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Kevin Martin, et al. v. Citizens Financial Group

March 27, 2013


The opinion of the court was delivered by: Goldberg, J.


Plaintiffs, Kevin Martin, John R. DePaolantonio, Jr., Patricia A. Gahan, James Holliday and Mary E. Ryan, on behalf of themselves and all others similarly situated ("Plaintiffs"), have brought this collective action against their employers, Defendants Citizens Financial Group, Inc., RBS Citizens, N.A. (d/b/a Citizens Bank) and Citizens Bank of Pennsylvania (d/b/a Citizens Bank) ("Defendants"). The issue currently before the Court is whether the proposed collective action members in this Fair Labor Standards Act ("FLSA") case are similarly situated so as to justify granting final certification.

For the reasons that follow, Defendants' Motion to Decertify the Collective Action will be granted.


Plaintiffs' amended complaint alleges that Defendants failed to pay overtime wages to their employees for work performed in excess of forty hours per week, in violation of the FLSA,29 U.S.C. § 201, et seq.(Am. Compl. ¶¶ 73-75.) Plaintiffs brought this lawsuit as a collective action pursuant to 29 U.S.C. § 216(b) of the FLSA, and allege that Defendants engaged in the following practices:

-- "Prohibiting their employees from recording all time worked in excess of forty hours per workweek";

-- "Erasing or modifying their employees' recorded time in order to eliminate or reduce overtime hours";

-- "Providing 'comp time' to their employees in subsequent workweeks in lieu of paying overtime compensation"; and

-- "Requiring their employees to perform work during unpaid breaks." (Id. at ¶ 74.) Plaintiffs are comprised of non-exempt employees*fn2 working in branches that span nine Eastern states.*fn3 (Id. at ¶ 73.) These branches have varying characteristics: some are stand-alone branches while others are outposts in supermarkets. (Ekwurtzel Dep., Doc. No. 152-7, pp. 18-19.) The branches are typically run by a branch manager, and often an assistant branch manager. Branches are grouped into slightly larger "regions," with each region being run by a district manager. (Defs.' Br., pp. 4-5.) Plaintiffs' employment positions within the branches also vary and include bank tellers, customer service representatives, advanced tellers, senior tellers, head tellers or lead tellers, personal bankers and bankers. (Am. Compl. ¶ 73.)

Defendants have an official, written policy that requires all non-exempt employees to record all of their time worked, and that they be paid overtime for any time worked in excess of forty hours within a single week. (Citizens' Overtime Policy, Doc. No. 152-1, p. 5.) Plaintiffs allege however, that Defendants engaged in an unwritten policy of denying overtime, whereby, at the start of each year, Defendants' headquarters would determine the budgeted "full-time equivalent" ("FTE") of employees that should work at each branch.*fn4 (See Camilleri Dep., Doc. No. 163-5, pp. 31-44.) Plaintiffs allege that branch managers were directed to stay within the budgeted FTE when scheduling employees, and because the FTE did not include overtime, managers were pressured into not paying overtime. (Pls.' Resp., pp. 4-5.)

Plaintiffs present declarations from 435 opt-in Plaintiffs, which indicate the following: -- 100% of the opt-ins allege they were denied overtime pay; -- 90.65% of the opt-ins claim that management pressured or instructed them to not report all overtime hours; -- 86.54% of the opt-ins indicate that they "were offered 'comp time' in a future week instead of being paid overtime"; -- 70.43% of the opt-ins assert that management adjusted their time entries to remove reported overtime; -- 83.64% of the opt-ins claim that management pressured them to go back to their timesheets and remove reported overtime; and -- 89.79% of the opt-ins allege that they were required to perform work during uncompensated breaks. (See Summary of Decl. Resps., Doc. No. 163-10.) A number of the Plaintiffs that were deposed indicated that their branch managers and/or regional managers were responsible for denying them overtime. (See e.g. Martin Dep., Doc. No. 152-9, pp. 59-62.)


Under the FLSA, plaintiffs may bring a "collective action" on behalf of "themselves and other employees similarly situated" who affirmatively consent to join the litigation. 29 U.S.C. § 216(b). To proceed in this manner, plaintiffs must show that proposed class members are "similarly situated." Charbrier v. Wilmington Finance, Inc., 2008 WL 938872, at *2 (E.D. Pa. Apr. 4, 2008). This analysis occurs in two stages. First, plaintiffs must obtain "conditional certification" of their proposed class by making a preliminary showing that the named plaintiffs are "similarly situated" to potential class members, under a "modest factual showing" standard. Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 192-93 (3d Cir. 2011) (holding that to satisfy this requirement, plaintiffs must make a "modest factual showing" by "produc[ing] some evidence, 'beyond pure speculation,' of a factual nexus between the manner in which the employer's alleged policy affected [them] and the manner in which it affected other employees.") If the plaintiffs satisfy this standard, the court conditionally certifies the case for the purposes of notifying potential class members of the litigation and allowing them to affirmatively "opt-in."*fn5 Morisky v. Public Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 497 (D.N.J. 2000).

The second stage of this process is generally prompted by a motion for decertification by the defendant at the close of discovery, wherein the court makes a final certification determination. This decision requires the court to engage in "a specific factual analysis of each employee's claim to ensure that each proposed plaintiff is an appropriate member of the collective action." Lugo v. Farmer's Pride Inc., 737 F. Supp. 2d 291, 299 (E.D. Pa. 2010). On a motion for decertification, "the burden is on the plaintiffs to establish that they satisfy the similarly situated requirement" by a preponderance of the evidence. Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 537 (3d Cir. 2012). "If the conditional group of plaintiffs does not meet this standard at the second stage, the group is then decertified, the opt-in plaintiffs are dismissed without prejudice and any remaining plaintiffs are permitted to move onto [sic] the trial stage of litigation." Lugo, 737 F. Supp. 2d at 299

Although plaintiffs face a higher burden at the decertification stage, "similarly situated does not mean 'identically' situated." Andrako v. United States Steel Corp., 788 F. Supp. 2d 372, 378 (W.D. Pa. 2011). In evaluating whether the proposed collective plaintiffs are similarly situated, relevant factors include: whether the plaintiffs are employed in the same corporate department, division, and location; whether they advance similar claims; whether they seek substantially the same form of relief; and whether they have ...

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