t]here have been four FLSA investigations at various locations throughout the country beginning in May, 1993 at the Richmond, VA location. Eight employees were found due $32,379 in overtime." · The only information Plaintiff provides to substantiate the second example on her chart is the next sentence from the same incomplete document: "Also in May, 1993 at the Lynchburg, VA location two employees were found due $10,890 in overtime." · The only information Plaintiff provides to substantiate the third example on her chart is the next sentence from the same incomplete document: "In 1996 at the

The other ten contacts are addressed infra.
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Ft. Lauderdale, FL location misapplied [sic] regulation 541 violations were found and the file was forwarded to the regional solicitor's office. The employees ended up filing their own section 16(b) action." Regulation 541 relates to all exempt classification. The DOL apparently took no action as a result of this local finding, imposed no backwages or penalties, and made no findings. Plaintiff provides no further information about the subsequent private lawsuit, other than that one was filed. · Plaintiff flatly misstates what the documents submitted to substantiate the fourth entry on her summary say. Plaintiff claims the New Mexico contact is similar to Ms. Hutton's situation because "[a]fter the Bank converted from exempt to nonexempt, [employees] not paid for all overtime hours worked." [Plaintiff's

Exhibit D, row 4, column 8] Page two of the source document, dated 11/15/99 (with the author's name and signature redacted), says the opposite: "On November 4, 1999, interviews were conducted on current customer service managers [CSMs] from other locations. . . . The CSMs also noted that if they work overtime, it is paid, although, most CSMs do not work in excess of 40 hours now. . . . Ms. Turner was also advised that her complaint regarding hours worked off the clock was not substantiated. In turn, the recordkeeping violation could also not be substantiated." · Plaintiff's documents indicate the Florida employees referenced in the fifth entry of her summary were processors in a loan center, not Premier or Small Business Client Managers. Moreover, Plaintiff's documents include a letter from the Bank to the Department of Labor dated April 3, 2001, in which it is made clear the Bank disagreed with the finding of a violation: As you know, in regards to the St. Petersburg investigation the Bank has agreed, subject to appropriate language, to pay the back wages in question and civil money penalties in the amount of $3,700.00, solely to save all parties the time and expense involved in protracted administrative and/or legal proceedings. The Bank has never agreed orally or in writing that any amount of money is due, either in the form of backpay or civil money penalties, for any violations of the Act.
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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 · All of the other examples on Plaintiff's Exhibit D summary were not concluded until after the Bank decided to make Client Managers overtime-eligible. In fact, many of the contacts were not even initiated until after Plaintiff filed this lawsuit. As further evidence that the information contained in Plaintiff's Exhibit D is irrelevant for purposes of a willfulness determination (assuming only for the sake of argument, as Mr. Farrington does, that this is even an appropriate topic for expert opinion), Defendant submits the opinions of Defendant's expert, Brian T. Farrington, on this issue. See Exhibits I, J, and K hereto. However, one more of Plaintiff's examples bears mentioning. Plaintiff argues with her tenth example that the Bank acted willfully here because one employee in Texas, performing unidentified job duties, "complained that [he] was pressured to work of [sic] the clock." [Plaintiff's Exhibit D, row 10, column 8] What the document actually states under "Conclusions & Recommendations" is: "unable to find evidence of off clock work" (emphasis added). Further, when asked about this document, Plaintiff's own expert testified "no, I did not rely on that." [Exhibit C (Clemons Depo. pg. 38, ln. 20 ­ pg. 39, ln. 8)] 5. Regarding PSOF 11, Defendant's Response No. 3 to Plaintiff's

Fourth Request for Production of Documents was limited (a) temporally, to the time period from January 1, 1999 ­ June 30, 2005; (b) in operational scope, to responsive information involving either the Premier Banking or Small Business Banking units of the Bank; and (c) to responsive information involving potential misclassification and working off the clock infractions. See Plaintiff's Exhibit E, pg. 3 and pg. 5 lns. 1 ­ 10; Plaintiff's Exhibit F, pg. 2 ln. 8 ­ pg. 3 ln. 7 and pg. 4 lns. 7 ­ 17. 6. Defendant controverts PSOF 12 with its Statement of Facts in

Support of Motion for Decertification and Motion for Partial Summary Judgment filed June 26, 2006, Nos. 44 ­ 67, incorporated herein by reference. 7. Plaintiff would have the Court believe Mr. Aubry, at the Bank's
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direction, conducted a definitive assessment of the client manager position and unequivocally concluded the position was non-exempt. In reality, Mr. Aubry testified the Bank "wanted me to go up there [Seattle] and interview a few people and just give them a sense of--you know, not necessarily a definitive sense--what I thought about the litigation and these particular positions." [Exhibit D (Aubry Depo. pg. 55 lns. 14-24)] "The litigation" to which Mr. Aubry referred was the then-pending California state-court lawsuits. Id. at pg. 55 ln. 25 ­ pg. 56 ln. 2. Prior to his trip, Mr. Aubry was told no report would be required. Id. at pg. 56 lns. 5-8. According to Mr. Aubry, his visit to Seattle "was always just a one-day deal," and he never requested more time from the Bank, or suggested he should re-visit Seattle or any other city. Id. at pg. 59, lns. 614. 8. Mr. Aubry was in Seattle for a grand total of 5 hours and 15

