Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 1 of 22
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Jessica S. High (Bar No. 030502) Aaron T. Winn (Pro Hac Vice) Maryam Maleki (Pro Hac Vice pending) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: 619.744.2200 Fax: 619.744.2201 E-mail: jhigh@duanemorris.com atwinn@duanemorris.com mmaleki@duanemorris.com Attorneys for Defendant MATRIX ABSENCE MANAGEMENT, INC.
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UNITED STATES DISTRICT COURT
10
DISTRICT OF ARIZONA
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Tina Weeks, Michael McDonald & Cassandra Magdaleno, individually and on behalf of others similarly situated, v.
Plaintiffs,
Matrix Absence Management, Inc. an Arizona Company, Defendant.
Case No. 2:20-cv-00884-PHX-SPL MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT Judge: Action Filed:
Hon. Steven P. Logan May 6, 2020
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Ex. 2, p. 1
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR STEP ONE NOTICE PURSUANT TO THE FAIR LABOR STANDARDS ACT
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 2 of 22
TABLE OF CONTENTS
1 2
Page
3
INTRODUCTION .................................................................................................1
4
BACKGROUND ....................................................................................................2
5
A.
Matrix’s Business............................................................................. 2
6
B.
Plaintiffs ........................................................................................... 3
7
C.
The Claims Handling Process. ........................................................ 3
8
CONDITIONAL CERTIFICATION STANDARDS ............................................5
9
A.
Plaintiffs must show that they are similarly situated. ................. 6
10
B.
Plaintiffs must show a common unlawful policy. .......................... 6
11
C.
Plaintiffs must show that their claim is amenable to resolution using common proof. ...................................................... 7
12 13 14
ARGUMENT .........................................................................................................7 I.
15 16 17 18
II.
19 20 21
Plaintiffs have not shown that they are similarly-situated. ................... 7 A.
The job descriptions that Plaintiffs rely upon were not even prepared by Matrix, and the 22 jobs at issue involve materially different duties. ............................................................. 8
B.
Plaintiffs’ declarations are far too generic and implausible to support certification. ................................................................. 10
Plaintiffs have not identified any common unlawful policies. .............. 11 A.
Requiring employees to use guidelines and estimating software does not make them non-exempt. .................................. 12
B.
Matrix’s claims examiners are not production workers. ............. 13
III.
Issuing notice would not promote judicial economy because Plaintiffs’ claims raise inherently individualized issues. ...................... 15
23
IV.
Plaintiffs’ proposed notice and notice plan is flawed. ............................ 16
24
CONCLUSION ................................................................................................... 17
22
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Ex. 2, p. 2
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
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1
TABLE OF AUTHORITIES
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Page(s) Cases In re Allstate Ins. Co. Fair Labor Stds. Litig. v. Allstate Ins. Co. Nos. 1541, 2007 U.S.Dist.LEXIS 58442 (D.Ariz. Aug. 6, 2007.) ................... 12 Bados Madrid v. Peak Constr., Inc. 2009 WL 2983193 (D. Ariz. Sept. 17, 2009).................................................... 16 Bah v. Shoe Mania, Inc. 2009 WL 1357223 (S.D.N.Y. May 13, 2009) ................................................... 16 Bishop v. Petro-Chem Transport, LLC 582 F.Supp. 2d 1290 (E.D. Cal. 2008) ............................................................... 6 Blaney v. Charlotte-Mecklenburg Hosp. Auth. 2011 WL 4351631 (W.D.N.C. Sept 16, 2011).................................................. 12 Brewer v. Gen. Nutrition Corp. 2013 U.S. Dist. LEXIS 2948 (N.D. Cal. Jan. 7, 2013) ...................................... 6 Bucklin v. Zurich Am. Ins. Co. 619 F.App’x 574 (9th Cir. 2015) ...................................................................... 13 Cheatham v. Allstate Insurance Co. 465 F.3d 578 (5th Cir. 2006)............................................................................ 13 Chemi v. Champion Mortg. 2006 U.S. Dist. LEXIS 100917 (D.N.J. June 19, 2006) ........................... 12, 15 Colson v. Avnet, Inc. 687 F. Supp. 2d 914 (D. Ariz. 2010) .................................................................. 6 Dannenbring v. Wynn Las Vegas, LLC 646 F.App’x 556 (9th Cir. 2016) ...................................................................... 13 Felix v. Davis Moreno Constr., Inc. 2008 WL 4104261 (E.D. Cal. Sept. 3, 2008) ............................................... 6, 11 Fenn v. Hewlett-Packard Co. 2012 U.S. Dist. LEXIS 69398 (D. Idaho May 17, 2012) ................................. 16
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Ex. 2, p. 3
