Free Response to Motion - 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 HUTTON, as an individual and as representative of a class consisting of others similarly situated, v. Plaintiff, No. CV2003-2262-PHX-ROS DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO EXPAND CONDITIONAL CERTIFICATION OF THE COLLECTIVE ACTION UNDER THE FEDERAL LABOR STANDARDS ACT

BANK OF AMERICA, N.A., Defendant.

Plaintiff's Motion seeks to enlarge this litigation in two distinct and drastic ways: first, it seeks to expand it temporally to include claims going back to October 2000.1 Second, it seeks to expand this litigation geographically by asking the Court's permission to solicit opt-ins among Client Managers nationwide. The Bank currently has more than 2,500 Client Managers employed in about 125 markets nationwide; adding former Client Managers would perhaps double that number. Not

Plaintiff does not justify selection of this date for any future opt-in. The statute of limitations for an opt-in is calculated from the date his or her opt-in consent is filed with the Court [Order entered June 8, 2005, at pg. 7, lns. 14-17]. Assuming the Court is able to rule on Plaintiff's Motion in November, notice on a national scale could not be issued before January, 2006, and opt-ins would not be expected before February, 2006, at the earliest. The result, given the stay in the action of ten months, would be that the statute of limitations for a new opt-in, if any, would be no earlier than April, 2002, by which time client managers were overtime-eligible.
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only are Plaintiff's requests procedurally improper, but also the bases offered for expanding the statute of limitations wholly lack merit and include no evidence that Ms. Hutton is similarly situated with Client Managers nationwide.
I.

PLAINTIFF'S MOTION SHOULD BE DENIED ON PROCEDURAL GROUNDS.
A.

Plaintiff's Motion Disregards The Court's Scheduling Order. On December 17, 2004, this Court ordered that "[p]rocedural motions

including Motions to Amend the Complaint or Answer, and Motions to Join Additional Parties shall be filed no later than 80 days from the date of the Court's ruling on the Collective Action Motion" (emphasis added). The Court's ruling on the Collective Action Motion occurred by Order entered December 20, 2004. Therefore, any motion to amend or join additional parties had to be filed 80 days thereafter, or March 10, 2005. Plaintiff's Motion actually is a motion to amend and to join additional parties. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170-171 (1989) (discussing a court's "managerial responsibility" under section 216(b) "to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way"); Bernard v. Household Int'l, Inc., 231 F.Supp.2d 433, 435 (E.D. Va. 2002) (describing a court's allowance of section 216(b) opt-in plaintiffs as "joinder of additional parties"). As such, Plaintiff's Motion should have been brought by March 10, 2005, and should be denied as untimely. Plaintiff recognized the deadline; on March 10, 2005, she filed her Motion for Leave To Amend Complaint To Join Opt-in Plaintiff Barbara Massignani as a Named Plaintiff Representative of a Class of Others Similarly Situated in Texas ("Plaintiff's March 10th Motion").2 Plaintiff admitted Defendant would be prejudiced by an eleventh-hour motion to join additional opt-in plaintiffs: Defendant will not be prejudiced because since [sic] litigation is in the preliminary phase of the proceedings, discovery is at an early stage, and no trial has yet been
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The Court denied Plaintiff's March 10th Motion by Order entered June 8, 2005. Case 2:03-cv-02262-ROS Document 176 -2-Filed 10/24/2005 Page 2 of 18

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scheduled. By joining a class representative for the Texas Client Managers now, discovery can be efficiently conducted as to all claims at the same time. Joining this plaintiff now will also consolidating [sic] these claims prior to the true beginning of discovery and will allow the defendant the maximum time to prepare its defense and minimize any undue delay. [Plaintiff's March 10th Motion, pg. 5, lns. 17-25] Now, discovery has closed,3 yet Plaintiff seeks to join opt-in plaintiffs from 49 additional states. Defendant.
B.

What Plaintiff

conceded on March 10 remains true today; this is highly prejudicial and unfair to

Plaintiff's Motion Is Really a Motion for Reconsideration of the Court's Previous Rulings Regarding Willful Conduct. On December 20, 2004, this Court found "Plaintiff has not established that

evidence exists of Defendant's willful conduct regarding the requirements of the FLSA," and ordered "the applicable statute of limitations is two years." [Order dated December 20, 2004, pg. 12, lns. 17-18, and pg. 15, lns. 25-26] On June 8, 2005, this Court reaffirmed that "the Court has determined that the two-year limitations period applies here because Plaintiff failed to establish a basis for a finding of willful conduct by Defendant." [Order dated June 8, 2005, pg. 4, lns. 15-17] Motions for reconsideration must be filed within ten days of the Order that is the subject of the motion, absent good cause shown. Rule 7.2(g), Local Rules of Practice, U.S. District Court, District of Arizona. No good cause exists here. Virtually all of the evidence argued by Plaintiff has been in her possession since June, and the majority since December, 2004.
II.

STANDARDS OF REVIEW APPLICABLE TO PLAINTIFF'S MOTION.
A.

Principles Governing Plaintiff's Claims of Willful Conduct. First, willfulness is a statute of limitations issue. In re Farmers Ins. Exch.

Claims Representatives' Overtime Pay Litigation, 336 F.Supp.2d 1077, 1105 (D. Ore. 2004). Second, a 3-year statute of limitations is the exception, not the rule. "The party

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claiming an exception to the normal FLSA limitations period [of two years] bears the burden of showing that the violation was willful. The employer' mere negligence in s determining its legal obligation is not sufficient; plaintiffs must present evidence that the employer affirmatively knew it was violating the FLSA or that it was acting in `reckless disregard' of the FLSA." Id. (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, (1988)). Plaintiff would have this Court interpret Chao v. A-One Medical Services, Inc., 346 F.3d 908 (9th Cir. 2003) as requiring a finding of willfulness anytime a defendant previously has been told by the Department of Labor--or any other person or entity for that matter--that it may have violated any requirement of the FLSA. [Plaintiff's Motion, p. 4, lns. 2-10] Chao does no such thing. If it did, such a standard would be in direct conflict with the standard for finding a willful violation of the FLSA announced by the U.S. Supreme Court. In Richland Shoe, the Supreme Court held: The fact that Congress did not simply extend the limitations period to three years, but instead adopted a two-tiered statute of limitations, makes it obvious that Congress intended to draw a significant distinction between ordinary violations and willful violations. It is equally obvious to us that ... a standard that merely requires that an employer knew that the FLSA "was in the picture" virtually obliterates any distinction between willful and non-willful violations. Richland Shoe, 486 U.S. at 132-133 (rejecting a standard that would "permit a finding of willfulness to be based on nothing more than ... a completely good-faith but incorrect assumption that a pay plan complied with the FLSA in all respects."). Chao is distinguishable. Its discussions of the Appellee/employer's In re previous "run-ins" with the Labor Department are "in a factual context that plainly established the employer's reckless disregard of the FLSA requirements." Farmers, 336 F.Supp. 2d at 1106. No such factual context exists in this action.

The discovery deadline was October 20, 2005. Case 2:03-cv-02262-ROS Document 176 -4-Filed 10/24/2005

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B.

Principles Governing Plaintiff's Request To Expand This Collective Action Nationwide. Before the Court authorizes notice to the 2,553 current client managers

and their predecessors in 125 markets across the country, Plaintiff must demonstrate she is "similarly situated" with these employees. Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). Notice is entirely within the Court's discretion. [December 20, 2004 Order, pg. 3, ln. 8] The "similarly situated" standard of proof Plaintiff must meet is more stringent than if she had brought her Motion earlier in this litigation. A "fairly lenient standard" is employed if little or no discovery has taken place. Pfohl v. Farmers Ins. Group, 2004 WL 554834, at*2 (C.D. Cal. 2004). By contrast where, as here, discovery has already concluded, a more stringent standard is used. Basco v. Wal-Mart, 2004 WL 1497709 at *4 (E.D. La. 2004) (when case is not in "nascent stage", application of the second criteria is called for). This standard involves weighing the following factors: (1) the disparate factual and employment settings of the individual plaintiffs, (2) the various defenses available to the defendant which appear to be individual to each plaintiff, and (3) fairness and procedural considerations. Pfohl, 2004 WL 554834, at*2. A more stringent standard is also appropriate because there is no excuse for the untimeliness of Plaintiff's request. Unlike her willfulness arguments seeking to expand the statute of limitations for current opt-ins--where she at least claims to have newly discovered evidence--Plaintiff makes absolutely no arguments in support of nationwide conditional certification that could not have been made when she initially sought leave to proceed as a collective action nearly two years ago.
III.

