MEMORANDUM OPINION AND ORDER
Pending before the Court is the motion of plaintiffs, Kelly Waggoner and Darbey Schultz, seeking conditional certification of a collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 etseq. (Doc. No. 20 [“Mot.”]). U.S. Ban-corp and U.S. Bank National Association (collectively referred to as “defendant” or “U.S. Bank”), opposes the motion (Doc. 27 [“Opp’n”]), and plaintiffs have filed a reply (Doc. No. 31 [“Reply”]). U.S. Bank has sought leave to file a sur-reply and has attached a proposed sur-reply to its motion (Doc. Nos. 32 [“Mot. to File”] and 32-1 [“Sur-Reply”]). Plaintiffs do not oppose
I. Backgkound
U.S. Bank operates over 3,000 banking branches across the United States, primarily in the West and Midwest. (Mot. at 174
Plaintiffs are former employees of U.S. Bank, who were previously employed by U.S. Bank in various in-store branches as “co-managers.” (Doc. No. 20-4 [“Waggoner Decl.”] ¶¶ 1-2; Doc. No. 20-5 [“Schultz Decl.”] ¶¶ 1-2.) During her tenure with U.S. Bank, plaintiff Waggoner served as a co-manager at in-store branches in Akron, Canton, and Massillon, Ohio. (Waggoner Decl. ¶ 2.) Plaintiff Schultz worked as a co-manager at an in-store branch in a Giant Eagle grocery store in Massillon, Ohio. (Schultz Decl. ¶2.) Plaintiffs claim that they, and other similarly situated co-managers employed by U.S. Bank at in-store branches across the country, were denied wages and overtime-compensation, in violation of the FLSA. According to plaintiffs, U.S. Bank miselassified the in-store co-manager position as “exempt” for purposes of the FLSA and statutory overtime provisions, notwithstanding the fact that the primary duties performed by these co-managers were limited to non-exempt functions involving customer service, sales, and operations. (Waggoner Decl. ¶¶ 13-15; see also Answer ¶ 7 [“Defendants admit that there are exempt-classified Co-Managers.”].)
Plaintiff initiated this action on July 23, 2014. Following the filing by plaintiffs of an amended complaint, and the filing by defendant of an answer, the Court scheduled this matter for a telephonic Case Management Conference (“CMC”) to be held on January 16, 2015. Prior to the CMC, on December 23, 2014, plaintiffs filed the present motion for conditional certification and court-authorized notice. By their motion, plaintiffs seek to certify as a class all individuals who work -or who have worked for U.S. Bank as co-managers at in-store branches in the United States, excluding those branches in California ... who elect to opt-in to this action (the “FLSA Collective”).
The Court subsequently converted the January 16, 2015 CMC to a telephone status conference with counsel to set a briefing schedule for plaintiffs’ motion to eondi-
II. Standard of Review
A collective action under the FLSA “may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing[.]” 29 U.S.C. § 216(b). Thus, in order to join a collective action, an employee must (1) be “similarly situated” to the plaintiff who maintains the action, and (2) give his written consent to-join. Comer v. Wal-Mart Stores, Inc.,
The Sixth Circuit has “implicitly upheld a two-step procedure for determining whether an FLSA case should proceed as a collective action.” Heibel v. U.S. Bank Nat’l Ass’n, No. 2:11-CV-00593,
At the first step, the plaintiff bears the burden of showing that the employees in the class are “similarly situated.” Comer,
During this preliminary stage, a district court does not generally consider the merits of the claims, resolve factual disputes, or evaluate credibility. Swigart v. Fifth Third Bank,
As regards the initial inquiry into whether plaintiffs are similarly situated with the proposed collective, the Sixth Circuit has observed that “plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” O’Brien,
Factors that guide the Court’s consideration of conditional certification at this stage include: (1) whether potential plaintiffs were identified; (2) whether affidavits of potential plaintiffs were submitted; and, (3) whether there is evidence of a “widespread” discriminatory plan affecting those plaintiffs, which was maintained by defendants. Castillo,
During the second step (or phase), courts have discretion to make a thorough finding regarding the “similarly situated” requirement, based upon a more fully developed record. See Comer,
Where substantial discovery on the question of conditional certification has already taken place, some courts have employed a standard that falls between the “modest” showing required at the first step, and the more exacting showing required at the second step. See Creely v. HCR ManorCare, Inc.,
While U.S. Bank has not specifically advocated for the “modest plus” standard of review, many of the cases it relies upon employed this heightened standard. In each of these cases, however, both sides were afforded considerable time to develop the record before the court ruled on the issue of conditional certification. See, e.g., Cox v. Entm’t U.S.A. of Cleveland, Inc., No, 1:13 CV 2656,
The Court finds that it would be inappropriate to employ the “modest plus” standard to plaintiffs’ motion. Unlike the cases cited by U.S. Bank, there has been no joint discovery on the issue of conditional certification. The Court did not set a period of discovery on the “similarly situated” issue, and, in fact, the present motion was filed before any discovery had taken place. Moreover, while U.S. Bank took the depositions of the plaintiffs and the opt-in plaintiffs, it does not appear that plaintiff conducted any discovery, nor were they required to do so. In fact, U.S. Bank does not even suggest that plaintiffs failed to avail themselves of an opportunity to do discovery on this issue. See, e.g., Lacy v. Reddy Elec. Co., No. 3:11-cv-52,
In support of conditional certification, plaintiffs offer the declarations of the two named plaintiffs and the three potential opt-in plaintiffs. The offerings in Waggoner’s declaration are representative of the group. Waggoner represents that, during her tenure as a co-manager for U.S. Bank, she “regularly worked more than 40 hours per week[,]” often working through her lunch hour and on the weekends. (Wag-goner Deck ¶¶ 3-6.) Her “primary duties were completing teller transactions, waiting on U.S. Bank customers and Servicing their banking needs alongside hourly per- ’ sonal bankers, walking the aisles of the grocery store the branch was located in to promote U.S. Bank’s products and services, and performing routine audits.” {Id. ¶ 14.) These duties did not involve management of other U.S. Bank employees, and specifically, did not include “hiring, firing, or promoting other employees of U.S. Bank or setting their rates of pay[.]”
According to Waggoner, all co-managers were paid according to a similar compensation system that did not account for overtime, and all in-store co-managers performed duties similar to the ones she performed. {Id. ¶¶ 10, 12, 26.) While she does not explain how she is aware of the company-wide pay system, she does explain that her knowledge of the duties performed by other co-managers came from three sources: (1) her observations of co-managers who worked at other branches, (2) conference calls and monthly meetings with other co-managers wherein they would discuss the activities at their respective branches, and (3) her personal experience at several different branches. (Id. ¶ 26.)
In addition to these representations, and similar Ones from Schultz and the three putative members of the proposed collective, plaintiffs offer two job postings for a co-manager position, one for an in-store branch in Ohio and another for a branch in Oregon. (Doc. No. 20-2 [“Ohio job posting”]; Doc. No. 20-3 [“Oregon job posting”].) Plaintiffs posit that the “virtually uniform job descriptions [in these postings] demonstrate[ ] that U.S. Bank itself expected all “[i]n-store [c]o-[m]anagers to perform the same primary job duties.” (Mot. at 187.)
Plaintiffs maintain that this' evidence more than satisfies the “modest” burden required at this stage in the proceedings. They insist that evidence of a company-wide plan of misclassification of all in-store co-managers as exempt from overtime requirements and the failure to pay them overtime as required under 29 U.S.C. § 207(a)(1) constitutes an adequate showing that plaintiffs and the potential collective are “ ‘unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct.’ ” (Mot. at 185 [quoting Comer,
A. Prior Rule 23 Holding is Inapplicable
Defendant disagrees, and vigorously opposes conditional certification on several fronts.
First, the ruling in Spainhower was based upon an analysis under Rule 23 of the Federal Rules of Civil Procedure. Spainhower,
Second, and equally important, the position at issue in Spainhower was that of branch manager. According to plaintiffs, most, if not all, of the managerial responsibilities required to be performed at the in-store branches fell to the branch manager. (See, e.g., Waggoner Deck ¶¶ 16-18 [hiring, firing, promoting, scheduling employees, and preparation of performance reviews all done by branch manager].) While discovery may ultimately tell a different story as to the division of labor between managers and co-managers at in-store branches across the country, plaintiffs’ showing in support of their motion suggests that the positions are significantly different. Thus, any analysis of the branch manager position is of little assistance to this Court, at least at this point in the proceedings.
Defendant insists that plaintiffs’ own evidence demonstrates that co-managers regularly performed managerial job duties, such that those employed in the co-manager position would qualify as exempt from overtime wages under the executive exemption to the FLSA under 29 U.S.C. § 213(a)(1). See 29 C.F.R. § 541.102. Defendant notes that the job postings that plaintiffs have offered in support of their motion clearly include job duties — such as staffing, scheduling, and supervising subordinates — that would qualify the position for treatment under the executive exemption. (Opp’n at 317 [citations to the record omitted].) Defendant also directs the Court’s attention to the deposition testimony of plaintiffs, highlighting the fact that plaintiffs testified that the job postings did not describe their duties and further underscoring the fact that plaintiff Schultz admitted that — contrary to statements in his declaration — his primary duties were managerial in nature. (Id. at 317-18 [citations to the record omitted].)
It would be inappropriate to consider the merits of defendant’s defense at this time, -before the record has been developed. “Courts considering whether an exemption applies typically do so ... after some discovery on the issue.”
C. Too Early to Consider Defendant’s Evidence of Varying Duties
U.S. Bank also argues that plaintiffs cannot establish that they are similarly situated to each other, let alone to the putative collective, because job responsibilities differed from branch to branch and co-manager to co-manager. In support, defendant returns to the deposition testimony of plaintiffs and opt-in plaintiffs to show that each co-manager performed different tasks. (Opp’n at 327 [citing. to depositions].) Defendant suggests that this testimony is at odds with plaintiffs’ “cookie-cutter statements” in' their declarations that their primary duties were sales, customer service, and operations. (Id. at 326.) Defendant also offers the declarations of seventeen current in-store co-managers, wherein these current employees aver that they regularly perform management duties. (Id. at 327 [citing fn. 2 of Opp’n].) According to defendant, the variation in job duties from co-manager to co-manager will require individualized inquiries into each co-manager’s actual job duties, making collective treatment impractical. (Id. at 321.) These same variations, defendant continues, dispel the no
Once again, defendant has offered argument and evidence best left for consideration at the decertification stage. See Murton v. Measurecomp, LLC, No. 1:07CVB127,
D. Plaintiffs have made a “Modest” Showing for Conditional Certification
Putting aside defendant’s premature arguments, and focusing exclusively on plaintiffs’ submissions in support of conditional certification, the Court still has serious concerns that this litigation can be maintained as á collective action. The declarations of plaintiffs and the potential opt-in plaintiffs contain only generalized statements about the job duties of other in-store co-managers. Plaintiffs fail to indicate how it is that they know that all in-store co-managers are subject to the same compensation system, and while they represent that they have discussed job duties with other, unidentified co-managers in monthly conference calls, they describe these conversations in the broadest of terms.
Though this showing is quite thin, the Court concludes that plaintiffs have satisfied their lenient burden of demonstrating that they are similarly situated to the putative collective of present and former in-store co-managers. While defendant suggests that its decision to classify all co-managers as exempt is insufficient to meet this burden, plaintiffs rely on more than a uniform decision to support conditional certification. Through declarations of plaintiffs and potential opt-in former co-managers, plaintiffs' have preliminarily demonstrated that in-store co-managers performed similar duties that often were devoid of management responsibility, regularly worked in excess of forty hours of week, and were similarly compensated by a pay system that did not include overtime. This showing establishes a colorable basis for their claim that a collective of similarly situated individuals exist. See, e.g., Castillo,
A different result might have been reached had the Court employed the more stringent “modest plus” standard for conditional certification. If the parties had requested a period of discovery on the issue of similarly-situated employees, the record may have been such that the Court could have more fully tested plaintiffs’ representations that the potential collective members are truly similarly-situated.
Thus, while the parties could have requested that conditional certification be approached in a different way, the Court must address motion as it has been presented and with the record as it currents exists. Requiring any more factual support from plaintiffs at this early stage, or weighing U.S. Bank’s competing factual assertions, would intrude improperly into the merits of the action, imposing a burden upon plaintiffs to prove the factual predicates of their claim as a precondition to obtaining preliminary conditional certification. If, after discovery is completed, the fully developed record does not support the treatment of this action as a collective action, U.S. Bank may seek to decertify the collective. Likewise if, at the close of discovery, U.S. Bank believes that it is entitled to judgment as a matter of law on any recognized FLSA exemption, it may move for summary judgment at that time. Such motions would be subject to a significantly more stringent review than the inT stant first-stage motion for conditional certification.
Nationwide Conditional Certification is Appropriate
Alternatively, defendant argues that any collective should be limited to the states in which plaintiffs and the previously identified opt-in plaintiffs have worked — Ohio, Tennessee, and Nevada. It is defendant’s position that the declarations from five plaintiffs, who worked in three different states, “are legally and factually insufficient to show that hundreds of other co-managers at hundreds of other branches nationwide are ‘similarly situated’ with respect to [plaintiffs’ allegations that they performed non-exempt work.” (Opp’n at 323.)
Plaintiffs’ showing of similar treatment and circumstances over three states appears to fall somewhere in between cases where nationwide conditional certification has been permitted and cases where it has not. Compare Heibel,
Plaintiffs underscore the fact that they have supplemented their declarations with evidence of job postings from two different states. Noting that the job postings are virtually identical, plaintiffs argue that this
However, plaintiffs attempt to prove too much with these postings. The Court has reviewed these documents and agrees with defendant that most of the duties identified in the job postings are supervisory in nature and would be considered exempt. While plaintiffs offer the job postings to show consistent treatment of the position company-wide, it may very well be that U.S. Bank consistently treats the in-store co-manager position as exempt because those who hold this position perform predominately exempt functions.
Nonetheless, the Court finds that the declarations, along with the job postings, support a preliminary finding of a company-wide policy. The fact that the job postings both contained certain managerial functions does not diminish their value at this early stage. See Nerland v. Caribou Coffee Co. Inc.,
The Court acknowledges that this is a close call, and defendant’s evidentiary offerings raise serious questions about the future treatment of this case as a collective action, especially as a nationwide collective action. Still, the Court reiterates that plaintiffs’ burden at this stage is minimal, and plaintiffs have not yet had the benefit of discovery. See Neff,
E. Content of the Notice
Attached to plaintiffs’ motion is a proposed notice to be issued to all potential members of the collective, a proposed reminder notice, and a proposed reminder email. (Doc. No. 20-9 [Notice]; Doc. No. 20-10 [Reminder Notice]; Doc. No. 20-11 [Reminder Email].) In anticipation of issuing these notices and reminders, plaintiffs request that defendant produce:
a computer-readable data file containing the names, last known mailing addresses, last known telephone numbers, last known personal arid work email addresses, Social Security numbers (for those notices returned undeliverable), and work locations for all Collective Members[.]
(Mot. at 194.)
U.S. Bank raises several concerns regarding the content of the notices and the nature of the information plaintiffs have required regarding the Collective Members. For example, defendant suggests that the reminder notice is unnecessary and “crosses the narrow line between advising individuals of the existence of the lawsuit and encouraging participation.” (Opp’n at 329 n. 37 [citation omitted].) Defendant also complains that: (1) the notice seeks intrusive personal information of the Collective Members; (2) there is no defined notice period; and (3) the notice purportedly states the wrong class period. (Id.) Plaintiffs have agreed to confer with defendant as to the scope and language of the notices and the process for issuing them, and the Court is confident that the parties can come to an agreement regarding the notice process.
IV. Conclusion
For all of the foregoing reasons, plaintiffs’ motion for conditional certification and court-authorized notice (Doc. No. 20) is GRANTED. The Court hereby CERTIFIES this action as a collective action made up of all individuals who work or who have worked for U.S. Bank as co-managers at in-store branches in the United States, excluding those branches in California, on or after July 23, 2011, who elect to opt-in to this action.
The Court DIRECTS the parties to meet and confer in good faith for the purpose of negotiating the language of the notice(s), the procedure for issuing the notice(s), and the extent of the information defendant must produce to assist plaintiffs in identifying potential Collective Members. Within 10 days of this Memorandum Opinion and Order, the parties shall submit joint proposed notice(s) for the Court’s final approval. If any specific language remains in dispute, that language shall be identified, along with each party’s proposed language, and the Court will resolve the dispute. In their joint filing, the parties shall also identify any remaining disagreement as to the information defendant must produce regarding the identity of the potential members of the FLSA Collective, and the manner in which potential members should be contacted.
IT IS SO ORDERED.
Notes
. All page numbers are to the page identification number generated by the Court’s electronic docketing system.
. According to plaintiffs, U.S. Bank treats its California in-store co-managers as- non-exempt and pays them overtime compensation. Therefore, plaintiffs do not seek to include former and present California co-managers in the FLSA Collective. (Mot. at 173 n. 1.)
. Additionally, Waggoner averred that, while she assisted with the scheduling of employees at her branch, this duty ultimately rested with the branch manager. Likewise, while she was sometimes permitted to sit in on interviews at the branch manager’s request, the branch manager always had the final say with respect to hiring. {Id. ¶¶ 16-17.) She estimated that she spent 90% of her day performing teller, and other non-management, duties. {Id. ¶ 15.)
. The Court does not address every argument raised by U.S. Bank in opposition to conditional certification. However, as will be clear from the discussion of the arguments specifically identified by the Court in this opinion, most, if not all, of defendant's arguments are premature.
. For the same reasons, it would be inappropriate to consider plaintiffs' argument that they are entitled to summary judgment on defendant’s affirmative defense under the executive exemption because they point to some evidence that they believe demonstrates that co-managers do not customarily direct the work of two or more other full-time employees. (Reply at 1365 [citing 29 C.F.R. § 541.104(a-b) ].) Until such time as the record is fully developed through discovery, any ruling on the merits of plaintiffs’ claims and defendant’s defense would be premature.
. There are certainly courts that, applying the evidentiary standard for affidavits found in Rule 56(e) of the Federal Rules of Civil Procedure, would find such evidence insufficient to support conditional certification. See, e.g., Harrison v. McDonald’s Corp.,