OPINION AND ORDER
Plaintiffs in this consolidated matter move to certify a class action against Defendant Citibank, N.A. on behalf of current and former personal bankers for unpaid overtime in violation of the New York Labor Law (the “NYLL”), the Illinois Minimum Wage Law, and the District of Columbia Minimum Wage Act Revision Act. Defendant Citibank moves to decertify a collective action previously certified under the Fair Labor Standards Act of 1938 (the “FLSA”). For the reasons set forth in this Opinion, Plaintiffs’ motion is denied and Defendant’s motion is granted.
A. Procedural Background
Plaintiff Digna Ruiz, a resident of New York, filed a complaint in this District on August 10, 2010, seeking to bring a nationwide collective action under the FLSA and a statewide class action under the NYLL. (Ruiz Compl. (Dkt. # 1) ¶¶ 3-4). . Ruiz alleged that Citibank had failed to compensate its personal bankers for overtime hours worked in violation of both laws. (Id,.). Fredrick Winfield, Zulma Muniz, James Steffensen, and Adoram Shen — residents of, respectively, Washington, D.C., Illinois, Virginia, and California — filed a complaint in this District on September 22, 2010, seeking to bring a nationwide collective action under the FLSA; statewide class actions under the labor laws of Washington, D.C., Illinois, and California;
Defendant Citibank moved in response to the Amended Winfield Complaint (Win-field Dkt. #30) to dismiss all claims and, further, to strike the requests for injunc-tive relief on standing grounds. (Winfield Dkt. # 33). Judge Koeltl granted the motion in part and denied it in part, dismissing the Winfield Plaintiffs’ ERISA claims. Winfield v. Citibank, N.A.,
During the class notice period, notice was sent to over 6,000 current and former Citibank personal bankers potentially eligible to join the FLSA collective action or the NYLL action, of whom 437 opted in to the FLSA collective action (including Plaintiff Ruiz). (Linthorst Decl. ¶¶2-3).
Upon the conclusion of the certification-focused period of discovery, the parties filed the instant motions for certification of the state law classes under Rule 23 (Dkt. # 182) and decertification of the FLSA collective action (Dkt. # 178) on April 30, 2014. Oppositions to those motions were filed on May 30, 2014 (Dkt. # 188, 190), and replies were filed on June. 20, 2014 (Dkt. # 197, 200). Defendant’s sur-reply in further opposition to the motion for certification was filed on July 14, 2014 (Dkt. #204), and the briefing was complete with the filing of Plaintiffs’ sur-sur-reply in further support of the motion for certification on August 4, 2014. (Dkt. # 209). The Court now considers the motions.
B. Factual Background
1. The Parties
Defendant Citibank is a global bank with roughly 1,000 domestic branches in 13 states and the District of Columbia. (Dkt. # 46 Ex. 10 ¶ 7). Each branch is managed by a branch manager, and branch managers are supervised by roughly 65 area directors. (Id.). Each branch generally has a certain number of tellers, between one and ten personal bankers, and (depending on the size of the branch) other positions, such as assistant branch manager. (Id. ¶¶ 4-6).
Plaintiffs worked for Citibank as personal bankers during the relevant time period. The FLSA collective action consists of over 400 current or former personal bankers who have opted in- to the collective action; the putative New York class consists of over 2,000 current or former personal bankers who worked for Citibank in New York during the relevant period; the putative Illinois class consists of over 330 personal bankers; and the putative D.C. class consists of 16 personal bankers. (Tyner Decl. ¶ 3). '
2. Personal Banker Compensation
Citibank’s personal bankers are compensated on an hourly basis (Tyner Decl. Ex. 10), and are classified as non-exempt, overtime-eligible employees (id. Ex. 66). Personal bankers perform a number of client-related services, but their primary task is the sale of various banking services to current and potential clients. (Id. Ex. 10). Personal bankers have sales “hurdles,” requiring them to amass monthly sales credits equal to a percentage of their annual salary, and above which they may receive
Failure to meet the sales goals is governed by the “Performance Manаgement Progression” (or, in other years, the “Seller Corrective Action Process”), which sets escalating penalties for failure to meet goals (either the sales hurdle or a percentile rank within the seller class): an informal warning for missing the goals two out of three months; a performance improvement plan for missing the goals four out of six months; a final warning if performance does not improve on the performance improvement plan; and ultimately the possibility of termination. (Tyner Decl. Ex. 27, 28). Deposition testimony from Plaintiffs and Sample OptAIns suggests that penalties for failure to meet the sales targets were at the discretion of the branch manager, and unevenly imposed. (See Drago Dep. 167-68; Drews Dep. 114-15; Win-field Dep. 178). The evidence similarly suggests a striking lack of uniformity, both between personal bankers and among personal bankers from month to month, in how difficult it was to meet the sales targets while working 40 hours per week. (See Def. Decert. Br. 21-22 (collecting testimony)).