PLAINTIFF'S ILLUSORY EVIDENCE OF WILLFULNESS. Plaintiff accuses the Bank of "sham" compliance with the FLSA.

[Plaintiff's Motion, pg. 5, ln. 9] The only sham is Plaintiff's "spin" to the Court that she has ten categories of evidence [Plaintiff's Motion, pgs. 5-9] that the Bank acted willfully, justifying a three-year statute of limitations. Each of Plaintiff's ten "exhibits"
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of willful conduct is addressed, and rebutted, as follows: Case 2:03-cv-02262-ROS Document 176 -5-Filed 10/24/2005

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A.

Plaintiff's "Exhibit 1": As "Exhibit 1" of the Bank's purported willfulness, Plaintiff claims

"[w]ithin the last ten years, the United States Department of Labor, Wage and Hour Division, "initiated" 79 FLSA overtime "compliance actions" against the Bank." [Plaintiff's Motion pg. 5, lns. 18-22 (emphasis added)] Plaintiff does not bother to specify how many of these alleged actions were resolved adversely to the Bank or when during "the last ten years" these Labor Department compliance actions were initiated; i.e., all 79 could have occurred in 1995-2000. Nor does Plaintiff bother to specify the allegation prompting these alleged compliance actions. Despite the absence of any information about these critical facts, Plaintiff hastily concludes "[t]he Bank was consequently clearly aware of its legal obligations regarding the payment of overtime to client managers during the relevant time period of 2000 forward" (emphasis added). As explained in footnote 1 supra, "the relevant time period" for any plaintiff opting in from this point forward is not 2000, but two or three years prior to the date an opt-in notice eventually is filed with the Court. converted to overtime eligible status. Unfortunately, it is impossible for the Court to draw any useful information from Plaintiff's assertions. Plaintiff's only support for this assertion is a hearsay statement from her alleged expert's preliminary report: 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. [Plaintiff's Motion, Exh. A] The alleged expert's preliminary report is dated June 1, 2005, meaning Plaintiff has had this information for more than four months. [Exh. 1 hereto] The following information from the Labor Department's Wage & Hour Why is an employer selected for an investigation?
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By that time client managers had been

Division ("WHD") website demonstrates just how useless the statement is:

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The WHD conducts investigations for a number of reasons, all having to do with enforcement of the laws and assuring an employer's compliance. WHD does not typically disclose the reason for an investigation. Many are initiated by complaints. . . . In addition to complaints, WHD selects certain types of businesses or industries for investigation. [Exh. 2 (emphasis added)] Further, at his October 19, 2005 deposition, the alleged expert admitted (a) a "compliance action" is simply an investigation; (b) he did not know the number of violations found; (c) he could find no Wage and Hour actions initiated against the Bank; and (d) he could find no adverse judicial rulings against the Bank. [Exh. 3] In sum, the single, unsupported, and vague statement by Plaintiff's alleged expert provides no relevant evidence whatsoever of willfulness on the part of the Bank. To the contrary, his research reflects a very clean record.4
B.

