Prince v. The Cato Corporation

Filing 26

MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE 7 MOTION to Certify Class. The parties are ordered to immediately confer and provide the Court with a Rule 26 Report no later than March 20, 2015. Rule 26 Meeting Report due by 3/20/2015. Signed by Judge Virginia Emerson Hopkins on 3/10/2015. (JLC)

FILED
2015 Mar-10 PM 03:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
VIRGINIA PRINCE, on behalf of
herself and all others similarly
situated,
Plaintiffs,
v.
THE CATO CORPORATION,

)
)
)
)
) Case No.: 1:14-CV-1708-VEH
)
)
)
)
)

Defendant.

MEMORANDUM OPINION AND ORDER
This claim was filed pursuant to the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201, et seq., by the plaintiff, Virginia Prince, “on behalf of herself and all
other[s] similarly situated,” against the defendant, The Cato Corporation. (Doc. 1).
The action is “brought to recover unpaid compensation owed to the named [p]laintiff
and all current employees and former employees of Cato who are similarly situated
to the named [p]laintiff.” (Doc. 1 at 2). The plaintiff alleges that “Cato has had a
uniform policy and practice of consistently requiring its employees titled ‘Store
Manager’ or ‘Acting Store Manager’ to work over 40 hours per week for a salaried
amount without overtime compensation.” (Doc. 1 at 2).
The case comes before the court on the plaintiff’s motion to facilitate notice of

this action to other employees who may desire to opt-in to this action. (Doc. 7). For
the reasons stated herein, the motion will be DENIED without prejudice.
I.

STANDARD FOR CERTIFICATION OF A COLLECTIVE ACTION
Judge Blackburn, in this district, fairly recently, and thoroughly, explained the

standard as follows:
The FLSA authorizes a collective action under the following
conditions:
An action ... may be maintained against any employer ... 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 with the court in which such action is
brought.
29 U.S.C. § 216(b). A district court, in its discretion, may conditionally
certify a collective action when to do so would permit the “efficient
resolution in one proceeding of common issues of law and fact arising
from the same alleged ... activity.”Hoffman–La Roche, Inc. v. Sperling,
493 U.S. 165, 169–170 (1989).“A plaintiff has the burden of showing a
‘reasonable basis' for [her] claim that there are other similarly[-]situated
employees.”Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260
(11th Cir.2008) (citations omitted).“The FLSA itself does not define how
similar the employees must be before the case may proceed as a
collective action. And [the Eleventh Circuit has] not adopted a precise
definition of the term.”Id. at 1259.The Eleventh Circuit, however, has
stated that “a unified policy, plan, or scheme of discrimination may not
be required to satisfy the more liberal ‘similarly-situated’ requirement of
§ 216(b).Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (quoting
Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir.1996)).
Nevertheless, a plaintiff “must make some rudimentary showing of
commonality between the basis for his claims and that of the potential
2

claims of the proposed class, beyond the mere facts of job duties and pay
provisions....”Marsh v. Butler County Sch. Sys., 242 F.Supp.2d 1086,
1093 (M.D.Ala.2003); see also Fox v. Tyson Foods, Inc., No.
4:99–CV–1612–VEH, 2006 WL 6012784, at *4 (N .D. Ala Nov. 15,
2006); Williams v. Accredited Home Lenders, Inc., No.
1:05–CV1681–TWT, 2006 WL 2085312, at *3 (N.D.Ga. July 25, 2006);
Holt v. Rite Aid Corp., 333 F.Supp.2d 1265, 1270 (M .D. Ala 2004).
The Eleventh Circuit has held that “before facilitating notice, a
district court should satisfy itself that there are other employees who
desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their
job requirements and with regard to their pay provisions.”Morgan, 551
F.3d at 1259–60 (internal quotations and citation omitted).
The initial issue is whether Plaintiffs have made the
requisite showing to justify conditional certification of a
nationwide collective action and court-authorized notice. In
Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208
(11th Cir.2001), the Eleventh Circuit “suggest[ed]” a
“two-tiered approach to certification of § 216(b) opt-in
classes” to assist district courts in resolving the similarly
situated inquiry. Id. at 1219.Under the first tier, which is
labeled the “notice stage,” the district court must decide,
“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.”Id. at
1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1213–14 (5th Cir.1995), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148,
156 L.Ed.2d 84, (2003)). Before notice is given, a “district
court should satisfy itself that there are other employees of
the [defendant-] employer who desire to ‘opt-in’ and are
‘similarly situated’ ....“ Dybach v. State of Fla. Dep't of
Corrs., 942 F.2d 1562, 1567–68 (11th Cir.1991).
Devries v. Morgan Stanley & Co., No. 12–81223–CIV, 2014 WL
505157, *2 (S.D.Fla. Feb. 7, 2014).
3

Hilley v. Tacala, L.L.C., No. 2:12-CV-2691-SLB, 2014 WL 1246364, at *1-2 (N.D..
Ala. Mar. 24, 2014).
II.

