Weeks v. Matrix Absence Management Case Management Report by siegellawgroup

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JACK SIEGEL Texas Bar No. 24070621 SIEGEL LAW GROUP PLLC 4925 Greenville, Suite 600 Dallas, TX 75206 Telephone: (214) 790-4454 Email: Jack@siegellawgroup.biz Admitted Pro Hac Vice IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Tina Weeks, Michael McDonald, and Cassandra Magdaleno, individually and on behalf of others similarly situated, Plaintiff, Civil Action No. 2:20-cv-00884-SPL v. Matrix Absence Management, Inc., an Arizona Company, Defendant. JOINT RULE 26(F) CASE MANAGEMENT REPORT Plaintiffs Tina Weeks, Michael McDonald, and Cassandra Magdeleno (collectively, “Plaintiffs”) and Defendant Matrix Absence Management Inc. (“Defendant”) (Plaintiffs and Defendant collectively, “Parties”) jointly file this Rule 26(f) Case Management Report pursuant to the Court’s July 10, 2020 Order (ECF 14), and respectfully state the following: 1. ATTENDANCE: Pursuant to Fed. R. P. 26(f), a meeting was held on February 1, 2021. The meeting was attended by Jack Siegel and Travis Hedgpeth for Plaintiffs; and Tracy Miller for Defendant.

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2. SERVICE: No service issues. All parties have been served in this case. 3. NATURE OF CASE Plaintiffs’ Position: Plaintiffs bring this action individually and on behalf of other salaried employees whose primary job duty consisted of reviewing employee disability and leave of absence claims against predetermined guidelines to determine claimants’ eligibility for benefits (“Claims Examination Employees”). Plaintiffs allege that Defendant violated the Fair Labor Standards Act (“FLSA”) by misclassifying Plaintiffs and other salaried Claims Examination Employees as exempt from overtime, paying them on a salary basis, and failing to pay them overtime for their regular overtime work. Plaintiffs’ FLSA contentions include that Defendant willfully violated the FLSA. Plaintiffs seek liquidated damages, costs of the action and reasonable attorneys’ fees under the FLSA. Plaintiffs plan to amend the current version of the Complaint to add additional Rule 23 state law claims under Oregon state law by February 26, 2021. Defendants’ Position: Matrix denies Plaintiffs’ claims. Matrix helps its clients manage and administer leaves of absence, and short- and long-term disability policies. Plaintiffs and other “Claims Examination Employees” (as Plaintiffs define that phrase) are properly classified as exempt because they receive more than the minimum salary requirement, their primary duties are office or non-manual work directly related to the management or general business operations of Defendant’s clients, and their primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 4. JURISDICTION: The Court has subject matter jurisdiction under 28 U.S.C. § 1331 because Plaintiff’s FLSA claims arise under federal law. 29 U.S.C. § 216(b). The parties also agree that the Court has personal jurisdiction over the parties and that venue in this Court is proper. 5. ADDITIONS OR AMENDMENTS: Plaintiffs anticipate amending their complaint to add Rule 23 class action claims pursuant to Oregon state law by February 26, 2021. Defendant will oppose a motion to amend the complaint to add Rule 23 class action claims pursuant to Oregon state law as futile. 6. FORTHCOMING MOTIONS:

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Plaintiffs have either already or anticipate filing the following: (1) motion for Rule 23 class certification to certify a state law class action under Oregon state law; and (2) a motion for summary judgment on Defendants’ administrative exemption defense under the FLSA and Oregon state law. Defendant anticipates: (1) moving to dismiss Plaintiffs’ Oregon state law laws if filed, (2) moving for decertification of the conditionally certified collective action, and (3) moving for summary judgment on the administrative exemption. 7. DISCOVERY LIMITATIONS: The parties disagree on an appropriate proposed discovery plan in this case. i.

