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Pooner v. Mariner Finance, LLC

United States District Court, D. Maryland

June 20, 2019

MICHAEL POONER, Plaintiff,
v.
MARINER FINANCE, LLC, et al., Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         Plaintiff Michael Pooner filed a collective action against his former employer, Mariner Finance, LLC (“Mariner”), as well as Joshua Johnson, president and chief executive officer of Mariner, and Michele Strohm, Assistant Vice President of Mariner. ECF 1 (the “Complaint”). He alleges that defendants failed to compensate him for overtime, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.; the Maryland Wage and Hour Law, Md. Code (2016 Repl. Vol., 2017 Supp.), § 3-401 et seq. of the Labor & Employment Article (“L.E”) (“MWHL”); and the Maryland Wage Payment and Collection Law, L.E. § 3-501 et seq. (“MWPCL”).[1] In addition to the unpaid overtime wages, plaintiff seeks “liquidated and statutory damages pursuant to the FLSA, MWHL, and MWPCL” as well as attorneys' fees and costs. Id. ¶ 2.

         Now pending is plaintiff's motion for conditional certification of a collective action (ECF 17) (the “Motion”), supported by several exhibits. ECF 17-1 to ECF 17-9. Specifically, Pooner seeks conditional certification under the FLSA of “a nationwide class of all account representatives and customer service representatives employed by Mariner and any of its related affiliates, from the three year period preceding the date of the filing of this Motion (December 3, 2015) through the date that this Motion is granted, who have worked for Mariner as an account representative or customer service representative.” ECF 17 at 9 (internal footnote omitted). Defendants oppose the Motion (ECF 20), supported by exhibits. ECF 20-1 to ECF 20-4. Plaintiff replied. ECF 23.

         The Motion is fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion, without prejudice.

         I. Factual Allegations

         From June 2016 through April 9, 2018, Pooner was employed by Mariner, a personal finance company. ECF 1, ¶ 20. He worked as an account representative in Maryland at branches located in Pikesville and Woodlawn. ECF 1, ¶¶ 20, 23. Mariner has at least 118 branches in at least 21 states. See ECF 17-4; ECF 17-5. According to Pooner, more than fifty similarly situated employees nationwide have worked for Mariner in the last three years as account representatives or customer service representatives, and they did not receive overtime wages. Id. ¶ 17.

         Plaintiff alleges that Johnson, as president and chief executive officer of Mariner, has complete operational control of the company and authority over hours worked and amounts paid. Id. ¶ 14. He also alleges that Strohm, the company's assistant vice president, is responsible for informing all Mariner employees of its employment policies and practices. Id. ¶ 15. Strohm also allegedly schedules employee shifts, supervises payroll operations, and sets and supervises employee clock-in and clock-out requirements and practices. Id. And, she allegedly has the authority to hire and terminate Mariner employees. Id.

         Pooner asserts that he was paid an hourly wage throughout his entire employment with Mariner (id. ¶ 20), with a final hourly wage of $16.00. Id. ¶ 22. He also alleges that all customer service representatives and account representatives (the “other representatives”) were paid an hourly wage and were not salaried. Id. ¶ 21. As an account representative, Pooner assisted loan applicants with the personal loan process. Id. ¶ 24. He also screened applicants, accepted applications, gathered personal and financial information, and verified employment of applicants. Id. ¶ 25. Further, he assessed applicants' ability to repay a personal loan, and he was involved in processing liens. Id. ¶¶ 26, 27.

         Pooner claims that he and the other representatives were scheduled to work all of the hours that Mariner's branch locations were open. Id. ¶¶ 29, 32, 35. Specifically, Pooner and the other representatives were scheduled to work from 9:00 a.m. to 5:00 p.m. on Mondays, Wednesdays, and Fridays; from 9:00 a.m. to 7:00 p.m. on Tuesdays; and from 9:00 a.m. to 5:30 p.m. on Fridays. Id. ¶¶ 28, 30, 31, 33, 34, 36. They had a half-hour break each day. Id. ¶¶ 28, 30, 34.

         Although Pooner and the other representatives were scheduled to work precisely 40 hours each week (id. ¶ 39), Pooner alleges that he and the other representatives routinely worked more than their 40 scheduled hours, without overtime payment. Id. ¶ 40. For example, if the branch was behind on collections at the end of the month, he and other representatives were asked to come into work on Saturday. Id. ¶¶ 37-38. The Complaint alleges that three policies operating “separately and . . . together” caused plaintiff and the other representatives to “frequently [work] ‘off-the-clock' hours in amounts that are more than de minimis under prevailing interpretations of the FLSA.” Id. ¶¶ 41, 50.

         First, plaintiff alleges that each Mariner branch has a “‘cash box,' in which select personnel are assigned the duties of accepting cash and check payments received from borrowers.” Id. ¶ 42. When borrowers arrived at the branch just before closing, Pooner and other representatives assigned to the cash box were allegedly “required to spend time post-closing to handle the currency and checks, and tend to ‘close out' duties.” Id. ¶¶ 41-42. These activities typically required Pooner and other representatives to remain at the branch for 15 to 30 minutes after closing. Moreover, Pooner and these representatives then allegedly had to “drive to the bank to make the deposit, ” which was 10 minutes away. Id. ¶ 44. According to the Complaint, after closing, Pooner and other representatives had to spend 30 to 45 minutes on cash box duties. Id. ¶ 45.

         Second, Pooner alleges that defendants imposed “stringent sales requirements.” Id. ¶ 46. Plaintiff and the other representatives were “required to generate at least one loan per day, or generate five (5) loans per week.” Id. Because of “the pressure to service customers during normal business hours, ” including customers who arrived just before closing, and because of the “sales driven focus, ” plaintiff alleges that they sometimes had to remain past closing hours. Id. ¶ 47.

         Third, Pooner alleges that defendants maintained a timekeeping system designed to prevent and deter employees from accurately reporting overtime hours. Id. ¶ 48. Plaintiff and the other representatives had to complete and submit their time sheets online by Friday at the end of each pay period. Id. However, if a representative entered hours that would result in overtime payment, the overtime hours would not be approved. Id. Therefore, they were required “to deliberately underreport their actual hours of work.” Id. ¶ 49.

         According to Pooner, defendants knew that plaintiff and the other representatives worked more than 40 hours per week, but did not pay them for the overtime hours. Id. ¶ 51. Pooner alleges that when he raised the issue of unpaid overtime with Strohm, she said it was “‘part of the job.'” Id. ¶ 52. On another occasion, when Pooner allegedly told Strohm that he had “to stay over and close loans, ” she replied “‘good.'” Id. ¶ 53. Pooner alleges that defendants willfully violated the FLSA by failing to pay him and other similarly situated employees for overtime hours. Id. ¶ 54.

         II. ...


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