3. Citibank’s Timekeeping Policies and System
Citibank’s 2009 employee handbook contains several explicit instructions to employees that they are entitled to time-and-a-half overtime pay for hours worked beyond 40 hours; that although overtime must be approved in advance, overtime must be paid for time worked regardless of preapproval; that time must be recorded accurately; and that “ ‘off-the-clock’ work is strictly рrohibited. Managers may not request or require ‘off-the-clock’ work.” (Linthorst Decl. 56-C, at 23-25). The handbook also informs employees that concerns about overtime pay may be raised with Citibank’s Human Resources Department, and that “[r]etaliation against any employee for raising a concern is strictly prohibited.” (Id. at 25). Citibank’s 2013 and 2011 employee handbooks contain similar language. (Id. Ex. 56-A, 56-B).
Personal bankers’ hours are tracked through Citibank’s North America Time & Attendance (“NATA”) System. (Linthorst Decl. Ex. 57 (Sumoela Decl.) ¶¶ 4-5). According to Citibank’s training materials, it was the primary responsibility of personal bankers to input their hours using the NATA system, but their branch managers would' review and approve the hours. (Id. Ex. A, B, C, D, E). The training materials nowhere indicate that branch managers should independently edit their employees’ hours, though they do 'indicate that it is a branch manager’s responsibility to “[Complete and submit the time record on behalf of their employee when they are unable to complete/submit their time record.” (Id. Ex. E). The deposition of Lori Sumoela, a Human Resources Risk Control Analyst at Citibank, indicates that branch managers could unilaterally edit the timesheets of personal bankers, though such edits would be logged and an audit report showing the changes could be accessed by both employ
Prior to 2011, either an employee or a manager could approve a timesheet to send it to Human Resources (Sumoela Dep. 54); in 2011, a feature was added requiring the employee to affirm that the timesheet was complete and accurate before it would be sent to Human Resources (Sumoela Decl. ¶¶ 11-13). If an employee declared that the timesheet was not accurate, a Human Resources representative would contact the employee (id. at ¶ 13; Tyner Decl. Ex. 132), though Plaintiffs suggest that such contact was primarily a device to pressure employees into selecting “I Agree” rather than to resolve concerns (PL Decert. Opp. 13-14).
In addition to its NATA system, Citibank tracked when employees logged onto and off of their work computers at the beginning and end of the workday. (See Tyner Decl. Ex. 124). An internal Citibank email suggests that managers were generally expected to review the audit logs to confirm the accuracy of timesheets, and that same email indicates that one branch manager’s comparison of the audit logs with timesheets suggested that personal bankers were working significant amounts of unreported overtime. (Id.). Citibank’s third-party security service also trackеd the entry of alarm codes that were disarmed and armed at the beginning and end of every day, when the branch was opened and closed; some employees were given alarm codes, and each code was unique to an employee. (Wolter Dep. 42-45).
4. Citibank’s Efforts to Reduce Overtime Expenditures
During the relevant period, Citibank’s senior management sent out several directives to limit expenses, including among them overtime pay. (See, e.g., Tyner Decl. Ex. 70. (email identifying promotional items, stationery and supplies, travel and entertainment, and overtime pay as areas in need of expense management)). Even here, however, a common goal is difficult to discern: Different communiques set different targets, with several indicating a goal of zero overtime and others indicating nonzero targets. (Compare id. Ex. 67, 68, 72, 77 with id. Ex. 56 (25% reduction), 57 (50% reduction), 59 (75% reduction), 71 (goal of $11,000 per month for a branch)).
Some, but not all, of the directives to reduce overtime paid contained warnings that overtime incurred must be paid, and that the goal was to reduce overtime incurred. (See Tyner Decl. Ex. 67 (“That said, we absolutely MUST pay our PBs [Personal Bankers] for the time they were on the PB call last Thursday evening, even if they took the call from home. Be SURE that they record their hour (well actually minutes) that they were on that call.”), Ex. 79 (“Note — As always, we pay employees for the OT hours they work and will apprоve such hours via the standard process.”), Ex. 81 (“You may also have instances when OVERTIME is unavoidable. It is your responsibility to ensure your employees record their TIME WORKED accurately on their TIME-SHEETS.”)). Many of the emails also emphasize that overtime must be preap-proved, though these generally state that (in accordance with Citibank policy) the approval must come before the overtime is incurred, rather than suggesting that there be nonpayment of overtime that has already been incurred. (See, e.g., id. Ex. 80 (“Inform your Employees that ANY OVERTIME ... need[s] your approval before OVERTIME IS INCURRED.... Please check timesheets on NATA with
The results of this push at the individual level were indeterminate. Citibank paid personal bankers a total of $2.39 million in overtime pay in 2009, $2.17 million in 2010, $2.07 million in 2011, $2.26 million in 2012, and $4.06 million in 2013. (Linthorst Decl. Ex. 48 (Hammond Decl.) ¶ 4). Perhaps more significantly, reviewing the payroll records of the Sample Opt-Ins, Citibank determined that every Sample Opt-In and named Plaintiff received overtime pay;
DISCUSSION
A. Plaintiffs’ Motion to Certify the State Law Classes Under Rule 23 Is Denied
1. Applicable Law
a. Unpaid Overtime Claims Under New York, Illinois, and D.C. Law
By way of background, the FLSA requires all qualifying employers
b. Class Certification Under Fed.R.Civ.P. 23
To meet the standard for certification of a class action under Federal Rule of Civil Procedure 23, Plaintiffs must establish that:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). In addition to these four requirements — often labeled numer-osity, commonality, typicality, and adequacy — a class must meet one of the three standards set forth by Rule 23(b). Here, Plaintiffs seek to certify three classes under Rule 23(b)(3), which requires that “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”
“[A] district judge may not certify a class without making a ruling that each Rule 23 requirement is met,” In re Initial Pub. Offerings Sec. Litig.,
With the 'exception of the adequacy of the proposed class counsel, which is not at issue, and the numerosity requirement with regard to the D.C. class, which presents an independent bar to certification of that class, the issues tend to merge into the determination of whether the state classes share common questions, susceptible to classwide proof, that advance the
The ramifications of Dukes are still being teased out by the courts, but a few observations can be made: Courts have not found that “Dukes bars certification in wage and hour cases,” Morris v. Affinity Health Plan, Inc.,
Another focus of the Dukes opinion was the issue of scale. As Judge Sand of this District has observed,
The Supreme Court suggested (when not explicitly stating) that the sheer size of the class and the vast number and diffusion of challenged employment decisions was key to the commonality decision. This makes a great deal of sense when the purpose of the commonality enquiry is to identify “some glue holding the alleged reasons for all of [the challenged] emplоyment decisions together.”
Chen-Oster v. Goldman, Sachs & Co.,
Finally, Dukes suggested that in the absence of an express company policy that violated employee-plaintiffs’ rights, plaintiffs could nonetheless obtain class certification to challenge a practice that had sufficiently pervaded the company that it had become a de facto policy. Even here, however, plaintiffs are required to identify the “glue” holding together these disparate exercises of managerial discretion and rendering them suitable for classwide resolution. Specifically, the Court required plaintiffs to demonstrate “a сommon mode of exercising discretion that pervades the entire company,” since “it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.”
As a practical matter, employee-plaintiffs can rarely point to an explicit policy of their employer that is violative of their rights, including their rights under the relevant wage and hour laws. Courts have recognized this fact, and proof of de facto policies has therefore become the coin of the realm. To prove such policies, plaintiffs could present evidence of the implementation or recognition of these sub si-lentio policies at the senior management level, but such smoking guns are also quite rare. In the alternative, plaintiffs must present enough evidence to confidently suggest a uniform, or nearly uniform, practice occurring across branch offices. Perhaps even before Dukes, but certainly after that decision, this evidence entails either (i) comprehensive statistical analy-ses or (ii) anecdotal evidence that reaches a certain critical mass. Plaintiffs do not attempt the former, and as set forth in the remainder of this section, do not succeed in putting forth the latter.
2. Analysis
a. The State Law Classes Lack Questions of Law or Fact Common to the Classes Under Rule 23(a)(2)
It has been noted that, under Rule 23(a)(2)’s commonality requirement, “[e]ven a single common legal or factual question will suffice.” Freeland v. AT & T Corp.,
Here, certain common questions are apparent and easily susceptible to classwide proof: Did Citibank have a national sales quota formula for personal bankers? Did Citibank attempt to reduce overtime hours paid to personal bankers from 2007 to 2012? Yet these types of questions, though generating common answers, are not apt to drive the resolution of the litigation. Setting production targets is a perfectly acceptable employment practice, as are “customary management
In this regard, Citibank’s -policies are comparable to Wal-Mart’s policy of delegating significant discretion to managers over pay and promotions, which, though vulnerable to abuse, is “a very common and presumptively reasonable way of doing business.” Dukes,
Plaintiffs identify four variations of the same common issue: “whether [personal bankers] were not properly compensated for overtime аs a result [of] Citibank’s ‘de facto’ policy against the payment of overtime.” (Pl. Cert. Br. 2122). And indeed, this question lies at the very heart of the litigation, suggesting “that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes,
Plaintiffs’ first argument is that the competing demands for high production and low hours worked created hydraulic pressure that predictably resulted in managers requiring off-the-clock work. Yet such a theory depends on demonstrating a relatively uniform response across branch managers; elsewise, Plaintiffs cannot identify “a common mode of exercising discretion that pervades the entire company.” Dukes,
As noted supra, the Supreme Court has disclaimed the notion that anecdotal evidence must follow a strictly proportionate relationship to the size of the class. Dukes,
Moreover, even if this number of anecdotal accounts were sufficiently large to confidently be extrapolated to the class as a whole, the contradictions and heterogeneity within the group suggest the lack of a common answer. (See, e.g., Drago Dep. 57 (testifying to different practices with regard to overtime at different branches), 167-68 (no written warning for
In addition to anecdotal testimonial evidence from personal bankers, Plaintiffs point to the higher levels of Citibank’s management and argue that, despite the formal policies regarding overtime pay, there is sufficient evidence of a de facto plan or policy to encourage off-the-clock work. Such evidence has not been presented to this Court and, it would appear, does not exist. Plaintiffs’ evidence of such a de facto policy consists of inferences drawn from a comparatively miniscule quantity of emails among branch and area managers, and the testimony of certain personal bankers. As previously noted, many of the emails contain explicit admonitions that any overtime incurred must be paid.
Finally, Plaintiffs suggest that even if the wrongful behavior did not occur across the class, Citibank was generally put on notice as to the prevalence of denial of overtime wages, thus answering a significant common question. Even if such a common question suffices to meet the requirements of Rule 23(a)(2), the Court once again finds that the record betrays the absence of a common answer. Plaintiffs have brought forward only a handful of emails demonstrating that awareness of overtime violations percolated above the branch manager level, and these instances brought about immediate efforts to rectify the violations. In one instance, a new branch manager discovered that employees had been pressured by the previous branch manager into working off-the-clock. (Dkt. # 67 Ex. 1 (Henderson Decl.) ¶ 6). In response, Citibank’s Human Resources department interviewed each personal banker at the branch, and paid each of them the highest amount of uncompensated overtime — 300 hours — estimated by any one of them. (Id. at ¶¶ 8-9). In another instance, Sample Opt-In Schornstein was paid nearly $12,000 for unreported overtime when her branch was investigated by Citibank for underreporting time. (Schornstein Dep. 183). While it is true that Citibank is liable for every violation of
The instant case is similar to that brought on behalf of personal bankers against Wells Fargo and Wachovia in Fernandez v. Wells Fargo Bank, N.A., Nos. 12 Civ. 7193(PKC), 12 Civ. 7194(PKC),
The cases upon which Plaintiffs rely are largely distinguishable, though the Court will not pretend that the entirety of federal Rule 23 jurisprudence (even, if not especially, post-Dukes) can be reconciled. Some present common questions of whether the formal classification of employees or activities as not falling within the scope of the applicable overtime law was correct; a review of the case law confirms that these “misclassification” cases are far more susceptible of classwide resolution than “off-the-clock” cases such as the instant one. In Jackson v. Bloomberg, L.P.,
The Court does not downplay the evidence amassed by Plaintiffs of individual violations, of systematic violations at the branch level, and even of violations induced by certain area directors across multiple branches. But the record in its totality shows that Citibank’s formal, com-panywide policies are entirely legal and appropriate, and that there is no evidence of a common plan or scheme to subvert these policies. A classwide determination of liability thus depends upon demonstrating that appropriate policies have reliably translated themselves into inappropriate managerial behavior across the width and breadth of the class. Such evidence is simply not to be had from this record. All of the Sample Opt-Ins were paid overtime in at least some pay pеriods, with wide variation between them. While paying some overtime does not relieve Citibank of liability for the overtime it failed to pay, the variation suggests that the effects of Citibank’s purported “no overtime” policy were far from uniform. To be clear, the Court does not suggest that every branch must have implemented unlawful policies for class certification to be appropriate. But at a minimum Plaintiffs must demonstrate “common direction” in the allegedly unlawful behavior or “a common mode of exercising discretion that pervades the entire company.” Dukes,
b. To the Extent There Are Common Questions of Law or Fact, They Do Not Predominate Over Individual Questions, and a Class Action Is Not a Superior Method of Adjudication Under Rule 23(b)(3)
Rule 23(b)(3) requires, in part, that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Yet the Court has found, under the standards set forth in Dukes, that because the plaintiffs have provided “no convincing proof of a companywide [unlawful] policy ... they have not established the existence of any cоmmon question.”
These questions of liability for unreported overtime are distinct from questions going to damages. The weight of circuit authority holds that the presence of some potential class members who have suffered no damages is not fatal to certification, so long as liability for any damages is susceptible to common proof. See In re Whirlpool,
Furthermore, the necessity of additional individualized inquiries over damages, while not inherently fatal to class certification, “should be considered at the certification stage when weighing predominance issues.” Roach v. T.L. Cannon Corp.,
c. The Washington, D.C., Class Additionally Lacks Numerosity Under Rule 23(a)(1)
As an additional defect, the Washington, D.C. class, consisting of 16 person
B. Defendant’s Motion to Decertify the FLSA Collective Action Is Granted
Effectively as a cross-motion, Defendants have moved to decertify the FLSA collective action that was previously certified by the Court. As set forth herein, the critical inquiry under FLSA is whether the opt-in plaintiffs are “similarly situated.” The Court’s does not, to be clear, undertake the “rigorous analysis” prescribed by Dukes, but it is still required to find sufficient evidence of common treatment. Despite years of discovery, Plaintiffs have failed to adduce enough evidence to meet even this lesser burden. Accordingly, the Court grants Defendants’ motion.