Plaintiff's "Exhibit 2": As "Exhibit 2" of the Bank's purported willfulness, Plaintiff points to

three prior lawsuits against the Bank relating to eligibility for overtime. [Plaintiff's Motion, pg. 5, lns. 23-24 and f.n. 2] Two of the suits were filed in California state court in 1999, the third in Washington state court in the first quarter of 2002. The California cases were settled in October 2001. The Washington case was filed about the time client managers were made overtime eligible. None involved the issue of overtimeeligible employees working off the clock--the only issue new opt-ins could raise in this lawsuit even if a three-year statute of limitations applies. Moreover, Plaintiff neglects to inform the Court that all three lawsuits were settled without any finding of liability on the part of the Bank.5 This piece of "evidence" is a wholly inappropriate basis for concluding the Bank acted willfully in this case.

Only 79 investigations caused in ten years against an employer with over 100,000 27 employees is an impressively good record. 5 Nor is this "new" evidence of willfulness. Plaintiff clearly knew of these other 28 lawsuits at the time she filed her initial Motion to Proceed under Section 216(b) in this case because Plaintiff was a party to the Washington lawsuit, and the California suits Case 2:03-cv-02262-ROS Document 176 -7-Filed 10/24/2005 Page 7 of 18

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Curiously, it is in conjunction with discussion of these three lawsuits that Plaintiff attempts, to make the case that client managers nationwide are "similarly situated" with Plaintiff for Section 216(b) conditional certification. [Plaintiff's Motion, pg. 5, ln. 24 ­ pg. 6, ln. 4 and f.n. 3] Plaintiff must do more than demonstrate that client managers in other states have similar jobs. Rather, Plaintiff must demonstrate that client managers nationwide are similarly situated because of an unlawful policy applicable to, or treatment experienced by, all of them. Bonilla v. Las Vegas Cigar Co., 61 F. Supp. 2d 1129, 1139 n.6 (D. Nev. 1999) ("to be similarly situated, the action must not be distinct and specific to individual plaintiffs; rather, there must be some general policy or practice"); Bernard, 231 F.Supp.2d at 435. overtime they worked. [Id.] In fact, the only evidence Plaintiff submits actually proves the opposite ­ that client managers nationwide when overtime eligible were explicitly instructed to record all their overtime. The job descriptions submitted as Exhibit 1-A to Plaintiff's Motion prominently describe all client manager positions as "overtime eligible." Plaintiff's own Exhibit 1-F, the Bank's 2005 Associate Handbook, provides: If you are an overtime-eligible associate, you are expected to record the hours you work on a timesheet or other company approved time record or timekeeping system. This reporting is required to satisfy state and federal laws and to ensure you are properly paid. You are expected to record daily time worked accurately and truthfully. You should report all time spent doing work for the company, including work at home. . . . Managers and associates who do not record or report time accurately, or who interfere with others' ability to do so, are subject to disciplinary action, up to and including termination. [Plaintiff's Motion, Exh. 1-F, at bates no. PL00583 (emphasis in original)] The same policy has been in place at least since 2002. [Exh. 4 hereto] The policy has been enforced in the Central Region, where Plaintiff worked. [Exh. 5 (Cortopassi depo., Here, Plaintiff provides no evidence whatsoever of a national policy of coercing client managers not to record the

were referenced in the February 2004 oral argument Plaintiff repeatedly has cited regarding willfulness (and the Court repeatedly has rejected as evidence). Case 2:03-cv-02262-ROS Document 176 -8-Filed 10/24/2005 Page 8 of 18

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pg. 154, ln. 3 ­ pg. 155, ln. 19)] The policy has been enforced in Arizona, where Plaintiff worked. [Exh. 6 at ¶ 14; Exh. 7 at ¶ 5; Exh. 8 at ¶ 6; Exh. 9 at ¶ 4] In sum, the only evidence Plaintiff submits of Bank conduct impacting client managers nationwide is a lawful written policy mandating they accurately report all overtime hours worked followed by the contention that about five local market managers implicitly led client managers reporting to them to work off the clock. This is hardly the foundation required before expanding this collective action a hundredfold. Bernard v. Household Int'l, Inc., 231 F.Supp.2d 433, 435 (E.D. Va. 2002) (refusing to certify a nationwide collective action where "the incidents highlighted in the allegations and declarations [focused] on the acts of supervisors at the individual offices in Chesapeake and Virginia Beach," and "the plan does not on its face encourage such clearly inappropriate behavior. Rather, the alleged actions rest on the interpretations of the plan by individual supervisors or managers."); Ray v. Motel 6 Operating, L.P., 1996 WL 938231, *4 (D. Minn. 1996) (refusing to certify a national class of motel assistant managers where "the illegal overtime plan alleged by plaintiffs . . . is not necessarily carried out through central management. First, official written policy dictates that overtime will be paid in compliance with the FLSA. Second, if an illegal scheme exists at all, it is implemented on a decentralized level. Specifically, the approval of overtime is controlled by area supervisors.").
C.

Plaintiff's "Exhibit 3": Plaintiff's Motion has been presented in such a way as to suggest it is

bursting at the seams with new evidence of the Bank's willful misconduct--willfulness so compelling the Court should both expand the collective action nationwide and enlarge the statute of limitations from two years to three. "evidence," already has been rejected by this Court. argument previously made on September 16, 2004: Most of Plaintiff's (See, e.g., Note 6, supra.) that in 2000 a consultant

Plaintiff's "Exhibit 3" is one more such example. There, Plaintiff makes the same

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recommended the Bank make client managers overtime-eligible.6

[See Plaintiff's

Request for Leave To File a Supplemental Memorandum Re: Scope of Notice for FLSA Collective Action, filed September 16, 2004] Upon consideration the first time, this Court found "Plaintiff has not established that evidence exists of Defendant's willful conduct regarding the requirements of the FLSA," and ordered "the applicable statute of limitations is two years." [Order dated December 20, 2004, pg. 12, lns. 1718, and pg. 15, lns. 25-26] By Order dated June 8, 2005, this Court reaffirmed that "the Court has determined that the two-year limitations period applies here because Plaintiff failed to establish a basis for a finding of willful conduct by Defendant." [Order dated June 8, 2005, pg. 4, lns. 15-17] Exhibit 3 provides no more evidence of willful conduct now than it did when this Court rejected it the first two times.
D.

Plaintiff's "Exhibit 4": For her fourth piece of "evidence" of willful conduct, Plaintiff notes the

Bank converted client managers to overtime eligible status in March 2002, but asserts this overtime eligibility was "illusory." [Plaintiff's Motion, pg. 6, ln. 13 ­ pg. 7, ln. 4 and f.n. 5] Plaintiff purports to substantiate this allegation by submitting Bank "Q&A" documents regarding the conversion [Plaintiff's Motion, Exh. D]. Plaintiff's Exhibit D actually states nearly the opposite of what Plaintiff claims it says: When your position is reclassified as eligible for overtime pay, you are required to receive overtime pay for time worked beyond 40 hours in a workweek. In order to receive accurate payment for time worked, you must keep track of your work hours. Generally, you will do this by completing a timesheet. Training will be provided to fill out your timesheet. [Plaintiff's Exh. D, at bates no. PD00047]

Plaintiff's specific assertion that "[i]n 2000, the Bank was informed by the former head of the Department of Labor for the State of California, who was a paid expert 27 serving the Bank, that the client manager positions were not exempt from overtime compensation" [Plaintiff's Motion, pg. 6, lns. 5-8] is simply untrue and unfounded, as 28 Plaintiff would have learned had she taken Mr. Aubrey's deposition. [Exh. 10 (Declaration of Lloyd W. Aubrey, Jr., dated October 21, 2005)] Case 2:03-cv-02262-ROS Document 176 -10Filed 10/24/2005 Page 10 of 18

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Further, and as discussed in detail in Section III.F. infra, far from being the "illusory FLSA compliance program" Plaintiff claims, the evidence developed during discovery demonstrates that client managers did record overtime in varying amounts, and client managers were paid for every minute of overtime they submitted. More fundamentally, Plaintiff decides an ultimate fact, hotly contested, then declares it evidence of willfulness, completely bypassing this Court and the jury in this action.
E.

Plaintiff's "Exhibit 5": For her fifth piece of evidence, Plaintiff again presents a contested fact as

true, then says it is evidence of willfulness. Plaintiff claims "in implementing its alleged FLSA compliance program in 2002 for all client managers in the United States, the Bank refused to pay any retroactive overtime compensation to any of the client managers who worked for the Bank in the United States and who had been entitled to overtime pay since at least 2000." [Plaintiff's Motion, pg. 7, lns. 5-9 (emphasis added)] Whether client managers were entitled to overtime prior to March 2002 is the basis for Plaintiff's misclassification claim, which the Bank would win.7 For business reasons the Bank voluntarily designated client managers as overtime-eligible in March 2002; the Bank maintains it was not legally obligated to do so. Then, Plaintiff asserts "[i]n addition, there is no evidence that the Bank communicated to the client managers all of the different kinds of work hours and activities that are to be included and recorded as overtime . . . ." [Plaintiff's Motion, pg. 7, lns. 9-11] Yet Plaintiff's exhibit disproves this: You should report all time spent doing work for the company, including work at home. In general, rest periods are considered work time and should be included. Work time generally does not include meal periods and therefore associates are discouraged from performing work during this

However, the Bank will not fight just to fight when it would be a waste of everyone's time and money. Only the original three opt-ins and Ms. Hutton have a 27 misclassification claim under the two-year statute twice applied by this Court. Their claims total only 30 weeks of possible overtime. In that circumstance, the Bank would 28 not admit liability, but would allow a Master to determine the value of their clams, and then pay them. Case 2:03-cv-02262-ROS Document 176 -11Filed 10/24/2005 Page 11 of 18

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time. Work time also does not include time off for jury duty, medical or dental appointments, or other personal business. [Plaintiff's Motion, Exh. 1-F, at bates no. PL00583; Exh. 4 hereto; Exh. 6 at ¶ 14]
F.

Plaintiff's "Exhibits" 6-8: For her sixth, seventh, and eighth pieces of "evidence" (all three of which

actually reiterate the same allegations), Plaintiff takes a hotly contested issue in this lawsuit and assumes is a proven fact: that client managers were told to record no more than four hours of overtime per week, regardless of the number of hours they actually worked. [Plaintiff's Motion, pg. 7, ln. 13 - pg. 8, ln. 18] The evidence categorically refutes this assumption: (1) In March 2002, the Bank implemented a national written policy clearly requiring client managers to record all of the time they worked. This policy-- the only evidence of a nationwide policy in this entire lawsuit--unambiguously provides that "[m]anagers and associates who do not record or report time accurately are subject to disciplinary action, up to and including termination." [Exh. 4] (2) There were no unwritten plans in contravention of, or intended to subvert, the written policy. As this Court noted in its December 20, 2004 Order at page 7, lines 2 ­ 5, Arizona market managers during the relevant time period have averred, under oath, that there were absolutely no unwritten or tacit policies to encourage client managers to work "off the clock."8 Thus, the market managers accused of coercing client managers not to report overtime emphatically deny doing so. Their boss, Regional Executive Steve Cortopassi, clearly testified the policy was to record all hours worked. [Exh. 5 (Cortopassi Depo., pg. 161, ln. 10­pg. 162, ln. 3] Even Plaintiff's colleagues have sworn they were told to record all their time worked. [Exh. 6 at ¶ 15] (3) Current opt-in Plaintiffs themselves admit they were never told by anyone not to record all of their time:

Exh. 6 at ¶ 14; Exh. 7 at ¶ 5; Exh. 8 at ¶ 7; Exh. 9 at ¶ 4. Case 2:03-cv-02262-ROS Document 176 -12Filed 10/24/2005

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Q: Has anybody in the management of the bank ever told you to work hours and not record them? A: Not in those words. Q: Has anybody presented you with a document that told you to work hours and not record them? A: No. Q: Was there a rule that [market manager] Vicki Sandve imposed that said you can only work four hours of overtime a week, or was it that you can only work four hours of overtime without my permission a week? MS. JONES: Objection to form. A: If you reported more than four hours of overtime in a week, you needed to get prior approval for that. Q: Did the administrative assistant that worked with Vicki ever tell you to work hours and not report them? A: No. [Exh. 11 (Kaye Hutton Deposition, pg. 157, lns. 8-25)] Q: Has she [market manager Grace Duvall] told you since that time either in a group meeting or individually that you are to record all of the overtime hours that you work? MS. JONES: Objection, form and foundation. A: Yes. Q: And do you have a specific recollection as to when she told you that? A: No, I don't. Probably when she first came on board . . . I believe it was sometime in 2002. [Exh. 12 (Margaret McClintic Deposition, pg. 8, lns. 5-15)] Q: Were you told by anyone at the bank that you were to record all of the hours you worked? MS. JONES: Objection, foundation and form. A: I was told to write down my hours that I worked, correct. ... A: He [market manager Frank Santos] said to start filling out timesheets and to record overtime if we worked it.
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[Exh. 13 (Janice Peterson Deposition, pg. 47, ln. 17 ­ pg. 48, ln. 18)] The only other client manager deposed waived any working off the clock claim. (4) Plaintiffs further admit they did report overtime (often in excess of four hours in a given week), and that they were always paid for every hour.9 In sum, the evidence shows the Bank voluntarily converting client managers to overtime-eligible status in March 2002, accompanied by implementation of a national policy requiring them to accurately record all of their time, enforcement of the policy at the Regional level, confirmation from Arizona market managers that there was no hidden policy to the contrary, coupled with testimony from client managerplaintiffs themselves that they were never told not to record all of their overtime. This is hardly evidence of a willful intent to implement a nationwide "illusory" overtimeeligibility program. It is not even evidence of such a program in the Arizona markets. None of Plaintiff's allegations justify expanding this litigation to include all client managers in the United States. In her Exhibits 6 ­ 8, Plaintiff purports to provide two examples of client managers being coerced to work off the clock. Despite the fact that Plaintiff is moving to expand this collective action nationwide, the first example is also the only statement in Plaintiff's entire Motion addressing allegedly unlawful Bank practices in any jurisdiction other than Arizona. Specifically, Plaintiff claims client managers in Texas were told not to record overtime and instead consider time worked off the clock a "personal investment" in their career. [Plaintiff's Motion, pg. 7, lns. 16-18] The source for this anecdotal evidence is opt-in Barbara Massignani, who only worked in Texas until July 2002--more than three years ago. [Plaintiff's Motion, Exh. N, ¶ 3] This Court previously denied Plaintiff's Motion to add Ms. Massignani as a named representative of Texas client managers, recognizing that her claims relating to her employment while in Texas are time-barred. [Order

[Exh. 11 (Hutton Depo. pg. 155, lns. 3-17; pg. 164, lns. 20-22); Exh. 12 (McClintic Depo. pg. 30, lns. 10-19); Exh. 13 (Peterson Depo. pg. 34, ln. 2­pg. 37, ln. 11)] Case 2:03-cv-02262-ROS Document 176 -14Filed 10/24/2005 Page 14 of 18

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dated June 8, 2005]

More importantly, this anecdotal evidence of one alleged

statement by one supervisor in Texas more than three years ago is wholly insufficient evidence of an unlawful policy necessary for nationwide conditional certification. Plaintiff's second example is the assertion that client managers in the Scottsdale, Arizona market were told by an administrative assistant to the Market Manager to record a lunch break even if they worked through lunch. [Plaintiff's Motion, pg. 7, lns. 18-20] This hearsay has yet to be tested, but at most reflects an unlawful directive in only one market, one already the subject of this litigation.
G.