EVIDENCE
Applying the standards stated above, the court finds that the plaintiff has

proposed a class of “all store managers and acting store managers.” (Doc. 1 at 1; doc.
7 at 11). Although she is not clear, based on her argument, and the nature of the
evidence presented, the court assumes that she means all such persons, “nationwide.”1
A.

The Declaration of Virginia Prince

In support of her petition for notice, she has submitted her own affidavit, which
states:
2.
I worked as a Store Manager for Cato from October 2011 until
May 2013 and from May 2014 to the present. I also worked as a Store
Manager at the Anniston, Alabama store. I have also worked at the
Oxford, Gadsden and Boaz, Alabama stores on a temporary basis.
3.
I worked as a Second Assistant Store Manager for Cato from
September 20, 2009 until February of 2011, when I was promoted to
Senior First Assistant. I stepped down from the First Assistant Manager
position in the period between May of 2013 and May of 2014.
4.
As a Store Manager, I receive a fixed salary and I am not, nor have
I ever been, paid overtime for hours worked in excess of forty in any
week.
5.

1

My primary duties as a Store Manager consists of sales, receiving

The failure to clearly describe the potential class is reason enough to deny the motion.
4

boxes off of trucks, unpacking boxes, censoring items, stocking and
restocking the shelves and racks, cleaning the store, waiting on
customers and running the cash register. I would estimate that I spend
over 90% of my time performing these various manual labor job duties.
6.
The store in which I work as Store Manager received an average
of 145 boxes of merchandise per week. Because of Cato’s policies and
the lack of sufficient hours for the hourly paid employees of the store, I
routinely receive the merchandise trucks, unpacked the merchandise
once it is in the store, and ready the merchandise for sale.
7.
The job duties/responsibilities associated with the position of
Store Manager have remained consistent throughout my employment and
are the same at all stores in which I have worked.
8.
The job duties/responsibilities associated with the position of
Store Manager are essentially the same as those for the assistant manager
positions. The main difference between these positions is that assistant
managers receive overtime compensation if they work in excess of 40
hours in a week.
9.
I have talked with other Store Managers in regards to the amount
of time they spend per week performing non-managerial/manual labor
job duties such as stocking and re-stocking shelves and racks, running
the cash register, waiting on customers, in person and on the telephone,
cleaning the store, etc.
10. Based upon my conversations with other Store Managers, these
Store Managers also spend approximately 90% of their time performing
non-managerial, manual labor job duties.
11. Based on my experience, my personal observations and my
conversations with other Store Managers for Cato, the job
duties/responsibilities of other Store Managers for Cato are very similar
to my job duties/responsibilities.
12. All managerial decisions in regards to hiring, demoting,
suspending, termination, setting pay, awarding pay raises, evaluating
5

employees performance, determining store merchandise, determining
where store merchandise was placed in store, store hours, employees
weekly hours, scheduling, leave of absences, store’s payroll budget,
overtime for hourly paid employees were made by upper management.
I have little to no input into all of these store activities.
13. It is my understanding there is only one store policy and procedure
manual, which all stores were/are required to follow.
14. It is my understanding that there was only one Store Manager job
description that is applicable to all Store Managers. The job description
states that the Store Manager is responsible for all activities and
objectives of one store, including sales generation and effective customer
service (30%), shrinkage (20%), HR management (15%), merchandising
(15%), administrative and expense management (15%) and store
maintenance (15%).2
15. The Store Manager job description dictates that all Store Manager
activities must be directed in strict compliance with all Cato Corporation
policies, procedures, rules and regulations. Corporate policy 100.1
16. The Sr. First Assistant Manager’s job description states that the Sr.
First Assistant Manager share responsibility with SM for all store
activities and objectives of store including sales generation and effective
customer service (30%), shrinkage (20%), HR management (15%),
merchandising (15%), administrative and expense management (15%)
and store maintenance (15%).3
17.