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Hinojos v. Home Depot, Inc. 2006 U.S. Dist. LEXIS 95434 (D. Nev. Dec. 1, 2006) ....................................... 7 Hoffman v. Securitas Sec. Servs. No. CV07-502-S-EJL, 2008 WL 5054684 (D. Idaho Aug. 27, 2008) .............. 16 Holt v. Rite Aid Corp. 333 F.Supp.2d 1265 (M.D. Ala. 2004) ............................................................. 16 Kesley v. Entm’t U.S.A. Inc. 67 F.Supp.3d 1061 (D. Ariz. 2014) ................................................................. 6-7 Kress v. PricewaterhouseCoopers, LLP 263 F.R.D. 623 (E.D. Cal. 2009) ........................................................................ 8 Kronick v. bebe Stores, Inc., No. CIV. 07-4514 (RBK), 2008 WL 4546368, at *3 (D.N.J. Oct. 2, 2008) ................................................................. 2 Kuzich v. HomeStreet Bank 2018 WL 3872191 (D. Ariz. Aug. 15, 2018) ............................................. 6-7, 10 Lewis v. Wells Fargo & Co. 669 F. Supp. 2d 1124 (N.D. Cal. 2009) ........................................................... 16 Litty v. Merrill Lynch & Co. 2015 U.S. Dist. LEXIS 74693 (C.D. Cal. Apr. 27, 2015) .......................... 12, 15 Longnecker v. Am. Express Co. 2014 U.S. Dist. LEXIS 114501 (D. Ariz. Aug. 18, 2014) ................................ 12 Madrid v. TeleNetwork Partners, Ltd. 2019 U.S. Dist. LEXIS 123653 (N.D. Cal. July 23, 2019).............................. 16 Martinez v. Money Source, Inc. 2020 WL 5289851 (C.D. Cal. June 9, 2020) .................................................... 10 Miller v. Farmers Ins. Exch. (In re Farmers Ins. Exch.) 481 F.3d 1119 (9th Cir. 2007)..................................................................... 13-14 Morales v. Allied Bldg. Crafts 2005 U.S. Dist. LEXIS 59399 (D. Nev. Mar. 16, 2005) .................................. 16 Ortiz v. Amazon.com LLC 2018 U.S. Dist. LEXIS 229693 (N.D. Cal. Jan. 12, 2018) .............................. 15
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Ex. 2, p. 4
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Pfohl v. Farmers Ins. Group 2004 U.S. Dist. LEXIS 6447 (C.D. Cal. Mar. 1, 2004) ................................... 15 Roe-Midgett v. CC Servs. 512 F.3d 865 (7th Cir. 2008)............................................................................ 14 Sarviss v. Gen. Dynamics Info. Tech. 663 F. Supp. 2d 883 (C.D. Cal. 2009) ................................................................ 2 Stickle v. SCI W. Mkt. Supprt Ctr. 2009 WL 3241790 (D. Ariz. Sept. 30, 2009).................................................... 16 Trinh v. JP Morgan Chase & Co. 2008 U.S. Dist. LEXIS 33016 (S.D. Cal. Apr. 22, 2008) ................. 6, 10-11, 15 Trinh v. JP Morgan Chase & Co. No. 07-CV-1666 W (WMC), 2008 U.S. Dist. LEXIS 33016, at *15 (S.D. Cal. Apr. 22, 2008) ................................................................................. 7-8 Statutes 29 U.S.C. § 216(b) ............................................................................................... 5, 7
15
ERISA ..........................................................................................................4-5, 9-10
16
FLSA .............................................................................................................. Passim
17
FMLA ................................................................................................................ 1-2, 4
18 19 20 21
Other Authorities 29 C.F.R. § 541.203(a) (2006) ............................................................................... 14 29 C.F.R. § 541.205(d)........................................................................................... 14
22
CFR § 541.205(b) (2004) .................................................................................. 14-15
23
DOL Wage & Hour Div. Op. Ltr. FLSA2005-25, at 4 (Aug. 26, 2005) ............... 14
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Ex. 2, p. 5
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
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INTRODUCTION
1 2
Plaintiffs—former employees of Matrix Absence Management, Inc.—allege
3
that they were improperly classified as exempt from overtime. They now seek
4
conditional certification of that claim under the FLSA. But unlike a typical
5
misclassification case, in which the plaintiffs seek certification on behalf of
6
others who held the same position, the Plaintiffs here are seeking certification on
7
behalf of a putative collective consisting of 22 different jobs—several of which
8
Plaintiffs never held—spread over multiple offices and multiple states. See ECF
9
No. 25, n. 1.1
10
But Plaintiffs do not show how these 22 jobs are so substantially similar
11
that the Court can treat them as one. In fact, Plaintiffs don’t even discuss the 22
12
different positions. Instead, they slap a convenient label on the group (“Claims
13
Examiner Employees”), and summarily conclude that all the employees who
14
worked these 22 discrete jobs “are similarly situated for purposes of the FLSA”
15
because all of the positions “have the same primary job duty—processing
16
insurance claims.” ECF No. 26, pp. 2-3.
17
Not so. First, Matrix adjudicates and manages leave of absence claims
18
made by its client’s employees, so the premise that the all of Matrix’s claim
19
examiners “process insurance claims” is flat wrong. Because the most basic
20
premise underlying Plaintiffs’ motion is wrong, the motion fails.
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Footnote 1 to Plaintiffs’ motion lists the 22 jobs at issue: (1) Absence Management Specialists; (2) Absence Management Specialist II; (3) AMS Claims Examiner; (4) AMS Claims Examiner II; (5) Claims Examiner; (6) Claims Examiner I, AMS; (7) Claims Examiner I, LOA/FMLA; (8) Claims Examiner I, STD; (9) Senior Claims Examiner; (10) Claims Examiner II; (11) Long Term Disability Examiner; (12) Claims Examiner, Short Term Disability; (13) Disability Claims Examiner; (14) FMLA Claims Examiner; (15) FMLA Claims Examiner II; (16) FMLA/LOA Claims Examiner; (17) Integrated Claims Examiner; (18) Integrated Claims Examiner (LOA/FMLA); (19) Integrated Claims Examiner (STD); (20) Integrated Claims Examiner II; (21) Integrated LTD Claims Examiner; (22) LTD Claims Examiner.
