1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

JENNIFER SELDOMRIDGE, on behalf of 

herself and others similarly situated, Case No. 1:18-cv-553 

Plaintiff, 

Dlott, J. 

 vs. Bowman, M.J. 

FIFTH THIRD BANK, 

Defendant. 

MEMORANDUM OF OPINION AND ORDER 

This civil action is before the Court on Plaintiff’s motion for conditional 

certification and court-authorized notice (Doc. 19) and the parties’ responsive 

memoranda. (Docs. 20, 21). 1

I. Background and Facts 

At all relevant times, Defendant has been a national bank, operating two 

customer service call centers in Michigan and Ohio. Defendant employs non-exempt 

Service to Solutions employees and others similarly situated at those call centers. 

Plaintiff worked as a Service to Solutions employee in Defendant’s Grand Rapids, 

Michigan call center. (Doc. 1 at ¶ 15). Plaintiff answered inbound telephone calls from 

customers and was classified by Defendant as a non-exempt employee. 

 

1 Although the parties have not raised the issue, “a motion for conditional certification under the FLSA is a 

nondispositive matter,” and therefore appropriate for a magistrate judge to decide under 28 U.S.C. § 

636(B)(1)A). Rutledge v. Claypool Elec., Inc., No. 2:12–cv–0159, 2013 WL 435058, at *2 (S.D.Ohio Feb. 

3, 2013); accord Summa v. Hofstra Univ., 715 F.Supp.2d 378, 384–85 (E.D.N.Y.2010)(finding that a 

motion for conditional certification was “only a preliminary determination” and “not dispositive” and that it 

was not included within the exception to a magistrate judge's authority for motions “to permit maintenance 

of a class action,” see 28 U.S.C. § 636(B)(1)A), because the standard for granting conditional certification 

of a collective action was “materially different” than the standard for certifying a class action under 

Fed.R.Civ.P. 23 (internal quotation marks omitted)). 
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Plaintiff claims she regularly worked forty or more hours per workweek, not 

including pre-shift work. Plaintiff alleges that she was not paid for all hours worked 

because Defendant did not permit her or her co-workers clock in prior to the start of 

their shifts even though they were performing compensable work during the pre-shift 

time. For example, Defendant trains and instructs the employees to be ready to take 

their first call promptly at the start of their shifts. To be ready, Plaintiff is required to first 

boot up their computers, log into Defendant’s computer and phone systems and 

applications, and review emails for alerts and other items before clocking in. This 

process was required at the start of every shift, so that Plaintiff and her co-workers 

could take their first calls at their scheduled start time. Plaintiff alleges that this process 

took at least 10 minutes. 

Plaintiff contends that Defendant did not count this time as hours worked, and 

this practice resulted in Defendant’s Service to Solutions employees, and those working 

in other call center positions, being underpaid overtime premiums owed to them. In light 

of the foregoing, Plaintiff asks this Court to grant conditional certification under 29 

U.S.C. § 216(b) and to order the issuance of a notice to similarly situated persons 

enabling them to opt-in. Accordingly, Plaintiff requests conditional certification of the 

following class: 

 “All former and current Service to Solutions employees, and those 

working in other call center positions, employed by Defendant at any time 

in the period measured from three years prior to the filing of this Complaint 

to the present.” 

In addition to asking the Court to conditionally certify the collective class, Plaintiff 

also asks the Court to enter an Order: 

- directing that notice be sent by United States mail and email to all 

former and current Service to Solutions Employees and similarly situated 
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call center employees employed by Defendant at any time in the period 

measured from three years prior to the filing of this Complaint to the 

present. 

- directing the parties to jointly submit within 14 days a proposed 

Notice informing such present and former employees of the pendency of 

this collective action and permitting them to opt into the case by signing 

and submitting a Consent to Join Form; 

- directing Defendant to provide within 14 days a Roster of such 

present and former employees that includes their full names, their dates of 

employment, and their last known home addresses and personal email 

addresses; 

- directing that the Notice, in the form approved by the Court, be sent 

to such present and former employees within 30 days using the home and 

email addresses listed in the Roster; and 

- providing that duplicate copies of the Notice may be sent in the 

event new, updated, or corrected mailing addresses or email addresses 

are found for one or more of such present or former employees. 

(Doc. 19) 

II. Standard of Review 

The FLSA authorizes employees to bring collective actions against employers to 

recover damages for unpaid wages provided two conditions are met: (1) the employees 

are “similarly situated” and (2) all plaintiffs provide written consent to become a party 

and such consent is filed with the court. 29 U.S.C. § 216(b). Courts within the Sixth 

Circuit generally apply a two-step procedure for determining whether a FLSA case 

should proceed as a collective action. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 

546–47 (6th Cir. 2006). 

The first step, commonly referred to as “conditional certification,” takes place 

prior to the completion of discovery and requires the plaintiff to make an initial showing 

that the employees in the proposed class are “similarly situated.” Id. at 546 (quoting 29 
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U.S.C. § 216(b)). At this first stage, “conditional certification may be given along with 

judicial authorization to notify similarly situated employees of the action,” which allows 

plaintiffs to opt-in to the lawsuit. Monroe v. FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 

2017) (citing Comer, 454 F.3d at 546). 

At the conditional certification stage, a “plaintiff must only ‘make a modest factual 

showing’ that [the plaintiff] is similarly situated to the other employees he is seeking to 

notify.” Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 764 (N.D. Ohio 2015) 

(quoting Comer, 454 F.3d at 546–47); see also Myers v. Marietta Mem. Hosp., 201 F. 

Supp. 3d 884, 890 (S.D. Ohio 2016). The standard employed during this initial stage of 

the litigation is “fairly lenient ... and typically results in ‘conditional certification’ of a 

representative class.” Myers, 201 F. Supp. 3d at 890 (quoting Comer, 454 F.3d at 547). 

Whether plaintiffs are similarly situated depends on a number of factors, including the 

“factual and employment settings of the individual[ ] plaintiffs, the different defenses to 

which the plaintiffs may be subject on an individual basis, [and] the degree of fairness 

and procedural impact of certifying the action as a collective action.” O'Brien v. Ed 

Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir. 2009) (citation omitted), abrogated on 

other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). A plaintiff 

need not show a single FLSA-violating policy but rather can demonstrate that the claims 

of the named plaintiffs and the putative class are unified by “common theories of 

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

individualized and distinct.” Id. Plaintiffs are only required to show that their position is 

“similar, not identical, to the positions held by the putative class members.” Lewis, 789 

F. Supp. 2d at 867 (quoting Pritchard, 210 F.R.D. at 595). 
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 During the conditional certification phase, “a court ‘does not generally consider 

the merits of the claims, resolve factual disputes, or evaluate credibility.’ ” Myers, 201 F. 

Supp. 3d at 890 (quoting Waggoner, 110 F. Supp. 3d at 765). Courts have instead 

considered “whether potential plaintiffs were identified; whether affidavits of potential 

plaintiffs were submitted; whether evidence of a widespread discriminatory plan was 

submitted, and whether as a matter of sound class management, a manageable class 

exists.” Fairfax v. Hogan Transp. Equip., Inc., No. 2:16-cv-680, 2017 WL 4349035, at *2 

(S.D. Ohio Sep. 29, 2017) (quoting Lewis v. Huntington Nat'l Bank, 789 F. Supp. 2d 

863, 868 (S.D. Ohio 2011) ). Still, conditional certification is “by no means final.” Comer, 

454 F.3d at 546 (quoting Pritchard v. Dent Wizard Int'l, 210 F.R.D. 591, 595 (S.D. Ohio 

2002)). 

If the Court determines that the potential plaintiffs are similarly situated, the Court 

must then determine that the proposed notice is “timely, accurate, and informative” as to 

properly notify the proposed class. Green v. Platinum Rest. Mid-America, LLC, No. 

3:14-cv-439-GNS, 2015 WL 6454856, at *2 (W.D. Ky. Oct. 26, 2015) 

(quoting Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 166(1989)). 

The second step of an FLSA collective action follows discovery and receipt of all 

opt-in forms from putative plaintiffs. Comer, 454 F.3d at 547. At this stage, the Court will 

examine the factual basis of Plaintiffs' proposed class more closely and will apply a 

stricter standard in evaluating whether Plaintiffs are “similarly situated.” Id. (quoting 

Morisky v. Public Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 497 (D.N.J. 2000)). If the 

Court determines at this second phase that the Plaintiffs are not similarly situated, it will 

de-certify the class, dismiss the opt-in plaintiffs without prejudice, and proceed with the 
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lawsuit on the named plaintiffs' individual claims. Smith v. Lowe’s Home Ctrs., 236 

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

III. Analysis 

Plaintiff contends that she is similarly situated to other Service to Solutions callcenter employees at Defendants call centers. In support of this motion, Plaintiff has 

submitted three declarations, including her own, representing experiences at both of 

Defendant’s call centers: (Doc. 19, Ex. A, Declarations of Plaintiff, Brandy Buttrey and 

Laquanda Larkin). These declarations confirm that there is a substantially similar 

practice at each of Defendant's call centers of failing to pay Service to Solutions 

employees, and those working in other call center positions, for preshift work, including 

time spent starting, booting up and logging into Defendant’s computer and phone 

systems and applications, and checking emails for alerts and other items. Plaintiff 

further contends that these declarations establish Defendant’s failure to pay its 

employees, for such time has resulted in the underpayment of overtime premiums. 

Defendant opposes certification. Notably, Defendant argues that the 

declarations are vague and conclusory. Defendant further contends that conditional 

certification should be denied because the evidence shows that she could (and 

frequently did) clock in and start getting paid within minutes of arriving to the building. 

Moreover, accepting Plaintiff’s allegations as true, Defendant argues the evidence 

demonstrates that her actions are contrary to its policy and inconsistent with the 

practices of the putative collective members whom she seeks to represent. 

However, Courts have found that evidence similar to that submitted by Plaintiff 

has been sufficient at this stage in the litigation to warrant conditional certification of a 
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class of call center service representatives for failure to pay overtime for time spent on 

activities like those alleged in the instant action. See Younge v. Huntington Bancshares 

Inc., in Case No. 2:18-CV-314, Dkt. No. 36 (S.D. Ohio Oct. 23, 2018) (citing Conklin v. 

1-800 Flowers.com, Inc., No. 2:16-CV-675, 2017 WL 3437564, at *4 (S.D. Ohio Aug. 

10, 2017); Ouellette v. Ameridial, Inc., No. 5:16-CV-2144, 2017 WL 2972636, at *1 

(N.D. Ohio July 12, 2017); Anderson v. Minacs Grp. (USA) Inc., No. 16-13942, 2017 WL 

1856276, at *1 (E.D. Mich. May 9, 2017); Ware v. T-Mobile USA, 828 F. Supp. 2d 948 

(M.D. Tenn. 2011); Heaps v. Safelite Sols., LLC, No. 2:10 CV 729, 2011 WL 1325207, 

at *3 (S.D. Ohio Apr. 5, 2011). 

Here, although modest, the evidence submitted by Plaintiff is sufficient to show 

that Defendant had a policy of requiring call center employees to be ready to take their 

first call promptly at the start of their shifts, which required 10 minutes or more of 

conducting pre-shift preparatory work (booting up, logging in, etc.). 

Defendant submitted several declarations from other Service to Solutions 

employees to demonstrate that they do not perform the unpaid pre-shift work alleged by 

Seldomridge. Specifically, numerous other Service to Solutions employees confirm that 

it takes virtually no time to log into their computers and clock in at the start of each shift. 

(See Doc. 20, McCullough Dec. ¶11,;Mechley Dec. ¶11; Epps Dec. ¶11; Airey Dec. ¶11; 

Springer Dec. ¶12; Williams Dec. ¶14; Pettaway Dec. ¶10; King Dec. ¶¶10-13 Martin 

Dec. ¶9). 

To the extent that Seldomridge, Buttrey, and Larkin routinely performed unpaid 

pre-shift work, Defendant contends that their actions were contrary to Fifth Third’s 

written policies. More importantly, their actions were markedly different from those of the 
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other Service to Solutions employees whom Seldomridge seeks to represent, who 

consistently deny that Fifth Third instructed or required unpaid pre-shift work. Under 

these circumstances, Defendant argues Seldomridge has not and cannot show that she 

is similarly situated to the other Service to Solutions employees for which she seeks 

conditional certification. 

Plaintiff, however, contends that “happy camper” declarations such as those 

submitted by the Defendant, are uniformly rejected as improperly submitted at the 

notice stage of conditional certification. Notably as stated by Judge Marbley in Myers v. 

Marietta Mem. Hosp., 201 F. Supp.3d 884, 891-892 (S.D. Ohio 2016) “[a]t this early 

stage of the litigation, Plaintiffs have not had the opportunity to depose the employees 

who submitted affidavits on Defendant’s behalf. And, a balancing of Plaintiff’s and 

Defendant’s competing affidavits would require credibility and factual determinations 

and is thus improper at this time.” Id. As found by another court, “[j]ust as courts have 

not traditionally required a plaintiff seeking conditional certification to come forward with 

some threshold quantity of opt-in Plaintiffs, it is no more helpful for the employer to 

round up a small sample of favorable statements from employees.” Creely v. HCR 

Manorcare, Inc., 789 F. Supp. 2d 819, 840(N.D. Ohio 2011) (finding that “the Court is 

not swayed by [the employer’s] submission of thirty-five ‘happy camper’ affidavits). 

As detailed above, at the notice stage, district courts within the Sixth Circuit 

typically do not consider the merits of the plaintiff's claims, resolve factual disputes, 

make credibility determinations, or decide substantive issues. See, e.g., Burdine v. 

Covidien, Inc., No. 1:10cv194, 2011 WL 2976929, at *2–4 (E.D.Tenn. June 22, 2011); 

Seger v. BRG Realty, LLC, No. 1:10cv434, 2011 WL 2020722, at *3 (S.D.Ohio May 24, 
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2011). Plaintiff contends, however, that is exactly what Defendant asks the Court to do; 

because every argument that Defendant makes are exclusively aimed at the merits of 

this action. 

Here, Plaintiffs submitted three declarations to support the allegations in the 

Amended Complaint and thus have (barely) met the “lenient” standard for conditional 

certification. Ultimately, Defendant’s arguments against certification may prove fruitful. 

But at this stage of the litigation, it does not matter “if the employees held different job 

titles.” Lawrence v. Maxim Healthcare Servs., Inc., No. 1:12CV2600, 2013 WL 5566668, 

*2 (N.D. Ohio Oct. 9, 2013) (citing O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 

585 (6th Cir. 2009)). Nor should the Court consider the declarations submitted by 

Defendant, as doing so at this stage of the litigation would “constitute a premature 

examination of the merits of the FLSA claims.” Myers, 201 F. Supp. 3d at 891 (Marbley, 

J.) (collecting cases, and declining to consider defense affidavits at conditionalcertification stage). 

In light of the foregoing, Plaintiff’s motion to conditionally certify class (Doc. 19) is 

GRANTED. 

It is further ORDERED that the parties should meet and confer to develop a 

mutually agreeable class definition. As noted above, Plaintiff proposes the following 

class definition: 

“All former and current Service to Solutions employees, and those working 

in other call center positions, employed by Defendant at any time in the 

period measured from three years prior to the filing of this Complaint to the 

present.” 

(Doc. 13). 
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Defendant argues that Plaintiff’s class definition is overly broad and should be 

narrowed. Specifically, Defendant asserts that the proposed class should be limited only 

to the Service to Solutions position and not all call center employees. As such, the 

parties should make a good faith effort to negotiate the language of the notice. 

Defendant further asserts that the notice period should be two years, not three 

years as proposed by Plaintiff, because there is no evidence of a willful violation of the 

FLSA. See 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. 

The Court further ORDERS the parties to meet and confer to develop a mutuallyagreeable notice to potential opt-in plaintiffs and a consent form. 

The parties shall submit a joint proposed class definition, proposed notice and 

opt-in form within FOURTEEN days from the date of this Order. 

IT IS SO ORDERED 

s/Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge