Cramer v. Bank of Am., N.A., 12 C 8681

• Decision Date: 12 December 2013
• Docket Number: No. 12 C 8681,12 C 8681
• Parties: THOMAS CRAMER, CHRISTA SPENCER, MATTHEW MERRILL, PAUL LORENZ, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. BANK OF AMERICA, N.A., BANK OF AMERICA CORPORATION, Defendants.
• Court: U.S. District Court — Northern District of Illinois

THOMAS CRAMER, CHRISTA SPENCER, MATTHEW MERRILL, PAUL LORENZ,on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. BANK OF AMERICA, N.A., BANK OF AMERICA CORPORATION, Defendants.

No. 12 C 8681

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

DATE: December 12, 2013

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Named plaintiffs Thomas Cramer, Christa Spencer, Matthew Merrill, and Paul Lorenz, on behalf of themselves and other similarly situated, have brought this action against defendant Bank of America for violation of the overtime wages provision of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207. Currently before the Court is Plaintiffs' motion to conditionally certify a putative class of employees so that the claim may proceed collectively pursuant to 29 U.S.C. § 216(b). For the following reasons, Plaintiffs' motion for conditional class certification is granted in part and entered and continued in part.

BACKGROUND

The named plaintiffs are former "Loan Officers" and "Mortgage Loan Associates" (collectively referred to by Plaintiffs as "Loan Originators") for Defendant. As of late August of this year, 95 additional Loan Originators have opted into this action. Plaintiffs assert that, despite their different individual job titles, all Loan Originators shared a common principal duty - selling mortgage products to individual consumers. According to the complaint, Loan Originators at Bank of America routinely work in excess of 40 hours per week, but, in violationof the FLSA, they are not paid overtime wages.

Plaintiffs have proposed two sub-classes of Bank of America employees. Sub-class I consists of employees holding at least one of seven job titles, all collectively referred to as "Loan Officers" by Plaintiffs. Plaintiffs assert that Defendant has improperly classified the employees in Sub-class I as exempt from the FLSA overtime wage requirements.

Sub-class II consists of a different set of Bank of America employees - Mortgage Loan Coordinators, Mortgage Loan Consultants and Mortgage Loan Associates.¹ Plaintiffs contend that, despite classifying these employees as non-exempt from the FLSA overtime wage requirements, Defendant has indeed wrongfully denied them overtime wages.

Plaintiffs assert that the employees in each sub-class are similarly situated with respect to the work they performed for Defendant, and that they were all injured by Defendant's alleged policy of denying such employees overtime wages.

DISCUSSION

Courts in this district have adopted a two-step process for determining whether an FLSA suit should proceed as a collective action. See, e.g., Kelly v. Bank of America, 2011 WL 4526674 *2 (N.D.Ill. Aug. 30, 2011); Betancourt v. Maxim Healthcare Services, Inc., 2011 WL 1548964 *4 (N.D.Ill. April 21, 2011); Jirak v. Abbot Laboratories, Inc., 566 F.Supp.2d 845, 847 (N.D.Ill. 2008).

In the first step, plaintiffs must make a modest factual showing that they and the members of the potential class are similarly situated, and that they were injured by a common policy or plan that violated the law. See Betancourt, 2011 WL 1548964 at *4 (citing cases); Jirak, 566F.Supp.2d at 847-48. Courts in this district have held this showing to a lenient standard.² Where a plaintiff satisfies this requirement, the court may grant "conditional certification" of the collective action, aptly named given the court's less searching review of the plaintiff's factual showing.

The second step occurs after the parties have engaged in discovery and the class member opt-in process is complete. There, the court's inquiry is far more stringent. With the benefit of having seen the precise makeup of the class, and with both parties having had the benefit of full discovery, the court will reevaluate its conditional certification of the class to determine if the matter may appropriately proceed to trial on a collective basis. Whether the class should be decertified as insufficiently similarly situated will thus be adversarially tested with the benefit of a more fully developed record. The animating principal of the inquiry shifts from whether notice should be authorized to inform potential class members of the pending case to whether the case can actually be tried as a collective action. See Betancourt, 2011 WL 1548964 at *12 (citing Petersen v. Marsh USA, Inc. 2010 WL 5423734, at *5 (N.D.Ill. Dec.23, 2010).

A. Sub-class I

Sub-class I consists of "Loan Originators" falling under any of seven different job codes: Retail Sales Managers, Account Executives, Loan Line Sales Managers, Sales Leaders, Managers NCS Production, Loan Line Sales Assistant Managers, and Renovation Loan Originators. Plaintiffs refer to this class of employees collectively as "Loan Officers."

Plaintiffs assert, with sworn declarations from the named plaintiffs and numerous opt-in plaintiffs in support, that all of these employees have the same basic job: selling mortgageproducts to individual customers. Plaintiffs assert that their job performances are evaluated on the same basis, that they accomplish their duties by performing largely the same set of tasks, that any one of these employees may fill in for another, and that they regularly share the same work place.

Plaintiffs also assert that Defendant instructs these "loan officers" that they are not eligible for overtime. That these employees do not receive additional compensation for hours worked beyond 40 in a work-week does not appear to be in dispute. Plaintiffs assert that loan officers routinely work in excess of 40 hours per week, however, and that they work without full compensation due to Defendant's policy of denying its loan officers overtime earnings.

Taken together, and mindful of the lenient standard applicable here at the first stage of class certification, I find that Plaintiffs' showing that they and the putative class members are similarly situated and have been injured by Defendant's common policy is sufficient to grant conditional certification of Plaintiffs' Sub-class I.

Defendant contends that differences exist among the job descriptions of the various putative class members such that the employees cannot be found to be similarly situated. This simply raises a level of abstraction problem. Viewed under Defendant's microscope, the employees perform vastly different tasks under different circumstances and by different means. From Plaintiffs' perspective, naturally at a higher level of generality, the similarities are plain and the differences immaterial.

Plaintiffs have the better of it at this stage. Reviewing the characteristics of the putative class from a higher level of generality is consistent with the more lenient standard of review applicable here. As discussed above, greater scrutiny will apply at the second stage, when both parties, Plaintiffs in particular, will be better equipped to argue the merits of proceedingcollectively under closer scrutiny with the benefit of a more complete factual record. See Johnson, et al. v. Big Lots Stores, 561 F.Supp.2d 567, 578-79 (E.D.La. 2008) (acknowledging the analysis at a "high level of generality" applicable at the conditional certification stage); see also Gromek v. Big Lots, Inc., 2010 WL 5313792 (N.D.Ill. Dec. 17, 2010) (dismissing a high level of generality in favor of closer review, but only in the context of a case involving a defendant who had already defended an identical claim that had been conditionally certified and then decertified after trial).

Defendant also argues that these employees fall under at least one of the several exemptions to the overtime pay requirement provided by the FLSA. The individualized determinations as to whether a given exemption applies to a given employee, Defendant contends, will render trial of the claims on a collective basis unmanageable. That may well prove to be the case, but the argument is premature. The standard of review at the first stage of...