United States District Court, D. Arizona
Murray Snow United States District Judge
before the Court are Plaintiffs Stormee Brown, Julie Leggett
and Megan East's Motion for Conditional Certification of
FLSA Collective Action, (Doc. 12), and Defendant Pegasus
Research Group, LLC d/b/a Televerde's
(“Televerde”) Motion for Leave to File a
Surreply, (Doc. 32). For the following reasons, the Court
grants Televerde's Motion for Leave to File a Surreply
and grants the Motion for Conditional Certification in part.
operates a “virtual sales and marketing service
company” headquartered in Phoenix, Arizona. (Doc. 24 at
2.) Televerde employs over 350 sales agents throughout the
country, including incarcerated women at state prisons in
Arizona and Indiana. (Doc. 12 at 2.) Televerde has several
distinct tiers of sales agents. There are Lead Development
Representatives (“LDRs”), Inside Marketing
Representatives (“IMRs”), and Inside Sales
Representatives (“ISRs”). (Doc. 24 at 2-3.) Of
these positions, the IMRs and the ISRs were classified as
exempt under the Fair Labor Standards Act
the named Plaintiffs was employed as an IMR or an ISR with
Televerde in the last two years. The named Plaintiffs allege
that ISRs and IMRs share the same principal duties, including
performing online research for potential customers,
contacting potential customers, and preparing and submitting
activity reports. (Doc. 12 at 3.) The Plaintiffs allege that
Televerde systematically misclassified these positions as
exempt under FLSA, and thus improperly denied them overtime
to 29 U.S.C. § 216(b), the Plaintiffs now seek
conditional certification to bring a collective action claim
on behalf of all ISRs and IMRs employed by Televerde within
the last two years who worked over forty hours per week
during that period.
employee may bring an FLSA collective action on behalf of
himself and other employees that are “similarly
situated.” 29 U.S.C. § 216(b). However, neither
the statute nor the Ninth Circuit has defined the phrase
courts within the Ninth Circuit “generally follow the
two-tiered or two-step approach for making a collective
action determination.” Colson v. Avnet, Inc.,
687 F.Supp.2d 914, 925 (D. Ariz. 2010). Under this approach,
“a court typically makes an initial ‘notice
stage' determination of whether plaintiffs are
‘similarly situated.'” Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir.
2001). The burden is on the plaintiff to establish that she
is similarly situated to the rest of the proposed class, but
the standard “requires nothing more than substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan.”
Id. (internal quotation and citation omitted).
“This determination is made under a ‘fairly
lenient standard, ' which in the Ninth Circuit typically
results in conditional certification.” Shaia v.
Harvest Mgmt. Sub LLC, 306 F.R.D. 268, 272 (N.D. Cal.
2015). To be successful, it is generally accepted that the
plaintiff's allegations should be supported by
declarations or affidavits by the plaintiff. See
id.; Velasquez v. HSBC Fin. Corp., 266 F.R.D.
424, 427 (N.D. Cal. 2010) (“The notice stage
determination is made under a fairly lenient standard and
typically results in conditional certification. However,
unsupported assertions of FLSA violations are not sufficient
to meet Plaintiff's burden.” (internal quotation
and citation omitted)). At the close of discovery, typically
upon a motion to decertify, the court will revisit the issue
and consider a number of factors to determine whether the
proposed class is truly similarly situated for the purposes
of FLSA. Thiessen, 267 F.3d at 1102.
this stage of the proceedings, “the Court is concerned
only with whether a definable group of similarly situated
plaintiffs exists.” Warren v. Twin Islands,
LLC, No. 1:11-CV-00098-BLW, 2012 WL 346681, at *2 (D.
Idaho Feb. 2, 2012). Thus, “in making a determination
in whether to conditionally certify a proposed class for
notification purposes only, courts do not review the
underlying merits of the action.” Colson, 687
F.Supp.2d at 926.
Plaintiffs in this case request conditional certification for
“all contact center sales agents, ” including
“IMRs and ISRs and/or employees with the same or
similar job duties as the Plaintiffs who were employed or are
employed at the Arizona location.” (Doc. 12 at 2.) In
support of this, the Plaintiffs submitted a number of
exhibits, including declarations from each named Plaintiff, a
declaration from a potential plaintiff, Ms. Renee Ruggiero,
email correspondence between Ms. Ruggiero and Plaintiff's
counsel, and an organizational chart from February 2015.
(Doc. 13-1.) The Plaintiffs also provided a model Notice form
to be distributed amongst potential plaintiffs should the
Plaintiffs succeed in obtaining conditional certification.
declarations submitted by the Plaintiffs are sufficient to
show that IMRs and ISRs “were together the victims of a
single decision, policy, or plan” by the Defendant to
misclassify certain employees as exempt under the FLSA.
Thiessen, 267 F.3d at 1102 (internal quotation and
citation omitted). The declarations establish that each of
the named Plaintiffs, as well as Ms. Ruggiero, worked at
Televerde's Phoenix office and held similar positions.
Ms. Brown and Ms. Leggett's responsibilities as IMRs
included performing online research, contacting potential
customers, taking and communicating notes to team members,
and establishing activity logs. (Doc. 13-1 at 2, 5.)
Throughout their respective time at Televerde, both
Plaintiffs were classified as exempt employees and therefore
did not qualify for overtime pay, despite working more than
forty hours a week. (Id.) Both Plaintiffs also
affirmed that other IMRs in the Phoenix office performed
similar duties, and were also denied overtime pay.
(Id.) In support of this, a potential plaintiff, Ms.
Ruggiero, filed a declaration affirming that she was also an
IMR, and she shared the same responsibilities as Ms. Leggett
and Ms. Brown, and she was also denied overtime pay. (Doc.
13-1 at 10.) The other ...