The First Assistant Manager job description states that he/she

2

The percentages add up to 110%. The error comes from the fact that the declaration,
which is referencing document 7-7 at 2, has incorrectly assigned the value of 15% to “store
maintenance,” when the correct value, according to document 7-7, is 5%. This error, and those
described in the next few notes, appear in all of the declarations which were submitted.
3

These percentages also add up to 110%. The referenced job description does not appear
in the record, so, although it is likely that the same error occurred here as occurred with regards
to the store manager duties, the court cannot say for sure.
6

shares responsibility for all activities and objectives of the store and that
his/her primary responsibility is sales generation and effective customer
service (30%), shrinkage (20%), HR management (15%), merchandising
(20%), administrative and expense management (10%) and store
maintenance (5%).4
18. The Second Assistant Manager job description states that he/she
shares responsibility with Store Manager and 1st Assistant Manager for
all store activities and objectives of store and that his/her primary
responsibility is including sales generation and effective customer
service (40%), shrinkage (20%), HR management (10%), merchandising
(15%), administrative and expense management (10%), and store
maintenance (15%).5
19. Cato’s policies dictate where store merchandise is place[d]
through the issuance of “plan-o-grams”. The plan-o-grams dictate how
the store should be laid out, where the merchandise should be displayed
in the store, how clothes should be arranged and by what color, what
merchandise should be displayed on mannequins, what shelves or rack
items can be placed on. To the best of my knowledge, all stores receive
plan-o-grams. Store Managers do not have the authority to vary from the
plano-grams. As a Store Manager, I have no input into the plan-o-gram
of the store. Corporate policy 200.6, I.A.
20. Upper Management controlls [sic] and/or performs all important
managerial job duties and/or decisions associated with the operation of
the store.
21. The District Manager and/or someone higher up in the Corporate
chain of command has direct control over the store’s payroll budget,
hiring procedures, employee benefits, scheduling of employees, banking
procedures, employee testing procedures, salary determinations,
4

While these percentages add up to 100%, the document which is referenced does not
appear in the record.
5

These percentages add up to 110%. The document which is referenced does not appear
in the record.
7

merchandise ordering procedures, merchandise selection, merchandise
location, security, maintenance, overtime, and the store hours.
22. The store’s payroll budget is set by the Corporate Office and sent
to the stores. As a Store Manager, I do not have any input into the setting
of the store’s payroll budget.
23. The weekly work schedules for the store employees is based upon
the store’s payroll budget. The store’s payroll budget directly controlls
[sic] the number of hours store employees could work. As a Store
Manager I had no input into the store’s payroll budget.
24. The Store where I hold the position of Store Manager is open
seven days per week. The store’s hours are determined by the Corporate
office. I have no input into setting the store’s hours.
25. The Store Manager’s job description states that I am required to
work a minimum of 45 hours per week, but due to the lack of payroll I
always work more hours than the required 45.
26. The store’s payroll budget controls both the number of employees
employed in a store and the number of hours these employees can work
each week.
27. As a Store Manager I lack the discretion and independent authority
to grant employees a leave of absence. This is based on corporate policy.
28. As a Store Manager, I lack the discretion and independent
authority to close the store in case of emergencies, such as a hurricane.
This is based on corporate policy 200.4.
29. As a Store Manager, I lack the discretion and independent
authority to set an employee’s pay or to award an employee a pay raise.
This is based on corporate policy103.11.
30. As a Store Manager, I lack the discretion and independent
authority to interview, determine starting pay or hire any member of the
stores management team. This is based on corporate policy 103.4.
8

31. The Store’s management team consists of the Store Manager,
Senior First Assistant Manager, First Assistant Manager, and Second
Assistant Store Manager.
32. As a Store Manager, I lack the discretion and independent
authority to place newspaper ads or website postings for job openings.
This is based on corporate policy 103.2. Resumes pursuant to these ads
are sent to the Regional Vice President
33. As a Store Manager, I lack the discretion and independent
authority to hire First Assistant Managers, Second Assistant Managers,
Senior First Assistant Managers or sales associates. This is based on
corporate policy 103.4 and 103.7.
34. As a Store Manager, I lack the discretion and independent
authority to terminate, suspend, or demote an employee. This is based on
corporate policy 102.1, 103.13 and 103.9.
35. As a Store Manager, I lack the discretion and independent
authority to appraise hourly paid employees in order to determine
appropriate increases. This is based on corporate policy 103.11.
36. As a Store Manager, I am required to open and close the store a
minimum of two days per week, per corporate policy 200.7. When I open
the store I am required to arrive at the store 30 minutes prior to opening,
per company policy 200.2.
37. When I close the store, I am required, per company policy 200.2,
to ensure outside lights are on, ensure isle racks are layered, vacuum
entire store, clean front tile and mop, empty dressing rooms, clean
mirrors, vacuum dressing room, clean desk and glass, empty trash, close
out registers, do bank deposit, empty hanger bins.
38. As a Store Manager, I lack the discretion and independent
authority to exceed the pre-determined allotted hours or assign work in
excess of 40 hours per week. This is based on corporate policy 200.7.
39.

As a Store Manager, I lack the discretion and independent
9

authority to schedule the days and hours employees will work. This is
determined by corporate policy 200.7.
40. As a Store Manager, I lack the discretion and independent
authority to . . . arrange and determine what could be on the store
manager’s desk. This is based on corporate policy 200.8.
41. As a Store Manager, I lack the discretion and independent
authority to contract for routine maintenance or repairs needed in the
store. This is based on corporate policy 200.14.
42. Upper Management substantially limits my independent discretion
and authority by dictating the daily activities that must be performed
through a “SM Monthly Planner[.]” . . . As a Store Manager, I am
required to strictly comply with the established deadline set forth in the
planner.
43. I receive weekly, if not daily, e-mails from Corporate
Headquarters and my District Manager with specific details as to what
the day’s activities would consist of.
44. As a Store Manager, I lack the discretion and independent
authority regarding processing of merchandise. Corporate provides
specific instructions as to processing shipment deliveries of merchandise.
Per company policy, the District Manager determines which shipment
processing options for apparel a store is to use.
45. As a Store Manager, my primary job duty is selling, not
management.
46. My job duties as a Store Manager are no different than the Senior
First Assistant Manager, First Assistant Manager, or the Second
Assistant Manager.
47. The Senior First Assistant Manager, First Assistant Manager, and
the Second Assistant Manager are all hourly paid employees who were
eligible for overtime compensation, if approved by the District Manager.
10

(Doc. 7-2 at 2-11).
B.

The Declaration of Tracy Ford

In addition, the plaintiff has submitted the declaration of Tracy Ford, which is
substantially identical to the plaintiff’s declaration except that Ford states:
. . . I worked as a First Assistant for Cato from March 15, 2007 until
approximately mid-June 2007, when I was promoted to acting Store
Manager for 12 weeks, and then Store Manager.
. . . I worked as Store Manager until October 21, 2011. I worked as a
Store Manager at the Muscle Shoals and Russellville, Alabama stores.
...
. . . My primary duties as a Store Manager consisted of sales,
unloading trucks, stocking and restocking the shelves and racks, cleaning
the store, waiting on customers, and running the cash register. I would
estimate that I spent over 90% or more of my time performing these
various manual labor job duties.
. . . The Muscle Shoals store in which I worked as Store Manager
received a truck containing, on average, 325 boxes of merchandise each
week. The Russellville store in which I worked as Store Manager
received a truck containing, on average, 150 boxes of merchandise each
week. Because of Cato’s policies and the lack of sufficient hours for the
hourly paid employees of the store, I routinely unloaded the merchandise
trucks, unpacked the merchandise once it was in the store, and readied
the merchandise for sale.
(Doc. 7-1 at 2-3).
C.

The Declaration of Kimberly Terrell

In addition, the plaintiff has submitted the declaration of Kimberly Terrell
11

which is substantially identical to the plaintiff’s declaration except that Terrell states:
. . . I worked as a Store Manager for Cato from February 2010 until
February 2013. I worked as a Store Manager at the Muscle Shoals and
Florence, Alabama stores. I was a Store Manager the last year of my
employment at the Florence Alabama location.
. . . I started as a Key Holder, went to Second Assistant Manager, then
First Assistant Manager, and then Senior First Assistant Manager during
the period of 2007 until February 2010.
...
. . . My primary duties as a Store Manager consisted of sales,
receiving merchandise off of trucks, unpacking merchandise, applying
sensors, stocking and restocking the shelves and racks, cleaning the
store, waiting on customers, and running the cash register. I would
estimate that I spent 85% to 90% of my time performing these various
manual labor job duties.
. . . The Muscle Shoals store in which I worked as Store Manager
received, on average, 300 boxes of merchandise per week. The Florence
store in which I worked as Store Manager received an average of 250
boxes of merchandise per week. Because of Cato’s policies and the lack
of sufficient hours for the hourly paid employees of the store, I routinely
personally received the boxes, moved the boxes within the back room,
unpacked the merchandise once it was in the store, and readied the
merchandise for sale. My primary duties as a Store Manager consisted
of sales, receiving boxes off of trucks, unpacking boxes, censoring items,
stocking and restocking the shelves and racks, cleaning the store, waiting
on customers and running the cash register. I would estimate that I spend
over 90% of my time performing these various manual labor job duties.
(Doc. 7-3 at 2-3).
D.

