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Brennan v. Qwest Communications Internat'l, Inc.: US District Court : CIVIL PROCEEDURE - conditional class certification regarding claim of required off-clock work

Lyle Brennan, Christopher Richard,
and Michael Lundell, on behalf of
themselves and other individuals
similarly situated,
Civil No. 07-2024 ADM/JSM
Qwest Communications International,
Inc., Qwest Communications Corporation,
and Qwest Corporation,
James H. Kaster, Esq., Jessica J. Clay, Esq., and Sarah M. Fleegel, Esq., Nichols Kaster &
Anderson, PLLP, Minneapolis, MN, on behalf of Plaintiffs.
Robert R. Reinhart, Esq., Melissa Raphan, Esq., and Ryan E. Mick, Esq., Dorsey & Whitney
LLP, Minneapolis, MN, on behalf of Defendants.
On January 25, 2008, the undersigned United States District Judge heard oral argument
on Plaintiff Lyle Brennan, Christopher Richard, and Michael Lundell’s (“Plaintiffs”) Motion for
Conditional Class Certification and Judicial Notice [Docket No. 37]. On February 7, 2008,
Plaintiffs submitted a Motion to Supplement the Record for Conditional Class Certification and
Judicial Notice [Docket No. 85]. For the reasons set forth herein, Plaintiffs’ Motion for
Conditional Class Certification and Judicial Notice is granted and Plaintiffs’ Motion to
Supplement the record is denied as moot.
Plaintiffs are current and former network technicians for Defendant Qwest
Communications International, Inc., Qwest Communications Corporation, and Qwest
Corporation, foreign corporations, (collectively “Qwest”) at various facilities throughout
Minnesota. Clay Aff. [Docket No. 40] ¶ 3, Exs. 7-14. Qwest is a telecommunications company
that provides internet service, cellular telephone service, long-distance telephone service, and
digital television service to businesses and residential customers. Id. Ex. 1.
As network technicians, Plaintiffs install, maintain, repair and test cable and equipment
for telephone, cable television, and internet service. Id. Ex. 2. Plaintiffs are members of the
Communication Workers of America (“CWA”), whose terms of employment are governed by a
CWA collective bargaining agreement (“CBA”). Coddington Aff. [Docket No. 60] ¶¶ 4,5. The
CBA states that Qwest’s overtime policy is that employees shall be paid for all time worked and
pays employees one and one-half hours pay for “incidental overtime,” time worked in excess of
the employee’s regularly scheduled shift. Miles Aff. [Docket No. 63] ¶¶ 5(a), (b). Network
technicians get two fifteen-minute paid rest breaks and a thirty-minute unpaid lunch break. Id.
¶ 5(e); Buchholz Aff. [Docket No. 59] ¶ 10.
Network technicians begin their workday at a Qwest garage and drive Qwest trucks to the
customer’s premises to perform their work. Coddington Aff. ¶ 3; Lester Aff. [Docket No. 61]
¶ 6; Buchholz Aff. ¶ 5. Qwest sets forth the following requirements for job performance: (1) that
the technician “review all assigned work and commitment times before leaving the garage”; (2)
that the technician start work at the assigned start time with his or her truck “ready to go, clean,
and stocked with materials for [the day’s] work”; (3) the technician must “call [the] first
customer and dispatch on [the] first work item within 30 minutes of [the] start time and prior to
leaving [the] garage,” this requirement further states that the start time for the first item needs to
be the start time for the technician’s shift; (4) that all “testable fault activity” be pre-tested by the
technician before dispatch; and (5) that the technician complete time entry at the end of the work
day. Buchholz Aff. Ex. A. Technicians are expected to leave the garage for the first job within
fifteen minutes of the start time. Id. Ex. C. Technicians self-report their time worked using a
TechTAD, a handheld key pad device. Id. ¶ 6.
Network technicians are subject to the production standards set forth in the Quality Jobs
per Day (“QJD”) program (formerly known as the Effective Jobs per Day or “EJD”). Lester Aff.
¶ 3. The QJD program utilizes a formula to compute the QJD score. Clay Aff. Ex. 4 at 5. The
QJD score represents the number of “productive jobs” the technician completes within the total
hours worked on a particular day. Id. The QJD score is calculated by first determining the total
number of “productive jobs,” the total number of jobs completed in the work day excluding “any
type of rework following a completed dispatch within a 30 day window.” Id. Ex. 3. The “total
hours worked” used in the calculation includes all payroll hours, regular and overtime, but
excludes any “entitlement time, paid union activities, or any excused time paid (jury duty, death
in the family, etc.).” Id. Qwest correlates the QJD scores to the following classifications: more
than satisfactory, satisfactory, less than satisfactory, and needs improvement. Id. Ex. 5. For
example, a QJD score for a technician working on “plain old telephone service” (“POTS”) of
5.16 or better is classified as “more than satisfactory,” while a score of 4.3 or less falls in the
“needs improvement” range. Id. Technicians whose QJD score classifies them as “less than
satisfactory” or “needs improvement” are subject to progressive discipline. Id. “Technicians
will progress from Documented Discussion, to Written Warning, then Warning of Dismissal, and
finally become subject to Dismissal.” Id.
Plaintiffs assert that Qwest’s QJD policy forces them and other similarly situated
employees to work without pay before and after their shifts, and during meal and rest breaks in
violation of the Fair Labor Standards Act (“FLSA”) and Minnesota Fair Labor Standards Act.
Accordingly, Plaintiffs have brought this FLSA action on behalf of themselves and other
similarly situated network technicians under 29 U.S.C. § 216(b).
In support of their Motion for Conditional Class Certification and Judicial Notice,
Plaintiffs submitted the declarations of named and opt-in plaintiffs. Each declarant states that he
or she was required to work off-the-clock without compensation in order to comply with Qwest
policies and meet the QJD score required by the company. Brennan Decl. (Clay Aff. Ex. 7) ¶ 5;
Lundell Decl. (Clay Aff. Ex. 8) ¶ 6; Guthrie Decl. (Clay Aff. Ex. 9) ¶ 4; Buckner Decl. (Clay
Aff. Ex. 10) ¶ 4; Hendrickson Decl. (Clay Aff. Ex. 11) ¶ 4; Sullivan Decl. (Clay Aff. Ex. 12) ¶ 4;
Richie Decl. (Clay Aff. Ex. 13) ¶ 4; Dietz Decl. (Clay Aff. Ex. 14) ¶ 4. The declarants aver they
performed the following required tasks while working off-the-clock: log into the required
computer program, perform safety checks on the truck, receive the assigned work and route for
the day, load the truck with supplies needed for the day’s work, get customer credentials, make
“pre-calls” to customers, complete paperwork, and report time. Brennan Decl. ¶ 7; Lundell
Decl. ¶ 15; Guthrie Decl. ¶ 5; Buckner Decl. ¶ 5; Hendrickson Decl. ¶ 5; Sullivan Decl. ¶ 5;
Richie Decl. ¶ 5; Dietz Decl. ¶ 6. Several of the declarants stated that their supervisors were
aware that they worked off-the-clock and two declarants from different Qwest facilities
specifically stated that their supervisors instructed them not to report overtime. Brennan Decl. ¶
16; Lundell Decl. ¶ 8; Buckner Decl. ¶ 10; Hendrickson Decl. ¶¶ 11, 17; Richie Decl. ¶ 7; Dietz
Decl. ¶ 9.
A. Motion for Conditional Class Certification
Plaintiffs move for conditional class certification pursuant to 29 U.S.C. § 216(b).
Plaintiffs define the proposed FLSA class as: “all individuals who are, were or will be employed
by Defendants in the State of Minnesota as Network Technicians at any time within three years
of the filing of this Complaint until the final disposition of this action.” Compl. ¶ 18 [Docket
No. 1]. 29 U.S.C. § 216(b) provides that an employee may bring a collective action to collect
unpaid overtime compensation against an employer “for and in behalf of himself or themselves
and other employees similarly situated.” In order to join the action as a plaintiff, each employee
must give written consent “and such consent [must be] filed in the court in which such action is
brought.” Id.
To proceed with a collective action, Plaintiffs must demonstrate that they are similarly
situated to the proposed FLSA class. Determining whether Plaintiffs are similarly situated to the
proposed class requires a two-step inquiry:
First, the court determines whether the class should be conditionally
certified for notification and discovery purposes. At this stage, the plaintiffs need
only establish a colorable basis for their claim that the putative class members
were the victims of a single decision, policy, or plan. In the second stage, which
occurs after discovery is completed, the court conducts an inquiry into several
factors, including the extent and consequences of disparate factual and
employment settings of the individual plaintiffs, the various defenses available to
the defendant that appear to be individual to each plaintiff, and other fairness and
procedural considerations.
Burch v. Qwest, 500 F. Supp. 2d 1181, 1186 (D. Minn. 2007) (quoting Dege v. Hutchinson
Tech., Inc., Civil No. 06-3754, 2007 WL 586787, at *1 (D. Minn. Feb. 22, 2007) (unpublished)
(internal citations omitted)).
Because the parties have not completed discovery, this case is at the first step of the twostep
inquiry. In determining whether Plaintiffs have come forward with evidence establishing a
colorable basis for their claim that they are victims of the QJD policy, the Court “does not make
any credibility determinations or findings of fact with respect to contrary evidence presented by
the parties at this initial stage.” Dege, 2007 WL 586787, at *2.
Plaintiffs contend the similarly situated denominators they share with the members of the
proposed FLSA class are, as network technicians for Qwest, they are subject to the same job
requirements and are all subject to the same QJD policy. Plaintiffs contend that the declarations
submitted in support of their Motion demonstrate that the QJD policy is enforced at seven
different Qwest facilities located across Minnesota. They further assert that the declarations
demonstrate that numerous network technicians, reporting to different facilities and supervisors,
are required to work off-the-clock to complete required tasks because of the QJD standards.
Qwest contends that conditional certification is not appropriate because performance
expectations are not a common factor supporting collective action. Further, Qwest contends that
because of the individualized nature of Plaintiffs’ employment as network technicians, Plaintiffs
cannot establish they are similarly situated to the potential class. Qwest also asserts that because
the QJD goals vary from year-to-year and among the different classes of technicians (broadband
versus POTS, for example) and because discipline under the QJD policy is an individualized
determination, Plaintiffs cannot establish they are similarly situated. Finally, Qwest contends
that Plaintiffs are required to demonstrate that there is interest among similarly situated
technicians to join the class, which Qwest contends Plaintiffs have not done.
The Court finds that Plaintiffs have met their burden for the purpose of conditional class
certification at this early stage of the litigation. Plaintiffs’ declarations demonstrate a colorable
basis for the claim that Plaintiffs worked off-the-clock without compensation to complete
required tasks and meet the requirements set forth for network technicians. Further, Plaintiffs’
declarations demonstrate a colorable basis for the claim that Plaintiffs worked off-the-clock
without compensation because of the QJD policy. The declarations also demonstrate a colorable
basis for the claim that despite Qwest’s policy of paying overtime, Qwest supervisors were
aware that employees worked off-the-clock without compensation, took no action in response,
and in two cases, encouraged employees to underreport their hours. Plaintiffs, despite reporting
to different Qwest garages located throughout Minnesota and to different supervisors, all made
similar allegations regarding the effect of the QJD policy. On this Motion, Plaintiffs’ have a
minimal burden and the Court “does not make any credibility determinations or findings of fact
with respect to contrary evidence presented by the parties at this initial stage.” Dege, 2007 WL
586787, at *2.
In arguing that conditional certification is not appropriate because performance
expectations are not a common factor supporting collective action, Qwest cites Horne v. United
Services Automobile Assoc., 279 F. Supp. 2d 1231 (M.D. Ala. 2003). Qwest contends that the
court in Horne “held that employees were not similarly situated because the production standards
were implemented and enforced by different managers.” Defs.’ Mem. in Opp. to Pls.’ Mot. for
Conditional Class Certification [Docket No. 50] at 14. Although Horne is of no precedential
value, the Court will address it because Qwest relies heavily on it.
The court’s holding in Horne is more narrow than Qwest construes it. Horne did not set
forth a per se rule that performance expectations cannot be the basis of an FLSA claim under
§ 216(b), nor did the court hold the plaintiff was not similarly situated to the proposed class
members simply because the performance expectations were implemented by multiple
supervisors. The court denied the plaintiff’s motion for conditional class certification because he
failed to meet his evidentiary burden: he offered no evidence to demonstrate that any other
employees had problems with the performance expectations or that any other supervisors
instructed employees that the company would not pay overtime. Id. at 1235. The facts in
Horne are distinguishable from the facts in the present case where Plaintiffs have offered
declarations alleging they were subject to the same plan, that they worked off-the-clock in order
to comply with the plan, and that the plan was enforced by various supervisors at facilities across
the state.
Finally, it appears there are thirty-four individuals who have joined the present action.
Plaintiffs have demonstrated sufficient interest among the proposed class.
B. Plaintiffs’ Request to Supplement the Record
After oral argument on Plaintiffs’ Motion for Conditional Class Certification and Judicial
Notice, Plaintiffs filed a Motion to Supplement the Record. Plaintiffs request that the Court
include the Declaration of Walter Engelhardt (“Engelhardt”), Clay Aff. [Docket No. 88] Ex. 1, in
the record considered in support of Plaintiffs’ Motion for Conditional Class Certification and
Judicial Notice. Because the Court is able to decide Plaintiffs’ Motion for Conditional
Certification and Judicial Notice without relying on Engelhardt’s declaration, Plaintiffs’ Motion
to Supplement the Record is moot.
C. Judicial Notice and Production of List of Employees
Plaintiffs also request Court-facilitated notice and a requirement that Defendants produce
a list identifying all Minnesota network technicians employed by Qwest within the past three
years. Plaintiffs submitted arguments in support of these requests and also submitted a proposed
notice. Defendants have not yet addressed these subjects in their briefing on the Motion.
“[D]istrict courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b)
. . . by facilitating notice to potential plaintiffs.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S.
165, 169 (1989). “Because trial court involvement in the notice process is inevitable in cases
with numerous plaintiffs where written consent is required by statute, it lies within the discretion
of a district court to begin its involvement early, at the point of the initial notice, rather than at
some later time.” Id. at 171. “By monitoring preparation and distribution of the notice, a court
can ensure that it is timely, accurate, and informative. Both the parties and the court benefit
from settling disputes about the content of the notice before it is distributed. This procedure may
avoid the need to cancel consents obtained in an improper manner.” Id. at 172. “Court
authorization of notice serves the legitimate goal of avoiding a multiplicity of duplicative suits
and setting cutoff dates to expedite disposition of the action.” Id.
Facilitated notice is appropriate in this case. Court-facilitated notice is necessary in order
to prevent the expiration of claims based on the running of the statute of limitations and because
of the size of the class and its geographic scope (numerous garages throughout Minnesota).
Having determined that conditional class certification and court-facilitated notice is
appropriate, the Court orders the parties to confer and jointly submit a proposed notice to the
Court no later than Friday, April 18, 2008. By the same date, the parties are ordered to confer
and provide the court with a proposed order regarding the discovery of the potential members of
the conditionally certified class. In the event that the parties are unable to reach agreement
regarding the proposed notice or order, they are instructed to contact the Court by Friday, April
18, 2008.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
1. Plaintiffs’ Motion for Conditional Class Certification and Judicial Notice [Docket No.
37] is GRANTED;
2. Plaintiffs’ Motion to Supplement the Record for Conditional Class Certification and
Judicial Notice [Docket No. 85] is DENIED as moot; and,
3. The Parties are ordered to submit a proposed notice and an order regarding discovery
of the proposed class by Friday, April 18, 2008; in the event that the parties are unable to reach
agreement, they must contact the Court by that same date.
s/Ann D. Montgomery
Dated: March 25, 2008.


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