Prescott v. Prudential Ins. Co.

• Citation: 729 F.Supp.2d 357
• Decision Date: 27 July 2010
• Docket Number: Civil No. 09-322-P-H
• Parties: Michelle PRESCOTT, et al., Plaintiffs v. PRUDENTIAL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — District of Maine

729 F.Supp.2d 357

Michelle PRESCOTT, et al., Plaintiffs

v.PRUDENTIAL INSURANCE COMPANY, Defendant.

Civil No. 09-322-P-H.

United States District Court,

D. Maine.

July 27, 2010.

Nicholas Bull, Edward S. MacColl, Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., Portland, ME, Timothy B. Fleming, Wiggins, Childs, Quinn & Pantazis, LLC, Washington, DC, for Plaintiffs.

Brett E. Coburn, Camille W. Ward, Edmund M. Morrell, Robert P. Riordan, Alston & Bird, LLP, Atlanta, GA, James R. Erwin, Pierce Atwood LLP, Portland, ME, for Defendant.

MEMORANDUM ORDER AND DECISION ON PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION

D. BROCK HORNBY, District Judge.

The plaintiff, Michelle Prescott, seeks unpaid wages and other relief under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 207, 216, and under Maine employment law, 26 M.R.S.A. §§ 664, 670. She asks that her lawsuit be certified conditionally as a collective action under the FLSA, 29 U.S.C. § 216(b), and that notice issue to other employees accordingly. Her employer, the defendant Prudential Insurance Company ("Prudential"), opposes her request for a collective action and notice. After oral argument on June 9, 2010, I Grant the motion in part. Because the certification is conditional, Prudential may move to decertify the collective action after discovery is complete.

An FLSA collective action is similar to but different from a conventional class action. Like a class action under Federal Rule of Civil Procedure 23, a collective action under 29 U.S.C. § 216(b) gives "plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources" and allows for "efficient resolution in one proceeding of common issues of law and fact arising from the same alleged ... activity." Hoffmann-La Roche v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) (discussing 29 U.S.C. § 216(b) as incorporated by the Age Discrimination Employment Act ("ADEA"), 29 U.S.C. § 626(b)). A significant distinction, however, is that potential plaintiffs in an FLSA collective action must "opt in" to be included, while persons fitting the definition of a Rule 23 class must "opt out" to be excluded. The FLSA also does not incorporate Rule 23's numerosity, commonality, typicality, and adequacy criteria for class certification. It requires only that collective action plaintiffs be "similarly situated." 29 U.S.C. § 216(b). Thus, the FLSA allows plaintiffs to proceed collectively based on a lesser showing than that required by Rule 23. O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 584 (6th Cir.2009) (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir.1996)). The Supreme Court has authorized court-ordered notice of a pending collective action to potential plaintiffs,but has otherwise made only passing reference to the procedure for certifying a collective action, Hoffmann-La Roche, 493 U.S. at 169, 110 S.Ct. 482, and the First Circuit likewise has not addressed the issue. The law I apply, therefore, comes from other Circuits and from trial court decisions.

The issues on this motion are (1) what burden confronts a plaintiff in making the required showing, (2) has the plaintiff shown that she and similar Prudential employees have claims against Prudential for similar violations of the FLSA, (3) if so, what job categories and locations at Prudential are similarly situated for the purposes of a collective action, (4) what dates are covered, and (5) what should happen at this point with the other employees (five from Maine; one from New Jersey) who have filed consents to opt in as plaintiffs?

Factual and Procedural Background

Prudential processes short-term and long-term disability claims as well as Family and Medical Leave Act ("FML") claims at offices in Portland, Maine, and Roseland, New Jersey. Simmons Decl. ¶¶ 2-3 (Ex. 3 to Def.'s Resp. in Opp'n to Pl.'s Mot. for Certification of Collective Action (Docket Item 61)) (Docket Item 61-4). The same policies and practices apply in Prudential's Maine and New Jersey offices with respect to compensation, recording of time worked, and scheduling of work by hourly "disability claims handlers." Stipulation in Lieu of Rule 30(b)(6) Deps. ¶¶ 1-4 (Ex. B to Pl.'s Mot. for Certification of Collective Action (Docket Item 56)) (Docket Item 56-3). Disability claims handlers perform the same kind of work at both sites, id. ¶ 5, and hourly employees in the same classification receive the same training in Maine and New Jersey, id. ¶ 6.

As part of its disability operations, Prudential employs hourly employees with titles such as "Disability Claim Manager" ¹ and "FML Examiner," Simmons Decl. ¶¶ 2-3, and salaried employees with titles such as "Disability Claims Technician," Danforth 30(b)(6) Dep. 7, 17, Feb. 23, 2010 (Ex. 9 to Def.'s Resp.) (Docket Item 61-10). Since 2003, Prudential has employed more than 225 persons as Disability Claims Managers and FML Examiners (currently forty-five Disability Claims Managers and eighteen FML Examiners in Maine and ninety-four Disability Claims Managers in New Jersey). Simmons Decl. ¶ 5.