The Declaration of Courtney Munford

In addition, the plaintiff has submitted the declaration of Courtney Munford
12

which is substantially identical to the plaintiff’s declaration except that Munford
states:
. . . I worked as a Second Assistant Manager for Cato at the Anniston
Alabama store from April 2012 to May 2013, when I was promoted to
Store Manager.
. . . I worked as Store Manager until May of 2014. I am currently on
the schedule as a part time sales associate.
. . . I filled in as a Store Manager at the Oxford Alabama store in
March of 2014.
. . . My primary duties as a Store Manager consisted of sales,
unpacking merchandise, readying merchandise for sale, stocking and
restocking the shelves and racks, cleaning the store, waiting on
customers, and running the cash register. I would estimate that I spent
over 90% to 95% of my time performing these various manual labor job
duties.
. . . The Anniston store in which I worked as Store Manager received
a truck containing, on average, 150 boxes of merchandise each week.
The Oxford store in which I worked as Store Manager received a truck
containing 183 boxes of merchandise. Because of Cato’s policies and the
lack of sufficient hours for the hourly paid employees of the store, I
routinely unpacked the merchandise once it was in the store, and readied
the merchandise for sale.
(Doc. 7-4 at 2-3).
E.

Documents

The plaintiff also supports her motion with:
– an unauthenticated document which states on its face that it is “The CATO
Corporation Store Manager Edition Store operations Compensation
13

Handbook.” (Doc. 7-5 at 2-15).
–A printout of a web page stating, among other things, that “[t]here are over
1,000 Cato stores in 32 states.” (Doc. 7-6 at 2).
– an unauthenticated document which, on its face, states that it is the “Store
Manager Job Description.” (Doc. 7-7 at 2-3).
– an unauthenticated document which, on its face, states that it is the “Acting
Store Manager Job Description.” (Doc. 7-8 at 2-3).
– the opt-in consents of the declarants. (Doc. 3-1).
F.

The Declaration of Michael Phillips

In opposition to the motion, the defendant offers the declaration of Michael
Phillips, who is “a District Manager at the Cato Corporation.” (Doc. 18-1 at 1). He
states:
2.

Cato operates more than 1,000 retail stores in 32 states.

3.

Cato stores are organized into districts of approximately 10-12
stores each, which are overseen by one District Manager.

4.

Because District Managers oversee so many stores, we only visit
each store only on an intermittent basis.

5.

The actual Cato stores are run by Store Managers who are
responsible for the overall management of their store. See
Attachment 1 – Cato Store Manager Job Description.

6.

Cato expects Store Managers to manage “all activities and
objectives of one store,” including: “sales generation, effective
14

customer service, shrinkage, Human Resources management,
merchandising, administrative and expense management and store
maintenance.”
7.

Although Store Managers sell merchandise, they perform their
duties as Store Manager while selling.

8.

While functioning within Cato’s corporate culture, Store
Managers work with a high degree of independence to operate
their stores.

9.

Cato Store Managers are expected to delegate tasks so that they
are able to manage their store.

10.

Store Managers are responsible for staffing that includes accepting
and reviewing applications, interviewing applicants, and in some
instances hiring sales associates.

11.

Additionally, Store Managers are responsible for creating
employee schedules, assigning work, providing training and
coaching, and handling discipline of employees.

12.

Store Managers have latitude in determining employees’ work
schedules.

13.

Store Managers also oversee how employees carry out their
duties, administer discipline, and work to motivate their
employees.

14.

Store Managers monitor employees’ cash register use and daily
interactions with customers.

15.

While Store Managers’ primary duties may fall into specific
categories important to managing the operation – such as staffing
or supervising and directing or monitoring sales – the actual time
spent performing these duties on a day-to-day basis varies from
store to store.
15

16.

Store Managers manage stores of varying sales volume, and those
Store Managers in higher volume stores manage additional staff,
and are responsible for more merchandise than those who manage
smaller volume stores.

