Friedly v. Union Bank & Tr. Co.

Decision Date19 November 2021
Docket Number4:21CV3105
PartiesCARALYN FRIEDLY, Individually and on Behalf of All Others Similarly Situated; Plaintiff, v. UNION BANK AND TRUST COMPANY, Defendant.
CourtU.S. District Court — District of Nebraska



Plaintiff Caralyn Friedly, an employee of Defendant Union Bank and Trust Company (UBT), alleges on behalf of herself and others similarly situated that Defendant UBT failed to accurately calculate and pay overtime wages in violation of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. 201 et seq. Plaintiff's complaint alleges a claim under federal law, and this court has original jurisdiction under 28 U.S.C. § 1331.

Pending before the court is Plaintiff's Motion for Conditional Class Certification (Filing No. 16). For the following reasons, the motion should be granted, and notice be provided as set forth herein.


Plaintiff seeks classification of a conditional collective class consisting of [A]ll hourly employees of Defendant who received a bonus in connection with work performed in at least one week in which they worked over forty hours since May 19, 2018.” (Filing No. 16-1 at CM/ECF p. 2, ¶ 5).

Plaintiff asserts that from 2014 until February 2019, she earned a salary working for UBT as an assistant branch manager, but then Defendant began paying her an hourly wage. (Filing No 16-7 at CM/ECF p. 1). She was paid bonuses if the branch, or she individually, met certain performance goals. These bonuses were based upon measurable data, including length of employment, position, pay, and performance markers. (Filing No. 16-7 at CM/ECF p. 2). Defendant informed her that bonuses are part of the UBT compensation package. Defendant informed other employees of the same payment policy in her role as assistant branch manager, as she was part of the hiring and onboarding process. Plaintiff and other hourly workers regularly worked in excess of forty hours and were paid 1.5x their base hourly rate. Plaintiff had access to her own payment details and the details of others she supervised and observed that UBT did not include the bonuses paid in the base hourly rate when calculating overtime pay.

Plaintiff asserts UBT has a centralized Human Resources Office and standard pay policies, which would be uniform across all UBT locations. Thus, she asserts the putative class includes all hourly employees who earned bonuses across Defendant's entire business. In support of her motion, she submits her own declaration, which contains an assertion that there are in excess of 200 hourly employees and potential members of the putative class, and that based on her communication with other employees, there would be others who would want to join. At the time her motion was filed no opt-in consent forms had been filed.

In opposition to the motion for class certification, UBT submits that Plaintiff has not met her burden to show that she is similarly situated to the members of the putative class or that other individuals desire to opt into this lawsuit.

A. Conditional Certification

i Standard

Section 216(b) of the FLSA allows named plaintiffs to sue “for and in behalf of . . . themselves and other employees similarly situated.” 29 U.S.C. § 216(b). However [n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id. The sole consequence of conditional certification under 29 U.S.C. § 216 is the sending of court-approved written notice to employees who in turn become parties to a collective action only by filing written consent with the court. Tyson Foods, Inc. v Bouaphakeo, 136 S.Ct. 1036, 1043 (2016) (assuming, without deciding, that the standard for certifying a collective action under the FLSA is no more stringent than the standard for certifying a class under the Federal Rules of Civil Procedure). The court overseeing the action has discretion to authorize the sending of notice to potential plaintiffs, informing them of the opportunity to opt in. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-71 (1989); see also Bigger v. Facebook, Inc., 947 F.3d 1043, 1046-47 (7th Cir. 2020).

“The plaintiff bears the burden of establishing he or she is similarly situated to other members of the proposed class.” Haworth v. New Prime, Inc., 448 F.Supp.3d 1060, 1066 (W.D. Mo. 2020) (quoting Taylor v. Bear Commc'ns, LLC, No. 4:12-CV-01261-BCW, 2013 WL 3270971, at *2 (W.D. Mo. June 27, 2013) (citation omitted)). Plaintiffs may be similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.' Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014)(Bouaphakeo I), aff'd, 136 S.Ct. 1036 (2016) (quoting Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)); see also Campbell v. City of Los Angeles, 903 F.3d 1090, 1117 (9th Cir. 2018) (Party plaintiffs are similarly situated, and may proceed in a collective, to the extent they share a similar issue of law or fact material to the disposition of their FLSA claims.”). To determine whether a class is similarly situated, [a] court may consider (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations.' Bouaphakeo I, 765 F.3d at 796 (quoting Thiessen, 267 F.3d at 1103).

Although the Eighth Circuit has not articulated a standard for conditionally certifying FLSA classes, the majority of the district courts in the Eighth Circuit use the two-step analysis set out in Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); see also Haworth, 448 F.Supp.3d at 1066; Kautsch v. Premier Commc'ns, 504 F.Supp.2d 685, 688-89 (W.D. Mo. 2007) (collecting cases). “First, plaintiff moves for conditional certification at an early stage in the litigation, wherein a class is certified for notice purposes. Then, at the second step, defendants are allowed the opportunity to move for de-certification at the close of discovery.” Davis v. NovaStar Mortg., Inc., 408 F.Supp.2d 811, 815 (W.D. Mo. 2005).

The plaintiff's motion for certification is typically filed at an early stage of the litigation thus requiring a lenient evaluation standard and typically resulting in conditional certification of a representative class. Mooney, 54 F.3d at 1213-14; see also Grayson v. K Mart, 79 F.3d 1086, 1096 (11th Cir. 1996) (noting that the “similarly situated” standard is considerably less stringent than Rule 23(b)(3) class action standards); Del Toro v. Centene Mgmt. Co., LLC, No. 4:19-CV-02635-JAR, 2020 WL 2085650, at *2 (E.D. Mo. Apr. 30, 2020) (stating that at the first stage, conditional certification, courts typically apply a lenient standard); Borup v. CJS Sols. Grp., LLC, No. CV 18-1647 (PAM/DTS), 2020 WL 5988496, at *3 (D. Minn. Oct. 9, 2020) (“The plaintiffs' burden at the first stage is a light one.”); Haworth, 448 F.Supp.3d at 1066 (noting that the similarly-situated threshold requires only a modest factual showing).

[C]onditional certification at the notice stage requires ‘nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.' Davis, 408 F.Supp.2d at 815 (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997). Nevertheless, the plaintiff “must still ‘come forward with evidence establishing a colorable basis for their claim that the putative class members were together the victims of a single decision, policy, or plan[.]' Borup, No. CV 18-1647 (PAM/DTS), 2020 WL 5988496, at *3 (quoting Thompson v. Speedway SuperAmerica LLC, No. 08-1107, 2009 WL 130069, at *5 (D. Minn. 2009)).

At the second step of the process, typically after the close of the opt-in period and discovery, the defendant may move to decertify the collective action if the record reveals that the opt-in plaintiffs are not similarly situated. Mooney, 54 F.3d at 1214. Renewed factual findings can then be made to determine whether the ‘opt-in' plaintiffs are, in fact, similarly situated to the named Plaintiff. Gathmann-Landini, No. CV 15-6867 (JMA)(AYS), 2018 WL 3848922, at *9. If they are not, then “the court will decertify the class, the claims of the opt-in plaintiffs will be dismissed without prejudice, and the class representatives may proceed to trial on their individual claims.” Id. (quoting Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009)). ii. Friedly's Motion for Conditional Certification

Plaintiff's complaint alleges that she and other hourly employees regularly worked in excess of forty hours per week, and that UBT did not include the nondiscretionary bonuses paid to the hourly employees in their regular rates when calculating overtime pay. She alleges this violates Section 778.208 of Title 29 of the Code of Federal Regulations, which states that all forms of compensation “must be totaled in with other earnings to determine the regular rate on which overtime must be based.” (Filing No. 1 at CM/ECF p. 4) (citing 29 C.F.R. § 778.208). Plaintiff's putative class includes employees who worked at all UBT locations and who have job titles and descriptions that do not match her own. However, she has alleged that since bonuses were part of the compensation packages for hourly employees and payroll was managed by a single, centralized Human Resources department, the members of the...

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