The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KHADEZA PYFROM,
on behalf of herself and others
similarly situated Case No. 2:21-cv-4293
JUDGE EDMUND A. SARGUS, JR.
Plaintiff, Magistrate Judge Chelsey M. Vascura
v.
CONTACTUS, LLC D/B/A
CONTACTUS COMMUNICATIONS, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s Motion for Conditional Class
Certification and Court-Supervised Notice to Potential Opt-In Plaintiffs (ECF No. 8). For the
following reasons, Plaintiff’s motion is GRANTED.
I. BACKGROUND
Plaintiff Khadeza Pyfrom brings this action against Defendants ContactUS and ContactUS
Technology, Ltd. (collectively “Defendants”) for alleged violations of the Fair Labor Standards
Act (“FLSA”). According to the Complaint, Defendants provide call center and remote services to
their company customers and operate customer service call centers in Ohio, Pennsylvania, and
North Carolina. (Compl. ¶¶ 13–14, ECF No. 1.) Plaintiff worked as a customer support
representative for Defendants and was paid on an hourly basis. (Id. ¶¶ 15–17.) Plaintiff alleges that
she and other similarly situated workers were required to perform unpaid work after clocking out
each day, including: attending to technical issues and problems with Defendants’ systems; calling
into Defendants’ technical support line; waiting for assistance from Defendants’ technical support
representatives; resolving technical issues with computers or programs; and otherwise when
designated by Defendants as being in “reserve.” In short, Plaintiff alleges that employees were not
compensated for work outside of actively taking customer calls. (Id. ¶¶ 19–22.)
Plaintiff filed this action on August 31, 2021 seeking relief under federal and Ohio law.
Plaintiff moved for conditional class certification (ECF No. 8, “Pl.’s Mot.”). Defendants filed a
response in opposition (ECF No. 24, “Defs.’ Resp.”) and Plaintiffs filed a reply (ECF No. 25,
“Pl.’s Reply”). Plaintiff’s motion is ripe for review.
II. STANDARD
Plaintiff moves for conditional certification under 29 U.S.C. § 216(b). Section 216(b) of
the FLSA provides:
Any employer who violates the [minimum wage or overtime provisions of this title]
shall be liable to the employee or employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation, as the case may be, and
in an additional equal amount as liquidated damages. . . . An action to recover [this]
liability . . . may be maintained against any employer (including a public agency)
in any Federal or State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and other employees similarly
situated.
29 U.S.C. § 216(b). The Sixth Circuit has interpreted this provision as establishing two
requirements for a representative action under the FLSA: Plaintiffs must (1) “actually be ‘similarly
situated;’” and (2) “must signal in writing their affirmative consent to participate in the action.”
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (quoting 29 U.S.C. § 216(b)).
“For FLSA collective actions, class certification typically occurs in two stages: conditional
and final certification.” Frye v. Baptist Mem’l Hosp., Inc., 495 F. App’x 669, 671 (6th Cir. 2012).
Conditional certification occurs at the beginning of the discovery process. Comer, 454 F.3d at 546.
This “notice stage” focuses on whether there are plausible grounds for plaintiffs’ claims. Cornell
v. World Wide Bus. Servs. Corp., No. 2:14-CV-27, 2015 WL 6662919, at *1 (S.D. Ohio Nov. 2,
2015). “District courts use a ‘fairly lenient standard’ that ‘typically results in conditional
certification of a representative class’ when determining whether plaintiffs are similarly situated
during the first stage of the class certification process.” White v. Baptist Mem’l Health Care Corp.,
699 F.3d 869, 877 (6th Cir. 2012) (quoting Comer, 454 F.3d at 547).
III. ANALYSIS
A. Class Certification
Plaintiff requests that the Court conditionally certify the following class:
All former and current hourly support associates, customer service representatives,
agents, or similar call center or in-home representatives of Defendants who were
scheduled to work forty (40) or more hours in one or more workweek(s) beginning
three (3) years before the filing of this Motion and to the present.
(Pl.’s Mot. at 4.)
Defendants urge the Court to deny Plaintiff’s motion, arguing: (1) Plaintiff is not similarly
situated to other members of the proposed class, (2) Defendants do not have unlawful policies or
practices under applicable law, and (3) Plaintiff’s contentions are too vague. (Defs.’ Resp. at 1,
14.) Defendants request that if the Court grants conditional certification, it reduce the Opt-In
Period to 45 days instead of 90 days and limit the class to “hourly Customer Support
Representatives (“CSRs”) who worked remotely and were assigned to ContactUS’ client, Talbots.”
(Id. at 2.)
1. Similarly Situated
First, Defendants argue that Plaintiff is not similarly situated to other employees who had
different job titles, performed different job duties, worked for different clients, received different
training, reported to different supervisors, and utilized different computer software systems,
programs, or equipment. Defendants state that the differences among class members would require
mini trials for each member to determine how long they worked, what they were directed to do by
their supervisor, their payroll data, what training they received, etc. (Id. at 3, 13.) However,
Plaintiff need only show that “h[er] position is similar, not identical, to the positions held by the
putative class members.” Comer, 454 F.3d at 546–47 (citing Pritchard v. Dent Wizard Int’l, 210
F.R.D. 591, 595 (S.D. Ohio 2002)). Plaintiff can meet this burden by demonstrating that she and
the other putative class members’ claims are “‘unified by common theories of defendants’ statutory
violations, even if the proofs of these theories are inevitably individualized and distinct.’” Ford v.
Carnegie Mgmt. Servs., Inc., No. 2:16-cv-18, 2016 WL 2729700, at *2 (S.D. Ohio May 11, 2016)
(quoting O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009), abrogated on
other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016)). Plaintiff submits several
affidavits stating that Defendants had a policy of requiring employees to work without
compensation by logging out when they were not actively taking calls, even though they were still
working for the company. (See Pyfrom, Danison, Eubanks, Hale, Tussing Decls., ECF No. 8, Ex.
2–6.) This is a common theory of Defendants’ statutory violations. The individualized proof
required for recovery does not preclude class certification. Plaintiff has produced sufficient
evidence that she is similarly situated to the other class members.
2. No Unlawful Policies
Second, Defendants assert that Plaintiff and other employees were not victims of unlawful
policies or practices because Defendants’ Employee Handbook states that employees must record
and report overtime: “Non-exempt employees are eligible to receive overtime pay…[and] are
required to submit a time record for each pay period…” (Defs.’ Resp. at 15.) Defendants also
contend that Plaintiffs and other employees were fully paid for time they spent waiting for
technical issues to be resolved. (Id.) Whether Defendants had unlawful polices is an issue of fact.
During the notice stage, the Court generally does not, and will not here, consider the merits of the
claims, resolve factual disputes, or evaluate credibility. E.g., Swigart v. Fifth Third Bank, 276
F.R.D. 210, 214 (S.D. Ohio 2011); Lacy v. Reddy Elec. Co., 2011 WL 6149842 at *3 (S.D. Ohio
Dec. 9, 2011).
3. Vagueness
Defendants further assert that Plaintiff’s proffered declarations are vague, generic, and do
not establish a company policy or direction that violates the FLSA. (Defs.’ Resp. at 3.) Plaintiff
submitted five sworn declarations by current and former employees of Defendants stating personal
knowledge that Defendants had a policy or practice through which they failed to pay overtime for
all overtime hours. (ECF No. 8, Exs. 2–6.) This evidence is sufficient to meet the “modest”
evidentiary requirement of this stage. Myers v. Marietta Memorial Hospital, 201 F.Supp.3d 884,
896 (S.D. Ohio Aug. 17, 2016); see also Douglas v. GE Energy Renter Stokes, No. 1:07-cv-77,
2007 WL 1341779, at *4 (N.D. Ohio Apr. 30, 2007) (“At the notice stage, the district court makes
a decision—based only on the pleadings and any affidavits which have been submitted—whether
notice of the action should be given to potential class members.”).
4. Limiting the Proposed Class Definition
Defendants further contend that the Proposed Class definition should be revised and limited
only to customer service representatives who worked remotely and were assigned to the Talbots
account, like Plaintiff. (Defs.’ Resp. at 18.) This argument is not persuasive.
Courts generally allow FLSA employee classes spanning multiple locations where the
plaintiff submits affidavits from employees at other locations. See, e.g., Cowan v. Nationwide Mut.
Ins. Co., No. 2:19-cv-1225, 2019 WL 4667497, at *9 (S.D. Ohio Sept. 25, 2019) (approving
nationwide conditional class based on plaintiff's submission of declarations from nine current and
former employees from four different locations in four different states). In the two cases that
Defendants cite in support, the courts limited the class to employees at the plaintiffs’ specific
employment locations because the plaintiffs did not submit affidavits of other employees from
different locations and did not adequately state that they had “actual knowledge about the job
duties and conditions” outside their specific location. See Bradford v. Team Pizza, Inc., No. 1:20-
CV-60, 2020 WL 3496150, at *6 (S.D. Ohio June 29, 2020) (limiting proposed class to employees
at plaintiff’s pizza store location because “there [were] no affidavits from delivery drivers of any
other Team Pizza store around the state or the country, nor has plaintiff alleged facts showing an
across-the-board policy concerning pay structures that applies to the Akron and other Team Pizza
stores.”); Gomez v. ERMC Prop. Mgmt. Co., LLC, No. 3:13-CV-01081, 2014 WL 1513945, at *2
(N.D. Ohio Apr. 16, 2014) (limiting proposed class to one office because plaintiff did not show
that she had personal knowledge of whether employees at other sites also were required to work
while not on the clock).
Here, Plaintiff produced affidavits from employees working in-person and remotely in
different locations. Naleesha Hale worked at Defendants’ facility in Grindstone, Pennsylvania and
also as a remote customer service representative. Khadeza Pyfrom and Sherry Tussing worked at
Defendants’ facility at 3700 Fishinger Rd in Columbus, Ohio and also remotely. Bonnie Eubanks
and Deidra Danison worked remotely. (See Exs. 2–6, ECF No. 8.) These affidavits are sufficient
evidence that Defendants have the same policies and practices spanning multiple locations. The
Court also refuses to limit the Proposed Class to employees working on the Talbots’ account
because the Defendants’ overtime policies and practices do not appear to differ based on which
clients the employees serve.
Finally, the Defendants argue that the Proposed Class should be limited to current
employees and prior employees who left in the last two years instead of three years because the
statute of limitations under 29 U.S.C. § 255(a) to recover unpaid overtime wages is two years,
unless the violation is willful, in which case the limitations period is three years. (Defs.’ Resp. at
19.) The Plaintiff contends that this is a merits determination inappropriate for the notice phase.
The Court agrees. Because Plaintiff does not have to prove willfulness at this stage the lookback
period is not limited to two years. See Seldomridge v. Fifth Third Bank, No. 1:18-cv-553, 2019
WL 384203, at *5 (S.D. Ohio Aug. 15, 2019) (citing 29 U.S.C. § 255(a)) (“At this early stage in
the litigations, without the benefit of discovery, the Court will impose a three-year statute of
limitations for purposes of conditional certification.”)
For the reasons stated above, the Court GRANTS conditional class certification to
Plaintiff’s Proposed Class.
B. Notice Period
Defendants assert that the notice period should be 45 days instead of 90 days because recent
cases in this Court have approved periods of 45 days. (Defs.’ Resp. at 20.) As Plaintiff points out,
however, the plaintiffs in those cases either requested a period of 45 days or the class was only in
one location. (Pl.’s Reply at 19.) Here, the Proposed Class spans multiple states. Plaintiff also
contends that a 90-day period is necessary because the mail system is experiencing delays due to
the pandemic and staffing shortages. The Court finds that a 90-day Opt-In period is warranted
because the Proposed Class includes people from multiple states and employment locations.
C. Pre-Certification Discovery
Defendants request the Court’s permission to conduct limited discovery as to whether the
Proposed Class is similarly situated to Plaintiff. (Defs.’ Resp. at 17.) Plaintiff replies that discovery
is unnecessary because she has submitted sufficient evidence for conditional certification and
courts routinely grant conditional certification prior to discovery. (Pl.’s Reply at 14.) Plaintiff is
correct. The Sixth Circuit has prescribed the first phase of the two-phase certification inquiry to
take place “at the beginning of discovery.” Comer, 454 F.3d at 546. “[T]he conditional-
certification framework contemplates that [] discovery will be conducted after the first phase—
conditional certification—and before the second phase—final certification or decertification.”
Myers, 201 F.Supp.3d at 893. In this case, discovery is unnecessary at the notice stage. The Court
denies Defendants’ request.
D. List of Potential Opt-In Plaintiffs and Contact Information
Plaintiff requests that the Court direct Defendants to provide contact information for all
persons who fit the Proposed Class definition. (Pl.’s Mot. at 19.) Defendants did not object to this.
Plaintiff’s discovery request is GRANTED. Defendants will provide the contact information of
all persons who fit the class definition within 14 days from the date of this Order.
IV. CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Conditional Class Certification and
Court-Supervised Notice to Potential Opt-In Plaintiffs, (ECF No. 8), is GRANTED. Defendants
are DIRECTED produce contact information for potential members of the Proposed Class within
FOURTEEN (14) DAYS.
IT IS SO ORDERED.
4/5/2022 s/Edmund A. Sargus, Jr.
DATED EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE