800 F.3d 360 (7th Cir. 2015), 14-3018, Bell v. PNC Bank, National Association
|Citation:||800 F.3d 360|
|Opinion Judge:||Rovner, Circuit Judge.|
|Party Name:||MARISELI GOMEZ BELL, Plaintiff-Appellee, v. PNC BANK, NATIONAL ASSOCIATION, Defendant-Appellant|
|Attorney:||For MARISELI GOMEZ BELL, individually, and on behalf of all others similarly situated, Plaintiff - Appellee: Thomas Arthur Doyle, Attorney, Thomas A. Doyle, Ltd., Chicago, IL; Amy Elisabeth Keller, Attorney, Wexler Wallace LLP, Chicago, IL. For Pnc Bank, Defendant - Appellant: Allyson Newton Ho, ...|
|Judge Panel:||Before KANNE and ROVNER, Circuit Judges, and SPRINGMANN, District Judge.[*]|
|Case Date:||August 31, 2015|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Argued March 31, 2015.
As Corrected September 4, 2015.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12-C-1274 -- Thomas M. Durkin, Judge.
Mariseli Gomez Bell alleged that her former employer, PNC Bank, failed to pay her overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. § § 201-262, the Illinois Minimum Wage Law, 820 ILCS 105/1-105/15 and the Illinois Wage Payment and Collection Act, 820 ILCS 115/1-115/15. Bell claims that the failure was not an isolated incident, but rather part of a policy or practice of PNC that affected many other employees. Consequently she successfully moved the district court to certify a class of plaintiffs. We affirm.
The district court set forth an extensive and thorough recitation of the facts in this case, from which we borrow liberally. Bell worked as a senior banker at the PNC branch at Broadway and Berwyn Streets in Chicago from June 1, 2009, through May 31, 2011. Bell submitted an affidavit from which the district court extracted facts about her knowledge of PNC's overtime policies and practices. R. 65, apx.1-7. In her affidavit, Bell states that she was evaluated, in part, on the basis of how many new accounts she brought into the bank, and in order to generate new accounts she needed to spend " significant" time outside of her regular work hours visiting prospective clients. Some of the assignments to visit prospective clients came from Greg Bolden, a PNC vice president who did not work at the Broadway and Berwyn branch. The overtime work was necessary, she asserted, because the branch was understaffed and could not spare her absence, including, at times, during her lunch breaks.
According to Bell, when she submitted time cards reflecting overtime work, her branch manager, Letticia Flores, rejected the time cards and told Bell that PNC " would not permit the overtime." R. 65, apx.3.1 Flores also submitted an affidavit describing her personal knowledge of PNC's overtime policies and practices. Flores is now deceased and cannot be cross-examined, but in her affidavit, Flores states that her supervisor, Christina Romis, a PNC regional manager, told her that " PNC would not permit [Flores] to report overtime for the branch," and " PNC expected its employees to handle their outside-the-branch work on their own time, without reporting any extra hours that they worked." Id., apx.10. Bell also averred that Romis told her that PNC " would not permit overtime to be reported by employees." Id., apx.3. PNC, however, has always had written policies prohibiting off-the-clock work and requiring payment for overtime hours.
In January 2011, Margaret Alvarez, an Employee Relations Investigator for PNC, contacted Bell to ask whether she had ever worked unpaid overtime hours, and Bell confirmed that she had. According to Bell, Alvarez told her that PNC " would not pay for hours that [Bell] could not support with documents." Id., apx.4. On July 31, 2011, after Bell had resigned from PNC, she received an electronic deposit in her checking account for $1,392.89. Later, Bell learned through communications related to this litigation, that through this payment PNC intended to compensate her for 68.15 unpaid overtime hours. Bell believes that this payment is insufficient to compensate her for the actual number of overtime hours she worked for PNC in 2009 and 2010.
In addition to Bell's and Flores' affidavits, the district court considered PNC's own investigation reports documenting complaints of unpaid overtime. The reports show that in addition to Bell, two other employees at the same branch complained that they were not paid for overtime hours that they worked. One employee, Ernest Ward, claimed that he was not paid for 45.61 hours of overtime and that he was discouraged from submitting overtime records. PNC's investigation into Ward's claims revealed that Flores did not want employees at her bank working overtime and, instead, offered Ward permission to leave work early on another day as compensation. R. 66, apx.276-77. After the investigation, PNC paid Ward for 50.18 hours of overtime.
According to the PNC investigator, on July 3, 2013, PNC began to investigate whether Ward " enable[d] branch employees to falsify bank referral reports." R. 73-1, pp.6-7. The next day, Ward filed a lawsuit against PNC for failure to pay overtime wages. See Ward v. PNC Bank, N.A., No. 13 C 95 (N.D. Ill., dismissed Sept. 25, 2014). PNC fired Ward on February 14, 2013.
PNC's investigation reports also show that another employee at Bell's branch, Tess Claveria, claimed that Flores refused to allow overtime claims and instead directed Claveria to leave work early on a later day in an attempt to compensate Claveria for the overtime hours. Claveria also claimed that she was deprived of her full lunch hour on certain occasions. Claveria sought compensation for overtime hours, and PNC determined that it only owed her payment for 8.02 overtime hours. Alvarez stated that PNC's analysis of teller electronic journals, alarm codes, log-in and log-out reports, and payroll reports for the dates Claveria reported unpaid overtime or missed meal periods showed that Claveria provided inconsistent statements about the time she worked. On December 26, 2012, PNC began to investigate claims that Claveria " entered false information that enabled her to receive credit for unearned referrals and/or unearned incentive pay." R. 73-1, p.6. Claveria opted into this lawsuit on January 23, 2013, and PNC fired her on February 14, 2013.
PNC eventually fired branch manager Flores as a result of its investigations into allegations of unpaid overtime. Bell testified that after Flores was fired, her new " manager [told Bell] that if [Bell] was working overtime to go ahead and report it." R. 65, apx.53 (145:17-23).
PNC produced all of its internal investigation reports detailing any direct or indirect complaints of unpaid overtime in Illinois for the relevant time period. The reports disclose that nearly ninety percent of PNC's Illinois branches have never had any complaints about unpaid overtime. They also show that some employees at other branches complained to PNC Employee Relations that they worked overtime hours for which they were not paid.
PNC produced a table compiling these complaints and listing any overtime compensation PNC paid as a result of its internal investigations. R. 65, apx.153-58. Bell's counsel compared PNC's table to the investigation reports themselves and created a list of complaints found in the investigation reports that were not included in PNC's table, and a list of employees who worked overtime but were not paid. R. 65, apx.159-161. The district court reviewed PNC's table, Bell's counsel's list, and the investigation reports themselves and created a summary compilation of what the evidence revealed regarding complaints of unpaid overtime made by employees at each branch included in the class Bell seeks to certify. The district court compiled the following facts:
o At the Algonquin branch, an employee alleged that he was not paid when he arrived early to work or when he traveled to customer locations to pass out flyers. R. 66, apx.302, apx.308-09. The employee also stated, however, that the branch manager had never told him not to record overtime. Id. p. apx.308. Other employees at the branch stated that the employee purposefully arrived to work early so he could leave early. Id. p. apx.309. PNC told the employee he would need to provide documentation for any time for which he had not been paid, and the employee agreed that he would provide this if he could. Id., apx.302. The employee was fired for other misconduct unrelated to recording time, id. at apx.301-03, and the employee never requested payment for unpaid hours.
o At a Bloomington branch on Market Street & JC Parkway, an employee alleged that the branch manager planned to shift overtime hours to the following week to avoid paying overtime rates. R. 66, apx.314. PNC contacted the manager, and he denied having said that he intended to shift hours in this manner and promised to clarify with the branch staff that overtime hours would not be shifted. Id.
o At the Bolingbrook branch, a branch manager was informed that two employees had taken home information about new PNC products to study. When an employee noted that employees should receive overtime pay for such work, the branch manager said, " Bolingbrook does not have this issue." R. 66, apx.319-20. The manager was disciplined. Id., apx.321. The two employees did not request overtime pay, but PNC paid each of them an hour of overtime. R. 65, apx.155. Another employee stated that on rare occasions she did not record that she left work ten minutes late. R. 66, apx.328. PNC's records do not reflect that this employee requested overtime compensation for this time or that PNC paid her any such...
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