Plaintiffs’ Proposed Discovery Limitations: Plaintiffs request that the Court allow the Parties to brief the issue of representative

discovery in the event the court is at all disinclined from allowing the parties to use this timesaving device in litigating this FLSA collective actions. Plaintiffs believe that representative discovery of the class is appropriate in this case. This case currently involves approximately 186 Claims Examiners (CEs) who processed disability and leave of absence claims for Defendant. The 186 individuals who have filed consents to participate in this case worked under the following job titles to process the following types of claims: Position Plaintiffs Claim Examiner - AMS 136 Claim Examiner – LOA 28 Claim Examiner - STD 5 Claim Examiner - LTD 17

% LOA Claims 73% X 16% X 5% 9%

STD Claims X

LTD Claims

X x

The 136 Plaintiffs in the Claim Examiner – AMS positions totally overlap the job duties of the 28 individuals who processed LOA claims in the Claim Examiner LOA position and the 5 individuals who processed STD claims in the Claim Examiner STD position. Accordingly, the

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vast majority of the collective—approximately 169 Plaintiffs or 91% of the collective— processed STD and/or LOA claims as their primary job duty as AMS, LOA, or STD Claim Examiners. The remaining 17 Plaintiffs (or 9% of the collective) processed long term disability claims in the LTD Claim Examiner position and may have used different guidelines than those used by the rest of the collective to process STD and/or LOA claims.1 Accordingly, the discovery plan should ensure that Defendant has an opportunity to ensure that multiple LTD Claims Examiners are included as discovery plaintiffs for purposes of Plaintiff’s representative discovery plan. Defendant, however, has failed to establish that there is any material, distinguishing characteristic amongst the different levels of each Claims Examiner position (i.e. Level I, II, or Senior).2 Based on the homogeneity of the class, Plaintiffs believe that a limitation on discovery is warranted here and that discovery should be limited as follows: 1. Depositions: Depositions should be limited to 18 of the 186 plaintiffs, or approximately 10% of the class, including the current three named plaintiffs and an additional named plaintiff that will be added to serve as the Oregon class representative in the soon soon-tobe-filed amended complaint.3 Of the remaining 14 depositions, seven of the deponents shall 1

See ECF 34-1 to 34-6 (Defendant providing internal job descriptions for positions at issue); see also ECF 34-8 (containing description of respective positions from Defendant’s Director of Operations). 2

Matrix has only attempted to differentiate between the different levels of Claims Examiners by explaining that Claims Examination Employees are promoted to different levels based on experience, but fail to establish that the level assigned to a particular Claims Examination Employee has any impact on the job duties performed by them. See ECF 33, Response to Conditional Certification, p. 3 (“As Matrix examiners gain more experience and proficiency, they have the opportunity to be promoted from a Level I Examiner, to a Level II examiner, and then a Senior Claim Examiner. Job duties of each type of examiner (i.e. LOA, STD, LTD, AMS) and category (Level I, II, Senior) vary.”) citing (ECF 34, Declaration of Senior Corporate Recruiter Michelle Bahadar, Decl., ¶¶ 9-15, Exhibits A-F.). 3

10% of the class being subject to depositions is common in FLSA collective actions. Kervin v. Supreme Service & Specialty Co., Inc., No. 15-1172, 2016 WL 8257256 (E.D. La. May 24, 2016) (limiting depositions to 15 of 157 class members and written discovery to 20 percent of 157 class members); Morales v. Farmland Foods, Inc., No. 08–CV–504, 2010 WL 4941708, at *4 (D.Neb. Nov. 30, 4

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be selected by each side. All depositions, other than those of the four named plaintiffs, should be limited to 3 hours each.4 2.

Written Discovery: Written discovery should be limited to 38 individuals, which represents approximately 20% of the class. The 18 individuals selected for depositions shall respond to the written discovery and the remaining 20 individuals should be selected at

