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Moore v. PNC Bank, NA

United States District Court, Third Circuit

May 29, 2013

VICTORIA MOORE, on behalf of herself and similarly situated employees, Plaintiff,
v.
PNC BANK, N.A., Defendant.

MEMORANDUM OPINION AND ORDER OF COURT

TERRENCE F. McVERRY, District Judge.

Before the Court is the PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION (ECF No. 31) filed by Victoria Moore ("Moore" or Plaintiff") with brief in support (ECF No. 32). Defendant PNC Bank, N.A. ("PNC" or "Defendant") filed a brief in opposition (ECF. No. 40); Plaintiff filed a reply brief (ECF No. 44). Along with their respective filings, both parties submitted numerous exhibits germane to the pending issues. (ECF Nos. 31-2-32-10 (Moore); XX-X-XX-XX (PNC); XX-X-XX-X (Moore)). The issues have been fully briefed and well-argued on behalf of the parties. Accordingly, the motion is ripe for disposition.

I. Background

PNC is a national banking association that provides personal and commercial banking services through several sources, including its branch locations found in many states. Throughout the country, PNC operates over 2, 800 branches of various sizes and operational capacities in which it employs a Branch Manager at each location. As the name undoubtedly suggests, a Branch Manager is generally responsible for managing the operations of an individual branch bank.

At certain large PNC branch banks, Defendant also employs one or more Assistant Branch Manager(s) ("ABM(s)") whose primary duties include "[a]ssist[ing] the Branch Manager in leading and directing all sales and services" and "lead[ing] and manag[ing] the daily experiences and activities in the branch." PNC Bank Corp. Job Profile, ECF No. 39-2 at 2. Since August of 2009, PNC has employed approximately 2, 050 AMBs. PNC pays all ABMs on a salary basis and expects all ABMs to work at least forty hours per week.

PNC also classifies all ABMs as exempt from the overtime pay mandates of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq., under the administrative and executive exemptions. Relevant to that designation, the ABM Job Profile notes that they are expected to perform the following essential functions: assign and direct work; institute or recommend corrective action/discipline/discharge; recommend salary increases; conduct annual performance evaluations; recommend promotions; set or recommend new hire rates of pay/hours of work; train employees; and research and resolve subordinate complaints/grievances. PNC Bank Corp. Job Profile, ECF No. 39-2 at 2. The ABM Job Profile also lists other essential functions and/or responsibilities for that position in order of importance: manage sales and service process; drive customer satisfaction and retention; manage risk; and lead employee development and satisfaction. Id. at 3-4. PNC has not reviewed its across-the-board policy of designating all ABMs as exempt regardless of their branch assignments or the individual circumstances of their employment since 2004, although all ABMs are supposedly expected to perform the same essential functions with slight variations. See Depo. Tr. of PNC Corp. Rep. Vicki Henn, ECF No. 31-2 at 19:10-19:22 ("What might happen branch to branch, because of the size of a branch, the complexity of a branch, the staffing at a particular branch, could be different, but the actual job is the same.").

Beginning in March 2012, PNC employed Plaintiff Victoria Moore as an ABM at branch locations in Rosemount, Ohio and Jackson, Ohio.[1] As an ABM, Moore worked predominately at the Jackson branch and allegedly worked in excess of forty hours per week on a regular basis. Moore held that position for roughly five months before she resigned; however, she alleges that she did not perform the essential functions of the ABM position while employed in that capacity by PNC.

Instead, Moore claims that she spent the overwhelming majority of her time on non-exempt activities that a platform banker normally performs, namely customer service duties, without receiving overtime compensation. Those non-managerial tasks purportedly occupied ninety-five percent of her time and included "servicing walk-in customers [and] customers over the telephone, completing routine paperwork, performing teller duties, and making marketing telephone calls to prospective and existing customers." Pl.'s Compl. at 3 ¶ 17, ECF No. 1. Shortly after Moore ended her employment with PNC in late July or early August of 2012, this lawsuit followed.

Moore initiated this action on August 8, 2012, on behalf of herself and all others similarly situated, in which she alleged that PNC misclassified all ABMs as overtime-exempt and willfully violated the FLSA by failing to pay putative class members premium compensation for work exceeding forty hours per week. The parties have engaged in limited fact discovery pursuant to a case management plan in order to address the issue of conditional certification. During this discovery phase, PNC apparently refused to provide Moore with the identity of other ABMs, documents pertaining to the work activities, work hours, attendance, or schedules of other ABMs, and materials regarding the operational policies, practices, or protocols in place at PNC's branch bank locations. According to PNC, divulging this information was premature prior to a ruling on conditional certification by the Court.

Plaintiff now moves for conditional certification of a collective class of "[e]very individual who, during any workweek after August 8, 2009, was employed by Defendant (or any of its affiliated companies) as a salaried Assistant Branch Manager and classified as overtime-exempt."[2] Pl.'s Compl. at 4, ¶ 21, ECF No. 1. PNC categorically opposes conditional certification of a class consisting of all ABMs nationwide, but submits that any collective action should be limited to "Floating ABMs" if the Court permits and facilitates notice.

II. Standard of Review

The "collective action" mechanism set forth in 29 U.S.C. § 216(b) provides that an employee alleging an FLSA violation may bring suit on "behalf of himself... and other employees similarly situated." See Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011), rev'd on other grounds, 133 S.Ct. 1523 (2013). This enforcement provision is, however, subject to the requirement that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." See id. (detailing the amendments to the FLSA made in response to excessive litigation that "eliminate[d] representative action by plaintiffs not themselves possessing claims' and inserted the requirement that similarly situated employees must affirmatively opt-in' to an ongoing FLSA suit by filing express, written consents") (quoting Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 173 (1989)).

To decide whether a suit brought under § 216(b) may move forward as a collective action, courts in the Third Circuit apply a two-step approach. See Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012) ("In Symczyk, we noted that this two-tier approach, while nowhere mandated... appears to have garnered wide acceptance.' We implicitly embraced this two-step approach, and we affirm its use here.") (quoting Symczyk, 656 F.3d at 193 n.5).

At the first stage, "the court makes a preliminary determination whether the employees enumerated in the complaint can be provisionally categorized as similarly situated to the named plaintiff." Symczyk, 656 F.3d at 192. "Similarly situated" is not defined by statute, but our court of appeals recently outlined the level of proof required at this stage: a "modest factual showing' that the proposed recipients of opt-in notices are similarly situated." Id. at 192-93 (citation omitted). Under this standard, "a plaintiff must produce some evidence, beyond pure speculation, of a factual nexus between the manner in which the employer's alleged policy affected her and the manner in which it affected other employees." Id. at 193 (citation and quotation marks omitted). See Zavala, 691 F.3d at 536 n.4 ("The Second Circuit has ...


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