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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

GREGORY LUTZ, et al., 

 Case No. 2:12-cv-01091 

 Plaintiffs, JUDGE GREGORY L. FROST 

 Magistrate Judge Norah McCann King 

v. 

 

HUNTINGTON BANCSHARES INC., et al., 

 Defendants. 

OPINION AND ORDER

 This matter is before the Court for consideration of Plaintiffs’ motion to conditionally 

certify a collective action under the Fair Labor Standards Act (“FLSA”) and for notice to be 

given to potential class members. (ECF No. 3.) Also before the Court are Defendants’ 

memorandum in partial opposition to Plaintiffs’ motion (ECF No. 15) and Plaintiffs’ 

supplemental memorandum (essentially a reply to Defendants’ opposition) in further support of 

their motion (ECF No. 16). The Court GRANTS IN PART AND DENIES IN PART 

Plaintiffs’ motion to the extent set forth in this Opinion and Order. 

I. Background 

Plaintiffs Gregory Lutz and Dorothy Becker filed a Complaint in this action against 

Defendants Huntington Bancshares, Inc. and Huntington National Bank, alleging violations of 

the overtime provisions of the FLSA. (Compl., ECF No. 1.) After the filing of the case, 

additional Plaintiffs James DiBenedetto, Melisa Ann Hoodhood, Kiesha Kumar Malloy, and 

Donald Tucker filed consent forms to be added as named party plaintiffs in the action. (ECF No. 

2.) Plaintiffs move for conditional certification of an FLSA collective action consisting of 

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current and former employees whose primary job duty consisted of providing 

defendants’ credit products to customers after reviewing and evaluating the loan 

applications against defendants’ credit standards and guidelines for providing 

those credit products to those customers and who worked more than 40 hours in 

any workweek but were not paid the applicable statutory premium rate for 

overtime work. 

(ECF No. 3 at PAGEID# 31.) 

The basic thrust of Plaintiffs’ lawsuit is that Defendants’ underwriters were erroneously 

classified as “exempt” employees under the FLSA and were improperly deprived of overtime 

pay. Plaintiffs contend it was Huntington Bank’s policy to classify all underwriter employees as 

“exempt” and to not pay the premium overtime rate when the underwriters worked more than 40 

hours in a workweek. 

Though Defendants deny liability, they do not oppose Plaintiffs’ motion to the extent 

Plaintiffs ask for conditional certification and for notice to be given to “other individuals 

employed by the Bank as Consumer Home Lending underwriters at any time since November 

28, 2009.” (Defs.’ Memo. Opp., ECF No. 15 at PAGEID# 151.) Defendants oppose, however, 

the scope of the class proposed by Plaintiffs. Defendants argue that the class should be limited to 

those who work or worked as “Consumer Home Lending” underwriters for Huntington National 

Bank. (ECF No. 15 at PAGEID# 139-40.) Defendants also oppose Plaintiffs’ proposed plan for 

the manner in which notice of this lawsuit should be provided to the potential opt-in plaintiffs. 

II. Discussion 

A. Conditional Certification of Collective Action 

The Fair Labor Standards Act allows employees, under certain circumstances, to 

collectively sue an employer to recover unpaid overtime compensation. See 29 U.S.C. ' 216(b). 

The statute provides in part: 

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Any employer who violates the provisions of section 6 or section 7 of this Act 

[the minimum wage or maximum hours provisions, 29 U.S.C. '' 206, 207] 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 the 

liability prescribed in either of the preceding sentences 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. 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 brought. 

Determining whether to allow an action to proceed as a collective action is left to the trial 

court’s discretion. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). In 

general, courts must first determine whether to authorize notice of the pending action and the 

opportunity to “opt-in” to be given to potential class members. Harrison v. McDonald’s Corp., 

411 F. Supp. 2d 862, 864-65 (S.D. Ohio 2005). The court will authorize “conditional 

certification” and notice to potential class members if the named plaintiffs demonstrate that they 

are “similarly situated” to the other employees whom they seek to notify. Id. at 865. After 

notice has been sent and discovery has been completed, the defendant(s) can move to decertify 

the class, challenging the court’s preliminary determination that other employees are similarly 

situated. Id. If the Court concludes that they are similarly situated, the collective action 

proceeds to trial; if not, the court de-certifies the class, dismisses the opt-in plaintiffs without 

prejudice, and proceeds to trial on the named plaintiffs’ individual claims. Smith v. Lowe’s 

Home Ctrs., 236 F.R.D. 354, 357 (S.D. Ohio 2006). 

At the conditional certification stage, the relevant stage here, Plaintiffs need make only “a 

modest factual showing” that they are similarly situated to the other potential plaintiffs whom 

they seek to notify of the collective action. Harrison, 411 F. Supp. 2d at 865 (citing Olivo v. 

GMAC Mortg. Corp., 374 F. Supp. 2d 545, 548 (E.D. Mich. 2004)). A “modest” showing does 

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not, however, mean one that the court will rubber-stamp as a proposed class. Plaintiffs must 

present some evidence to support allegations that others are similarly situated. Id. at 868. 

“Before subjecting an employer to the burdens of a collective action, ‘plaintiffs must establish a 

colorable basis for their claim that a class of ‘similarly situated’ plaintiffs exists.’” Id. (quoting 

Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991)). 

B. Plaintiffs’ Proposed Class 

Plaintiffs ask the Court to conditionally certify a class consisting of 

current and former employees whose primary job duty consisted of providing 

defendants’ credit products to customers after reviewing and evaluating the loan 

applications against defendants’ credit standards and guidelines for providing 

those credit products to those customers and who worked more than 40 hours in 

any workweek but were not paid the applicable statutory premium rate for 

overtime work. 

(ECF No. 3 at PAGEID# 31.) According to the proposed notice attached to Plaintiffs’ motion, 

this class would include employees with job titles of “Underwriters, Senior Underwriters, Home 

Lending Underwriters, Home Lending Underwriters Senior, SBA Portfolio Managers / 

Underwriters I, Business Banking/SBA Underwriters II, and similar positions.” (ECF No. 3-6, at 

PAGEID# 71.) The proposed class would encompass all current and former employees 

described above whom Defendants employed between November 28, 2009 and the present. 

(ECF No. 3 at PAGEID# 19.) 

In their memorandum in partial opposition to Plaintiffs’ motion, Defendants do not 

oppose conditional certification of a collective action per se. Rather, Defendants oppose the 

scope of the class that the named Plaintiffs seek to certify. According to declarations submitted 

in support of their motion for conditional certification Plaintiffs Lutz and Becker were a “Senior 

Underwriter” and “Home Lending Underwriter, Senior,” respectively, employed by Defendant 

Huntington Bank. Defendants first argue (with the supporting declaration of Mary Cline, Senior 

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Vice President-Loan Center Manager) that Plaintiffs were employed by Huntington Bank as 

underwriters in the Consumer Home Lending group and that underwriters in that group 

performed duties that were different than those of underwriters in other groups, including the 

Mortgage Home Lending Group. (ECF No. 15 at PAGEID# 15; Cline Decl. && 9-13, ECF No. 

15-1.) Defendants also contend that the Bank’s Consumer Home Lending underwriters “have 

compensation and incentive plans that are distinct from other underwriter positions at 

Huntington, and the underwriters’ performance is measured against criteria specific to their job 

within the consumer group.” (Cline Decl. & 8.) Because of the differences between the 

Consumer Home Lending underwriters and other underwriter positions at the Bank, Defendants 

contend that notice should be limited to Consumer Home Lending underwriters because those 

employees are the only ones similarly situated to Plaintiffs. 

Plaintiffs argue that the differences cited by Defendants do not preclude certification of a 

class consisting of all underwriters, regardless of group or department. Indeed, Plaintiffs point 

out that the differences between underwriter positions cited by Defendants are minor and do not 

change the fact that the primary duty of all underwriters—whether in the Consumer Home 

Lending group or in the Mortgage Home Lending Group—was to review loan applications 

against Defendants’ guidelines and to determine whether to approve a loan. (Pltfs.’ Supp. 

Memo., ECF No. 16 at PAGEID# 163.) And at this conditional certification stage, “Plaintiffs 

can show they are similarly situated by showing that ‘their claims [are] unified by common 

theories of defendants’ statutory violations, even if the proofs of these theories are inevitably 

individualized and distinct.’” Swigart v. Fifth Third Bank, 276 F.R.D. 210, 213 (S.D. Ohio 

2011) (quoting O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009)). 

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Based on the evidence presented by the parties, the Court concludes that Plaintiffs have 

demonstrated, for purposes of conditional certification, that persons employed by Huntington 

Bank whose primary job was underwriting home mortgages are similarly situated. In support of 

their motion, Plaintiffs submitted declarations from Plaintiffs Lutz, Becker, and DiBenedetto, 

along with detailed job descriptions of certain underwriter positions within Huntington Bank. 

According to Plaintiff Lutz, his title was “Senior Underwriter” and his primary job duty was 

reviewing customer files and deciding whether to extend credit to Huntington Bank customers. 

(ECF No. 3-2 at && 5-6, PAGEID# 36.) Lutz states that his job duties were similar to the 

“Home Lending Underwriter” and “Home Lending Underwriter Senior” positions within 

Huntington National Bank. (Id. at & 6.) Plaintiff Becker’s declaration is similar to Lutz’s: 

Becker worked as a “Home Lending Underwriter Senior,” but noted that her review of internal 

job descriptions demonstrates that positions such as Home Lending Underwriter, Underwriter, 

and Senior Underwriter “performed the same or similar job duties as [Becker] did during [her] 

employment with Huntington National Bank.” (ECF No. 3-3 at & 6, PAGEID# 44.) Plaintiff 

DiBenedetto similarly affirms that even though his title was “Underwriter I,” the positions of 

Home Lending Underwriter and Home Lending Underwriter Senior performed the same or 

similar job duties as he did during his employment with Huntington Bank. (ECF No. 3-4 at & 6, 

PAGEID# 52.) 

The Bank’s internal job descriptions corroborate Lutz’s and Becker’s assessment, as the 

jobs of “Home Lending Underwriter” and two different categories of “Home Lending 

Underwriter Senior” describe vastly similar positions. (ECF No. 3-5 at PAGEID# 60-65.) 

Huntington Bank does not dispute that it classified these underwriter positions as exempt from 

the FLSA’s overtime requirements; nor does it dispute that it did not pay the overtime rate when 

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these underwriters worked over 40 hours in a workweek. See Swigart, 276 F.R.D. at 213 

(finding employees to be similarly situated for certifying collective action when they had “same 

primary job duty” of selling residential mortgage products, were classified as exempt, and were 

not paid overtime). For these reasons, the Court find that Plaintiffs have shown, for purposes of 

conditional certification, that they are similarly situated with other current or former home 

lending underwriters. 

While the Court finds conditional certification of a class to be proper in this case, the 

Court does not see fit to certify a class as wide in scope as the one Plaintiffs seek. Plaintiffs’ 

proposed class includes employees who have worked in underwriter positions unrelated to home 

mortgage lending. For example, Plaintiffs propose to include those employees who worked in 

the positions of “Business Banking SBA Underwriter II” and “SBA Portfolio Manager/ 

Underwriter I.” (ECF No. 3-5 at PAGEID# 66-69; ECF No. 3-6 at PAGEID# 71.) But Plaintiffs 

have not presented evidence that would allow this Court to conclude that employees who work 

(or worked) as underwriters in the Business Banking organization are similarly situated to 

employees who work (or worked) as underwriters in the Home Lending organization. For one 

thing, none of the Plaintiffs who submitted declarations in support of Plaintiffs’ conditional 

certification motion professed to having experience working in the Business Banking 

organization. For another thing, it is not at all clear to the Court (even under the “modest factual 

showing” standard for conditional certification) that the Business Banking underwriters are 

similarly situated to Home Lending underwriters. Plaintiffs impress upon the Court that 

underwriting is underwriting, regardless of whether the Bank is underwriting a home loan as 

opposed to a business loan. (Pls.’ Supp. Memo., ECF No. 16 at PAGEID# 162.) But the job 

descriptions submitted as evidence by Plaintiffs do not suggest that all underwriting positions are 

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created equal. For example, the Business Banking underwriting positions sought to be included 

within Plaintiffs’ class contain the following “Brief Description” of the job duties: 

Responsible for the evaluation and underwriting of Business Banking loans to 

determine credit worthiness and compliance to Huntington lending policy. 

Responsible for more complex business loan relationships, and those with higher 

credit exposure within the business segment. Reviews and analyzes all customer 

financial information to ensure sound credit decisions are made. Underwriter 

credit authority limits up to $2MM. 

(ECF No. 3-5 at PAGEID# 66, 68 (emphasis added).) This description, in particular the last 

sentence regarding underwriter credit authority (something not contained in the Home Lending 

job descriptions) suggest that the Business Banking underwriter positions come with more 

discretion in the performance of the underwriter function, which would arguably bring the 

Business Banking positions closer to satisfying the administrative exemption from FLSA 

overtime requirements. See 29 U.S.C. ' 213(a)(1). 

The detailed descriptions of the Business Banking underwriter positions are also different 

from the Home Lending position descriptions. The Business Banking positions contain more 

duties than the Home Lending positions, including some aspects that suggest a greater degree of 

responsibility and discretion being entrusted to Business Banking underwriters. (ECF No. 3-5 at 

PAGEID# 68.) 

For these reasons, the Court finds that certification of a class including Home Lending 

underwriters is appropriate. The Court denies Plaintiffs’ motion, however, to the extent it seeks 

to include Business Banking underwriters within the scope of the class. 

C. Court Supervised Notice 

In addition to seeking certification of an FLSA collection action class, Plaintiffs also ask 

the Court to approve the form of notice proposed to be sent to the class. (ECF No. 3-6 at 

PAGEID# 71.) A district court may facilitate an FLSA collective action by authorizing notice of 

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the suit to potential opt-in plaintiffs. See Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165, 169 

(1989). Thus, the Court will supervise notice so as to provide potential plaintiffs with “accurate 

and timely notice concerning the pendency of the collective action, so that they can make 

informed decisions about whether to participate.” Id. at 170. 

In this case, attached to Plaintiffs’ motion is a copy of the notice that they ask this Court 

to approve. (ECF No. 3-6, PAGEID# 71-75.) Defendants raise no objections to the content of 

the proposed notice submitted by Plaintiffs. Defendants do, however, object to various aspects 

of Plaintiffs’ motion related to how and to whom the court supervised notice will be distributed. 

1. Inclusion of Huntington Bancshares, Inc. 

As an initial matter, the Court addresses Plaintiffs’ apparent intent for the notice to go to 

employees of both Huntington Bank and Huntington Bancshares Inc., the named Defendants in 

this action. Defendants argue that Plaintiffs have provided no basis to include Huntington 

Bancshares within the scope of the collective action notice. (Defs.’ Memo. Opp., ECF No. 15 at 

PAGEID# 142.) 

The Court agrees with Defendants that Huntington Bancshares should not be included in 

the notice. Plaintiffs have offered no evidence regarding employees of Huntington Bancshares. 

Indeed, the Plaintiffs allege they are current or past employees of Huntington Bank; none of the 

Plaintiffs who submitted declarations in support of their motion to certify a class indicate that 

they are (or were) employees of Huntington Bancshares. Nor do Plaintiffs explain in their 

memoranda in support of their motion why employees of Huntington Bancshares should be 

included in the notice.1

 Without any explanation or evidence to show why employees of 

 

1 Plaintiffs’ Complaint alleges that Huntington Bank is a “subsidiary of Huntington Bancshares, Inc.” 

(Compl. & 21, ECF No. 1 at PAGEID# 4.) The Complaint then goes on to use the term “Huntington” to 

refer to Huntington Bank and Huntington Bancshares collectively. Plaintiffs do not explain in their 

motion for class certification, however, why employees of Huntington Bancshares should be included in a 

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Huntington Bancshares are similarly situated to Plaintiffs, the Court declines to issue notice to 

the Huntington Bancshares employees; they are not a part of this collective action. 

2. Telephone Numbers, E-mail Addresses, and Social Security Numbers 

In order to facilitate the provision of notice to potential opt-in plaintiffs, Plaintiffs ask the 

Court to require Defendants to provide to Plaintiffs’ counsel a spreadsheet containing the “name, 

current or last known address, phone number, [last four digits of] social security number, 

location of employment, dates of employment, date of birth and e-mail address” of all 

individuals who fit within the conditionally certified class. (Pls.’ Mot., ECF No. 3 at PAGEID# 

32.) Plaintiffs argue that the last four digits of social security numbers will “aid plaintiffs’ 

counsel in locating current and accurate addresses for putative plaintiffs” if notices are returned 

as undeliverable. (Id. at PAGEID# 30.) Plaintiffs make a similar point with regard to telephone 

numbers and e-mail addresses. (Pls.’ Supp. Memo., ECF No. 16 at PAGEID# 166.) Defendants 

oppose providing telephone numbers, e-mail addresses, or social security numbers, arguing that 

Plaintiffs have not demonstrated the need for this information. (Defs.’ Memo. Opp., ECF No. 15 

at PAGEID# 145.) Defendants argue that the preferred method of notice is first-class mail and 

that there is no reason to provide information other than last known addresses at this time. (Id.) 

Plaintiffs acknowledge that first-class mail is the typical mode of providing notice to 

potential opt-in plaintiffs. (ECF No. 16 at PAGEID# 166.) But they contend that the additional 

information they request helps to ensure that the potential opt-in plaintiffs actually receive the 

notice. With the telephone numbers, e-mail addresses, and last four digits of social security 

numbers, Plaintiffs say they can more easily locate current contact information for individuals 

 

collective action, much less explain how Plaintiffs could be deemed employees of Huntington 

Bancshares. See Gonzalez v. HCA, Inc., No. 3:10-577, 2011 U.S. Dist. LEXIS 95774, at *38-39 (M.D. 

Tenn. Aug. 25, 2011) (denying motion for conditional class certification as to the parent corporation when 

plaintiffs failed to show how the parent corporation could be deemed their joint employer). 

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who, for example, are no longer employed by Huntington Bank and have moved since leaving 

the Bank’s employ. (Id.) 

Courts generally approve only a single method for notification unless there is a reason to 

believe that method is ineffective. Wolfram v. PHH Corp., No. 1:12-cv-599, 2012 U.S. Dist. 

LEXIS 181073, at *11 (S.D. Ohio Dec. 21, 2012) (citing Shajan v. Barolo, No. 10cv1385, 2010 

U.S. Dist. LEXIS 54581 (S.D.N.Y. June 2, 2010)). For example, a judge of this Court permitted 

disclosure of private email addresses in addition to last known addresses in order to ensure that 

former employees received at least one copy of the notice. Swigart, 276 F.R.D. at 215. And 

another judge of this Court found disclosure of e-mail addresses appropriate because 

“[p]ermitting transmission by mail and by email to former employees both appropriately 

safeguards the privacy of individuals not currently a party to the case and helps ensure that all 

potential plaintiffs receive notice of their right to join this lawsuit.” Wolfram, 2012 U.S. Dist. 

LEXIS 181073 at *12. 

Though Defendants argue that it is speculative to conclude that sending notice by e-mail 

is necessary, this Court chooses to follow the lead of Swigart and Wolfram and allow sending 

notice by e-mail to former Huntington Bank employees who are within the certified class. The 

Court finds that transmitting notice to all putative opt-in Plaintiffs by mail and additionally by email to those no longer employed by Huntington Bank is appropriate. See Swigart, 276 F.R.D. at 

215; Wolfram at *12. By allowing e-mail notice to former employees now, the Court hopes to 

avoid the added step of having to resend notice in the event that a former employee’s last known 

home address proves to be inaccurate. Accordingly, the Court grants Plaintiffs’ request for 

Defendants to provide information about current and former Huntington Bank employees within 

the opt-in class, but only to the extent that Defendants are ordered to provide to Plaintiffs’ 

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counsel (in hard copy and electronically) a spreadsheet with names, current or last known 

addresses, locations of employment, dates of employment, and (for those potential plaintiffs no 

longer employed at Huntington Bank) last known e-mail addresses. 2 

The Court agrees with Defendants, however, that Plaintiffs have not shown that 

disclosure of social security numbers (last four digits) and/or telephone numbers of potential 

class members is appropriate at this time. The disclosure of last known addresses of current and 

former employees and the email addresses of former employees should be sufficient to provide 

reasonable notice to the class. In light of the Court allowing disclosure of these addresses, the 

Court deems disclosure of social security numbers and/or telephone numbers to be unnecessary 

unless and until Plaintiffs make some showing that using the last known addresses and/or email 

addresses does not enable them to provide reasonable notice to the class. See Wolfram, 2012 

U.S. Dist. LEXIS 181073 at *12 (declining to order disclosure of social security numbers and/or 

telephone numbers when last known addresses and email addresses should be sufficient). 

3. Reminder Notices, Posting in Workplaces, and Newsletters 

Plaintiffs also request that this Court order Defendants to take additional steps to ensure 

that potential class members have actual notice of this action. Specifically, Plaintiffs ask that 

this Court order Defendants to (1) post notices and opt-in forms in a conspicuous place (e.g., 

break rooms in the workplace) during the pendency of this lawsuit and (2) “publicize” the notice 

five times in Defendants’ employee newsletter or other employee communications. (ECF No. 3 

at PAGEID# 32.) Defendants object to these notice requirements, characterizing them as being 

 

2 Plaintiffs’ motion also asks that the list contain the dates of birth for the potential opt-in plaintiffs. (ECF 

No. 3 at PAGEID# 32.) Defendants take the position that the list should include only names, last known 

addresses, and dates of employment. (ECF No. 15 at PAGEID# 144.) Because Plaintiffs do not explain 

why the date of birth information is necessary, the Court declines to order such disclosure.

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designed to encourage participation more than provide notice to putative plaintiffs. (ECF No. 15 

at PAGEID# 147.) 

The Court declines to impose these reminder notice requirements on Defendants in this 

case. As the Court observed in Wolfram, “[m]any courts have rejected reminder notices, 

recognizing the narrow line that divides advising potential opt-in plaintiffs of the existence of the 

lawsuit and encouraging participation.” Wolfram at *13. Plaintiffs have not demonstrated why, 

for notice purposes, it is necessary for the notices to be posted in the workplace or publicized in 

employee newsletters. 

III. Conclusion 

In accordance with the foregoing, the Court GRANTS IN PART AND DENIES IN 

PART Plaintiffs’ motion for conditional certification and notice to potential class members. 

(ECF No. 3.) The Court GRANTS conditional class certification under the FLSA and 

conditionally certifies the following class: 

All current and former employees of Huntington National Bank from November 

28, 2009 to the present, whose primary job duty consisted of providing the Bank’s 

credit products to residential loan customers after reviewing and evaluating the 

loan applications against the Bank’s credit standards and guidelines for providing 

residential loan products and who worked more than 40 hours in any workweek 

but were not paid the applicable statutory premium rate for overtime work. 

The Court further ORDERS the parties to submit, within seven days of the date of this 

Opinion and Order, a joint or separate proposed judicial notice that complies with the parameters 

set forth herein. The proposed judicial notice shall include a specific opt-in period not to exceed 

90 days. The parties are encouraged to confer and reach agreement on an appropriate opt-in 

period. 

Additionally, Defendants shall produce to Plaintiffs within 14 days of the date of this 

Opinion and Order a list of all individuals who fall within the certified class described above. 

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The list shall be in spreadsheet format, produced electronically and in hard copy, and contain the 

following information: 

1. Full name of employee or former employee; 

2. Last known address of the employee or former employee; 

3. If a former employee, the former employee’s last known e-mail address; 

4. Dates of employment for each employee or former employee; 

5. The location of employment for each employee or former employee. 

 IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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