1. Applicable Law
Section 216(b) of the FLSA authorizes collective actions to recover damages for unpaid wages where all employees are “similarly situated.” 29 U.S.C. § 216(b). “When deciding whether to certify a class under 29 U.S.C. § 216(b), district courts in the Second Circuit apply a two-step process.” Morano v. Intercontinental Capital Grp., Inc., No. 10 Civ. 2192(KBF),
It has been noted that “the great majority of cases involve certification at the initial stages of the litigation,” Torres v. Gristede’s Operating Corp., No. 04 Civ. 3316(PAC),
Ultimately, this Court agrees with the Tenth Circuit that, functionally, “there is little difference in the various approachеs” to motions to decertify a collective action under the FLSA. Thiessen,
2. Analysis
At the first step in the FLSA certification process, Judge Koeltl granted Plaintiffs’ motion for conditional certification and authorized notice to be sent out to potential opt-in plaintiffs. The Court, noting Plaintiffs’ “minimal burden of showing that they are similarly situated to one another and to potentiаl opt-in plaintiffs” at this stage, found that they had made the “modest factual showing” necessary for the Court to conditionally certify the class. Winfield,
With discovery relating to certification and decertification now closed, the Court turns to the fuller consideration of the record contemplated by the FLSA. Without belaboring the point, Defendant’s motion to decertify the collective action succeeds for exactly the same reason Plaintiffs’ motion to certify the class actions fails — a lack of commonality, even under the less stringent FLSA analysis. Plaintiffs’ evidence at the point of collective certification consisted primarily of anecdotal testimony as to several managers’ misbehavior, and statements that those managers attributed the need to work unpaid overtime to company policy. Winfield,
To be clear, the Supreme Court’s analysis of Rule 23’s commonality requirement in Dukes does not govern the “similarly situated” analysis. See 7B Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 1807 (3d ed. as modified 2014) (collecting cases and determining that district courts have “uniformly rejected” the argument that Dukes tightened the standard for FLSA collective actions). Yet the critical difference between Rule 23(b)(3) class actions and FLSA collective actions — the opt-out versus the opt-in model — carries less weight here due to the manner in which discovery proceeded. As this Court has expatiated in the preceding section, even when one examines only the sample Opt-in Plaintiffs, massive disparities are apparent in the policies of their branch managers, the difficulty in meeting their sales targets, and the frequency with which they received overtime. (See supra at n. 11). Because Plaintiffs have not shown a common policy that operated to common effect, or some other mode of evidencing shared experiences, they cannot proceed as a collective action. See Hernandez,
Where the collective action as envisioned cannot proceed, “the case may be divided, if appropriate, into subgroups. Alternatively, the claims of the opt-in plaintiffs may be dismissed without prejudice and the action proceed for the original plaintiffs alone, but not as a collective action.” Pefanis,
CONCLUSION
Because the proposed class actions lack common questions of law or fact, Plaintiffs’ motion to certify class actions under the New York Labor Law, the Illinois Minimum Wage Law, and the District of Columbia Minimum Wage Act Revision Act is DENIED. In addition, because the opt-in plaintiffs are not similarly situated, Defen
The Court further grants the parties’ letter requests to file redacted versions of their briefs and to file сertain exhibits to the declarations in support of and opposition to their briefs under seal. Having weighed the factors set forth by the Second Circuit in Lugosch v. Pyramid Co. of Onondaga,
The remaining parties are directed to appear before the Court for a status conference on April 7, 2015, at 10:00 a.m., in Courtroom 618 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York 10007.
SO ORDERED.
Notes
. The facts in this Opinion are drawn from the parties' declarations ("[Name] Decl.”) and exhibits thereto submitted with the parties’ briefs. Deposition testimony is cited as "[Name] Dep.” Except where indicated otherwise, docket entry numbers refer to the Ruiz Action, No. 10 Civ. 5950, rather than the Winfield Action, No. 10 Civ. 7304.
Defendant’s opening brief in support of the motion for decertification is referred to as "Def. Decert. Br.”; Plaintiffs’ opposition as "PL Decert. Opp.”; and Defendant’s reply brief as "Def. Decert. Reply.” Plaintiffs’ opening brief in support of the motion for certification is referred to as "PL Cert. Br.”; Defendant’s opposition as "Def. Cert. Opp.”; Plaintiffs’ reply as "PL Cert. Reply”; Defendant’s sur-reply as "Def. Cert. Sur-Reply”; and Plaintiffs’ sur-sur-reply as "PL Cert. Sur-Sur-Reply.”
. Plaintiffs have not moved to certify the Californiа state law class due to the subsequent certification of such a class in California state court on January 23, 2013. (Pl. Cert. Br. 3 n. 2 (citing Davis v. Citibank, N.A., No. 30-2008-00060145 (Cal.Sup.Ct. Orange Cty.))). That case reached a settlement shortly thereafter. (Reiss Decl. Ex. 1).
. Judge Koeltl allowed notice to be sent to those potential class members who had been employed as personal bankers at any point after August 6, 2007 (three years before the filing of the Ruiz Complaint), and to those who had been employed as personal bankers in New York at any point after August 6, 2004, due to the NYLL’s six-year statute of limitations. Winfield,
. A number of these opt-in Plaintiffs have been dismissed from the action for failure to comply with discovery obligations. (See, e.g., Dkt. #213). Citibank additionally maintains that 156 of the 437 opt-in plaintiffs’ claims
. In 2009 and 2010, the monthly quota varied from 28% to 35% of annual salary depending on the age of the branch; in 2011 it was set at 32%; in 2012 at 16%; and in 2013 at 20%. ees 2009-2013 Individual Seller Plan Brochures). Some adjustments to sales credits allocated per transaction type were made over the years. (Id..).
. Sample Opt-In Valencia was not paid overtime in any оf his 18 pay periods during the May 2009 to December 2013 period, though he was paid overtime in 10 of his 50 pay periods from 2007 to May 2009. (Hammond Decl. ¶ 30).
. The FLSA applies to employers with an annual gross volume of sales of at least $500,000. 29 U.S.C. § 203(s)(1)(A)(ii).
. Plaintiffs seek Rule 23 certification only for three statewide classes. Yet rather than prove a common policy or practice within each relevant state, Plaintiffs seek to demonstrate a nationwide policy that can be imputed to each state. (See Pi. Cert. Br. 2 ("The directive against overtime expense came from top management and thus was common to [personal bankers] nationwide.”), 5 ("[Personal bankers] across the country testified that they were subject to this disciplinary procedure....”), 11 ("Branch managers delivered and strictly enforced the national 'no overtime’ directive from management.”); see also id. at 11 (citing evidence from Florida and California), 13 (Texas)). Such a decision was strategic — and understandable — inasmuch as it allowed Plaintiffs to pursue simultaneously a collective action under the FLSA.
. According to USBankLocations.com, 363 of Citibank's 955 U.S. branches (38%) are located in New York (273), Illinois (72), or the District of Columbia (18). See U.S. Bank Locations, www.usbanklocations.com (last visited March 19, 2015).
. As noted supra, the limited scope of this anecdotal evidence is due to Plaintiffs’ Pyrrhic victory in having discovery frоm the Opt-In Plaintiffs limited to a sample of 30 such Plaintiffs. (See Dkt. # 123).
. Defendant has submitted numerous "happy camper” affidavits of personal bankers who did not opt in to the FLSA collective action and were not, therefore, among the Sample Opt-Ins designated by Magistrate Judge Ellis for discovery. (See Reiss Decl. Ex. 7 to Ex. 19). The Court disregards these affidavits for the purposes of deciding the instant motions, finding sufficient variation even among the Sample Opt-Ins and named Plaintiffs to disprove the existence of common questions susceptible to classwide proof.
. In one particularly misleading citation, Plaintiffs point to an email in which a Citibank manager (presumably an area manager, though she is not identified) states, "As you can feel expense management is highly visible with tremendous pressure. [Overtime] is something you control ... if incurred we pay but I view as something you control and [it should] not be a smprise at the end of the month." (Tyner Decl. Ex. 101 (emphasis added)). Plaintiffs omit the rather important italicized portion. (See PL Cert. Br. 10).
.For example, one email to which Plaintiffs ascribe significance states: "Awareness of the cost of scheduling Personal Bankers to work more hours since their base is higher. We need to reduce [overtime pay] and our Sellers [are] our biggest opportunity.” (Tyner Decl. Ex. 48 (emphasis added)). Plaintiffs have, however, uncovered some emails suggesting a dеsire to deny overtime already incurred (though even these indicate that the solution is adjusting work hours later in the week rather than simply not paying for all hours worked). (See id. Ex. 110 (“If you have OT that is not approved, you will not be paid for it.... If you feel that you might have some OT hours, see Anthony or myself ASAP so that we can work out the rest of the week’s hours.”)).
. Such evidence, if offered at trial, would likely be admissible because both statements fall within Federal Rule of Evidence 801(d)(2)(D)’s hearsay exception for statements by a party-opponent’s employee within the scope of the relationship. Nevertheless, the Court is required to weigh competing evidence, even if overlapping with the merits of the claim, to determine whether Rule 23’s commonality requirement has been met by a preponderance of the evidence. Though the question of credibility inquiries has usually arisen in the context of competing expert testimony, the analysis in that context is instructive:
Rigorous analysis need not be hampered by a concern for avoiding credibility issues; as noted, findings with respect to class certification do not bind the ultimate fact-finder on the merits. A court’s determination that an expert’s opinion is persuasive or unpersuasive on a Rule 23 requirement does not preclude a different view at the merits stage of the case.
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 324 (3d Cir.2008), as amended (Jan. 16, 2009). Similarly, thе requirement of rigorous analysis must extend to evaluating the reliability of a handful of declarations of second- or thirdhand knowledge in establishing Citibank's nationwide corporate policy. Cf. Suvill v. Bogopa Serv. Corp., No. 11 Civ. 3372(SLT)(RER),
. It is worth reiterating the scattered and frequently acontextual nature of Plaintiffs’ email evidence in this case, and the concentration of much of this evidence among the-California branches that are no longer directly relevant to the state law classes (except by demonstration of a nationwide policy that can be extrapolated to the relevant states).
. The Court accordingly need not address whether the Rules Enabling Act prevents certification of an opt-out class for violation of Washington, D.C.’s minimum wage laws, which provide an opt-in mechanism. (See Def. Cert. Opp. 6; Pl. Cert. Reply 14-15).
. The Court agrees with Judge Cogan's observations in Morangelli v. Chemed Corp.,
Courts, including this one and the Second Circuit, see e.g., Kuebel v. Black & Decker Inc.,643 F.3d 352 , 357 (2d Cir.2011), have called this stage of the FLSA proceeding, "conditional certification." This is a misnomer and may obfuscate the leniency of the standard employed to authorize plaintiffs' counsel to send notices of the action. When the Court allows notices to be sent out, it is only making a preliminary determination — often based solely on allegations — of whether plaintiffs are "similarly situated” under 8 U.S.C. § 216. See C. Wright, A. Miller & E. Cooper, 17A Federal Practice and Procedure § 1807 (3d ed.2011). The Court is not assuming that a class exists as Rule 23 used to permit courts to do, see 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3:6 (6th ed.2010) (explaining the history of "conditional certification” of class actions); there is no class in a collective action. Nor is the Court certifying anything — class or otherwise.
Cognizant of this imprecision, the Court nonetheless adopts the "certification-decertifi-cation” parlance used by other courts to describe the two-step process under the FLSA. ’
. This Order does not revive the claims of those sample opt-in plaintiffs who have previously been dismissed with prejudice for failure to comply with discovery orders in this case. Furthermore, the Court dismisses with prejudice the claims of opt-in plaintiffs • Michael Billy, Carol Bongiorno, Lucas Brandt, Azeem Karmally, Joanne Laurenzana, Jose Pena, Robert Pray, and Yu Tang for the same reasons set forth in the Court’s Order of August 19, 2014 (Dkt. #213).