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Davenport v. Charter Communications, LLC

United States District Court, E.D. Missouri, Eastern Division

January 13, 2015

PENNY DAVENPORT, et al., Plaintiffs,


AUDREY G. FLEISSIG, District Judge.

This conditionally certified collective action for unpaid overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., is before the Court on several related motions. Defendant Charter Communications, LLC ("Charter") moves to decertify the FLSA collective action (Doc. No. 302) and to stay discovery pending resolution of that motion (Doc. No. 307). Plaintiffs, in turn, move to stay briefing on Charter's decertification motion until after the close of all discovery or at least until 30 days after the close of expert discovery; alternatively, Plaintiffs request that Defendants' decertification motion be denied as premature. (Doc. No. 305.) Plaintiffs also move to compel certain outstanding discovery from Defendants, which they claim is necessary to resolve the decertification issue. (Doc. No. 308.) For the reasons set forth below, the Court will grant Plaintiffs' motions and will deny Charter's, but Charter's motion for decertification will be denied without prejudice.


Penny Davenport and three other named Plaintiffs brought this action on their own behalf and on behalf of similarly situated call center employees who worked on an hourly basis at Charter. Plaintiffs claim that Charter violated the FLSA, 29 U.S.C. § 207, and the state wage and hours laws of Missouri, Kentucky, and Michigan, by failing to pay them for the time it took them to access computer applications when beginning to work and to close down computer applications at the end of work.

On March 27, 2014, the Court entered an order conditionally certifying Plaintiffs' FLSA collective action for the purpose of providing notice to putative plaintiffs and an opportunity to opt in. (Doc. No. 172.) Charter moved to reconsider this order, which the Court denied (Doc. No. 199), and the Court ultimately required that notice of the FLSA collective action be disseminated to the following class:

All persons who, between September 25, 2009 and August 31, 2011 worked as a nonsupervisory hourly employee whose primary duty was to respond to incoming calls from a queue on Charter's toll-free lines, commonly referred to as "advisors, " "representatives, " or "agents, " who were hired and had completed training before September 1, 2011, and who worked at Defendant Charter Communications, LLC's call centers located in Town and Country, Missouri; Walker, Michigan; Louisville, Kentucky; Greenville, South Carolina; Vancouver, Washington; Rochester, Minnesota; Fond du Lac, Wisconsin; and Worcester, Massachusetts, but excluding persons who were hired by Defendant but worked only as trainees.

(Docs. No. 203-1 & 204.) The opt-in period closed on September 22, 2014, and approximately 820 opt-in plaintiffs (the "Opt-in Plaintiffs") joined suit.

Earlier in the proceedings, Plaintiffs also moved to certify their state law overtime claims as class actions under Federal Rule of Civil Procedure 23(b)(3). On August 4, 2014, the Court denied Plaintiffs' Rule 23 motions with respect to the Michigan and Kentucky claims because the Court found that Plaintiffs' class claims were not cognizable under the applicable state statutes. (Doc. No. 218.)

On September 30, 2014, the Court also denied Plaintiffs' Rule 23 motion with respect to their Missouri claims. (Doc. No. 294.) The Court found that the individualized evidence put forth by Plaintiff Davenport, including evidence that Davenport responded to the pressures of Charter's punctuality and employee metric policies by working off the clock, did not satisfy the "demanding" Rule 23(b)(3) requirements that "questions of law or fact common to class members predominate over any questions affecting only individual members" and that a class action is "superior to other available methods for fairly and efficiently adjudicating the controversy." Id. at 19-27.

Charter now moves to decertify the FLSA collective action. (Doc. No. 302.) Charter filed its motion on November 13, 2014, before the close of discovery.[1] Charter seizes on the Court's denial of Rule 23(b)(3) certification of Plaintiffs' Missouri claims, arguing that this ruling conclusively demonstrates that Plaintiffs' FLSA collective action must likewise be decertified. Charter also moves to stay discovery pending resolution of its decertification motion. (Doc. No. 307.)

Plaintiffs, on the other hand, move to stay or deny without prejudice Charter's decertification motion until after the close of all discovery, or at least until 30 days after the close of expert discovery. (Doc. No. 305.) Plaintiffs argue that the Court cannot base the decertification decision on the same evidence as Plaintiffs' Rule 23 motions because in the span of time since the Rule 23 motions were filed, several hundred more Opt-in Plaintiffs have joined suit. Plaintiffs argue that once they obtain Charter's computer records and other discovery relating to these additional Opt-in Plaintiffs, they will be able to "fill the gaps' in evidence" the Court cited in its denial of Rule 23 certification of the Missouri claims, including by obtaining "evidence of wide-spread instruction to work on unpaid time and computerized evidence of unpaid work, " rather than just "evidence of the consequences of Charter's employee metrics." (Doc. No. 312 at 2.)

Noting that Charter's decertification motion was filed less than two months after the close of the opt-in period, Plaintiffs argue that they are still in the process of identifying and collecting evidence from the new Opt-in Plaintiffs to demonstrate that they are similarly situated, as required to proceed collectively under the FLSA, 29 U.S.C. § 216(b). Plaintiffs also note that Charter has not responded to outstanding discovery requests seeking computer records and personnel files regarding the Opt-in Plaintiffs, and has in fact obtained an extension of time for such responses, [2] the analysis of which is necessary for Plaintiffs' expert report regarding class-wide overtime violations. Instead Charter has limited its document production to personnel files and employee counseling notes for only the named Plaintiffs and the 13 Opt-in Plaintiffs who joined suit before conditional certification.

Plaintiffs argue that Charter has also refused to produce a corporate deponent under Federal Rule of Civil Procedure 30(b)(6), to answer questions regarding any call center other than the three call centers at issue in the Rule 23 motions ("Rule 23 call centers"), despite Charter's prior agreement to do so upon conditional certification of the FLSA collective action. See, e.g., Doc. No. 305-4 at 2-3; Doc. No. 305-6 at 3-4; Doc. No. 305-16 & Doc. No. 305-17. And Plaintiffs assert that the 30(b)(6) deponents Charter did produce for the Rule 23 call centers stated that they were "unprepared" to answer several questions within the scope of Plaintiffs' 30(b)(6) notice.[3] See, e.g., Doc. No. 308-1 at 6, 9, 12. When Plaintiffs complained to Charter about these non-responses, Charter produced a document entitled "Supplement to Deposition Testimony" purporting to be a supplement to Charter's 30(b)(6) depositions and explaining the corporate deponents' testimony. (Doc. No. 305-13.) However, the supplement was unverified and was not signed by the corporate representatives. Id. Plaintiffs argue that this supplement is insufficient to satisfy Charter's discovery obligations under Rule 30(b)(6), and that Plaintiffs need prepared 30(b)(6) deponents to testify regarding all of Charter's call centers in order to demonstrate that the Opt-in Plaintiffs are similarly situated with respect to Charter's overtime policies and practices.

Plaintiffs move to compel Charter to produce prepared 30(b)(6) deponents to testify in St. Louis regarding the five call centers for which no corporate deponent has been produced, and to answer questions regarding the Rule 23 call centers for which the prior 30(b)(6) deponents were unprepared to testify. (Doc. No. 308.) Plaintiffs also move to ...

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