Koehler v. Freightquote.Com, Inc.
| Decision Date | 10 July 2015 |
| Docket Number | Case No. 12-cv-2505-DDC-GLR |
| Parties | NANCY KOEHLER, ET AL., Plaintiffs, v. FREIGHTQUOTE.COM, INC. and FREIGHTQUOTE 401(k) PLAN, Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiffs bring this action alleging that defendants Freightquote.com, Inc. and Freightquote 401(k) Plan ("Freightquote") violated the Fair Labor Standards Act ("FLSA"), the Kansas Wage Payment Act ("KWPA"), and the Employee Retirement Income Security Act of 1974 ("ERISA"). Specifically, plaintiffs allege that Freightquote improperly classified employees in the Account Representative/Freight Broker, Customer Activation Specialist, and Truckload Coverage Specialist job families as exempt from the FLSA's and KWPA's overtime requirements. They seek to recover unpaid regular pay, unpaid overtime, and related benefits and penalties for themselves and other similarly situated employees.
This matter comes before the Court on the following motions: (1) Freightquote's Motion for Protective Order (Doc. 172); (2) Freightquote's Motion for Summary Judgment (Doc. 141); (3) plaintiffs' Partial Motion for Summary Judgment (Doc. 145); and (4) plaintiffs' Motion for Class Certification (Doc. 140). After considering the parties' arguments, the Court denies Freightquote's Motion for Protective Order, denies in part and grants in part Freightquote'sMotion for Summary Judgment, denies plaintiffs' Motion for Summary Judgment, and denies plaintiffs' Motion for Class Certification.
On March 18, 2015, the Court issued a Memorandum and Order conditionally certifying plaintiffs' FLSA claims as a collective action (Doc. 170). In that Order, the Court instructed the parties to confer and submit a joint proposed Notice to send to putative class members to notify them of this collective action and their right to opt into it. The parties filed their joint Notice on April 1, 2015 (Doc. 171).
On April 29, 2015, Freightquote filed a Motion for Protective Order to Govern Procedure for Class Notice Administration. Plaintiffs have hired Class Action Administration ("CAA"), a third-party class action administrator, to distribute the Notice, respond to questions from putative class members, and accept class members' Consents to Join this collective action. Freightquote's motion seeks an order requiring CAA to (1) include a statement about Freightquote's defenses in its automated response to putative class members who call with questions about the Notice and (2) provide Freightquote's lawyers with copies of reports CAA will provide to plaintiffs' lawyers during the notice period. The Court addresses each request in turn.
First, Freightquote requests an order requiring CAA to include a statement about Freightquote's defenses in CAA's automated responses to putative class members who call with questions about the Notice. Plaintiffs have tasked CAA with sending the parties' agreed-upon Notice to all putative FLSA class members who can be identified. The Notice is eight pages long and describes, among other things, plaintiffs' claims and Freightquote's defenses. See Doc. 171-1 at 4. In particular, under the heading "How does Freightquote.com, Inc. Answer," theNotice states: "Freightquote.com, Inc. says that it properly paid its employees because their salaries and job duties made them exempt from the overtime requirements of the Fair Labor Standards Act and Freightquote.com, Inc. does not owe any overtime." Id.
The Notice also provides a contact number for putative class members to call if they have questions. According to the phone script provided by CAA, callers to this number first will hear an automated response that says: Doc. 172-1 at 4. One of the options will direct callers to "press 1" "[t]o learn why you received a notice." Id.
Freightquote takes issue with the script used to respond to callers who select this option. As proposed, it would read:
Freightquote argues that this message is misleading because it omits any statement about Freightquote's defenses. To remedy this, the company asks the Court to require CAA to include the following: "Freightquote.com's position is that these employees' salaries and job duties cause them to be exempt from the overtime requirements of the Fair Labor Standards Act and itdoes not owe any overtime." Doc. 172 at 6. Freightquote argues that this statement "would add approximately 8-10 seconds to the automated message," increasing its length minimally. Doc. 174 at 3.
The Court denies Freightquote's request to add language to the automated phone message about the company's defenses. "Under the FLSA, the Court has the power and duty to ensure that the notice is fair and accurate, but it should not alter plaintiff's proposed notice unless such alteration is necessary." Wass v. NPC Int'l, Inc., No. 09-2254-JWL, 2011 WL 1118774, at *8 (D. Kan. Mar. 28, 2011) (quotation omitted). Every identifiable putative class member will receive the Notice form on which the parties have agreed. The Notice clearly states Freightquote's argument that its employees are exempt from the FLSA's overtime requirements. Because the Notice identifies Freightquote's primary defense, putative class members who call the CAA number will not be misled—they already will have seen Freightquote's position. Freightquote has failed to show that the Court must alter plaintiffs' proposed phone script to ensure that the Notice is fair and accurate. The Court therefore rejects Freightquote's first argument.
Second, Freightquote seeks an order requiring CAA to provide Freightquote's lawyers with copies of reports CAA will provide to plaintiffs' lawyers during the notice administration period. According to Freightquote, "CAA plans to keep records related to questions posed by callers and answers provided thereto, as well as records related to how many consents to join have been received, how [many] purported responses were returned with inadequate information, how many Notices were returned as undeliverable, etc." Doc. 174 at 4. CAA will provide these records to plaintiffs at various times during the notice period.
Freightquote argues that it is entitled to receive these records "to insure the integrity of the Notice/Opt-In process." Id. at 5. For instance, according to the company, "if callers are repeatedly asking questions about a particular Notice provision, then that may either highlight a problem with the Notice that should be corrected or identify an issue that may be explored during discovery of the opt-in members." Id. To support its argument, Freightquote cites generally to several cases which hold that third-party class action administrators must serve neutral roles.
In response, plaintiffs assert a host of objections, including that the CAA reports are protected by the work product privilege and the attorney-client privilege. But the Court need not address these issues to decide Freightquote's objection. Freightquote has provided no specific authority supporting its argument that it should receive the CAA reports. In the absence of such authority, the Court is not persuaded "to depart from the usual procedure of allowing plaintiffs and their counsel to manage the process of mailing notice to the putative class members." Wass, 2011 WL 1118774, at *13. Instead, the Court will require plaintiff's counsel to bring any problems with the Notice to defendant's attention, and it will look harshly on any effort to hide such problems, if any do emerge, from Freightquote's counsel. The Court rejects Freightquote's second request and therefore denies Freightquote's Motion for Protective Order entirely.
Freightquote seeks summary judgment on several grounds. On plaintiffs' FLSA claims, it argues that (1) plaintiffs are exempt from the FLSA's overtime requirements under the Act's administrative exemption and (2) plaintiffs have failed to provide sufficient evidence of their damages. Freightquote also argues that it is entitled to summary judgment on plaintiffs' claims that it "willfully" violated the FLSA and on plaintiffs' KWPA and ERISA claims because they are entirely derivative of the FLSA claims. Plaintiffs' cross-motion seeks summary judgment onjust one issue—that Freightquote employees in three specific job families do not qualify as exempt from the FLSA's overtime requirements under the Act's administrative exemption. The Court addresses each argument in turn below.
Before turning to the uncontroverted facts pertinent to the motions for summary judgment, the Court addresses several evidentiary objections made by the parties. Freightquote takes issue with eight declarations by former Freightquote employees (including Named Plaintiffs Nancy Koehler and Regina Brisbane) that plaintiffs submitted in their brief opposing Freightquote's motion for summary judgment. See Docs. 157-3, 4, 5, 6, 7, 10, 11, and 12. Freightquote argues that the Court should ignore portions of those employees' declarations that contradict earlier deposition testimony as attempts to create sham...
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