minutes. Id. at pg. 73, ln. 25 ­ pg. 74, ln. 4. Excluding commuting time, he spent an hour and 45 minutes at the Bank's Seattle Metro location, one hour at the Greenwood Banking Center, and one hour at the University Banking Center. Id. at pg. 71, ln. 22 ­ pg. 74, ln. 4. He met with a total of one market manager and 3 or 4 client managers. Id. at pg. 84 ln. 14 ­ pg. 85 ln. 9; pg. 88 lns. 9 ­ 11; pg. 95, lns. 22 ­ 24; pg. 100, lns. 5-24; pg. 104, lns. 19-24. He had no contact with any of them at any time since. Id. at pg. 106, ln. 24 ­ pg. 107, ln. 2. Mr. Aubry had his conference call with Jay Price and Defendant's outside counsel in the California litigation at 10:00 the following morning. Id. at pg. 107, lns. 18-20; pg. 109, lns. 3-6. In the interim, he did not do any further research or legal research in relation to his trip to Seattle. Id. at pg. 108, lns. 11-17. Ms. Davis' impressions apparently were not expressed in the phone call. [Exhibit D (Aubrey Depo., p. 114, lns. 8-12)] While Mr. Aubry may not have been mentioned by name, the key points of his observations were made known to management, and were born true: the Client Manager job is exempt, but that won't stop litigation. [Exhibit H (Reale Depo. pp 94-96, lns. 1-8)] 9. DSOF 51 and 52 are incorporated herein by reference.
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10.

Mr. Aubry further testified: "I recall telling them [the Bank's

attorneys] that, you know, I thought the position in and of itself, if done correctly, was an exempt position in California and under the FLSA." Id. at pg. 113, lns. 22-25. Q: A: Q: You only interviewed the three or four people in Seattle, correct? Correct. If you were going to perform and provide an opinion letter to a client as to whether the position is exempt or nonexempt, is that enough of a representative investigation, if you will, or audit just to talk to the three or four people in Seattle? No.

Id. at pg. 124, ln. 18 ­ pg. 125, ln. 2. See also DCSOF No. 7, supra. 11. Regarding PSOF 15, page 126, lines 4 ­ 9 of Mr. Aubry's

deposition simply does not contain the statement "I told the Bank that the client managers were performing in a nonexempt way" as claimed on pg. 6, lns. 3-4 of Plaintiff's Statement of Facts. See also DCSOF No. 7, supra. 12. Mr. Aubry's deposition transcript says the opposite of what

Plaintiff asserts that it says. Plaintiff claims "Mr. Aubry testified that he was instructed not to do any further work, nor memorialize his findings," yet the deposition transcript submitted by Plaintiff says exactly the opposite: Q: A: Q: A: Q: A: Q: A: A: Did they ask you to prepare a memo of your findings? No. Did you suggest that you should? No. Did you offer to do that? No. Did anybody suggest that you shouldn't? No. They could have done that, but it's not--other clients don't ask for
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that type of thing, so it wasn't particularly unusual. Plaintiff's Exhibit H, pg. 117, ln. 20 ­ pg. 118, ln. 3; pg. 119, lns. 9-16. 13. 14. Regarding PSOF 18, DSOF 53 is incorporated herein by reference. Regarding PSOF 19, DSOF 53-60 are incorporated herein by

15.

Regarding PSOF 20, DSOF 53-65 are incorporated herein by

16.

Regarding PSOF 21, DSOF 51-59 are incorporated herein by

17.

Regarding PSOF 22, DSOF 70, 74, 79, 80, 82, 83, and 86 are

incorporated herein by reference. 18. Regarding PSOF 23, DSOF 98 ­ 106 are incorporated herein by

19.

Also regarding PSOF 23, Exhibit L is the only evidence submitted

by Plaintiff in purported support of PSOF 23. Exhibit L is a report on the "rollout" of the reclassification of client managers to overtime eligible status in March 2002. The report notes that Bank management was concerned because "Client Managers continue to express reluctance to sign for OT" (not that they were not doing so). This reluctance likely stemmed from the fact that many client managers resented the reclassification because they felt it did not comport with the professional nature of their jobs. [Exhibit E (Cortopassi Depo. pg. 43, lns. 6-16)] 20. Also regarding PSOF 23, this July, 2002 document is not evidence

that Defendant was allegedly aware of off-the-clock work by Client Managers as much as three years later--in 2003, 2004, and 2005. Exhibit L indicates the opposite. The exhibit's "ongoing action" items include "[h]old another associate listening session to better understand reluctance to claim OT, validate average hours per week needed to perform role," and "[t]esting of time card completion and associated OT reporting will become part of Operational and Risk Monitoring conducted by Corporate Audit."
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21.

