United States District Court, D. Arizona
HONORABLE G. MURRAY SNOW UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Katherine Kuzich's Motion
for Conditional FLSA Collective Action Certification and
Notice. (Doc. 40). For the following reasons, the Motion is
granted in part and denied in part.
HomeStreet Bank provides various consumer and commercial bank
services, including residential lending. As part of its
operation, HomeStreet Bank employs four different levels of
Loan Processors with varying degrees of responsibility to
assist with the processing of loan documents. HomeStreet Bank
classifies Loan Processors as non-exempt, hourly employees
who are eligible for overtime pay under the Fair Labor
Standards Act (“FLSA”).
Katherine Kuzich worked as a Loan Processor III for
HomeStreet Bank at their Scottsdale, Arizona location. (Doc.
40-3 ¶ 2). Ms. Kuzich signed a declaration alleging that
HomeStreet management encouraged her to process and close
mortgage loans outside of normal working hours and to not
report these additional hours. (Doc. 40-3 ¶¶
10-11). Thus, HomeStreet Bank never paid Ms. Kuzich overtime
for this additional work. (Doc. 40-3 ¶ 10). Based on her
observations at work, Ms. Kuzich understood that other
HomeStreet Processors had similar obligations after normal
working hours and were not being paid for all of the overtime
hours worked. (Doc. 40-3 ¶¶ 6, 12-13). At least six
other employees who worked as a Processor III for HomeStreet
in Arizona and California signed a nearly identical
declaration, where they all declared, “I regularly
worked ‘off the clock' and HomeStreet did not pay
me for this work, ” and “[m]y manager discouraged
me from reporting all of my overtime hours.” (Docs.
40-4 through 40-9 at ¶ 9).
August 29, 2017, Ms. Kuzich filed a putative collective
action complaint claiming relief under FLSA. (Doc. 1). She
subsequently requested this Court to certify a conditional
collective action under 29 U.S.C. § 216(b). (Doc. 40).
Ms. Kuzich seeks to conditionally certify a class of
Processors I, II, and III and Loan Processors I, II, and III
who worked in HomeStreet Bank's Single Family Lending
Division in the last three years.
employee may bring an FLSA collective action on behalf of
herself and other employees who are “similarly
situated.” 29 U.S.C. § 216(b). However, neither
the statute nor the Ninth Circuit defines the phrase
“similarly situated.” To determine whether
employees are similarly situated under FLSA, District courts
within the Ninth Circuit generally follow a two-step
approach. Colson v. Avnet, Inc., 687 F.Supp.2d 914,
925 (D. Ariz. 2010). At the first step, courts conditionally
certify a collective action if the plaintiff presents
substantial allegations, supported by declarations or
discovery, “that the putative class members were
together the victims of a single decision, policy, or
plan.” Id. (citing Thiessen v. Gen. Elec.
Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001))
(other citations omitted); Talavera v. Sun-Maid Growers
of Cal., 2016 WL 1073253, at *3 (E.D. Cal. Mar. 18,
2016). If the plaintiff meets this burden, the potential
members of the collective action are notified and presented
the opportunity to opt-into the lawsuit. Colson, 687
F.Supp.2d at 925. At the second step, which takes place after
notification and discovery, defendants may move to decertify
the class, and the Court revisits the question of whether the
class members are similarly situated. Id. The second
step applies a much stricter standard than the initial
notification step. Id.
plaintiffs bring motions for conditional certification prior
to significant opportunities for discovery, and because
potential members to the collective action must opt-in,
plaintiff's burden for conditional certification is
light. Prentice v. Fund for Public Interest Research,
Inc., 2007 WL 2729187, at *2 (N.D. Cal. Sept. 18, 2007).
This fairly lenient standard 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).
“All that need be shown by the plaintiff is that some
identifiable factual or legal nexus binds together the
various claims of the class members in a way that hearing the
claims together promotes judicial efficiency and comports
with the broad remedial policies underlying the FLSA.”
Wertheim v. State of Arizona, 1993 WL 603552, at *1
(D. Ariz. Sept. 30, 1993). Plaintiffs may not, however, rely
on mere allegations, but must provide some factual basis that
potential plaintiffs are similarly situated. See
Shaia, 306 F.R.D. at 272; Velasquez v. HSBC Fin.
Corp., 266 F.R.D. 424, 427 (N.D. Cal. 2010). Further, at
this initial notification stage, “the Court is
concerned only with whether a definable group of similarly
situated plaintiffs exists.” Warren v. Twin
Islands, LLC, 2012 WL 346681 at *2 (D. Idaho Feb. 2,
2012). Thus, in determining 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.
Whether Proposed Class is Similarly Situated
Overtime Compensation Claim
Defendant HomeStreet Bank argues that identical, perfunctory
declarations cannot establish that a proposed class is
similarly situated. (Doc. 42 at 8-12). The District of
Arizona has previously denied certification of a FLSA class
action when the supporting declarations were nearly
identical, vague, conclusory, silent where one would expect
important detail, and contradictory to allegations in the
complaint. Delnoce v. Globaltranz Enterprises, Inc.,
2017 WL 4769529 at *5 (D. Ariz. Sept. 25, 2017). However, a
finding that submitted declarations are “rather
‘cookie-cutter' . . . alone is not a basis upon
which to deny” a FLSA class action. Baughman v.
Roadrunner Communications LLC, 2012 WL 12937133 at *3
(D. Ariz. Sept. 27, 2012) (citing Bollinger v.
Residential Capital, LLC, 761 F.Supp.2d 1114, 1120 (W.D.
Wash. 2011) (“But at this stage, under a lenient
standard, the use of similarly worded or even ‘cookie
cutter' declarations is not fatal to a motion to certify
an FLSA collective action.”)). Therefore, at this stage
in the ...