1
1
Ex. 2, p. 6
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Second, leaves of absence come in many shapes and sizes (family leave,
2
parental leave, military leave, etc.), implicate various state and federal laws and
3
regulations, and arise from unique employer policies and plans. For example,
4
because claims for long term disability are substantially different than claims
5
for FMLA leave, the duties, activities, and experiences of a Long Term Disability
6
examiner differ significantly from those of an FMLA Leave of Absence examiner
7
(to say nothing of the material differences between employees who actually have
8
the same job title). Thus, Matrix cannot (and does not) use a one-size-fits-all
9
approach to its claims handling.
10
Third, Plaintiffs’ motion skips the essential step of showing why the 22
11
jobs at issue are substantially similar; instead, Plaintiffs essentially ask the
12
Court to assume that they are similar. That is not enough to “satisfy even the
13
lower threshold of the first step of the analysis.” See Sarviss v. Gen. Dynamics
14
Info. Tech., 663 F. Supp. 2d 883, 905 (C.D. Cal. 2009); see also Kronick v. bebe
15
Stores, Inc., No. CIV. 07-4514 (RBK), 2008 WL 4546368, at *3 (D.N.J. Oct. 2,
16
2008) (denying conditional certification based upon uncorroborated “general and
17
vague assertions”).
18
BACKGROUND
19
A.
20
Matrix adjudicates and manages requests for leaves of absence under
Matrix’s Business.
21
state and federal laws and employer policies and disability claims under short
22
and long-term disability plans and policies and/or provides its clients with
23
policies they can revise or implement. (Declaration of Rachel Ronfeldt ¶¶ 1, 3.)
24
Matrix also adjudicates claims for disability benefits based on client-employer
25
policies or policies issued by Reliance Standard Life Insurance Company.
26
(Ronfeldt Decl. ¶ 3.) Because the claims handling process of the various types of
27
claims differ significantly, Matrix organizes its claims examiners into four
28
general categories—Leave of Absence (LOA) examiners, Short Term Disability 2
Ex. 2, p. 7
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(STD) examiners, Long Term Disability (LTD) examiners, and Absence
2
Management Specialist (AMS) examiners. (Ronfeldt Decl. ¶ 5.)
3
As Matrix examiners gain more experience and proficiency, they have the
4
opportunity to be promoted from a Level I examiner, to a Level II examiner, and
5
then a Senior examiner. (Declaration of Michelle Bahadar ¶ 8.) Job duties for
6
each type of examiner (i.e., LOA, STD, LTD, AMS) and category of examiner
7
(Level I, II, Senior) vary. (Bahadar Decl., ¶¶ 9-15, Exhibits A-F.)
8 9
Adjudicating requires familiarity with and understanding of federal and state laws, the ability to interpret contractual language, the skills to apply
10
various legal standards to varying fact patterns, and clinical knowledge.
11
(Ronfeldt Decl. ¶¶ 6-21; Declaration of Darcy Freese ¶¶ 7-43; Declaration of
12
Jacquelin Denton ¶¶ 5-22; Declaration of Christopher Pheil ¶¶ 4-24.) Given
13
their duties and discretion to independently adjudicate claims, Matrix classifies
14
these claims examiners as exempt.
15
B.
16
Plaintiffs Michael McDonald, Amanda Wright, Jessie Sanchez, and
17
Sandra Matos were AMS Claims Examiners; Cassandra Magdaleno, Margaret
18
Berg, and Ramon Vargas were LOA Claims Examiners; Kimberly Green,
19
Jennifer Hassell, Collette Cokley, and Mary Floyd were LTD Claims Examiners;
20
and Tina Weeks was a Stable and Mature LTD examiner (a separate type of
21
position within the LTD examiner group, and one of only two Stable and Mature
22
examiners in the entire company). (Bahadar Decl., ¶¶ 9-14; Ronfeldt Decl. ¶¶
23
26-30.) None of the Plaintiffs were STD examiners.
Plaintiffs
24
C.
25
Matrix staff are responsible for independently adjudicating the claims
The Claims Handling Process.
26
they are assigned, and they do so with minimal oversight. (Freese Decl. ¶¶ 44-
27
50; Pheil Decl. ¶¶ 22-23; Denton Decl. ¶¶ 24-25.) But because the nature of the
28
claims Matrix handles vary significantly, the handling of those claims also 3
Ex. 2, p. 8
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1
varies. And the notion that each job was “interchangeable” (as Plaintiffs
2
suggest) ignores the entire structure and nature of Matrix’s claims handling
3
process.
4
LOA examiners, for example, manage leave of absence requests under the
5
Family Medical Leave Act (FMLA) and applicable state law(s). (Freese Decl. ¶ 7;
6
Denton Decl. ¶¶ 5-6.) As a result, LOA examiners must know and be able to
7
apply federal and state leave requirements to adjudicate requests for leave of
8
absence. (Freese Decl. ¶ 10; Denton Decl. ¶ 22.) They must also be familiar with
9
each client-employer’s leave of absence policies. (Freese Decl. ¶ 24; Denton Decl.
10 11
¶¶ 9, 21.) Adjudicating leave of absence claims requires the examiner to, among
12
other things, interview the claimant-employee, analyze medical documentation,
13
consult with experts to assess claimant’s condition, consider whether the
14
medical documentation shows “serious health condition” under the applicable
15
law, and ultimately determine whether to approve the claim. (Freese Decl. ¶¶ 9-
16
14; Denton Decl. ¶¶ 11-13, 18-20.) They make these determinations
17
independently, without supervisory review or ratification. (Freese Decl. ¶ 15.)
18
LTD examiners deal with an entirely different set of issues, as client-
19
employers’ policies, ERISA regulations, Social Security Disability regulations
20
and/or state disability laws all come into play. (Freese Decl. ¶¶ 6, 11, 17, 32.)
21
Because LTD examiners deal with different issues than LOA examiners,
22
their duties differ as well. LTD examiners must assess the alleged disability’s
23
impact on job performance, consider medical treatments, conduct pre-existing
24
condition reviews, determine the claimant’s work capacity (if any), evaluate
25
potential return-to-work opportunities, consult with internal and external
26
medical resources to understand the medical issues at play, and—ultimately—
27
grant or deny the claim. (Ronfeldt Decl. ¶¶ 7-13, 15.) LTD examiners have the
28
authority to approve LTD payments within their monetary authority. (Id. at ¶ 4
Ex. 2, p. 9
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16). When LTD examiners deny a claim, they must prepare an adverse benefit
2
(denial) letter that complies with ERISA requirements. (Id. at ¶ 17.) These
3
denial letters must be detailed and fact-specific, identify the relevant LTD policy
4
or plan provisions, describe the investigation, identify and analyze medical
5
documentation, and summarize the basis for the decision. (Id.) In short, they are
6
not form letters or mere templates. (Id.)
7
Stable and Mature Examiners, in contrast, are responsible for evaluating
8
whether a claimant’s condition is improving, staying the same, or worsening.
9
(Id. at ¶ 28.) They must also engage in financial and vocational investigations,
10
communicate with claimants regarding additional sources of income, and review
11
claimants’ financial records and income tax filings. (Id.) They then use their
12
discretion and independent judgment to determine how to best handle the claim
13
going forward. (Id. at ¶ 33.)
14
AMS examiners adjudicate claims that seek monetary benefits under a
15
client-employer’s short-term disability plan. (Freese Decl. ¶ 25; Pheil Decl. ¶ 4.)
16
This requires AMS examiners to evaluate medical documentation, interview
17
claimants, approve, deny, or partially approve claims based on the applicable
18
policy and facts, and—if approved—calculate the amount and duration of the
19
benefit payment. (Freese Decl. ¶¶ 25-30; Pheil Decl. ¶¶ 9, 11, 18.) AMS
20
examiners also manage the client-employee’s simultaneous request for leave of
21
absence, thus integrating the administration of benefits under STD plans and
22
leaves of absence under state or federal laws and employer policies. (Freese
23
Decl. ¶¶ 7-25; Pheil Decl. ¶ 4.)
24
CONDITIONAL CERTIFICATION STANDARDS
25
The FLSA allows Plaintiffs to bring a collective action on behalf of
26
themselves and other employees “similarly situated.” 29 U.S.C. § 216(b). The
27
certification of an FLSA collective action typically proceeds in two steps. At the
28
first step or “notice stage” (the procedural posture of this motion), the Court 5
Ex. 2, p. 10
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determines whether the plaintiffs are “similarly situated” and whether the
2
Court should use its discretion to certify a collective action for the purpose of
3
sending notice to potential class members. Brewer v. Gen. Nutrition Corp., 2013
4
U.S. Dist. LEXIS 2948, at *2 (N.D. Cal. Jan. 7, 2013).
5
A.
6
When seeking conditional certification, Plaintiffs bear the burden of
Plaintiffs must show that they are similarly situated.
7
establishing that they are similarly situated to each other and the collective.
8
Kesley v. Entm’t U.S.A. Inc., 67 F.Supp.3d 1061, 1065 (D. Ariz. 2014). This
9
burden is not onerous, but it is also not invisible. Colson v. Avnet, Inc., 687 F.
10
Supp. 2d 914, 929–30 (D. Ariz. 2010) (courts should not “rubber stamp” motions
11
for conditional certification).
12
To carry this burden, Plaintiffs must provide “evidentiary support” for
13
their “similarly situated” allegation. Bishop v. Petro-Chem Transport, LLC, 582
14
F.Supp. 2d 1290, 1296 (E.D. Cal. 2008); Kesley, 67 F.Supp.3d at 1066; Kuzich v.
15
HomeStreet Bank, 2018 WL 3872191, at *2 (D. Ariz. Aug. 15, 2018); Trinh v. JP
16
Morgan Chase & Co., 2008 U.S. Dist. LEXIS 33016, at *10 (S.D. Cal. Apr. 22,
17
2008) (to satisfy their burden at the conditional certification stage, plaintiffs
18
should provide “detailed allegations supported by affidavits”).
19
B.
20
Plaintiffs must also show that they and the collective they seek to
Plaintiffs must show a common unlawful policy.
21
represent were “victims of a common policy or plan that violated the law.” Felix
22
v. Davis Moreno Constr., Inc. 2008 WL 4104261, at *5 (E.D. Cal. Sept. 3, 2008)
23
(emphasis added). Showing that Plaintiffs are similarly situated regarding
24
issues that are irrelevant or lawful does not move the needle. Id.
25 26 27 28 6
Ex. 2, p. 11
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C.
1 2
Plaintiffs must show that their claim is amenable to resolution using common proof.
The underlying purpose of any collective action is to promote judicial
3 4
economy by hearing substantially similar claims at the same time. That’s only
5
possible if the Court can adjudicate claims and defenses using evidence common
6
to all class members. Thus, even at the conditional certification stage, plaintiffs
7
must at least show that their claims are susceptible to common proof. See, e.g.,
8
Trinh, 2008 U.S. Dist. LEXIS 33016 at *15 (denying conditional certification
9
because plaintiffs “have not shown that they plan to rely on common evidence”).
