United States District Court, D. Kansas
BEAU CHARBONNEAU, on behalf of himself and all others similarly situated, Plaintiff,
MORTGAGE LENDERS OF AMERICA L.L.C., Defendant.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
Beau Charbonneau brings this putative collective action under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201, et seq., claiming that his former
employer-defendant Mortgage Lenders of America
L.L.C.-misclassified a certain employment position
(“team lead”) as an exempt position. Plaintiff
also claims that defendant requires non-exempt employees
(specifically, loan officers) to perform work off the clock,
without pay. Plaintiff has worked for defendant in both
capacities-as a team lead and as a loan officer. This matter
is before the court on plaintiff's Motion for Conditional
Class Certification of Class Claims Under § 216(b) of
the FLSA (Doc. 36). Plaintiff seeks conditional certification
of two separate FLSA classes: team leads and loan officers.
For the following reasons, the court grants the motion.
certification of a class under the FLSA requires compliance
with the FLSA collective action mechanism, which states:
“An action to recover the liability prescribed in
either of the preceding sentences may be maintained . . . by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated.” 29
U.S.C. § 216(b). Whether an employee may maintain a
§ 216(b) collective action, then, depends on whether he
or she is “similarly situated” to other members
of the putative class. Although § 216(b) does not define
the term “similarly situated, ” the Tenth Circuit
has endorsed the ad hoc method of determination. Thiessen
v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th
the ad hoc method, “a court typically makes an initial
‘notice stage' determination of whether plaintiffs
are ‘similarly situated.'” Id. at
1102 (citation omitted). This initial determination
“‘require[s] nothing more than substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan.'”
Id. (citation omitted); see also Hadley v.
Wintrust Mortg. Corp., No. 10-2574-EFM, 2011 WL 4600623,
at *2 (D. Kan. Oct. 3, 2011); Shockey v. Huhtamaki,
Inc., 730 F.Supp.2d 1298, 1300 (D. Kan. 2010). This
standard is a lenient one. Williams v. Sprint/United
Mgmt. Co., 222 F.R.D. 483, 485 (D. Kan. 2004).
the court has minimal evidence, [the notice stage]
determination . . . typically results in ‘conditional
certification' of a representative class.”
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th
Cir. 1995). The “similarly situated” standard is
considerably less stringent than Rule 23(b)(3) class action
standards. Grayson v. K-Mart Corp., 79 F.3d 1086,
1096 (11th Cir. 1996). Ordinarily, the court makes the
determination fairly early in the litigation, before the
parties complete discovery. Brown v. Money Tree Mortg.,
Inc., 222 F.R.D. 676, 679 (D. Kan. 2004). And in making
the determination, the court does not reach the merits of the
plaintiff's claims. Renfro v. Spartan Computer
Servs., Inc., 243 F.R.D. 431, 435 (D. Kan. 2007);
Hoffman v. Sbarro, Inc., 982 F.Supp. 249, 262
(S.D.N.Y. 1997) (citation omitted). But a plaintiff must
provide more than speculative allegations. Stubbs v.
McDonald's Corp., 227 F.R.D. 661, 666 (D. Kan.
2004). And “conclusory and general allegations”
are insufficient. Blancarte v. Provider Plus, Inc.,
No. 11-2567-JAR, 2012 WL 4442641, at *4 (D. Kan. Sept. 26,
court must therefore determine whether plaintiff has offered
substantial allegations that members of each putative class
are similarly situated.
Misclassification of Team Leads as Exempt
classifies its team leads as exempt, thereby denying them
overtime compensation. Plaintiff claims that the primary duty
of team leads is to sell mortgages. They regularly work over
forty hours a week. Defendant is aware of team leads'
excess hours because defendant directs its customers to
contact team leads on their personal cell phones and sees the
team leads' loan production results.
does not pay team leads at least $455 per week on a salary
basis. Instead, team leads receive a $1, 000 recoverable
monthly draw. Team leads receive a monthly amount equal to
$175 times the number of members on each lead's team.
Defendant then nets out the monthly amount from the $1, 000
recoverable draw. Because of this pay structure, plaintiff
argues, team leads do not qualify for a white collar FLSA
leads also get commissions from their own sales and the sales
of the loan officers assigned to their teams. But defendant
withholds certain fees from the team leads' wages.
Plaintiff claims that this compensation structure is
to plaintiff, team leads do not regularly supervise and
manage the work of their team members. They offer
encouragement, assistance, and support, but they primarily
spend their time selling loans. Team leads do not exercise
discretion and independent judgment on significant matters.
They implement and follow federal guidelines and
defendant's policies and procedures.
leads share common job duties and descriptions. Defendant has
presented evidence that the duties are different than what
plaintiff represents, but defendant's evidence still
suggests that team leads share common duties-whatever those
duties ultimately are shown to be. As noted above, team leads
are classified as exempt employees and perform work without
overtime compensation. And ...