Of the 58 Arizona Client Managers from whom statements were

taken, eleven stated they worked unrecorded time in excess of forty hours per week. [Exhibit F] Seven of these eleven are conditional Opt-ins in this litigation. [Id.] 22. Of the five non-opt-ins, three did not, as Plaintiff asserts,5 tell the

Bank they didn't record overtime because their market manager told them not to, or even because they thought their market manager did not want them to. Rather, these three Client Managers stated "I have been directed to record all hours that I work, including hours which exceed 40 in a workweek. . . . I did not do so because I independently decided not to record the overtime hours." [Exhibit F (Client Manager Statements of Joseph, Zakis, and Lea)] 23. The fourth Client Manager, Renae Watkins, stated the Bank

directed her to record all hours that she worked, but for only a four-month period between April and July 2002, she thought her market manager did not want her to record all overtime. After July 2002, Ms. Watkins stated she independently decided not to record overtime hours--not because she still thought her market manager did not want her to. [Exhibit F] 24. The fifth, Shawn Stryker, stated the Bank directed her to record all

hours that she worked, and market manager Debbie Chandler "stated not to go over 3 hours per week as we only had a budget for that many." Shawn Stryker next stated that market manager "Vickie Sandve has instructed me June 03, that she wants me to record my hours worked." [Exhibit F] 25. Of the eleven statements, only one, by opt-in Stephanie Clark,

states her market manager told her not to record some of her overtime hours. None of the other opt-ins, including those deposed and those who reported to the same market managers as Ms. Clark, have stated they were told not to record all of their overtime. [Exhibit F]

PSOF 24, pg. 9, lns. 6-8.

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26.

Regarding PSOF 25, DSOF 68--106 are incorporated herein by

27.

Regarding PSOF 26 - 27, DSOF 70-106 are incorporated herein by

reference. As just one example, "[t]he Arizona Market Managers during the relevant time period have testified, under oath, that there were absolutely no unwritten or tacit policies to encourage Client Managers to work `off the clock.'" [DSOF 79] 28. Regarding PSOF 28, DSOF 79­81 are incorporated herein by

29.

Regarding PSOF 29, DSOF 102 and 103 are incorporated herein by

30.

Regarding PSOF 30, Ms. McClintic contradicts herself. See DSOF

83, 92, and 99, incorporated herein by reference. 31. Regarding PSOF 31, Plaintiff takes Ms. Krebsbach's deposition,

page 72, lines 2-4 (Plaintiff's Exhibit O) out of context. The full exchange was as follows: Q: A: Q: A: Q: A: Did Lynn Searles ever tell you that you should not record all of the hours you work? Yes. When did she tell you that? I don't know what the date was. What did she tell you? It was sometime during that meeting or after that meeting that because there was no money in the budget for overtime that we were not to put--if anybody was going to record overtime in excess of, I think it was somewhere around four hours of overtime, it was either four or five hours of overtime, then it would need prior approval before it went on the time sheet or she would not sign off on it. Did she tell you you shouldn't write down more than four hours of overtime or did she tell you that you needed to get prior approval before recording more than four hours of overtime? You needed to get prior approval if you were going to record more than four hours of overtime. And if you didn't have approval, you didn't put it on your time sheet.
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32.

Also regarding PSOF 31, Ms. Krebsbach later testified that she

never recalls either her market manager or her market manager's assistant rejecting a request to record more than four hours of overtime. [Exhibit G (Krebsbach Depo. pg. 82, ln. 15 ­ pg. 83, ln. 1)] 33. Also regarding PSOF 31, DSOF 71, 79, 85 - 87, and 95 are

incorporated herein by reference. 34. DSOF 1-112 are incorporated herein by reference solely to confirm

existence of a disputed fact (at least) on the misclassification and on the working off the clock issues. 35. The decision to convert Client Managers to overtime-eligible status

was not based solely on Mr. Aubry's telephonic report, alone, as Ms. Hutton contends. No records other than Mr. Aubry's notes refer or relate to the basis for the decision. [Exhibit H (Reale Depo., pp. 54-55, lns 13-1)] RESPECTFULLY SUBMITTED this 17th day of July, 2006. RYLEY CARLOCK & APPLEWHITE

By /s/Charles L. Chester Charles L. Chester John M. Fry One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Bank of America, N.A.

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CERTIFICATE OF MAILING I hereby certify that on July 17, 2006, I electronically transmitted Defendant's Controverting Statement of Facts and Objections to Plaintiff's Statement of Facts in Support of Plaintiff's Motion for a Final Finding of Willfulness Under the Fair Labor Standards Act to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Ms. Lydia A. Jones ROGERS & THEOBALD, LLP 2425 East Camelback Road Phoenix, Arizona 85016 Attorneys for Plaintiff Michael O'Connor Jennings, Strouss & Salmon, P.L.C. The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004 By: /s/Bree Bellefeuille

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