10
In other words, Plaintiffs must identify the factual or legal nexus that binds the
11
various claims together and makes collective adjudication possible. Kesley, 67
12
F.Supp.3d at 1065; Kuzich, 2018 WL 3872191 at *2. This does not mean that the Court needs to evaluate the merits of
13 14
Plaintiffs claims; “rather, the Court is examining the legal backdrop and type of
15
evidence required to prove whether any employee is exempt or not.” Trinh, 2008
16
U.S. Dist LEXIS at *15. If Plaintiffs cannot show that they can “rely on common
17
evidence to prove their class-wide claims,” conditional certification “would not
18
advance the collective action’s goal of [promoting] judicial economy.” Id.; see also
19
Hinojos v. Home Depot, Inc., 2006 U.S. Dist. LEXIS 95434, at *7 (D. Nev. Dec. 1,
20
2006) (“where FLSA claims require significant individual determinations and
21
considerations, they are inappropriate for conditional certification under section
22
216(b).”) ARGUMENT
23 24 25
I.
Plaintiffs have not shown that they are similarly-situated. In so-called “misclassification” cases (like this one), plaintiffs must show
26
that they and the putative class members performed similar jobs and provide
27
evidence indicating that “classification may be determined on a collective basis.”
28 7
Ex. 2, p. 12
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Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 629-630 (E.D. Cal. 2009);
2
Trinh, 2008 U.S. Dist. LEXIS at *13.
3
Here, Plaintiffs hitch their motion to two pieces of evidence: (1) Internet-
4
sourced job descriptions, and (2) Plaintiffs’ declarations. But the job descriptions
5
Plaintiffs rely upon are not Matrix’s job descriptions. (Bahadar Decl., ¶ 15.) And
6
Plaintiffs’ declarations take the term “cookie-cutter” to a new level: they are not
7
merely carbon copies of each other, they copy—verbatim—from declarations
8
submitted by plaintiffs in different cases, who held different jobs, in different
9
industries, and worked for different employers. (Matrix’s Request for Judicial
10
Notice In Support of Opposition to Plaintiff’s Motion for Conditional
11
Certification (“RJN”) ¶¶ 1-7, Exh. 1-7.) If that doesn’t make Plaintiffs’
12
declarations implausible (at best), the fact that the language employed can be
13
indiscriminately applied to any exempt position makes them far too generic to
14
support conditional certification here. (Id.)
15 16 17
A.
The job descriptions that Plaintiffs rely upon were not even prepared by Matrix, and the 22 jobs at issue involve materially different duties.
Although Plaintiffs are asking the Court to find that they are similarly
18
situated to all employees who worked 22 different jobs, Plaintiffs’ memorandum
19
of points and authorities does not even identify the 22 different job positions at
20
issue. See ECF No. 26. For that critical fact, the Court must look to a footnote in
21
Plaintiffs’ motion. See ECF No. 25, n. 1
22
Instead of discussing (or even mentioning) the actual 22 job positions at
23
issue, Plaintiffs generically label any employee who worked in any of the 22
24
“examiner” positions “Claims Examiner Employees.” This shortcut is fair,
25
Plaintiffs argue, because a handful of job descriptions on the Internet
26
supposedly show that all 22 jobs involve the “same duties” (although Plaintiffs
27
do not say which duties are the same). ECF No. 27, p. 5 (Siegel Decl. ¶¶ 3-5,
28
Exh. L.) But the “job descriptions” that purportedly form the lynchpin of 8
Ex. 2, p. 13
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Plaintiffs’ motion do not even belong to Matrix. (Bahadaran Decl., ¶ 15.) More
2
importantly, the 22 jobs at issue involve materially different duties, activities,
3
and tasks. (Id. at ¶¶ 6-7.)
4
Using these non-Matrix documents as a springboard, Plaintiffs argue that
5
everyone in the putative class does the same thing: “[1] use Matrix guidelines to
6
determine whether to approve Claims” and either “[2] use a formula set forth in
7
the policy to calculate the amount due” or [3] send a “template denial letter.”
8
ECF No. 26, p. 5. Nonsense.
9
First, Matrix adjudicates employment-related leave of absence requests, so
10
many claimants are not seeking insurance money; they are seeking a leave of
11
absence. Thus, the core activity that supposedly makes all class members
12
similar—calculating amounts due under an insurance policy—is something
13
many putative class members never do. (Freese Decl. ¶ 45.) That alone
14
undermines Plaintiffs’ entire motion.
15
Second, Matrix does not have “guidelines” that dictate how Matrix
16
employees adjudicate claims or every contingency in adjudicating claims.
17
(Freese Decl. ¶¶ 42, 48; Pheil Decl. ¶ 24.) The allegation is not even plausible
18
because adjudicating claims for leave of absence requires the application of
19
federal, state, and local laws and regulations or, in the case of contractual-based
20
leave claims (e.g., a disability benefit claim), an analysis of the specific plan or
21
policy at issue, the medical condition of the claimant, and governing law. (Freese
22
Decl. ¶¶ 9, 25; Pheil Decl. ¶ 3; Denton Decl. ¶ 7.)
