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Pieksma v. Bridgeview Bank Mortgage Co. LLC

United States District Court, N.D. Illinois, Eastern Division

December 22, 2016

LYNN JEAN PIEKSMA, on behalf of herself and all others similarly situated, Plaintiff,


          JORGE L. ALONSO United States District Judge

         Before the Court is plaintiff's motion for conditional class certification [32] and defendants' motion to strike [52]. For the reasons set forth below, plaintiff's motion is granted and defendants' motion is denied.


         Plaintiff, Lynn Jean Pieksma, worked as a Mortgage Banker (“LO”)[1] at Bridgeview Bancorp, Inc.'s (“Bridgeview”) Irvine, California office from March 2013 through September 2013. (Pl.'s Mot., Ex. C ¶ 2 Pieksma Decl.) Pieksma alleges that Bridgeview and its subsidiary, Bridgeview Bank Mortgage Company, LLC, violated the Fair Labor Standards Act (“FLSA”) by failing to properly pay LOs minimum wage and/or overtime compensation for time worked off the clock and unlawfully deducting any minimum wages and overtime compensation from LOs' paid commissions. (Pl.'s Mot. at 2.) Pieksma brings these claims as a collective action on behalf of all non-exempt LOs who worked for defendants in the last three years and asks the Court to (1) grant conditional class certification for all current and former LOs and other like loan officers who worked for defendants for the last three years to the present; (2) allow Pieksma to act as class representative and appoint Rowdy Meeks Legal Group, LLC as class counsel; and (3) approve the provided notice and consent to class members, order defendants to post the notice at each of their branches, and to provide a list containing all class members' contact information within fourteen days of conditional certification. (Id. at 2, 5.) At the time plaintiff filed her motion, fifteen LOs from four of defendants' offices had joined this matter by filing consents. (Id. at 3.)[2] Defendants object and assert that Pieksma, like many of the other opt-in plaintiffs, recorded and was paid overtime during the time she worked for defendants. (Defs.' Mem. at 2.) Defendants also contend that between January 2013 and August 2015, they paid nearly $600, 000 in overtime to LOs and that in 2015 more than a third of LOs were reporting overtime. (Id.) According to defendants, these facts demonstrate that there was no class-wide bar to reporting overtime and conditional class certification should be denied. (Id.)


         The FLSA generally requires overtime pay for employees who work in excess of forty hours per week “unless they come within one of the various exemptions set forth in the Act.” Schaefer-LaRose v. Eli Lilly & Co., 679 F.3d 560, 572 (7th Cir. 2012) (citing 29 U.S.C. §§ 207, 213). The FLSA also permits collective actions by employees “on behalf of themselves and other similarly situated employees.” Alvarez v. City of Chi., 605 F.3d 445, 448 (7th Cir. 2010) (citing 29 U.S.C. § 216(b)). “[C]ourts in this district have commonly applied a two-part test to determine whether an FLSA claim may proceed as a collective action.” Binissia v. ABM Indus., Inc., No. 13 C 1230, 2014 WL 793111, at *3 (N.D. Ill. Feb. 26, 2014). At the first stage, “if the plaintiffs make a modest factual showing sufficient[ly] . . . demonstrat[ing] that they and potential plaintiffs . . . were victims of a common policy or plan that violated the law, ” the Court will conditionally certify the collective action. Boltinghouse v. Abbott Labs., Inc., No. 15 CV 6223, 2016 WL 3940096, at *2 (N.D. Ill. July 20, 2016) (internal quotations and citations omitted). To meet this standard, “plaintiffs must provide some evidence in the form of affidavits, declarations, deposition testimony, or other documents to support the allegations that other similarly situated employees were subjected to a common policy” that violated the law. Binissia, 2014 WL 793111, at *3. “[A]t this initial stage, ‘the court does not make merits determinations, weigh evidence, determine credibility, or specifically consider opposing evidence presented by a defendant.'” Briggs v. PNC Fin. Servs. Grp., Inc., No. 15-CV-10447, 2016 WL 1043429, at *2 (N.D. Ill. Mar. 13, 2016) (quoting Bergman v. Kindred Healthcare, Inc., 949 F.Supp.2d 852, 855-56 (N.D. Ill. 2013)). “In the second stage, after the completion of discovery and the opt-in process, the court reexamines the conditional certification to determine whether the trial as a collective action is proper.” Boltinghouse, 2016 WL 3940096, at *4.


         Defendants' Motion to Strike Plaintiff's Declarations

         Defendants argue that the Court should disregard plaintiff's declarations because they are unreliable. (Defs.' Resp. at 11.) Specifically, defendants assert that the declarations are boilerplate, conclusory attorney-drafted statements that lack specificity and are at times contradictory. (Id. at 11-13.) Defendants argue that at a minimum they should be given the opportunity to depose the declarants, obtain answers to already-issued discovery, and submit additional briefing prior to ruling on the motion for class certification. (Id. at 15.) In their separate motion to strike, defendants further assert that the statements are not based on the declarants' personal knowledge, are hearsay or rely on hearsay, and should be excluded pursuant to Federal Rule of Evidence 403. (Defs.' Mot. at 2.) Plaintiff urges the Court to deny defendants' motion because motions to strike are generally disfavored and the motion is an attempt by defendants to prematurely address the merits of the case. (Pl.'s Reply at 7.) They further contend that the similarity of the declarations is evidence that supports conditional certification, the declarations are based on the personal knowledge of the declarants, and they do not contain hearsay statements. (Id. at 8-11.)

         The Court notes that plaintiff has submitted thirteen nearly identical declarations, except for personal identifiers, from LOs in three different offices and managers from a fourth. (Pl.'s Exs. C and F.)[3] In the declarations, the LOs all indicated that they were trained by employees from Bridgeview's corporate offices. (Pieksma Decl. ¶ 3.) At those trainings, the LOs were told that the same employment and pay policies and procedures applied to all LOs. (Id.) The declarations further indicate that LOs usually worked more than forty hours per week and that Bridgeview did not pay them overtime for all of the hours worked in excess of forty. (Id. ¶ 5.) The LOs also assert that their managers discouraged them from reporting all of their overtime hours, that they regularly worked “off the clock, ” and that they did not fully report all of the hours they worked. (Id. ¶¶ 8, 9.) Finally, the LOs indicate that based on their experiences and observations from working for Bridgeview, other LOs were subject to the same policies, including working “off the clock, ” not being paid for all overtime worked, and having hourly compensation, including overtime pay, deducted from their commissions. (Id. ¶ 10.)[4]

         The Court rejects defendants' argument that plaintiff's declarations should be disregarded because they appear to be attorney drafted. See Basil v. CC Servs., Inc., 116 F.Supp.3d 880, 894 n.2 (N.D. Ill. 2015) (“It is common knowledge that declarations are drafted by attorneys, so the similarities between the [plaintiffs'] declarations are neither surprising nor relevant. Provided that their statements fall within the scope of information about which the [plaintiffs] would have personal knowledge, those statements are admissible evidence[.]”).[5]

         To the extent that defendants assert that plaintiff's declarations are not supported by personal knowledge, the Court also rejects that argument. “A declarant's ‘personal knowledge may include reasonable inferences, as long as those inferences are grounded in observation or other first-hand personal experience.'” Berndt v. Cleary Bldg. Corp., No. 11-cv-791-wmc, 2013 WL 3287599, at *4 (W.D. Wis. Jan. 25, 2013) (quoting Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003)). In the declarations plaintiff submitted, all the declarants certify, based on their “experience and observations from working for Bridgeview, ” that the other LOs had similar compensation plans and were subject to the same policies regarding their pay. (Pieksma Decl. ¶ 10.) Even if those “other LOs” were LOs at the declarant's branch, plaintiff submitted declarations from LOs or managers from four separate offices in different parts of the country, confirming that these policies were not isolated to one office or manager. See Clark v. Dollar Gen. Corp., No. 3:00-0729, 2001 WL 878887, at *1 (M.D. Tenn. May 23, 2001) (denying defendant's motion to strike portions of plaintiffs' declarations and finding that “to the extent that the declarants described practices that occurred in their stores, that evidence is based on personal knowledge[.]”).

         Finally, the Court finds unavailing defendants' argument that plaintiff's declarations should be stricken because they rely on hearsay to allege a company-wide policy. The declarants do not infer such a policy based on the directive by their managers to record only forty hours of work per week no matter how many hours more than forty they worked. Rather, those directives support the conclusion that each declarant's manager knew that each declarant was not fully reporting all of the hours he or she worked. Further, the directives can be construed as statements by a party opponent. See Zamudio v. Nick & Howard LLC, 15 C 3917, 2016 WL 740422, at *2 (N.D. Ill. Feb. 23, 2016) (“The manager's statement is admissible as an admission of a party opponent under Federal Rule of Evidence 801(d)(2)(D). It is being ‘offered against a party' and is ‘a statement by the party's agent . . . concerning a matter within the scope of the agency or employment, ' and it was ‘made during the existence of the relationship.'”) (quoting Fed.R.Evid. 801(d)(2)(D)).[6] Moreover, courts in this district have denied motions to strike hearsay evidence from such declarations, reasoning that “[a] strict application of the Federal Rules of Evidence does not comport with the court's understanding of relative evidentiary burdens imposed under the two-stage certification approach” and that “[t]he most reasonable approach to the respective evidentiary burdens of the plaintiff during the two stages is one that requires a stricter standard of proof in the second stage.” Howard v. Securitas Sec. Servs., USA Inc., No. 08 C 2746, 2009 WL 140126, at *3 (N.D. Ill. Jan. 20, 2009) (denying defendant's motion to strike hearsay evidence and requiring plaintiffs to submit admissible evidence at the second stage of certification, not the first). Accordingly, the Court declines to strike plaintiff's declarations. Defendants' motion is denied.

         Conditional ...

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