Puglisi v. TD Bank, N.A.
2014 U.S. Dist. LEXIS 23935
| E.D.N.Y | 2014Background
- Five former TD Bank Assistant Store Managers (ASMs) sued under the FLSA and similar state laws, alleging TD uniformly classified ASMs as exempt from overtime and failed to pay overtime wages.
- Plaintiffs moved for conditional certification of an FLSA collective covering all current and former ASMs employed since February 4, 2010, seeking contact information to notify potential opt-in plaintiffs.
- Plaintiffs submitted 13 ASM affidavits, sample ASM job postings from many branches/states, and TD materials showing ASMs’ hours were not tracked and that ASMs often worked over 40 hours performing non-managerial tasks (teller duties, vault work, opening/closing).
- TD opposed conditional certification, submitting 40 ASM affidavits asserting many ASMs performed managerial duties, and challenged plaintiffs’ affidavits as "cookie-cutter" and containing errors (e.g., "Interchange Bank").
- The court applied the two-step FLSA collective-action framework and found plaintiffs met the low, first-step "modest factual showing" standard to grant conditional certification for notice and discovery.
- The court approved the parties’ proposed 45-day notice and ordered TD to produce names, last known mailing addresses, and phone numbers in a computer-readable file within 21 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs made the minimal showing to conditionally certify an FLSA collective of ASMs | Plaintiffs say affidavits, uniform job postings, and undisputed policies (no overtime, no timekeeping) show a common policy and similar duties among ASMs | TD says affidavits are conclusory/cookie-cutter, contain errors, and TD’s 40 affidavits show ASMs have disparate, managerial duties requiring individualized inquiry | Granted conditional certification — plaintiffs met the low, modest factual showing at step one; factual disputes reserved for second-step review |
| Whether plaintiffs’ affidavits should be disregarded as unreliable | Affiants provided branch-specific details, dates, and duties supporting similarity | TD pointed to repeated phrases and the "Interchange Bank" error as undermining credibility | Court weighed context, found affidavits sufficiently individualized and the error minor given acquisition history; affidavits stand for now |
| Scope of notice and contact-information disclosure | Plaintiffs requested names, addresses, phone numbers, emails, and employment dates for ASMs since Feb 4, 2010 | TD did not object to providing primary contact data but had opposed class scope | Court ordered production of names, last known mailing addresses, and telephone numbers (home and mobile if available) in a spreadsheet within 21 days; approved 45-day notice period |
| Effect of defendant affidavits asserting managerial duties on conditional certification | Plaintiffs argued these factual disputes go to the second-step decertification stage after discovery | TD argued such affidavits show plaintiffs cannot meet similarly-situated requirement now | Court held that despite TD affidavits making the decision closer, plaintiffs’ minimal burden is met at step one; defendant affidavits are for the second-step inquiry |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (defines FLSA executive exemption elements)
- Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013) (conditional certification consequences and opt-in mechanics)
- Kalloo v. Unlimited Mech. Co. of NY, Inc., 908 F. Supp. 2d 344 (E.D.N.Y. 2012) (discusses two-step collective action certification and modest factual showing)
- Jenkins v. TJX Companies Inc., 853 F. Supp. 2d 317 (E.D.N.Y. 2012) (describes the “modest factual showing” standard for conditional certification)
- Patton v. Thomson Corp., 364 F. Supp. 2d 263 (E.D.N.Y. 2005) (granting conditional certification on similar evidence)
- Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303 (S.D.N.Y. 1998) (discusses decertification or subdivision of collective after discovery)