Plaintiff's "Exhibit 9": Plaintiff claims "[u]pper management was aware in 2002 that `off the

clock work' was being performed by all client managers throughout the United States, yet the Bank has no documentation to demonstrate that the Bank bothered to address this issue with the client managers."10 [Plaintiff's Motion, pg. 9, lns. 1-4] Once again, Plaintiff has submitted exhibits that say the opposite. Plaintiff's Exhibit R 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."11 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. (Cortopassi Depo. pg. 43, lns. 6-16)] Instead of not bothering to address this issue as Plaintiff claims, Exhibit R'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." Obviously, This unsupported assertion further demonstrates why Plaintiff Hutton would be an inappropriate representative of a national class of client managers as she has admitted she never told any market manager she was working overtime hours that she was reluctant to record on her timesheets. [Exh.11 (Hutton depo pg. 162, lns. 3-24)]
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[Exh. 5

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Bank management was not surreptitiously coercing client managers to not report overtime; management was seeking to motivate client managers to comply with Bank policy that all hours be recorded. So, the only evidence of nationwide actions demonstrates an intent to comply with the FLSA, not a willful attempt to violate it. Plaintiff's next accusation is ill-informed (and wholly unsupported). Plaintiff claims "even in mid-2005 executive upper management continued to pressure all premier client managers in every state to work `off the clock' because of budgetary constraints." [Plaintiff's Motion, pg. 9, lns. 4-6] Plaintiff refers to her own deposition testimony of her recollection of a teleconference held by the Premier Bank President. The teleconference was recorded, Plaintiff has the recording, and it says nothing of the sort.
H.

Plaintiff's "Exhibit 10": Finally, Plaintiff claims "Client Managers nationwide from 2002 through

2005 filled out and submitted the same form time sheets under the same working conditions described above and in accordance with instructions to under-report overtime hours. This practice was approved and signed off [sic] by the market managers, as indicated by their signatures appearing thereon." [Plaintiff's Motion, pg. 9, lns. 7-11 (emphasis added)] This regurgitation of the accusations set forth repeatedly in Plaintiff's Motion is not supported by the evidence, as noted previously in this Response. Execution of a timesheet by a market manager upon which a client manager has certified to recording all hours worked does not change that fact. Plaintiff provides no evidence whatsoever justifying expansion of this lawsuit to all client managers nationwide.
IV.

PLAINTIFF PROVIDES NO EVIDENCE NATIONWIDE12 COLLECTIVE ACTION.

JUSTIFYING

A

On page 9 of her Motion, Plaintiff purports to turn from willfulness to the

Not that they were not doing so. One would expect the collective group to be restricted in scope at this juncture (see December 20, 2004 Order, pg. 8, note 2), but Plaintiff seeks a 100-fold expansion. Case 2:03-cv-02262-ROS Document 176 -16Filed 10/24/2005 Page 16 of 18
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prospect of nationwide conditional certification, doing nothing more than restating her ten examples of allegedly willful, unlawful conduct in Arizona, and simply adding the word "nationwide" at the end of each. Plaintiff's claims against the Bank for the post-conversion timeframe involve allegations that, despite being eligible for overtime, market managers coerced client managers not to report all overtime. Other than the time-barred hearsay statement by one opt-in plaintiff regarding one alleged statement in Fort Worth, Texas, Plaintiff does not provide evidence of any market manager in any of the Bank's 120-plus markets outside of Arizona engaging in this alleged practice. Rather, the only evidence submitted of Bank policies affecting other locations demonstrate client managers were instructed to record all of their time and were expected to do so.
V. CONCLUSION.

For the foregoing reasons, Plaintiff's Motion should be denied.
DATED this 24th day of October, 2005. RYLEY CARLOCK & APPLEWHITE, PA

By

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

Case 2:03-cv-02262-ROS

Document 176 -17Filed 10/24/2005

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Case 2:03-cv-02262-ROS

CERTIFICATE OF SERVICE I hereby certify that on October 24, 2005, I electronically transmitted the attached Defendant Bank of America, N.A.,'s Response to Plaintiff's Motion To Expand Conditional Certification Of The Collective Action Under The Federal 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: Lydia A. Jones Rogers & Theobald LLP The Camelback Esplande, Suite 850 2425 East Camelback Road Phoenix, AZ 85016 Attorney for Plaintiff By s/Tina Kaminski

Document 176 -18Filed 10/24/2005

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