23
Third, when handling disability-related claims, Matrix could not use a
24
template denial letter—even if it wanted to—because ERISA requires denial
25
letters to include a detailed explanation of the decision, the relevant STD or
26
LTD policy or plan provisions, the underlying investigation, the medical
27
documentation reviewed, and an explanation of other relevant information
28 9
Ex. 2, p. 14
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 15 of 22
1
supporting the decision. (Freese Decl. ¶¶ 6, 11, 17, 32.) That can’t be done with
2
templates and forms.2 In short, the three core issues that supposedly tie the putative class
3 4
together—guidelines, formulas, and templates—are not even plausible in this
5
context. As a result, Plaintiffs have failed to show that they are substantially
6
similar to the putative class. See Kuzich, 2018 WL 3872191 at *2; Trinh, 2008
7
U.S. Dist. LEXIS 33016 at *10.
8
B.
9
Plaintiffs’ declarations are far too generic and implausible to support certification.
Generic allegations and conclusory assertions are not enough to satisfy
10 11
Plaintiffs’ burden. See Martinez v. Money Source, Inc., 2020 WL 5289851 (C.D.
12
Cal. June 9, 2020) (denying conditional certification because plaintiffs’
13
declarations lacked plausible factual allegations indicating plaintiff was
14
similarly situated to the Collective with respect to cognizable FLSA violations).
15
Yet that’s all the Plaintiffs offer. In fact, Plaintiffs’ declarations are not merely carbon copies of each other,
16 17
they appear to have copied—verbatim—the language used by different plaintiffs,
18
with different jobs, working in different industries, suing different defendants.
19
(See RJN ¶ 1-4, Exh.1-7.) This is especially remarkable because the plaintiffs in
20
those cases were not claims examiners (like the Plaintiffs here); they were “Care
21
Management Employees” (RJN, ¶ 5, Exh. 5), “Utilization Review Employees”
22
(Id. at ¶¶ 1-4, 6, Exh. 1-4, 6), and “Care Coordination Employees” (Id. at ¶ 7,
23
Exh. 7).
24
Despite having wildly divergent jobs, Plaintiffs simply borrowed—
25
verbatim—the core allegations made by these other plaintiffs. Compare ECF
26
No. 27-1, pp. 1-3, ¶¶ 5, 7-8, 10-17; RJN, Exh. 5, pp. 88-90, ¶¶ 3, 5-7 10-13; Id. at
27
2
28
Although not all disability plans Matrix administers are ERISA plans, Matrix expects its examiners to apply ERISA’s standards to all disability claims. 10
Ex. 2, p. 15
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 16 of 22
1
Exh. 6, pp. 93-95, ¶¶ 3, 6, 8-13; and Id. at Exh. 7, pp. 105-107, ¶¶ 3, 5-7, 9-12.
2
Every declarant, for example, states that “I was a rule follower, not a rule maker
3
and had no role or involvement in creating or changing the policies, procedures,
4
guidelines and criteria that Defendant required me to follow and apply to
5
perform my [job]. Rather, I was required to strictly apply Defendant’s
6
designated procedures, guidelines and criteria in performing my [job].” ECF No.
7
27-1, p. 2, ¶ 10; RJN, Exh. 6, p. 94, ¶ 8; and Id. at Exh. 7, p. 106, ¶ 6. Every
8
declarant “performed work in accordance with defendant’s policies, procedures,
9
guidelines, and criteria/guidelines embedded in computer software [and]
10
provided training on how to use these decision-making tools—which detailed a
11
course of action for nearly every contingency I encountered during my
12
employment.” ECF No. 27-1, pp. 1-2, ¶ 7; RJN, Exh. 5, p. 88, ¶ 5; Id. at Exh. 6, p.
13
94, ¶ 6; and Id. at Exh. 7, p. 106, ¶ 5. And so on.
14
The fact that these declarations can supposedly be used interchangeably—
15
regardless of job position, industry, or employer—confirms that the declarations
16
are empty and implausible. Because the declarations are so generic, they do not
17
show why Plaintiffs are similarly situated to the actual class they seek to certify.
18
Instead, Plaintiffs appear to be banking on the fact that because conditional
19
certification is a low hurdle, the Court will “rubber stamp” their request for
20
certification. But it is the quality of the declarations—not the quantity—that
21
matters. And Plaintiffs’ rote declarations do not even clear the low hurdle of
22
conditional certification. See Trinh, 2008 U.S. Dist. LEXIS 33016 at *8
23
(plaintiffs must provide specific allegations to justify conditional certification).
24
II.
25
Plaintiffs have not identified any common unlawful policies. The merits of Plaintiffs’ individual claims are not the focus of conditional
26
certification. But Plaintiffs must still show that they and the collective they seek
27
to represent were “victims of a common policy or plan that violated the law.”
28
Felix, 2008 WL 4104261 at *6. “Neither the remedial purposes of the FLSA, nor 11
Ex. 2, p. 16
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 17 of 22
1
the interests of judicial economy, would be advanced if [the court] were to
2
overlook facts which generally suggest that a collective action is improper.”
3
Longnecker v. Am. Express Co., 2014 U.S. Dist. LEXIS 114501, at *18 (D. Ariz.
4
Aug. 18, 2014); Blaney v. Charlotte-Mecklenburg Hosp. Auth., 2011 WL 4351631,
5
at *10 (W.D.N.C. Sept 16, 2011) (notice should not issue when the court would
6
inevitably need to decertify the class).
7
In the context of a misclassification claim, “merely alleging that a class of
8
employees was wrongly designated ‘exempt’ does not constitute a showing of an
9
unlawful, institution-wide policy.” Litty v. Merrill Lynch & Co., 2015 U.S. Dist.
10
LEXIS 74693, at *21-22 (C.D. Cal. Apr. 27, 2015) (collecting cases). Otherwise,
11
“every case brought before the courts alleging improper designation as non-
12
exempt employees would automatically qualify for conditional certification.”
