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Blakes v. Illinois Bell Telephone Co.

United States District Court, Seventh Circuit

December 17, 2013

ILLINOIS BELL TELEPHONE COMPANY, d/b/a AT&T Illinois, Defendant. for themselves and on behalf of similarly situated others, Plaintiffs,


YOUNG B. KIM, Magistrate Judge.

James Blakes, Steven Clark, Herman Deckys, Bradley Hunt, Phillipe Porter, Ernest Roberts, Jr., and Larry Williams (collectively, "the named plaintiffs") brought this purported collective action against Illinois Bell Telephone Company ("Illinois Bell") under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., claiming that Illinois Bell systematically fails to pay its cable splicers for all of the time they work, including overtime. After this court conditionally certified the named plaintiffs' proposed class of allegedly similarly situated cable splicers, the case proceeded through the close of discovery. Now before the court is Illinois Bell's motion to decertify the class. The motion is granted in part and denied in part for the following reasons:

Procedural History

The named plaintiffs filed their amended complaint in February 2011, claiming that Illinois Bell violates the FLSA by requiring cable splicers to include a half-hour lunch break on their time sheets whether or not they actually take a break, unless they receive a supervisor's preapproval to work through lunch.[1] (R. 11, Am. Compl. ¶¶ 17-18.) They further alleged that management routinely disciplines cable splicers for seeking overtime compensation for hours that were not pre-approved, and as a result, cable splicers regularly underreport the hours they work. ( Id. ¶¶ 19-20.) In describing the policies that require them to work through lunch, the named plaintiffs alleged that they are required to maintain the security of job sites and travel between job sites even during their lunch hours. ( Id. ¶ 26.) They also alleged that because of restrictions governing when they can return to their garage at the end of a shift, and because of an alleged shortage of garage computers, they often have to work beyond their scheduled shift to enter their time on Illinois Bell's computer system. ( Id. ¶¶ 27-30.) As relief for these alleged overtime violations, the named plaintiffs sought a declaratory judgment stating that Illinois Bell's actions are unlawful, as well as damages on behalf of all similarly situated people who opt into the action. ( Id. ¶ 50.)

After the parties consented to this court's jurisdiction, see 28 U.S.C. § 636(c); (R. 21), the named plaintiffs moved the court for conditional certification under 29 U.S.C. § 216(b), arguing that they should be permitted to issue a judicially supervised notice to similarly situated cable splicers allowing them the opportunity to opt into the suit. (R. 34, Pls.' Mot. at 1-2.) In support of their motion the named plaintiffs submitted similar declarations asserting that they rarely are able to take an uninterrupted 30-minute lunch break because they have to maintain the security of a job site or travel from job site to job site. ( Id. at 5 & Exs. 1-7.) The notice they sought to distribute to potential opt-in plaintiffs described the suit as seeking back-pay for work that "includes, but is not limited to, working through meal breaks and completing time sheets at the end of the shift." ( Id. Ex. 8, Proposed Notice at 1.)

On June 15, 2011, this court issued an opinion granting the motion for conditional certification in part and denying it in part. See Blakes v. Illinois Bell Tel. Co., 11 CV 336, 2011 WL 2446598, at *10 (N.D. Ill. June 15, 2011). Applying the lenient standard that pertains to conditional certification, this court determined that the named plaintiffs had made a modest showing that Illinois Bell's policy requiring cable splicers to maintain the security of their job sites routinely interfered with their lunch breaks. Id. at *3. The court characterized the claim that cable splicers miss lunch because of inter-site travel as being "[o]n shakier ground, " but found the evidence sufficient to justify issuing notice on that claim as well. Id. at *4. Finally, the court agreed that the named plaintiffs had made a sufficient showing that cable splicers are similarly forced to work past the end of their shifts to complete time sheets. Id. This court agreed with Illinois Bell, however, that the proposed notice's language reached too far in describing unpaid work as that which "includes, but is not limited to, " working through meal breaks and completing time sheets post-shift. Id. at *8. Noting that the case is about unpaid lunch breaks and post-shift completion of time sheets, not "any possible FLSA claim under the sun, " this court ordered the named plaintiffs to excise the "but is not limited to" language from the proposed notice. Id.

