United States District Court, N.D. Illinois, Eastern Division
MARISELI GOMEZ, individually and on behalf of all others similarly situated, Plaintiff,
PNC BANK, NATIONAL ASSOCIATION, Defendant. Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Mariseli Gomez Bell alleges that her former employer, PNC Bank, failed to pay her overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq., and the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. R. 1. In addition to her individual claims, Bell also brings her action on behalf of all others similarly situated, and moves to have the Court certify a class of plaintiffs pursuant to Federal Rule of Civil Procedure 23(b)(3) and a collective action pursuant to 29 U.S.C. § 216(b). R. 63. For the following reasons, Bell's motion is granted.
Bell worked as a Senior Banker at PNC's branch at Broadway & Berwyn in Chicago from June 1, 2009 through May 31, 2011. R. 65 at APX1 (¶ 2). Bell has submitted an affidavit describing her personal knowledge of PNC's overtime policies and practices. See id. at APX1-7. In her affidavit, Bell states that her "performance was evaluated (in part) based on how many new accounts [she] brought to the bank, " and PNC gave her "targets for the number of accounts [she] was expected to open." Id. at APX1 (¶ 4). Bell says "it became clear to [her]" that in order to generate new accounts she needed to spend "significant" time outside of her regular work hours visiting prospective clients. Id. at APX2 (¶¶ 5-6). Bell says that she had to do this because PNC had understaffed her branch to the point that the branch could not afford to have her be physically absent from the branch during her shift. See id. at APX3 (¶ 7). Some of Bell's assignments to visit prospective clients outside the branch building came from Greg Bloden, a PNC vice-president who did not work at Bell's branch. Id. at APX2 (¶ 5). Bell also says that understaffing at the Broadway & Berwyn branch often caused her to work through her lunch breaks. Id. at APX3-4 (¶¶ 8-9).
According to Bell, when she submitted time cards reflecting overtime work, Bell's branch manager, Letticia Flores, rejected the time cards and told Bell that PNC "would not permit the overtime." Id. at APX3 (¶ 6). Flores has also submitted an affidavit describing her personal knowledge of PNC's overtime policies and practices. See id. at APX8-11. In her affidavit, Flores states that her supervisor, Christina Romis, a PNC regional manager, told her that "PNC would not permit [Flores] to report overtime for the branch, " and "PNC expected its employees to handle their outside-the-branch work on their own time, without reporting any extra hours that they worked." Id. at APX10 (¶ 3d). Bell also says that Romis told her that PNC "would not permit overtime to be reported by employees." Id. at APX3 (¶ 6).
In January 2011, Margaret Alvarez, an Employee Relations Investigator for PNC, contacted Bell to ask her whether she had ever worked unpaid overtime hours, and Bell confirmed that she had done so. Id. at APX4 (¶ 10). Bell says that by fax on January 31, 2011, and in a phone conversation on February 1, 2011, Bell explained to Alvarez the circumstances of her unpaid overtime and that her time cards showing overtime had been rejected. Id. at APX4-5 (¶ 12). According to Bell, Alvarez told her that PNC "would not pay for hours that [Bell] could not support with documents." Id. at APX4 (¶ 10). On July 31, 2011, five months after Bell told Alvarez that she had worked unpaid overtime (and after Bell had resigned from PNC), Bell received an electronic deposit from PNC for $1, 392.89. Id. at APX6 (¶ 16). Separately, Bell learned through communications related to this litigation that this payment was intended to compensate her for 68.15 unpaid overtime hours. Id. at APX6 (¶ 17). Bell believes that this payment fails to compensate her for the actual number of unpaid overtime hours she worked for PNC in 2009 and 2010. Id.
PNC has produced investigation reports documenting complaints of unpaid overtime. The reports show that in addition to Bell, two other employees at the Broadway & Berwyn branch complained that they were not paid for overtime they worked. Ernest Ward claimed that he was not paid for 45.61 hours of overtime and that he was "discouraged from submitting [overtime]." R. 66 at APX276-77. The investigation into Ward's claims revealed that Flores did not want employees at her branch working overtime and, instead, offered Ward permission to leave work early as compensation. Id. at APX276-77. After the investigation, Ward was paid for 50.18 hours of overtime. Id. at APX278-80.
According to Alvarez, on January 3, 2013, PNC began to investigate whether Ward "enable[ed] branch employees to falsify bank referral reports." R. 73-1 ¶ 41. The next day, Ward filed a lawsuit against PNC for failure to pay overtime wages. See Ward v. PNC Bank, N.A., 13 C 95 (N.D. Ill.). PNC fired Ward on February 14, 2013. R. 73-1 ¶ 41.
PNC's investigation reports also show that Tess Claveria-another former employee of the Broadway & Berwyn branch-claimed that Flores refused to pay overtime and instead directed Claveria to leave work early on a later day in an attempt to compensate Claveria for overtime hours. See R. 65 at APX188-89. The investigation reports also show that Claveria claimed she was deprived of her full lunch hour on certain occasions. Id. Claveria sought compensation for 73.40 overtime hours, but PNC determined that she was owed only 8.02 overtime hours. Id. at APX154. Alvarez states that Claveria only received compensation for part of her claim because an analysis of "the teller electronic journals, alarm codes, log-in and log-out reports from payroll, and payroll reports for the dates Tess Claveria reported unpaid overtime or missed meal periods, " showed that Claveria "provided inconsistent statements and inflated the amount of time she allegedly worked." R. 73-1 ¶ 38. On December 26, 2012, PNC began to investigate whether Claveria "entered false information that enabled her to receive credit for unearned referrals and/or unearned incentive pay." Id. ¶ 39. Claveria opted into this lawsuit on January 23, 2013. See R. 44. PNC fired Claveria on February 14, 2013. R. 73-1 ¶ 39.
PNC fired branch manager Flores as a result of PNC's investigations into Bell, Ward, and Claveria's allegations of unpaid overtime. R. 73-1 ¶ 35. Bell testified that after Flores was fired, her new "manager [told Bell] that if [Bell] was working overtime to go ahead and report it." R. 65 at APX53 (145:17-23).
The investigation reports that PNC produced also show that some employees at other branches complained to PNC Employee Relations that they worked overtime for which they were not paid. PNC produced a table compiling these complaints and listing any overtime compensation PNC paid as a result of its internal investigations into these complaints. See R. 65 at APX153-58. Bell's counsel compared PNC's table to the investigation reports themselves and created a list of complaints found in the investigation reports that were not included in PNC's table, id. at APX159-60, and a list of employees who worked overtime but were not paid. Id. at APX161. The Court has reviewed PNC's table, Bell's counsel's lists, and the investigation reports themselves. The following is a summary of what this documentary evidence reveals regarding complaints of unpaid overtime made by employees at each branch included in the class Bell seeks to certify:
At the Algonquin branch, an employee alleged that he was not paid when he arrived early to work or when he traveled to customer locations to pass out flyers. R. 66 at APX302, APX308-09. The employee also stated, however, that the branch manager had never told him not to record overtime. Id. at APX308. Other employees at the branch stated that the employee purposefully arrived to work early so he could leave early. Id. at APX309. PNC told the employee he would need to provide documentation for any time for which he had not been paid, and the employee agreed that he would provide this if he could. Id. at APX302. The employee was fired for other misconduct unrelated to recording time, id. at APX301-02, and the employee never requested payment for unpaid hours.
At a Bloomington branch on Market Street & JC Parkway, an employee alleged that the branch manager planned to shift overtime hours to the following week to avoid paying overtime rates. R. 66 at APX314. PNC contacted the manager, and he denied having said he intended to shift hours in this manner and promised to clarify with the branch staff that overtime hours would not be shifted. Id.
At the Bolingbrook branch, a branch manager was informed that two employees had taken home information about new PNC products to study. When an employee noted that employees should receive overtime pay for such work, the branch manager said, "[W]e don't have that issue here at Bolingbrook." R. 66 at APX319-20. The manager was disciplined. Id. at APX321. The two employees did not request overtime pay, but PNC paid each of them an hour of overtime. R. 65 at APX155. Another employee stated that on rare occasions she did not record that she left work ten minutes late. R. 66 at APX328. PNC's records do not reflect that this employee requested overtime compensation for this time or that PNC paid her any such compensation.
At the Buffalo Grove branch, several employees reported that the branch manager told employees that "PNC does not allow overtime and overtime would only be paid to employees who were deserving of it." R. 66 at APX364. The manager also told employees to take extra paid vacation rather than paying overtime. Id. PNC fired the manager, R. 66 at APX362, and paid seven employees a total of 148.45 hours of overtime. R. 65 at APX154.
At the Carpentersville branch, an employee initially alleged that she had been denied a lunch break. The investigation revealed that the employee had formerly been allowed to take her lunch break late in the afternoon so she could pick up her son, but had been told she could no longer do this because it violated PNC policy. The employee confirmed that she was fully compensated for her lunch break and was not owed additional pay. R. 66 at APX418.
At a Chicago branch at 18th & Clark, an employee reported that her practice was to enter all of her time for the week at the beginning of the week and then adjust for any differences that occurred as the week progressed. R. 66 at APX424. She reported that on some occasions she worked past the time she had initially recorded but failed to adjust the time. Id. The employee stated that her branch manager never advised her not to record all the time she worked. Id. at APX424-25. PNC investigated whether the employee was owed any additional pay and determined that she was not. R. 65 at APX154.
At a Chicago branch at 35th & State, an employee alleged that she worked through lunch breaks, but she also stated that she always recorded the time she worked, and she did not allege that PNC had failed to pay her overtime she was owed. R. 66 at APX438. PNC's investigation revealed that the branch manager thought the employee was exempt from overtime pay, and the manager was issued a warning for this mistake. Id.
At a Chicago branch at 87th & Cottage Grove, an employee reported that the branch manager "made [the employee] feel as though she was not allowed to enter overtime on her time card, " but "never specifically directed her not to enter overtime." R. 66 at APX475. PNC fired the manager due to "extensive discrepancies in the time [the employee] entered as compared to the time she was logged into her computer" over a three-month period, and the manager was "ultimately responsible" for errant time reporting. Id. PNC paid the employee for 251.6 hours of overtime as a result of its investigation. R. 65 at APX154. PNC's investigator's notes also show that another employee alleged that her lunch breaks were frequently interrupted due to inadequate staffing. R. 66 at APX487. PNC's records do not reflect that this employee's allegations were addressed.
At a Chicago branch at LaSalle & Kinzie, the assistant branch manager reported that some employees had not reported overtime because "they may have been told there was no overtime.'" R. 67 at APX545. One employee reported that he did not always record his overtime because "he did not want the branch to incur overtime." Id. Another employee reported that she always recorded her time accurately. Id. Both employees stated that the branch manager communicated the importance of recording their time accurately, and no one had ever told them to enter time inaccurately. Id. Another employee consistently worked overtime and failed to record it, despite the manager telling the employee not to stay late and to accurately record his time if he did stay late. Id. at APX540. Alvarez states that this employee "was paid for all hours worked, " R. 73-1 ¶ 49, but PNC's list of overtime paid does not show that the employee was paid. R. 65 at APX154.
At a Chicago branch in Lincoln Park, an employee admitted that she sometimes interrupted her lunch break to assist customers. She did not allege that she was owed unpaid overtime or that her supervisor required her to interrupt her lunch break. R. 67 at APX557.
At a Chicago branch at Madison & Leavitt, an employee admitted that he sometimes interrupted his lunch break to assist customers and would take additional lunch break time to compensate. He did not allege that he was owed unpaid overtime or that his supervisor required him to interrupt his lunch break. R. 67 at APX564.
At a Chicago branch at North & Homan, several employees stated that the branch manager had interrupted their lunch breaks. R. 67 at APX570-71. The manager was disciplined with a verbal warning. Id. at APX571. None of the employees sought payment for unpaid off-the-clock hours, and PNC did not pay for any. R. 65 at APX157.
At a Chicago branch at State & Huron, an employee alleged that he had not been paid for work he did at home. R. 67 at APX577. The employee was advised that he was not permitted to work at home without approval of his manager. Id. The employee was paid for 0.30 hours of overtime. R. 65 at APX154.
Bell cites hand written notes of PNC investigators and alleges that these notes show that in 2009 at the Downers Grove branch on 75th Street, "employees reported that management refused to permit employees to record time for work performed before the bank opened, " R. 64 at 5 (citing R. 67 at APX583-84, APX588, APX593), and that "[e]mployees were not paid for pre-shift work." R. 64 at 7 (citing R. 67 at APX583-85). The Court, however, cannot decipher the hand written notes. Alvarez states that the investigation at the Downers Grove branch did not involve an allegation of unpaid overtime, but rather allegations that employees were arriving to work late but recording their time as if they had arrived on time. R. 73-9 at 8-9. Alvarez, however, does not cite any documents in the record to support these statements, nor does she explain why she would have personal knowledge of the investigation at the Downers Grove branch.
At the Elgin branch, an employee stated that "there used to be a rumor that the policy was if you had an outage and you did not find it you did not get paid for the time you took to look for the outage." R. 67 at APX599. The employee described this as an "unofficial rule." Id. The employee, however, also stated that he had recently attended a meeting at which a person from the PNC legal department explained that all overtime was to be paid. Id. The employee also stated that he has always been paid overtime, despite the rumor of an unofficial policy. Another employee initially alleged that she thought the branch manager told her not to record overtime, but that she missed a meeting at which the manager instructed the employees to record all overtime accurately. Id. at APX599-600. The employee initially thought she was owed 200 hours of overtime pay but later clarified that she was owed less than $200 of overtime pay. Id. at APX600. The employee agreed that she was in fact owed 3.45 hours of overtime, id., and PNC paid this. R. 65 at APX154.
At the Fox Lake branch, an anonymous employee reported that the branch manager required employees to report to work five minutes early and not record that time. R. 67 at APX612-13. PNC investigators spoke with two other employees at the branch and they said that the manager had never given such an instruction. Id. No employees requested payment for unpaid overtime, and PNC did not pay for any. R. 65 at APX154.
At the Loves Park branch, several employees reported that a former branch manager instructed them not to record overtime, but that their current manager instructed them to report any overtime they worked. R. 67 at APX623. Alvarez states that Employee Relations repeatedly asked the employees to report ...