17.

Acting Store Managers at Cato step in for Store Managers when
they are on leave and the Acting Store Manager job assignment
generally lasts for six to eight weeks.

18.

Cato maintains two separate job descriptions for Cato Store
Managers and Acting Store Managers. See Attachments 1 and 2.

19.

We operate 68 Cato stores in Alabama.

(Doc. 18-1 at 1-3).
Attached to the declaration is the “Store Manager Job Description” referenced
therein. (Doc. 18-1 at 7-8). It is identical to the unauthenticated version of the same
document submitted by the plaintiff. (Doc. 7-7 at 2-3). Also attached to the affidavit
is the “Acting Store Manager Job Description” referenced therein. (Doc. 18-1 at 1011). It is identical to the unauthenticated version of the same document submitted by
the plaintiff. (Doc. 7-8 at 2-3).
III.

ANALYSIS
Despite the lenient standard applicable, the court cannot, at this time,

conditionally certify a nationwide class. A substantial portion of the declarations
submitted by the plaintiff rely on speculation and hearsay. For example, the
declarants’ conclusion that other Store Managers also spend approximately 90% of
16

their time performing non-managerial, manual labor job duties, is based, at least in
part, on the declarants’ conversations with these other store managers. Even if these
statements were not hearsay, the declarations fail to identify these managers, fail to
specify how many other managers each declarant spoke to, and fail to mention in what
state, or states, these managers work. Based on such evidence, the court cannot say
that there are, in other states, managers who are similarly situated to the plaintiff.
Similarly, the declarants’ “understanding” that there is only one store policy and
procedure manual, and one Store Manager job description,6 for all stores in the whole
country does not support the motion. These vague statements fail to show how the
declarants have personal knowledge of said fact. See, Pickering v. Lorillard Tobacco
Co., No. 2:10 CV 633 WKW, 2012 WL 314691, at *11 (M.D. Ala. Jan. 30, 2012)
(Watkins, J.) (“[B]elief by itself carries no evidentiary weight.”).Finally, the
declarations all refer to written job descriptions, many times clearly incorrectly. This
too is hearsay.
Even assuming that all of the statements contained in the declarations are
admissible for the purpose of the instant motion, none of the declarations, or
documentary evidence, supports the conditional certification of a nationwide class.

6

The defendant’s submission seems to confirm that there is one store manager job
description for all stores.
17

Assuming that there is a nationwide standardized job description, that alone
cannot be the basis for conditional certification. Pickering, 2012 WL 314691 at *12
(“A standardized job description is insufficient to justify a nationwide collective
action based upon a claim that the employer improperly classified a category of
employees as exempt.”). “Rather . . . [the court] must analyze the nature of each
employee's job duties, and the degree to which evidence regarding the plaintiff’s job
duties can be applied to all other employees.” Id.; see also, Holt v. Rite Aid Corp., 333
F. Supp. 2d 1265, 1272 (M.D. Ala. 2004) (“The ‘similarly situated’ inquiry in this
case must be analyzed in terms of the nature of the job duties performed by each
putative plaintiff.”).
At best, the declarations in the instant case only show that three persons, in only
five stores7 in the northern half of the state of Alabama, had an experience similar to
the plaintiff’s. There is evidence that Cato operates 68 Cato stores throughout
Alabama. (Doc. 18-1 at 3). It has more than 1,000 stores throughout the country. (Doc.
7-6 at 2). The limited sample offered by the plaintiff is not enough to show that there
are similarly situated employees throughout the country. See, Pickering, 2012 WL
314691, at *11 (“Evidence consisting of declarations from two sales representatives

7

The stores are: Muscle Shoals (Ford and Terrell), Russellville (Ford); Florence
(Terrell), Anniston (Munford), and Oxford (Munford).
18

from the same region is insufficient to warrant nationwide collective action
certification for sales representatives in all of Lorillard's 787 territories, 122 divisions,
20 regions, and 4 areas across the country.”).
IV.

CONCLUSION
Based on the foregoing, the motion to conditionally certify and facilitate notice

is DENIED without prejudice. The parties are ordered to immediately confer and
provide the court with a Rule 26 report. The report should set out a bifurcated
discovery plan which addresses first whether there are similarly situated employees
to the plaintiff in other Cato stores in the country. The report should be filed no later
than March 20, 2015.
DONE and ORDERED this 10th day of March, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

19