13
Chemi v. Champion Mortg., 2006 U.S. Dist. LEXIS 100917, at *12 (D.N.J. June
14
19, 2006).
15
Here, Plaintiffs advance two misclassifications theories: (1) Plaintiffs had
16
no meaningful discretion (and were therefore misclassified as exempt) because
17
they were required to follow Matrix’s guidelines and estimating software; and
18
(2) Plaintiffs were actually production workers (not administrative employees)
19
because Matrix is akin to a third-party claims adjuster. But the Ninth Circuit
20
has already rejected both of these theories, so the allegations—even if true—do
21
not identify an unlawful policy.
22 23
A.
Requiring employees to use guidelines and estimating software does not make them non-exempt.
24
Even if Matrix did require Plaintiffs to follow specific guidelines when
25
adjudicating claims and to use estimating software when paying claims, “the
26
fact that the plaintiffs had to follow [defendant’s] guidelines and used estimating
27
software does not make them non-exempt employees.” In re Allstate Ins. Co. Fair
28
Labor Stds. Litig. v. Allstate Ins. Co., Nos. 1541, 2007 U.S.Dist.LEXIS 58442, at 12
Ex. 2, p. 17
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 18 of 22
1
*41-42 (D.Ariz. Aug. 6, 2007.) (citing Cheatham v. Allstate Insurance Co., 465
2
F.3d 578, 585 (5th Cir. 2006) (“[T]he requirement that Allstate adjusters must
3
consult with manuals or guidelines does not preclude their exercise of discretion
4
and independent judgment.”).
5
The Ninth Circuit has emphasized this point, repeatedly: “[T]he use of
6
computer software to estimate claims does not eliminate the need for discretion
7
and judgment any more than does resort to other reference works or to the
8
opinions of appraisers and other experts. An obligation to utilize specific
9
computer programs or to refer to reference manuals and guidelines does not
10
necessarily prevent an employee from exercising independent discretion or
11
judgment.” Miller v. Farmers Ins. Exch. (In re Farmers Ins. Exch.), 481 F.3d
12
1119, 1130 (9th Cir. 2007); Dannenbring v. Wynn Las Vegas, LLC 646 F.App’x
13
556, 557 (9th Cir. 2016) (imposing guidelines on employees does not make them
14
exempt and the term “discretion and independent judgment” does not require
15
that the decisions made by an employee have a finality that goes with unlimited
16
authority and a complete absence of review); Bucklin v. Zurich Am. Ins. Co., 619
17
F.App’x 574, 576-577 (9th Cir. 2015) (“That appellants’ discretion was restricted
18
by Zurich’s best practices manual does not negate the undisputed fact that
19
appellants regularly exercised discretion and independent judgment.”). Because
20
the Ninth Circuit has squarely addressed this issue, Plaintiffs’ reliance on
21
supposedly contrary decisions from courts outside this circuit is unavailing.
22
B.
23
Plaintiffs’ second theory of liability is that Matrix could not classify
24
Plaintiffs—or any putative class members—as exempt under the administrative
25
exemption test because they are essentially production workers, not
26
administrative employees. The Ninth Circuit has rejected this theory too.
27
In Miller, the plaintiffs (claims adjusters) argued that because they
28
worked for the claims-handling arm of Farmers, they were merely handling the
Matrix’s claims examiners are not production workers.
13
Ex. 2, p. 18
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 19 of 22
1
day-to-day business of the company and thus fell “on the production side of the
2
‘administrative/ production worker dichotomy.’ ” 481 F.3d at 1131. The Ninth
3
Circuit disagreed: “What matters is that [the plaintiffs] represent [their
4
employer] to the public through their handling of claims,” which “directly
5
impacts [their employer’s] customer base” and substantially affects business
6
operations. Id.; see also CFR § 541.205(b) (2004) (“the administrative operations
7
of the business include the work performed by so-called white-collar employees
8
engaged in ‘servicing’ a business as, for example, . . . negotiating [and]
9
representing the company”).
10
The Department of Labor has also rejected plaintiffs’ theory: “The
11
administrative exemption turns on how employees spend their day, not who
12
signs their paycheck. See 29 C.F.R. § 541.205(d). . . [T]he 2004 regulations make
13
it clear that ‘insurance claims adjusters generally meet the duties requirements
14
for the administrative exemption, whether they work for an insurance company
15
or other type of company.’ ” Id. citing 29 C.F.R. § 541.203(a) (2006) (emphasis
16
added). DOL Wage & Hour Div. Op. Ltr. FLSA2005-25, at 4 (Aug. 26, 2005); see
17
also Roe-Midgett v. CC Servs., 512 F.3d 865, 872 (7th Cir. 2008) (rejecting claim
18
that third-party claims handlers were production workers; the “administrative
19
operations of a business” may be “those of the employer or the employer’s
20
customers”).
21
Here, as in Miller, the Plaintiffs “represent [Matrix] to the public through
22
their handling of claims,” which “directly impacts [Matrix’s] customer base” and
23
affects Matrix’s business operations. 481 F.3d at 1131. Like the adjusters in
24
Miller, the Plaintiffs interview claimants, review policies and plan terms,
25
evaluate claims against the backdrop of applicable laws and regulations, and
26
determine whether to approve claims. (Pheil Decl. ¶¶14-18; Denton Decl. ¶¶ 11-
27
15; Freese Decl. ¶¶ 7-40.) In short, Plaintiffs are “negotiating [and] representing
28 14
Ex. 2, p. 19
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 20 of 22
1
the company” and are thus administrative employees, not production workers.3
2
CFR § 541.205(b); Pheil Decl. ¶ 25; Denton Decl. ¶¶ 28-29.