2010) (limiting written discovery to random 15% sample of 296 opt-ins, and denying defendant's motion to compel discovery from any opt-ins who had provided testimony for pretrial motions because “allowing individual discovery from each declarant is inconsistent with the court's prior order [limiting opt-in discovery to 15% random sample] and goes outside the bounds of essential discovery by negating the purpose behind limited discovery in representative actions.... [T]he defendant need not obtain similar discovery from mere declarants. The defendant has other means to challenge affidavits filed by the plaintiffs relative to motions filed.”); Scott v. Bimbo Bakeries USA, Inc., No. Civ. A. 10-3154, 2012 WL 6151734 (E.D. Pa. Dec. 11, 2012) (limiting defendant to 20 depositions, and rejecting Defendant’s proposal to take 260 depositions, which represented 40% of the collective action, as “completely unnecessary” because the depositions “would likely result in duplicative data and would place and incredible burden upon plaintiff’s counsel”); Rindfleisch v. Gentiva Health Servs., Inc., No. Civ. A. 1:10-cv-3288-SCJ, 2011 WL 7662026 (N.D. Ga. Dec. 29, 2011) (rejecting defendant’s attempt to take depositions of 100 of 1,100 opt-ins and limiting written discovery to 60 opt-in plaintiffs, or roughly 5% of the class, holding that, “written discovery—like depositions—should be limited in FLSA actions lest the purpose and usefulness of class actions be undermined by the burdens of individualized discovery); Kelsey v. Entm't U.S.C. Inc., No. CV-1401105, 2015 WL 4064715, at *4 (D. Ariz. July 2, 2015) (limiting written discovery and depositions to 15 percent of a class of “no more than seventy five” plaintiffs); Gentrup v. Renovo Servs., LLC, No. 07–CV–430, 2010 WL 6766418, at *7 (S.D. Ohio Aug. 17, 2010) (rejecting defendant's request for full discovery from all 106 opt-ins and granting representative discovery consisting of written discovery from 31 plaintiffs and depositions from 16; “Individualized discovery undermines the purpose and utility of collection actions and therefore limiting discovery to a statistically significant representative sampling will both reduce the burden imposed on Plaintiffs and afford Defendants a reasonable opportunity to explore, discover, and establish an evidentiary basis for its defenses”); Wellens v. Daiichi Sankyo Inc., No. C–13–581, 2014 WL 7385990, at *2–*3 (N.D. Cal. Dec. 29, 2014) (permitting written discovery of 37 out of 213 opt-ins who had not submitted declarations in support of plaintiffs' motion for conditional class certification and permitting depositions of 25 opt-ins). 4

Allen v. Sears Roebuck and Co., C.A. No. 07-CV-11706, 2010 WL 1417644, at *3 (E.D. Mich. Apr. 5, 2010) (limiting depositions to three hours each); Goodman v. Burlington Coat Factory Warehouse Corp., 292 F.R.D. 230, 234 (D.N.J. 2013) (staggering deposition time limits for named (7 hours) and opt-in (3.5 hours) plaintiff); Id. (stating that “after the first few depositions defendants will have developed their ‘script’ and can focus on the most germane questioning to determine if the workers in the class are similarly situated”); Lawson v. Love's Travel Stops & Country Stores, Inc., No. 1:17CV-1266, 2018 WL 3524640, at *1 (M.D. Pa. June 25, 2018) (limiting depositions to 5 of 368 opt-in plaintiffs and further limiting those depositions to four hours each); Byard v. Verizon W. Virginia, Inc., No. 1:11CV132, 2013 WL 5535913, at *6–7 (N.D.W. Va. Oct. 7, 2013) (limiting opt-in depositions to three hours).

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random from the class of Opt-In Plaintiffs. Limiting written discovery to approximately 20% of the class is common in FLSA collective actions.5 Plaintiffs invite the court to order supplemental briefing on the issue to the extent needed to determine whether representative discovery is appropriate in this action.

ii.

Defendant’s Proposed Discovery Limitations: Defendant has not yet had meaningful time to review and consider Plaintiffs’

proposal regarding discovery limitations. Plaintiffs first provided the proposed discovery limitations the same day that the case management report was due. Plaintiffs’ proposal contains significant restrictions on discovery, along with various case citations that they claim supports their position. Because of the last-minute disclosure of this proposal and purported supporting cases, Defendant has not had sufficient time to review and consider Plaintiff’s proposal or the referenced cases. Defendant’s counsel reached out to Plaintiffs’ counsel and recommended meeting and conferring on this issue to determine whether the

Kelsey v. Entm't U.S.C. Inc., No. CV-14-01105, 2015 WL 4064715, at *4 (D. Ariz. July 2, 2015) (limiting written discovery and depositions to 15 percent of a class of “no more than seventy five” plaintiffs); Kervin v. Supreme Service & Specialty Co., Inc., No. 15-1172, 2016 WL 8257256 (E.D. La. May 24, 2016) (limiting written discovery to 20 percent of 157 class members and depositions of 15 of 157 class members); Scott v. Bimbo Bakeries USA, Inc., No. Civ. A. 10-3154, 2012 WL 6151734 (E.D. Pa. Dec. 11, 2012) (limiting written discovery to 10% of collective consisting of 508 opt-in plaintiffs); Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D. 188 (S.D.N.Y. 2014) (limiting written discovery to 10 percent of the 580 members of FLSA collective class plus an additional fifteen opt-in plaintiffs); Craig v. Rite Aid Corp., No. Civ. A. 4:08– CV–2317, 2011 WL 9686065, at *4–5 (M.D. Pa. Feb. 7, 2011) (limiting written discovery in FLSA collective case with over 1,000 opt-ins to fifty randomly-selected opt-ins); Cranney v. Carriage Servs., Inc., No. Civ. A. 2:07-cv-01587-RLH-PAL, 2008 WL 2457912, at *3 (D. Nev. June 16, 2008) (limiting discovery to 10 percent of workers and worksites in FLSA collective action with 300 opt-ins); Kervin v. Supreme Service & Specialty Co., Inc., No. 15-1172, 2016 WL 8257256 (E.D. La. May 24, 2016) (limiting written discovery to 20 percent of 157 class members and depositions of 15 of 157 class members); Smith v. Lowe's Home Centers, Inc., 236 F.R.D. 354, 357 (S.D. Ohio 2006) (limiting written discovery to 90 collective members in an FLSA collective class of 1,500) 6

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parties can reach an agreement before submitting it to the Court, but Plaintiffs have refused to do so. Defendant does not oppose some restrictions on discovery. However, Defendant’s position is that the parties should be required to meet and confer on this issue to determine whether they can reach an agreement on restrictions. In the event an agreement cannot be reached, the parties should be required to update the Court regarding any restrictions that they agree on and separate proposals for any issues on which they disagree. 8. ELECTRONICALLY STORED INFORMATION: The parties also do not expect that there will be any issues relating to preservation, disclosure, or discovery of ESI. The parties plan to exchange all relevant documents in Portable Document Format (“PDF”) or in native format where applicable. 9. JURY TRIAL: A jury trial has been requested and the request is uncontested. 10. TRIAL: The parties estimate that this case will be ready for trial by July 11, 2022, and that the trial should take anywhere from 5-10 days. Plaintiffs suggest that the Court allow for representative discovery and the use of representative testimony at trial to shorten the length of the trial in this case. 11. EXPEDITED TRIAL ALTERNATIVE: The parties certify that they have discussed this option with their respective clients, but that the parties agree that this case is not appropriate for an expedited trial. 12. CONSENT TO MAGISTRATE: The Parties do not consent to the transfer of this case to a Magistrate Judge. 13. SETTLEMENT AND DISPUTE RESOLUTION:

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Plaintiffs’ Position: Plaintiffs believe that this case should be referred to a magistrate judge prior to the initiation of discovery for the purpose of holding a settlement conference and/or early neutral evaluation of the case’s merits. Defendant’s Position: Defendant believes it is premature to participate in a settlement conference. Defendant proposes that the parties begin discovery and will advise the court at a later time if they request a referral to a magistrate judge for settlement. 14. ADDITIONAL MATTERS: The parties are discussing the appropriateness and scope of representative discovery.

Respectfully Submitted, Respectfully Submitted, /s/ Jack Siegel

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

TRAVIS M. HEDGPETH Texas Bar No. 24074386 THE HEDGPETH LAW FIRM, PC 3050 Post Oak Blvd., Suite 510 Houston, Texas 77056 Telephone: (281) 572-0727 Facsimile: (281) 572-0728 travis@hedgpethlaw.com

By: s/ Tracy A. Miller Tracy A. Miller Douglas (Trey) Lynn 2415 East Camelback Road, Suite 800 Phoenix, AZ 85016 Attorneys for Defendant Matrix Absence Management Inc.

JACK SIEGEL Texas Bar No. 24070621 Siegel Law Group PLLC 4925 Greenville Avenue, Suite 600 Dallas, Texas 75206 P: (214) 790-4454 Jack@siegellawgroup.biz

ATTORNEYS FOR DEFENDANT

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served on all counsel of record through the court’s ECF system as of the date file-stamped thereon. /s/ Jack L. Siegel JACK L. SIEGEL

45913688.1