Following the court's conditional certification order the named plaintiffs issued notice of the suit to more than 2, 000 potential opt-in plaintiffs. Ultimately, 346 opted in. ( See R. 196, Ex. UU, Zollman Decl. ¶ 3.) The litigation then entered the discovery phase and in December 2011 this court granted Illinois Bell permission to serve discovery on and depose 18 of the opt-in plaintiffs. (R. 139.)

In the fall of 2012 Illinois Bell sought a protective order barring the named plaintiffs from seeking information about its supervisors' and other managers' performance evaluations and compensation, arguing that such information "has nothing to do with the theories on which Plaintiffs moved for conditional certification and on which this Court authorized notice." (R. 180, Def.'s Mot. for Protective Ord. at 1-2.) At the hearing held on the motion Illinois Bell argued that the plaintiffs' discovery request showed that the "DNA of the claims in this case ha[s] changed" and that the plaintiffs were seeking information for a new, different claim based on productivity and efficiency standards. (R. 197, Nov. 13, 2013 Hearing Tr. at 4-7.) This court agreed that the efficiency theory represented a significant shift. In its order granting the motion, the court noted that the issues on which it had granted conditional certification included:

whether Plaintiffs worked through their lunch breaks, whether they spent time completing the required time sheets post-shift, and whether they were denied compensation in violation of FLSA. The information Plaintiffs now seek-performance evaluation factors that may have encouraged and motivated first level supervisors and managers to impose unreasonable efficiency goals for their subordinate cable splicers-is not relevant to resolve these issues.

Blakes v. AT&T Corp., 11 CV 336, 2012 WL 5862747, at *1 (N.D. Ill. Nov. 19, 2012). Because this court agreed that the information regarding managers' and supervisors' performance evaluations and compensation criteria are irrelevant to the named plaintiffs' claims, this court granted Illinois Bell the requested protective order. Id.

After the protective order was entered the parties engaged in expert discovery and this litigation moved into the decertification phase. The parties have submitted hundreds of pages of briefing on Illinois Bell's motion to decertify the class, accompanied by thousands of pages of exhibits, including competing expert reports. In rendering this decision, the court has considered the allegations in the complaint and the declarations, deposition excerpts, and other materials submitted in support of the parties' positions.


An Illinois Bell cable splicer's primary job is to install, maintain, and repair Illinois Bell's network of cable, fiber optics, and telephone services. (R. 11, Am. Compl. ¶ 10.) The cable splicers who opted into this lawsuit have been assigned to 48 different garages and have worked underneath approximately 209 different supervisors or acting supervisors. (R. 196, Ex. UU, Zollman Decl. ¶¶ 3-4.) They also have worked in one (or in some cases, more than one) of the following capacities: as a copper and fiber cable splicer, as a DAVAR tech, or as a member of the Digital Electronics Group ("DEG"). Copper and fiber cable splicers perform a significant amount of their work underground in manholes, requiring them to set up and tear down their job sites at the beginning and end of an assignment. (R. 217, Pls.' Resp., Ex. 46, Harn Dep. at 227:18-230:3.) A DAVAR tech is responsible for verifying and testing the quality of cable pairs. ( Id. Ex. 19, Anderson Dep. at 20-21.) The DAVAR tech is also responsible for maintaining the security of the equipment used to perform the assigned testing, which includes two computer terminals. ( Id. at 108:17-22.) A DEG tech installs, maintains, and troubleshoots end-user equipment for Illinois Bell's customers. ( Id. Ex. 21, Palenske Dep. at 10:12-10:15.) DEG techs use a computer to check on equipment needs and to complete paperwork. ( Id. at 23:20-24:23.)

A. Illinois Bell's Official Lunch Break and Route Policies

Illinois Bell's official wage policy is that cable splicers should receive a daily, unpaid lunch break between the third and sixth hour of their shift. ( Id. Ex. 32, 2008 Telecom Operations at 3.) That policy is codified in its collective bargaining agreement ("CBA") with the cable splicers' union. ( Id. Ex. 34, CBA § 17:10.) Consistent with that policy, cable splicers are required to seek and receive preapproval before working through their daily lunch break. (R. 196, Ex. SS, Zang Decl. Ex. 1.)

Several Illinois Bell policies officially reinforce the idea that cable splicers are required to report when they work through lunch or before or after a shift, regardless of whether they have received preapproval. ( See id.) The Illinois Bell Code of Business Conduct provides that:

[n]onexempt (overtime eligible) employees must accurately report all hours worked each day and each week and may not work overtime unless it is approved by a supervisor in advance. However, all overtime hours worked by nonexempt employees must be paid regardless of whether they were approved. Managers are prohibited from requiring or permitting nonexempt employees to work off the clock.'

(Id.) The Code of Business Conduct lists working through lunch periods or before or after a scheduled shift as examples of compensable time. (Id.) It also makes clear that employees should not work off the clock "voluntarily, " reiterating that "working off the clock is never permitted." (Id.) Illinois Bell's 2008 Telecom Operations Non-Management Employee Expectations guidelines make clear that cable splicers "are responsible for submitting accurate and complete daily timesheets at the end of their shift" and that "[t]ime documented must match the time actually worked." (R. 217, Ex. 32, 2008 Telecom Operations at 2.) All cable splicers are required to sign forms acknowledging that they have received FLSA training and that they understand that they must "always report all hours worked." ( See, e.g., R. 196, Ex. WWW.)

Illinois Bell also has policies that govern whether a cable splicer can leave a job site or assignment to take a lunch break on a given day. The 2008 Telecom Operations Non-Management Employee Expectations state that cable splicers:

working in the underground may not break down the work location to travel to lunch. Underground locations may not be left unattended. Lunches should be carried in this situation. Employees desiring to take other than the approved lunch must obtain approval from their manager.

(R. 217, Ex. 32, 2008 Telecom Operations at 3.) According to the CBA, if a job assignment "does not permit the employee to leave the building or job site/assignment, it is assumed no lunch period has been taken." ( Id. Ex. 34, CBA § 17:11.) When the cable splicer is confined to a job site during lunch, the CBA states that the cable splicer "will be permitted reasonable paid time to eat on the job." (Id.)

Illinois Bell policies also dictate when cable splicers are expected to leave and return to their garage at the start and end of their shifts. Specifically, they are required to arrive at their reporting location at the start of their shift and to leave for their first job immediately after receiving the day's assignment. ( Id. Ex. 33, CT Expectations at 1.) Illinois Bell expects cable splicers to leave their garage within 15 minutes of the start of their shift and return 15 minutes prior to its end. ( Id. Ex. 32, 2008 Telecom Operations at 2.) Illinois Bell also expects its cable splicers to use the time between their return to the garage and the end of their shift to "gas and stock their truck and to order supplies for the next day." (Id.) They are also supposed to use that time to enter their hours worked into the time-recording system. ( Id. Ex. 33, CT Expectations at 1.)

B. Illinois Bell's Time-Recording System

Illinois Bell uses a system called JAM to record cable splicers' work hours. (R. 217, Ex. 55, JAM OSP at 1.) Instead of following a traditional punch-in/punch-out format, JAM measures the hours worked by task so that Illinois Bell can determine how much time individual cable splicers are spending to perform specific tasks. ( Id. at 6, Id. Ex. 47, Johnson Dep. 319:18-319:20.) In completing their JAM time sheets, cable splicers are asked to account for all of the hours associated with their daily schedule and to divide the hours worked into particular tasks. ( Id. Ex. 49, Severson Dep. at 63:9-63:22.) The hours allocated to tasks are supposed to total the scheduled hours worked, but there is a code that cable splicers can use to enter overtime beyond the scheduled hours. ( Id. at 63:9-64:3, 67:23-68:4.) An Illinois Bell document conveying the answers to JAM-related "frequently asked questions" makes it clear that if a cable splicer "enters a known incorrect value into his timesheet, he is falsifying his timesheet." (R. 226, Def.'s Reply, Ex. Y, JAM FAQ at 8.) Illinois Bell also uses the information cable splicers input into JAM to rate their efficiency. This efficiency rating is done through the MSOC system. (R. 217, Ex. 48, Macon Dep. at 109-113:3.)


In February 2010 Illinois Bell began using a methodology called "MSOC" to evaluate its cable splicers' performance, including their efficiency. ( Id. at 71:10-72:2.) MSOC establishes a uniform measurement system using Key Measurement Indicators, or "KMIs, " to hold employees accountable for their performance and to shape their behavior. ( Id. Ex. 51, MSOC 5 KMIs at 1.) KMIs include an efficiency measure that evaluates the hours it should have taken to complete a task divided by the time an employee reported to complete the task. They also include a productivity measure that analyzes the hours it should have taken to complete a task divided by the total hours paid. ( Id. Ex. 48, Macon Dep. 98:14-99:5.) Illinois Bell uses the KMIs to rank cable splicers into quintiles based on their efficiency. ( Id. at 165:1-165:15.) A cable splicer whose efficiency ranks in the bottom quintile will find himself the subject of added supervisor scrutiny. ( Id. at 165:5-167:3.) The parties dispute whether that scrutiny amounts to discipline or a threat of discipline.


Subject to certain limitations inapplicable here, the FLSA requires employers to pay their employees at a rate of one and one-half times their regular pay rate for any hours worked over 40 hours in a given week. 29 U.S.C. §§ 207, 213; Schaefer-LaRose v. Eli Lilly & Co., 679 F.3d 560, 572 (7th Cir. 2012). Employees who believe that their employer has violated that requirement are entitled to "bring a private cause of action on their own behalf and on behalf of other employees similarly situated." Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1527 (2013) (internal quotation omitted); see also Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010). District courts typically follow a two-step process to get to the bottom of that question, involving conditional certification of a class pre-discovery followed by a second look at whether collective treatment is appropriate after the parties have engaged in discovery. Strait v. Belcan Eng'g Grp., Inc., 911 F.Supp.2d 709, 718 (N.D. Ill. 2012). Here, the plaintiffs passed through the conditional certification stage by making the requisite "modest factual showing" of similarity. See Camilotes v. Resurrection Health Care Corp., 286 F.R.D. 339, 345 (N.D. Ill. 2012) (quotation omitted). But now that they have navigated through extensive discovery and arrived at the second stage, the plaintiffs are subject to a stricter, more probing inquiry into whether they are in fact similarly situated. See id.

In moving to decertify the conditionally certified class of cable splicers, Illinois Bell argues that discovery has shown that the plaintiffs' experiences in working through lunch or before or after their shifts are so varied that individualized inquiries inevitably will outweigh any efficiency benefits that could be gained by pursuing the case as a collective action. They argue that to the extent the plaintiffs claim that MSOC-related efficiency pressures force them to work off the clock, that theory is both outside the scope of this court's conditional certification order and unworkable on a class-wide basis. They further argue that the plaintiffs' remaining theories-that cable splicers work through lunch because they have to maintain job-site security or travel between sites, or that they work post-shift because they are unable to enter their hours before their shift ends-rest on factors that vary among garages, supervisors, and the particulars of the plaintiffs' daily job assignments.

In responding to the decertification motion, the plaintiffs argue that they are similarly situated with respect to "two primary indicia of liability." (R. 230, Pls.' Sur-Reply at 3.) First, they assert that the MSOC and JAM time-reporting systems uniformly result in cable splicers hiding their time to avoid being disciplined for failing to meet what they characterize as impossible efficiency goals. In other words, they argue that all of the opt-in cable splicers underreport the time it takes them to complete their daily tasks in order to avoid the bottom efficiency quintile, causing them to forego compensation they are due, including overtime. Second, they argue that cable splicers work through lunch or before or after shifts for reasons that are specific to three sub-classes: cable and fiber splicers, DAG techs, and DAVAR techs. Specifically, they argue that plaintiffs in each of these sub-groups are forced to work through lunch because Illinois Bell requires them to monitor manholes and expensive equipment. (Id.)

Interspersed throughout the briefing on the motion to decertify is the parties' back-and-forth over whether this court should disregard the expert reports submitted by Dr. Robert Bardwell on behalf of the plaintiffs and Dr. John Henry Johnson IV on behalf of Illinois Bell.[2] Accordingly, before getting to the merits of the parties' ...

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