3
III.
4
Issuing notice would not promote judicial economy because Plaintiffs’ claims raise inherently individualized issues. Where “the ultimate issue to be decided is whether each employee was
5 6
properly classified as exempt under the FLSA, the ‘similarly situated’ inquiry
7
must be analyzed in terms of the nature of each putative plaintiff’s job duties,’
8
even at the conditional certification stage.” Litty, 2015 U.S. Dist. LEXIS 74693
9
at *20-21 (quoting Trinh, 2008 U.S. Dist. LEXIS 33016 at *13.) Here, that inquiry inherently raises individualized issues, especially
10 11
because Plaintiffs have cast such a wide net. Adjudicating claims involving a
12
nationwide class and 22 different jobs will demand something more than a one-
13
size-fits-all approach. See Ortiz v. Amazon.com LLC, 2018 U.S. Dist. LEXIS
14
229693, at *9 (N.D. Cal. Jan. 12, 2018) (“Because the class is defined so broadly,”
15
plaintiff could not show proposed class members were similarly situated). Indeed, even when there is only one job at issue, courts have repeatedly
16 17
denied conditional certification of misclassification claims due to the
18
individualized inquiries that the misclassification analysis requires. See Pfohl v.
19
Farmers Ins. Group, 2004 U.S. Dist. LEXIS 6447, at *27 (C.D. Cal. Mar. 1, 2004)
20
(determining whether insurance adjusters met the administrative exemption
21
required individualized issues precluding conditional certification); Litty, 2015
22
U.S. Dist. LEXIS 74693 at *21 (denying conditional certification, even with only
23
one job category at issue, because adjudicating misclassification question would
24
raise individualized inquiries); Chemi v. Champion Mortgage, 2006 U.S. Dist.
25
LEXIS 100917 at *9 (denying collective action notice because “any
26
determination of whether an employee is properly exempted under the FLSA
27
3
28
Because the Ninth Circuit has already addressed this issue, Plaintiffs’ references to district court decisions in other Circuits is irrelevant. 15
Ex. 2, p. 20
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 21 of 22
1
involves a fact-intensive inquiry into each putative class member's employment
2
circumstances.”); Holt v. Rite Aid Corp., 333 F.Supp.2d 1265, 1272 (M.D. Ala.
3
2004) (denying collective action notice because court would need to individually
4
evaluate duties of each store manager).
5
IV.
Plaintiffs’ proposed notice and notice plan is flawed. Even if the Court believes that Plaintiffs have satisfied their burden as to
6 7
some group of employees, the scope of Plaintiffs’ proposed notice is overbroad
8
because it encompasses numerous jobs that Plaintiffs did not hold (e.g., STD
9
examiner) and workers in offices where Plaintiffs never worked. See, e.g., Fenn
10
v. Hewlett-Packard Co., 2012 U.S. Dist. LEXIS 69398, at *8 (D. Idaho May 17,
11
2012) (excluding employees who did not work in Plaintiffs’ building from notice).
12
The proposed form of notice is also improper because it (1) proposes a
13
longer-than-normal opt-in period without explaining why the customary 45-day
14
period is inadequate;4 (2) requests multiple forms of notice (i.e., text, email, and
15
mail) when U.S. Mail is sufficient;5 (3) does not plainly inform potential opt-ins
16
that they may be required to participate in discovery and pay litigation costs;6
17
and (4) puts Plaintiffs’ counsel in the position of handling the notice process,
18
instead of a third-party administrator.7 Thus, if the Court authorizes any notice,
19 20 21 22 23 24 25 26 27 28
Madrid v. TeleNetwork Partners, Ltd., 2019 U.S. Dist. LEXIS 123653, at *5 (N.D. Cal. July 23, 2019) (45-day opt in period);Bados Madrid v. Peak Constr., Inc., 2009 WL 2983193, at *3 (D. Ariz. Sept. 17, 2009) (45-day deadline is reasonable); Morales v. Allied Bldg. Crafts, 2005 U.S. Dist. LEXIS 59399, at *15 (D. Nev. Mar. 16, 2005) (same).
4
Stickle v. SCI W. Mkt. Supprt Ctr., 2009 WL 3241790, at *7 (D. Ariz. Sept. 30, 2009) (denying notice by email).
5
Hoffman v. Securitas Sec. Servs., No. CV07-502-S-EJL, 2008 WL 5054684, at *15 (D. Idaho Aug. 27, 2008); Bah v. Shoe Mania, Inc., 2009 WL 1357223, at *4 (S.D.N.Y. May 13, 2009) (notice must inform potential opt-ins that they may need to appear for deposition, respond to written discovery, testify at trial and pay litigation costs).
6
7
Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124, 1128-29 (N.D. Cal. 2009). 16
Ex. 2, p. 21
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Case 2:20-cv-00884-SPL Document 33 Filed 10/01/20 Page 22 of 22
1
it should order the parties to meet and confer to fashion a mutually acceptable
2
notice and notice plan.
3
CONCLUSION
4
Because Plaintiffs have failed to show that they are similarly situated,
5
and that there is some common unlawful practice that has the potential to be
6
adjudicated on a classwide basis, the Court should deny their motion for
7
conditional certification.
8 9 10 11 12
Dated: October 1, 2020
DUANE MORRIS LLP By: /s/ Aaron T. Winn Aaron T. Winn Attorneys for Defendant Matrix Absence Management, Inc.
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
Ex. 2, p. 22
MATRIX’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION