Creel v. Tuesday Morning, Inc.

Filing 45

OPINION AND ORDER that plf Tisha Creel's 19 Motion for Class Certification is denied without prejudice. Signed by Honorable Judge Myron H. Thompson on 5/6/2013. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

TISHA CREEL, on behalf of
herself and others
similarly situated,
Plaintiff,
v.
TUESDAY MORNING, INC.,
Defendant.

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CIVIL ACTION NO.
2:09cv728-MHT
(WO)

OPINION AND ORDER
Plaintiff Tisha Creel brings this action under the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, on
behalf of herself and others similarly situated, claiming
that defendant Tuesday Morning, Inc. violated the FLSA by
failing to pay her overtime wages.

The jurisdiction of

the court is properly invoked pursuant to 29 U.S.C.
§ 216(b) and 28 U.S.C. § 1331.

This matter is now before

the court on Creel’s motion to conditionally certify a
national collective action and facilitate class notice
pursuant to 29 U.S.C. § 216(b).

For the reasons that

follow,

the

court

will

deny

Creel’s

motion,

albeit

without prejudice.

I.

BACKGROUND

Creel is a former employee of Tuesday Morning, a
retailer that sells brand name merchandise at discounted
prices at 841 stores in 46 states.

Creel alleges that

Tuesday Morning, as a matter of company policy, failed to
pay her and other similarly situated “store managers”
overtime

compensation,

in

violation

of

29

U.S.C.

§ 207(a), despite the fact that they routinely worked
over 40 hours a week for a weekly salary.

Creel asserts

that she was routinely required to work 50-60 hours a
week at a Tuesday Morning store in Alabama.
Creel contends that Tuesday Morning’s company policy
misclassifies

store

exemption of the FLSA.

managers

under

the

executive

She argues that she should have

been treated as a non-exempt employee and paid overtime
because

most

of

her

job

duties

were

non-managerial.

Creel has provided deposition testimony from Judy Miller,

2

the regional manager of 15 Tuesday Morning locations in
Georgia and Alabama.

Miller’s testimony indicates that

store managers perform a range of manual labor and nonmanagerial

tasks

at

Tuesday

Morning

stores.

The

testimony also indicated that store managers have limited
discretion to change store hours, contract with service
vendors, purchase supplies, choose merchandise sold, and
hire, promote or terminate staff.

Miller also testified

that Tuesday Morning uses one training manual to outline
policies and procedures for store managers.
this

testimony

as

evidence

that

Creel offers

store

managers

principally engage in non-managerial tasks and that their
job duties are dictated by a uniform-company policy.
Creel has also submitted four affidavits from current
or former employees who held or hold manager positions at
Tuesday

Morning

stores

in

Alabama

and

other

States:

Brandon Johnson (Alabama), Dwan Benn (Alabama), Dawn Rush
(Florida),

Linda

Trombello

(Illinois).

All

four

declarants state that they “routinely worked in excess of

3

forty ... hours per week” and “did not receive overtime
compensation.”

II.
As

stated,

LEGAL STANDARD

Creel

asserts

that

Tuesday

Morning

violated the FLSA, as codified at 29 U.S.C §§ 207(a)(1)
& 215(a)(2).

Section 207(a)(1) provides in relevant part

that “no employer shall employ any of his employees ...
for

a

workweek

longer

than

forty

hours

unless

such

employee receives compensation for his employment in
excess of the hours above specified at a rate not less
than one and one-half times the regular rate at which he
is employed.”

Section 215(a)(2) provides that it shall

be unlawful to violate § 207.
Section 216(b) of the FLSA authorizes a plaintiff
seeking relief to bring a collective action on behalf of
similarly situated persons subject to the requirement
that any person who wishes to become a part of the
collective action must file a written consent in the
court

in

which

such

action

4

is

brought.

29

U.S.C.

§ 216(b); Davis v. Charoen Pokphand (USA), Inc., 303
F.Supp.2d 1272, 1274 (M.D. Ala. 2004) (Thompson, J.).
In Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165
(1989), the Supreme Court clarified the district court’s
authority to facilitate § 216(b) FLSA notice.

The Court

found that early participation by the district court in
the notice process serves a number of important goals.
Judicial oversight of the contents of notice protects
against misleading communications and misuse of the class
device, id. at 171, and enables the court to resolve
disputes about the contents of the notice before it is
sent out, id.

District court involvement also ensures

that all potential plaintiffs receive timely notice of a
pending

suit

and

thus

prevents

the

proliferation

of

individual suits arising from the same allegedly illegal
activity.

Id. at 172.

Also by setting a cut-off date

for the receipt of consents, the court can expedite
resolution of the action.

Id.

For all of these reasons,

the Supreme Court concluded that a district court “ha[s]
discretion, in appropriate cases, ... [to] facilitat[e]

5

notice to potential plaintiffs” in actions brought under
§ 216(b) of the FLSA.

Id. at 169, 171.

Similarly, the

Eleventh Circuit Court of Appeals has stated that “the
broad remedial purpose of the Act ... is best served if
the district court is deemed to have the power to give
such notice to other potential members of the plaintiff
class to ‘opt-in’ if they so desire.”

Dybach v. Florida

Dep't of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991)
(citation omitted).
Before

intervening

in

the

notice

procedure,

a

“district court should satisfy itself that there are
other employees ... [1] who desire to ‘opt-in’ and [2]
who are ‘similarly situated’ with respect to their job
requirements and with regard to their pay provisions.”
Morgan v. Family Dollar Stores, 551 F.3d 1233, 1259 (11th
Cir. 2008) (quoting Dybach, 942 F.2d at 1567-68).

To

satisfy the “similarly situated” requirement, plaintiffs
“need show only that their positions are similar, not
identical, to the positions held by the putative class
members.”

Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d

6

1208, 1217 (11th Cir. 2001) (quoting Grayson v. K Mart
Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)).

Thus, “[a]

unified policy, plan, or scheme ... may not be required
to satisfy the ... ‘similarly situated’ requirements of
§ 216(b).”
In

Id. at 1219 (internal quotations omitted).

Hipp,

the

Eleventh

Circuit

recommended

a

two-tiered procedure that district courts should use in
certifying collective actions under § 216(b).
at 1218.
“The first determination is made at the
so-called ‘notice stage.’ At the notice
stage, the district court makes a
decision--usually based only on the
pleadings and any affidavits which have
been submitted--whether notice of the
action should be given to potential
class members.
“Because the court has minimal evidence,
this determination is made using a
fairly lenient standard, and typically
results in ‘conditional certification’
of a representative class.
If the
district court ‘conditionally certifies'
the class, putative class members are
given notice and the opportunity to
‘opt-in.’
The action proceeds as a
representative
action
throughout
discovery.

7

252 F.3d

“The second determination is typically
precipitated
by
a
motion
for
‘decertification’
by
the
defendant
usually filed after discovery is largely
complete and the matter is ready for
trial.
At this stage, the court has
much more information on which to base
its decision, and makes a factual
determination on the similarly situated
question.
If
the
claimants
are
similarly situated, the district court
allows the representative action to
proceed to trial. If the claimants are
not similarly situated, the district
court decertifies the class, and the
opt-in plaintiffs are dismissed without
prejudice. The class representatives-i.e., the original plaintiffs--proceed
to trial on their individual claims.”
Hipp, 252 F.3d at 1218 (quoting Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)).
courts

have

framework.

generally

applied

the

Hipp

District
two-stage

See, e.g., Cameron-Grant v. Maxim Healthcare

Servs., Inc., 347 F.3d 1240, 1242 n.2 (11th Cir. 2003)
(“Since Hipp, the district courts in our circuit have
utilized the two-tiered approach.”).
At the notice stage, “[t]he plaintiffs bear the
burden of demonstrating a ‘reasonable basis’ for their
claim of class-wide discrimination.”

8

Grayson v. Kmart

Corp., 79 F.3d 1086, 1097 (11th Cir. 1996).

“[T]he

standard for determining similarity, at this initial
stage, [is] ‘not particularly stringent,’ ... ‘fairly
lenient,’ ... ‘not heavy,’ ... and ‘less stringent than
that

for

joinder

under

[Fed.R.Civ.P.]

20(a)

separate trials under [Fed.R.Civ.P.] 42(b).’”

or

for

Morgan,

551 F.3d at 1260-61 (quoting Hipp, 252 F.3d at 1218).
“The

plaintiffs

substantial

may

meet

allegations

this

of

burden

class-wide

...

by

making

discrimination,

that is, detailed allegations supported by affidavits
which ‘successfully engage defendants’ affidavits to the
contrary.’”

Grayson, 79 F.3d at 1097 (quoting Sperling

v. Hoffman-LaRoche, 118 F.R.D. 392, 406-07 (D.N.J. 1988)
(Ackerman, J.)).

“The rationale for the ‘fairly lenient

standard’ [at the ‘notice stage’] is that at the early
stages of litigation, plaintiffs have not had time to
conduct

discovery

and

marshal

their

best

evidence.”

Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d
1272, 1276 (M.D. Ala. 2004) (Thompson, J.) (citing Hipp,
252 F.3d at 1218).

9

Tuesday Morning contends that, because the parties
have conducted discovery, the court should “apply a more
rigorous standard than that called for by Hipp” before
Id. If by “rigorous,” Tuesday

facilitating class notice.

Morning is suggesting that the court should apply a
‘harsher’ or ‘more demanding’ standard, this court in
Davis did not mean that.

Instead, the court meant that,

because the parties had conducted some discovery, the
court

could,

and

should,

be

‘more

accurate’

in

its

assessment of whether a collective action is warranted.
As

this

court

appropriate

stated,

when

a

more

rigorous

parties

have

standard

conducted

“extensive

discovery” and can “marshal their best evidence.”
In

short,

the

court

should

make

use

is

of

Id.

whatever

information it has available at the time; it would be a
waste of judicial resources to do otherwise.

Indeed, it

would be illogical and wasteful to all concerned to
certify a collective action if the evidence is already
sufficient to indicate that a decertification is likely
to follow.

10

III.

DISCUSSION

Creel “seeks to represent all ‘similarly situated’
Store

Managers

employed

by

Tuesday

Morning

who

were

subject to the company’s uniform policy of not paying its
managers one and one-half times their hourly wage for time
worked in excess of forty (40) hours per work week during
the three (3) years prior to filing of the Complaint.”
Pl’s Mot. Conditional Class Cert. (Doc. No. 19) at 1.
Creel has moved for the court to facilitate notice to the
class by (1) granting conditional class certification; (2)
allowing nationwide notice to be sent to all managers
currently

employed

by

Tuesday

Morning

or

previously

employed within three years of the filing of Creel’s suit;
and (3) directing Tuesday Morning to provide contact
information for all such employees.
Tuesday Morning contends, among other things, that
Creel has not established that she is similarly situated
to other members of the putative class.

Courts have

affirmed the existence of other employees who desire to
opt-in on the basis of affidavits of other employees,

11

Harper v. Lovett's Buffet, Inc., 185 F.R.D. 358, 362 (M.D.
Ala. 1999) (Albritton, C.J.) (affidavits from 15 other
employees); White, 204 F.Supp.2d at 1316 (affidavits from
three other employees), consents to join the lawsuit filed
by other employees, Tucker v. Labor Leasing, Inc., 872
F.Supp. 941, 947-48 (M.D. Fla. 1994) (Schlesinger, J.),
and

expert

evidence

similarly-situated

on

the

employees,

existence

Barron

v.

of

other

Henry

County

School Sys., 242 F.Supp.2d 1096, 1105 (M.D. Ala. 2003)
(Albritton, C.J.).

Courts have been clear, however, that

a plaintiff's mere stated belief in the existence of other
employees who desire to opt-in is insufficient, Horne v.
United Servs. Auto. Ass'n, 279 F.Supp.2d 1231, 1236 (M.D.
Ala.

2003)

(Albritton,

C.J.),

and

that

“unsupported

expectations that additional plaintiffs will subsequently
come forward” are also insufficient, Mackenzie v. Kindred
Hosps. East, L.L.C., 276 F.Supp.2d 1211, 1220 (M.D. Fla.
2003) (Merryday, J.).
Creel

has

met

her

“burden

of

demonstrating

a

reasonable basis for crediting the[] assertions that

12

aggrieved individuals exist[] in the broad class ...
proposed.”

Haynes v. Singer Co., Inc., 696 F.2d 884, 887

(11th Cir. 1983).

Here, Creel introduces more than her

own statement that other potential class members exist.
Horne, 279 F.Supp.2d at 1236; Mackenzie, 276 F.Supp.2d at
1220.

Four other managers in three States have submitted

affidavits indicating their consent to join the lawsuit
as party plaintiffs. Thus, the court concludes that Creel
has carried her low burden of demonstrating that other
aggrieved individuals exist in her proposed class and that
some desire to opt-into her suit.
The

last

inquiry

is

whether

the

proposed

consists of similarly situated individuals.

class

To satisfy

the “similarly situated” requirement, plaintiffs “need
show only that their positions are similar, not identical,
to the positions held by the putative class members.”
Hipp, 252 F.3d at 1217.

“A unified policy, plan, or

scheme ... may not be required to satisfy the more liberal
‘similarly situated’ requirements of § 216(b).”
1219 (internal quotations omitted).

13

Id. at

Cases

from

district

to

applying

approaches

courts
the

show

a

variety

“similarly

of

situated”

requirement.

Some cases have focused on the similarity

between

responsibilities

job

and

pay

provisions

plaintiffs and those of the proposed class.

of

See, e.g.,

Bradford v. Bed Bath & Beyond, Inc., 184 F.Supp.2d 1342,
1345 (N.D. Ga. 2002) (Story, J.) (“The only determinative
issue is whether Plaintiffs' job duties were similar.”).
Other

decisions,

most

notably

a

series

of

opinions

authored by former Chief Judge Albritton of this court,
have required evidence of a factual or legal nexus between
plaintiff’s claims and the claims of the proposed class.
For example, in White v. Osmose, Inc., 204 F.Supp.2d 1309,
1314 (2002), he wrote: “[A] plaintiff must make some
rudimentary showing of commonality between the basis for
his claims and that of the potential claims of the
proposed class, beyond the mere facts of job duties and
pay

provisions.

Without

such

a

requirement,

it

is

doubtful that § 216(b) would further the interests of
judicial economy, and it would undoubtedly present a ready

14

opportunity for abuse.” See also Anderson v. Cagle’s,
Inc., 488 F.3d 945, 953 (11th Cir. 2007) (citing White’s
nexus requirement approvingly, but at the second stage of
the Hipp analysis).

Finally, at least one court has
See Stone v. First

employed a multi-factor approach.

Union Corp., 203 F.R.D. 532, 542-43 (S.D. Fla. 2001)
(Gold, J.).
Without

committing

to

a

single

approach

for

all

future cases, the court concludes that the similarly
situated

requirement

can

be

met

either

by

showing

similarity between job responsibilities and pay provisions
of plaintiffs and proposed class members or by providing
evidence of a nexus between plaintiff’s claims and the
claims of the proposed class.
Of course, the broader and more numerous and complex
the

collective

careful

the

action

court

the

must

plaintiff
be.

The

wants,

the

consequences

more
of

decertification (wasted resources for all involved) for
a class that has few members and simple and legal factual
issues

would

be

dramatically

15

different

from

the

decertification

consequences

of

a

class

with

a

huge

membership and extremely complex legal and factual issues.
In short, the court must be reasonably certain that the
proposed litigation is not biting off more than can be
chewed.
Here,

Creel

is

asking

that

‘national’ collective action.

the

court

certify

a

Such a putative collection

would, therefore, span the entire nation and, according
to the evidence, include over 1250 members.
after

extensive

discovery,

Creel

has

However,

presented,

in

addition to her own testimony, affidavits from only four
other store managers and from only two other States
(Florida and Illinois).

This evidence does not provide

an adequate platform from which to make the grand leap to
a national collective action.
Admittedly, Creel has also established that Tuesday
Morning uses one training manual to outline policies and
procedures for store managers and that store managers are
trained in Dallas, Texas.
evidence, the court

However, in assessing this

cannot turn a blind eye to the

16

observations made by a California appellate court, Keller
v. Tuesday Morning, Inc., 179 Cal. App. 4th 1389 (Cal.
App. 2d Dist. 2009),in upholding the decertification of
a class of store managers who claimed that they were
entitled to overtime compensation because they did not
qualify for the overtime exemption under the California
wage-and-hour laws. There, the appellate court held that,
although

store

managers

have

the

same

written

job

description, many other factors (including the size of
stores, the number of employees at stores, the location
of the stores, the configuration of the stores, and the
amount of store sales) all result in store managers
performing their duties in significantly different ways.
The court therefore concluded that the amount of time each
store

manager

spends

performing

managerial

and

non-managerial duties varies too much for them to be
considered similarly situated.

To be sure, the California

court was applying state law and state class-certification
rules

and

was

deciding

whether

17

a

class

should

be

decertified; nevertheless, that court's observations are
still instructive.
Moreover, consistent with the observations from the
California appellate court, Tuesday Morning has submitted
substantial evidence that many of its store managers
perform duties quite different from those of Creel.
Of course, if Creel had restricted herself to stores
of only a certain location and size and other limiting
characteristics, a collective-action certification might
very well be appropriate.

The platform here might then

be adequate for such a substantially more modest leap.
Certification of a national collective action is not
warranted here.
***
Accordingly,

it

is

ORDERED

that

plaintiff

Tisha

Creel‘s motion for class certification (doc. no. 19) is
denied without prejudice.
DONE, this the 6th day of May, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE