United States District Court, D. Maryland
Richard D. Bennett United States District Judge
plaintiff Steven Szalczyk and opt-in plaintiffs Tekesha
Austin, Minka Wright, Hilda Cornutt, and Audrey Veitch
(collectively, “Plaintiffs”), on behalf of
themselves and those similarly situated, have filed an
Amended Complaint (ECF No. 28) against defendant CBC National
Bank alleging violations of the Fair Labor Standards Act, 29
U.S.C. § 201, et seq. (“FLSA”).
pending before this Court is Plaintiffs' Motion for
Conditional Certification of a Collective Action under 29
U.S.C. § 216(b) of the FLSA (“Plaintiffs'
Motion”) (ECF No. 45). The parties' submissions
have been reviewed, and no hearing is necessary. See
Local Rule 105.6 (D. Md. 2016). For the reasons described
herein, Plaintiffs' Motion for Conditional Certification
(ECF No. 45) is GRANTED IN PART and DENIED IN PART.
Specifically, Plaintiffs' Motion is GRANTED as to the
“Inside Loan Officers” and DENIED as to the
“Outside Loan Officers, ” as set forth in detail
National Bank (“CBC”) is a nationally chartered
bank with headquarters located in Fernandina Beach, Florida.
(ECF No. 28 at ¶ 3.) CBC operates a mortgage division
that sells residential mortgage loan products in several
states, including Maryland. (Id.) The mortgage
division employs two types of loan officers to market and
sell its mortgage products: “Inside Loan
Officers” (“ILOs”) and “Outside Loan
Officers” (“OLOs”). (ECF No. 45 at 4.) ILOs
work at CBC office locations and are provided sales leads by
CBC. (Id.) CBC's Compensation Overview states
that ILOs are treated as “non-exempt” employees
for purposes of the FLSA, and these employees are paid on an
hourly basis through the submission of weekly
timesheets. (ECF No. 45-1 at 36-39.) OLOs, by
contrast, work largely outside of CBC offices and are
expected to generate their own sales leads. (ECF No. 45 at
4.) CBC treats its OLOs as “exempt” employees for
purposes of the FLSA, and CBC “admits it does nothing
to monitor how much time, if any, [OLOs] perform sales
activity outside of offices.” (ECF No. 45 at 4; ECF No.
45-1 at 38-39.) OLOs are not required to submit timesheets to
CBC and are compensated on a commission-only or
commission-plus-salary basis, depending on their
sub-classification. (ECF No. 45-1 at 38-39.)
plaintiff Steven Szalczyk worked for CBC as an ILO in its
Parkville, Maryland office for just over three months, from
November 5, 2012 through February 15, 2013. (ECF No. 45 at
7.) At the start of his employment, Mr. Szalczyk was told
that he would earn $15 per hour, plus commissions.
(Id. at 8.) During his deposition, Mr. Szalczyk
testified that “he, along with all other loan officers
in his office, were told in a meeting by CBC management to
only report forty hours per week on the timekeeping system,
but were then told to work as much as they could to get
sales.” (Id.) Plaintiff also testified that he
typically worked fifty-five (55) hours per week, but was not
paid overtime wages. (Id.)
Amended Complaint alleges that CBC failed to pay its
employees the legal minimum wage and failed to pay its
employees overtime wages to which they were entitled. (ECF
No. 28 at ¶¶ 40-47.)
the FLSA, a plaintiff may bring an action on behalf of
himself and other employees so long as the other employees
are “similarly situated” to the plaintiff. 29
U.S.C. § 216(b); see also Quinteros v. Sparkle
Cleaning, Inc., 532 F.Supp.2d 762, 771 (D. Md. 2008). As
this Court has previously noted, Section 216
“establishes an ‘opt-in' scheme, whereby
potential plaintiffs must affirmatively notify the court of
their intentions to be a party to the suit.”
Quinteros, 532 F.Supp.2d at 771 (citing Camper
v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D. Md.
2000)). Section 216(b) provides, in relevant part, that:
An action . . . may be maintained against any employer . . .
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. No
employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is
29 U.S.C. § 216(b).
this Court has employed a two-step inquiry when deciding
whether to certify a collective action under the FLSA.
Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D.
Md. 2010); Banks v. Wet Dog Inc., No. CIV.A.
RDB-13-2294, 2015 WL 433631, at *1 (D. Md. Feb. 2, 2015).
First, upon a minimal evidentiary showing that a plaintiff
can meet the substantive requirements of 29 U.S.C. §
216(b), the plaintiff may proceed with a collective action on
a provisional basis. Second, following discovery, the court
engages in a more stringent inquiry to determine whether the
plaintiff class is “similarly situated” in
accordance with the requirements of § 216. Rawls v.
Augustine Home Health Care, Inc., 244 F.R.D. 298, 300
(D. Md. 2007) (internal citations omitted). The Court then
renders a final decision regarding the propriety of
proceeding as a collective action. Id. The second,
more “stringent” phase of collective action
certification under the FLSA is often prompted by a
defendant's filing of a motion to decertify, and thus is
referred to as the “decertification stage.”
Syrja, 756 F.Supp.2d at 686.
to grant conditional certification is a matter of the
court's discretion. Syrja, 756 F.Supp.2d at 686
(stating that “[d]eterminations of the appropriateness
of conditional collective action certification . . . are left
to the court's discretion”); see also
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169
(1989). As the Court has explained, the “paramount
issue in determining the appropriateness of a conditional
class certification is whether plaintiffs have demonstrated
that potential class members are ‘similarly
situated.'” Williams v. Long, 585
F.Supp.2d 679, 684 (D. Md. 2008).
bear the burden of showing that their claims are
“similarly situated, ” but courts have ruled that
“similarly situated” need not mean
“identical.” See, e.g., Hipp v.
LibertyNat. Life Ins. Co.,252 F.3d 1208, 1217
(11th Cir. 2001). This Court has held that a group of FLSA
plaintiffs is similarly situated if they can show they were
victims of a common policy, scheme, or plan that violated the