Russell v. Illinois Bell Telephone Co.

• Decision Date: 15 September 2008
• Docket Number: No. 08 C 1871.,08 C 1871.
• Citation: 575 F.Supp.2d 930
• Parties: Constemecka RUSSELL, individually and on behalf of others similarly situated, Plaintiff, v. ILLINOIS BELL TELEPHONE CO., Defendant.
• Court: U.S. District Court — Northern District of Illinois

575 F.Supp.2d 930

Constemecka RUSSELL, individually and on behalf of others similarly situated, Plaintiff, v. ILLINOIS BELL TELEPHONE CO., Defendant.

No. 08 C 1871.

United States District Court, N.D. Illinois, Eastern Division.

September 15, 2008.

COPYRIGHT MATERIAL OMITTED

Michele R. Fisher, David E. Schlesinger, Nichols Kaster, PLLP, Minneapolis, MN, Douglas M. Werman, Werman Law Office, P.C., Chicago, IL, for Plaintiff.

Kenneth W. Gage, Ericka Katherine Foster, Giselle Perez De Donado, Paul, Hastings, Jonofsky & Walker, Stephen Boyd Mead, AT & T Services, Inc., Chicago, IL, Leslie A. Dent, Paul, Hastings, Janofsky & Walker, Atlanta, GA, for Defendant.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

Constemecka Russell, a former call center employee of Illinois Bell Telephone Company, has sued Illinois Bell under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 206 & 207, seeking unpaid overtime wages and other relief. Before the Court is plaintiffs motion under section 216(b) of the FLSA in which she seeks an order conditionally certifying this case as a collective action under the FLSA and approving a notice to be sent to other similarly situated employees, notifying them of the pendency of the case and their right to join as plaintiffs. For the following reasons, the Court grants Russell's motion.

Background

Russell was a Sales and Service Associate at Illinois Bell's consumer call center in Arlington Heights, Illinois from June 2003 to February 2008. For her work, which involved taking incoming calls from customers regarding service, equipment, and billing issues, as well as selling AT & T equipment, services and upgrades, Russell received a base hourly wage, commissions, and bonuses. Including an unpaid one-hour lunch break and two paid fifteen-minute rest breaks, her scheduled shift, or "tour", was nine hours long. Russell alleges, however, that she and other similarly situated Illinois Bell call center employees were required to perform unpaid work before and after their scheduled shifts and during meal and rest breaks. For example, Russell had to log on to her computer and open several software applications in advance of each shift, a process that took several minutes. At the end of the shift, she had to log out of the programs and the computer. During lunch and rest breaks, she had to fill customer orders and perform other tasks to meet quotas that the company established. She estimates that she performed between fifteen and sixty minutes of unpaid work a day.

The FLSA entitles hourly employees to receive one and one-half times their regular rate of pay for each hour worked above forty hours per week. See 29 U.S.C. § 207. Russell alleges that in some instances, if their work had been properly credited, she and other hourly employees would have been entitled to overtime pay at one and one-half their regular hourly rate.

Russell proposes to send notice about the pendency of the case to all current and former hourly employees of defendant's call centers in Arlington Heights, Chicago, Rock Island, and Oak Brook "who worked in sales, service and in similar positions" during the past three years and who did not receive pay "for time spent working off-the-clock performing tasks before and/or after their scheduled shifts and during their unpaid breaks." Pl. Mot., Ex. 1 at 1. Specifically, Russell seeks to send notice to persons working in a customer service or sales capacity under any of the following titles: "Sales and Service Consultant"; "Sales Consultant"; "Sales Associate"; "Universal Sales Consultant"; "Sales and Service Representative"; "Customer Service Representative"; "Sales and Customer Service Associate"; "Retention Service Agent"; "Collection Specialist"; and "Inside Sales Representative." See Compl. ¶ 7.

Since the filing of this lawsuit, a number of additional call center employees have signed forms consenting to be plaintiffs. They are: Lakenya Barginear, Joel D. Berger, Kevin Blanchette, Antionette Du-Bose-Norwood, Shelia Edwards, John Gaynor, Christine Grace, Tyshia Gray, Rosalyn Gully, Howard Hunter, Maria L. Ignacio, Geraldine A. Jacoby, Jeanette Johnson, Kathleen Kreiman, Jackie LaMarr, Darlene McMillan, Demise Miles, Denise Mims, Cheryl Moten, Carmen Pearson, Bryant Phillips, Angela Perry, Courtney Porter, Sheila Shapiro, David Simmons, Frances Swinney, Heidi Terdic, Reanika Thomas, Tony M. Thomas, Annette B. Threat, Bryent Tillman, LaKisha Vance, Claude W. Van Horn, Doretta Wagner, Stephanie Ward, Michael Watson, and Shapearl Wells. Tyshia Gray subsequently withdrew from the case.

Discussion

Under the FLSA, plaintiffs may bring a collective action on behalf of themselves "and other employees similarly situated" to recover unpaid overtime compensation. 29 U.S.C. § 216(b). Although the Seventh Circuit has specified the procedure courts should employ to decide the certification and notice issues, collective FLSA actions in this district generally proceed under a two-step process. See Garcia v. Salamanca Grp., Ltd., No. 07 C 4665, 2008 WL 818632, at * 2 (N.D.Ill. Mar.24, 2008) (collecting cases). First, the plaintiff must show that there are similarly situated employees who are potential claimants. Mielke v. Laidlaw Transit, Inc., 313 F.Supp.2d 759, 762 (N.D.Ill.2004). To do this, the plaintiff must make "a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1045 (N.D.Ill.2003) (citing Taillon v. Kohler Rental Power, Inc., No. 02 C 8882, 2003 WL 2006593, at *1 (N.D.Ill. Apr.29, 2003)). Courts use a "lenient interpretation" of the term "similarly situated" in determining whether a plaintiff meets this burden. Id. If the plaintiff makes the requisite "modest factual showing," the Court may allow notice of the case to be sent to the similarly situated employees, who then have the opportunity to opt in as plaintiffs. See Heckler v. DK Funding, LLC, 502 F.Supp.2d 777, 779 (N.D.Ill. 2007).

In the second step, following the completion of the opt-in process and further discovery, the defendant may ask the Court to "reevaluate the conditional certification `to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis.'" Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 847 (N.D.Ill.2008) (quoting Heckler, 502 F.Supp.2d at 779). If the Court determines that such similarities do not exist, it may revoke the conditional certification.

1. Conditional certification

Russell argues that conditional certification is appropriate because all of the individuals to whom she seeks to provide notice perform similar job duties and were subject to the same common policy or plan of Illinois Bell that denied them pay for pre-shift and post-shift work as well as work performed during breaks. Russell also contends that conditional certification would allow the efficient resolution of "identical issues of fact and law" and serve the interest of judicial economy by "limit[ing] the proliferation of multiple lawsuits." Pl. Mot. ¶ 16.

Illinois Bell has raised two main objections to plaintiffs motion. First, it argues that Russell has offered no admissible evidence that she and the putative notice recipients were victims of an unlawful, company-wide policy or practice. Second, Illinois Bell argues that the putative notice recipients are not similarly situated because they had different job duties and worked in different call centers with individualized timekeeping and computer system practices.

a. Evidence of company-wide policy or practice

Illinois Bell argues that Russell's theory of liability rests entirely on her allegation that the company paid its hourly call center employees only for time worked while logged into the phone system. It argues that because it did not use the phone logs for that purpose, Russell cannot establish the required company-wide policy or practice.¹ But this was not, as Illinois Bell contends, "the sole basis on which she moved for conditional certification, as well as the only alleged common unlawful policy or plan." Def. Surreply at 2. In her complaint, Russell alleged that Illinois Bell paid her and other similarly situated call center employees only for time worked while logged into the phone system rather than for all the hours they worked. But she also claimed that Illinois Bell "knowingly required Plaintiffs [sic] and the similarly situated individuals to perform unpaid work before and after logging into the phone system, including but not limited to booting-up computers, initializing several software programs and performing customer call-backs." Compl. ¶ 8. Additionally, Russell alleged that Illinois Bell was aware that she and the similarly situated employees performed unpaid work during meal and rest breaks. And in Russell's motion for conditional certification, she identified the common plan or practice this way: "Defendant knowingly only paid [employees] for the time they were scheduled to work and be on the phones, and denied them pay for work they performed when they were not logged into the phones or that exceeded their scheduled shift and for work they performed during their unpaid breaks." Pl. Mot. at 15 (emphasis added).

The affidavits from other employees that Russell submitted with her motion made substantially the same allegations. Each one stated, "[B]efore my shift starts each day, I need to log on to the computer and open up numerous software applications ... I also have to log out of these programs after I log off the phone each day." See, e.g., Gaynor Decl., Pl.Ex. 3 ¶ 7. The affiants also stated that they worked during breaks "to meet the minimum production standards established by the company" and that they did not receive compensation for time worked before and after shifts and...