Disability Claims Managers are not "managers" of other employees, i.e., they do not hold management positions. They work along with Disability Claims Technicians (and sometimes FML Examiners) as "claims payers" or claims examiners (essentially claims handlers) on teams that process long- and short-term disability claims and, in the FML unit, claims for leave eligibility. Danforth 30(b)(6) Dep. 7; Brown Dep. 87-88, Dec. 15, 2009 (Ex. E2 to Pl.'s Mot. for Certification) (Docket Item 56-7); Anderson Decl. ¶ 2 (Ex. 1 to Def.'s Resp.) (Docket Item 61-2). The claims handling teams may also include one or more "team leads" (supervisors) and Disability Claims Specialists (a kind of supervisor). Danforth 30(b)(6) Dep. 7. Each team is also supervised by a manager, Anderson Decl. ¶¶ 1-2, and a vice president oversees overall claims operations, Danforth 30(b)(6) Dep. 7, 31. Disability Claims Managers and FML Examinersare the only hourly or nonexempt employees on the teams. Danforth 30(b)(6) Dep. 17; Brown Dep. 35.² Disability Claims Managers review the medical information in claims, contact claimants, write letters pertaining to claims, consult with doctors and nurses, present claims for approval in "facilitated claims discussions" (involving a manager, a nurse, and a vocational rehabilitation specialist), and otherwise manage pending, active, inactive, and suspended claims so long as a file is open. Prescott Dep. 47-49, Nov. 5, 2009 (Ex. E1 to Pl.'s Mot. for Certification) (Docket Item 56-6).

Disability Claims Technicians work on the same teams as Disability Claims Managers. Danforth 30(b)(6) Dep. 7. They have some different "core competencies" (skills) from Disability Claims Managers, id. at 22-23, may handle claims with a "higher level of risk," id. at 141-42, and perform some "project work" that Disability Claims Managers do not, id. at 163-64. But, while they carry a smaller "block" of claims, id. at 165, Disability Claims Technicians handle the same kinds of disability claims as Disability Claims Managers in essentially the same way, id. at 49-50, 137, 144-45, subject to similar, but "tougher" performance "metrics" (measures of claims processed per month, etc.), id. at 54, 149, 153. Disability Claims Technicians and Disability Claims Managers are referred to collectively as "disability claims analysts." Id. at 150. In the short-term disability unit, Disability Claims Technicians review Disability Claims Managers' work, but in the long-term disability unit, they do not and have the same duties as Disability Claims Managers. Id. at 134, 153.

FML Examiners work on teams that process FML leave eligibility claims and short-term disability claims. Simmons Decl. ¶ 3. The FML teams also include Disability Claims Managers, who handle concurrent FML and disability claims. Brown Dep. 87.

Prudential uses an "exception-based" system for tracking the hours worked by nonexempt claims handlers such as Disability Claims Managers. Def.'s Answers & Objections to Pl.'s 1st Interrogs. at 6 (Ex. 1 to Add'l Attach. to Pl.'s Mot. for Certification (Docket Item 59)) (Docket Item 59-1).³ Disability Claims Managers are paid based on a 37.5-hour work week, id., but they work on different schedules. Disability Claims Managers consult with their supervisors to establish a fixed schedule tailored to the needs of clients ( e.g., in different time zones) and the Disability Claims Managers' personal commitments. Simmons Decl. ¶ 6. Disability Claims Managers can work their hours in the Prudential offices or at home. Id.

Prudential's official policy is that nonexempt employees such as Disability Claims Managers and FML Examiners must receive approval from management to workmore than 37.5 hours in a week. Def.'s Answers & Objections at 6; Prudential HR Policies (Overtime) at 1 (Ex. 17 to Def.'s Resp.) (Docket Item 61-18). In particular, overtime must be preapproved, and managers authorize overtime on either a group or an individual basis. Def.'s Answers & Objections at 6. If overtime is approved, nonexempt employees are responsible for recording and submitting their hours for payment. Id.; see also Prudential HR Policies (Overtime) at 1-2. Prudential budgets for overtime and from 2007-2009 paid overtime wages to Disability Claims Managers. Simmons Decl. ¶ 8.

The plaintiff Michelle Prescott works as a Disability Claims Manager in Maine. Compl. ¶ 16 (Docket Item 1). She alleges that, notwithstanding Prudential's official policy on overtime, she typically works 47.5 to 52.5 hours per week and "is generally paid nothing" for work performed in excess of 37.5 hours. Id. She alleges that Prudential knowingly assigns disability claims handlers more work than can be completed in a 37.5-hour week, but refuses to approve (or pay) gap-time (the straight time between 37.5 and 40 hours) or overtime (time over 40 hours). Pl.'s Mem. in Support of Mot....