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Davenport v. Charter Communications, LLC

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

March 6, 2017

PENNY DAVENPORT, RITA GENTRY, ANGELA NELSON, and JOSHUA WESTMAAS, individually and on behalf of others similarly situated, Plaintiffs,



         Named Plaintiffs Penny Davenport, Rita Gentry, Angela Nelson, and Joshua Westmaas, brought this action on behalf of themselves and similarly situated call center agents employed on an hourly basis at Defendant Charter Communications, LLC's (“Charter”) eight customer service call centers nationwide. Plaintiffs' amended complaint, filed on August 7, 2012, alleged that Charter violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207; the state wage-and-hour laws of Missouri, Kentucky, and Michigan; and Missouri common law, by failing to pay Plaintiffs for the time it took to start their computers and load the required programs and applications (“tools”) when beginning work, and to close their tools and shut down their computers at the end of work.

         Plaintiffs subsequently moved for conditional collective action certification under the FLSA, which the Court granted on March 27, 2014. (Doc. No. 172.) Following conditional certification, notice of this lawsuit was sent to 5, 680 current and former call center agents, and approximately 806 individuals opted in to the collective action (the “Opt-In Plaintiffs”).

         After conditional certification, the parties engaged in discovery, and on September 30, 2014, on the basis of a somewhat fuller record, the Court denied Plaintiffs' motion to certify the Missouri claims as a class action.[1] The Court found that the evidence put forth by Davenport, the named Plaintiff seeking to represent the Missouri class, was too individualized to satisfy the “demanding” standard of Rule 23(b)(3), which requires 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.” (Doc. No. 294.)

         Shortly after the Court's denial of Rule 23 certification, and before the close of discovery, Charter moved to decertify the FLSA collective action. However, the Court granted Plaintiffs' request to deny that motion without prejudice to refiling after the close of discovery, based on Plaintiffs' representation that discovery would likely reveal evidence of a uniform overtime violation that would satisfy the standard to litigate collectively under the FLSA (which courts have held is less stringent than Rule 23(b)(3)).

         Discovery has now closed, and on the basis of a complete evidentiary record, Charter has again moved to decertify the FLSA collective action. (Doc. No. 410.) The parties submitted lengthy briefs, and the Court held oral argument on January 31, 2017. After careful consideration, and for the reasons set forth below, the Court will grant Charter's motion for decertification.


         Charter, a broadband service provider, operates eight customer service call centers around the country.[2] Plaintiffs were employed by Charter as call center agents at all eight call centers during the relevant time period, from September 25, 2009 to August 31, 2011.[3]As call center agents, Plaintiffs were nonsupervisory hourly employees whose primary duties were to respond to incoming calls from customers on Charter's toll-free lines. Plaintiffs were generally scheduled to work 40 hours per week.

         During the relevant time period, there were two methods by which call center agents could clock in and out of Charter's timekeeping system, to record their compensable time. The first method, which was the preferred method under Charter's written policies, was through a “soft phone” connected to the agents' computers. This method required agents to first start their computers and then punch in a five-to-ten-digit numerical code in the soft phone in order to clock in, and correspondingly, to clock out through their soft phones before shutting down their computers at the end of their shift.

         The second method by which agents could clock in was through a “hard phone” unconnected to the agents' computers. This method allowed agents to punch the numerical code into the hard phone immediately at the start of their shifts, without having to first start their computers, and to clock out through the hard phone after shutting down their computers.

         Charter's written compensation policies throughout the relevant period required call center agents to account for, and to be paid for, all time worked, including time spent loading and closing tools. For example, Charter's timekeeping policy stated that “[h]ourly employees may not under any circumstances, work ‘off the clock' (e.g., during meal periods or outside of the regular work schedule). . . . If an hourly employee performs work during a meal break or before or after the regular work schedule and failed to obtain advance authorization from the supervisor, the employee must still report all of the hours worked and will be compensated.” (Doc. No. 157-2 at 15.) Likewise, Charter's Code of Conduct prohibited managers and supervisors “from directing or encouraging nonexempt employees to misstate hours worked on their timesheets”; cautioned employees that they “may not, under any circumstances, work ‘off the clock, '” defined as “work that is performed but that is not reported on your timesheet”; and advised employees that “[n]o one is authorized to instruct [them] to work off the clock.” (Doc. No. 157-1 at 38.) Finally, Charter at all relevant times required its agents to certify on their timesheets: “I have accurately and completely reported on this timesheet all hours that I worked during this pay period . . . .” (Doc. No. 157-1 at 45.)

         Charter also provided agents specific written policies and procedures as to the sequence in which agents should clock in and out, and load and close tools:

Agents should be at their desk no earlier than the time their shift begins. At this time, the agent should log into the computer. Once logged into Windows, log into the Avaya soft phone first (which will also log into hard phone). As the agent logs into other required programs, the agent may go into Auxiliary (AUX) status in the soft phone to avoid taking calls until those programs are available. If the agent is at his or her desk and unable to log into the Avaya soft phone, the agent should log into the hard phone (to indicate they are at their position) and contact the supervisor so an exception can be entered . . . .

(Doc. No. 144-14 at 2.) These instructions were first distributed to agents in October 2008, and an amended but substantially identical version was distributed in January 2010.

         Although Charter's policies prohibited off-the-clock work throughout the class period, the manner in which agents were compensated changed in the middle of the class period, on July 1, 2010. Before July 1, 2010, call center agents were paid in 15-minute increments. Under this system, Charter rounded seven minutes down, eight minutes up. Thus, if an agent clocked in at 8:07 a.m., he would be retroactively paid to 8:00 a.m. But if he clocked in at 8:08 a.m., he would be paid beginning at 8:15 a.m.[4]

         On July 1, 2010, Charter launched an automated time and attendance system, known as eTime, which compensated agents to the minute of actual time logged by the employee, plus an additional three minutes of pay to compensate agents for the time it took to start their computers and clock in to the soft phone, and to shut down their computers after they clocked out of the soft phone. The extra three minutes of pay was provided even if agents clocked in and out using the hard phone (which did not require them to first start their computers). Under Charter's written policies, if it took agents more than three minutes to start and shut down their computers, agents were to report this fact to a supervisor so that additional pay could be provided.

         Plaintiffs allege that, besides merely starting and shutting down their computers, they loaded and closed additional tools off the clock, and that these additional activities, in combination with starting and shutting down their computers, took more than three minutes on average, and resulted in unpaid overtime compensation. Specifically, Plaintiffs allege that, notwithstanding Charter's written policies to compensate call center agents for all hours worked, including time spent loading and closing tools, Charter employed a uniform de facto policy to require or pressure agents to load and close tools before and after their paid shifts. Plaintiffs allege that these activities were integral and indispensable to performance of the agents' primary work duties, and that agents were not properly compensated for these activities by Charter.

         Initially, Plaintiffs alleged that Charter's de facto policy was implemented by two practices: (1) supervisors and training managers instructed call center agents to load and close tools off the clock so that agents would be fully prepared to respond to calls from beginning to end of paid shifts, and (2) Charter reduced agents' “schedule compliance” score if agents loaded and closed tools while clocked in; the schedule compliance score was a performance metric which required agents to maintain a high percentage (such as 97%) of adherence to assigned shift times. In connection with their motion for conditional FLSA collective action certification, Plaintiffs submitted 11 nearly identical declarations from present and former call center agents, stating that they and other agents experienced the practices described above, and that these practices required them to load and close tools off the clock, resulting in unpaid overtime.

         At the conditional certification stage, the Court found that these allegations were sufficient to satisfy the “modest factual showing” required at that stage, that the named Plaintiffs “and potential plaintiffs together were victims of a common policy or plan that violated the law.” (Doc. No. 172 at 7.)

         Now, at the decertification stage, Plaintiffs state that they are no longer relying on Charter's schedule compliance score practices to prove Charter's de facto policy. Instead, Plaintiffs contend that they will prove Charter's de facto policy solely based on class-wide evidence that Charter supervisors and trainers instructed the Opt-In Plaintiffs to load and close tools off the clock, and that the Opt-In Plaintiffs uniformly followed that instruction.

         As common evidence of Charter's class-wide instruction and training to load and close tools off the clock, and of the Opt-In Plaintiffs' adherence to that training and instruction, Plaintiffs offer additional declarations. In total, 520 Opt-In Plaintiffs (some from each call center) have now filed nearly identical declarations stating that, before September 2011, Charter instructed them to load tools before they clocked in, and to close those tools after they clocked out; and that by complying with such instructions, the declarants performed overtime work for which they were not properly compensated. Approximately 38 of these Opt-In Plaintiffs have been deposed by Charter.

         The other evidence Plaintiffs offer is a study by their proffered expert, statistician L. Scott Baggett, Ph.D., which Plaintiffs assert demonstrates that almost all of the Opt-In Plaintiffs performed uncompensated work during the relevant time period.[5] In his study, Dr. Baggett compared Charter's “active administrator” (“AA”) data, which tracks time and date information of computer activity, to clock-in and clock-out records for each Opt-In Plaintiff for whom such data was produced by Charter (approximately half of the Opt-In Plaintiffs). As Dr. Baggett explained in his report, he “identified the amounts of time between the first event of each day reflected in the [AA] data and the daily clock-in (the ‘pre-shift time'), ” as well as “the amounts of time between the last event of each day reflected in the [AA] data and the daily clock-out (the ‘post-shift time').” (Doc. No. 423-53 at 4.) Dr. Baggett adjusted his data to remove “anomalous” events, such as “dates in the [AA] data that included more than 16 hours of logon times within a single calendar day, ” which could indicate that a computer was left logged on overnight or for another period during which the agent was not actually present at work. Id. His report states that “[o]nly [AA] logon events within 45 minutes” before a recorded clock-in time and after a recorded clock-out time were considered as “eligible” pre-shift and post-shift time. Dr. Baggett considered “over 10, 000 workdays or shifts across all employees for which AA data was disclosed by Charter.” He states that his analysis shows “unpaid pre-shift activity on 70% of the workdays for which AA data are available and . . . unpaid post-shift activity on 60%” of such workdays. (Doc. No. 423-57 at 7-8.) Dr. Baggett concludes that “[t]he average pre-shift time across all employees for which AA data are available is 5 minutes and 56 seconds and the average post-shift time across all employees for which AA data are available is 1 minute and 47 seconds.” Id. at 8. Dr. Baggett applied this average to pay periods for Opt-In Plaintiffs with missing AA data. Then, assuming that the Opt-In Plaintiffs were performing compensable work during the pre-shift and post-shift times, and comparing Charter's payroll records, Dr. Baggett calculated the total amount of overtime pay owed all Opt-In Plaintiffs to be $110, 013.96.[6]

         ARGUMENTS ...

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