Prince v. The Cato Corporation

Filing 47

MEMORANDUM OPINION AND ORDER GRANTING 35 MOTION to Certify Class with the class limited to North Alabama. Signed by Judge Virginia Emerson Hopkins on 5/25/2016. (JLC)

FILED
2016 May-25 PM 04:59
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,
Defendant.

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) Case No.: 1:14-CV-1708-VEH
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MEMORANDUM OPINION AND ORDER
Plaintiff Virginia Prince has sued defendant The Cato Corporation alleging
violations of the Fair Labor Standards Act’s (FLSA), 29 U.S.C. §§ 201–19, wage-hour
provisions. Prince moves the court to facilitate nationwide notice to a proposed class of
similarly situated Cato employees under the FLSA’s collective action mechanism, 29
U.S.C. § 216(b). Cato opposes notice in any form and, in the alternative, argues that, if
notice is required at all, it should be limited to north Alabama. The motion will be
GRANTED with the class limited to north Alabama.
I-A.
Cato is a mid-range women’s clothing store with more than 1,000 locations in 32
states. (Doc. 40, ¶ 1; doc. 40-1 at 20:3–4). Virginia Prince worked as a store manager
(SM) for Cato in its Anniston, Alabama store from October 2011 until May 2013 and

from May 2014 until present. (Doc. 7-2, ¶ 2). She is, and always has been, paid a fixed
salary and no overtime for this work. (Id., ¶ 4). She is required to work a minimum of 45
hours per week and always works more. (Id., ¶ 25). The overwhelming majority of
Prince’s time on the job is spent performing manual labor. (Id., ¶ 5). The tasks she
performs are the same as the tasks performed by assistant managers, who are hourly
employees paid overtime for work in excess of 40 hours in a week. (Id., ¶ 8). As store
manager, Prince has “little to no” input into most activities bearing on store management,
including pay, employee performance, scheduling, and payroll. (Id., ¶ 12).
Prince filed this lawsuit on September 4, 2014, alleging that Cato has unlawfully
withheld overtime wages from her by misclassifying her as exempt from the wage-hour
laws. (See doc. 1). She purported to bring the suit on behalf of herself and all others
similarly situated, id., and moved on September 17, 2014 to facilitate the distribution of
notice to potential co-plaintiffs. (Doc. 7). The court denied this motion without prejudice
on March 10, 2015. (Doc. 18). On April 8, 2015, the court bifurcated discovery, with
Phase I limited to the issue of class certification. (Doc. 30). Prince moved again on
October 13, 2015 to facilitate notice. (Doc. 35). The motion has come under
submission. (See docs. 40 & 44).

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I-B.
Prince seeks to certify the following class:
[A] nationwide class consisting of:
1.

2.
3.

Current and former employees of Cato
Fashions who served as a Store Manager or
Acting Store Manager between September 17,
2011 and the present;
Who were paid on a salary basis; and,
Worked at least 40 hours in any one week while
paid on a salary basis.

(Doc. 35 at 9).
II-A. THE FLSA
The FLSA prescribes a minimum wage, 29 U.S.C. § 206, and maximum hours, id.
§ 207, although “any employee employed in a bona fide executive, administrative, or
professional capacity” is exempt from the wage-hour requirements. Id. § 213(a)(1). Up
to 40 % of a retail executive or administrative employee’s duties may be “not directly
or closely related to the performance of executive or administrative activities” without
forfeiting the exemption. Id. It is the employer’s burden to show entitlement to an
exemption. Jeffery v . Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995). A
private citizen may enforce the FLSA either individually or through its collective action
mechanism. 29 U.S.C. § 216(b).

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II-B. COLLECTIVE ACTIONS UNDER SECTION 216(B )
“An action to recover the liability prescribed [for violating section 206 and/or
207] . . . may be maintained . . .

by any one or more employees for and in behalf of

himself or themselves and other employees similarly situated.” Id. (emphasis added).
Participants in a collective action must opt into the suit. Id. The Eleventh Circuit has
recommended managing collective actions in two steps: a notification stage and a
decertification stage. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.
2001). “After being given notice, putative class members have the opportunity to opt-in.”
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008). The
notice should be limited to “employees similarly situated.” Id.
The courts of appeals have avoided defining “similarly situated” with any real
precision. Id. at 1260 n. 38 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1213–16 (5th Cir. 1995) (noting the “remarkable” fact that many courts decline to define
“similarly situated”), overruled on other grounds by Desert Palace, Inc. v. Costa, 539
U.S. 90 (2003)). The Eleventh Circuit has said that—at a minimum—before facilitating
notice; i.e., approving step one, 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.” Dybach v. State of Florida
Department of Corrections, 942 F.2d 1562, 1567 (11th Cir. 1991) (emphasis added).

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The job requirements and pay provisions need not be identical—just similar. Grayson
v . K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). The required showing at the
notice stage is “not particularly stringent,” Hipp, 252 F.3d at 1214, and “less stringent
than that for joinder under Rule 20(a) or for separate trials under Rule 42(b).” Grayson,
79 F.3d at 1097.
The Eleventh Circuit’s Morgan decision, affirming the district judge, included the
facts on which the district judge relied in proceeding past step one, and thus provides a
useful benchmark for evaluating Prince’s motion:
The court found Family Dollar's store managers were
similarly situated within the meaning of § 216(b) because
they: (1) worked 60 to 80 hours a week; (2) received a fixed
salary and no overtime pay; (3) spent 75 to 90% of their time
on non-managerial tasks such as stocking shelves, running the
cash registers, unloading trucks, and performing janitorial
duties; (4) did not consistently supervise two or more
employees; (5) lacked the authority to hire, discipline, or
terminate employees without first obtaining permission from
their district managers; (6) could not select outside vendors
without their district managers' permission; (7) worked no
less than 48 hours a week under the threat of pay cuts or loss
of leave time; and (8) arrived at work before the store opened
and stayed until after closing.
Morgan, 551 F.3d at 1243.
As

a

threshold

matter,

Prince

suggests

that

Morgan,

the

most

recent

comprehensive discussion of collective action certification in the Eleventh Circuit,
requires that notice issue when a class of employees have the same job description and
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are subject to the same claimed exemption from the wage-hour laws. Prince does not
provide a pinpoint cite for this proposition, opting instead for a pincushion cite:
“Morgan, 551 F.3d at 1233, 1241, 1243, 1245–46, 1249, 1251–54, 1259–65 and [n.]
46.” (Doc. 35 at 14). Prince’s proposed rule is a dubious reading of Morgan, and
although embracing her view would be an expeditious way to dispose of this motion, the
court declines to do so. This motion can be resolved without creating a new, bright-line
rule.
III-A. DUTIES AND PAY
Prince argues that she has been wrongfully denied overtime pay in violation of
section 207. In particular, she claims that Cato fails to pay her overtime because it has
wrongfully misclassified her as an exempt worker. The classification is wrongful, she
says, because her primary job duty is not management; it is sales generation and customer
service. Additionally, she has little to no independence from direct supervision by a
district manager. Cf. id. at 1248–58 (describing a similar relationship between Family
Dollar’s district and store managers).
Prince’s testimony is presumably intended to be exemplary of Cato managers. She
describes her typical duties as opening the store, doing bank deposits, assisting
customers and helping them match clothes, receiving shipment, breaking down boxes,
putting clothes on the floor, cleaning bathrooms, and dusting the store. (Doc. 39-7 at

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117:13–118:3). Prince’s work schedule, as well as that of her assistant managers, is set
by Cato and, although she does fill in the blanks in the schedule, the available blanks
rotate from week to week. (Id. at 88:22–91:1). She is also unable to request additional
merchandise for the store, id. at 150:17–23, and she has no authority to deviate from the
displays in the store. (Id. at 192:13–20).
It is Prince’s position that the policy of misclassification is implemented
nationwide, creating a class of “similarly situated” employees. She presents evidence of
a common job description, doc. 39-2 at 4–5, that the store managers’ subordination to
district managers is the product of nationally implemented regulation of minutiae, doc.
35 at 14–17, and that the decision to classify the store managers as exempt was done
wholesale; i.e., there was not any individualized determination of classification.
Cato responds by saying that a common job description—which is applied
nationwide without regard to variations in store size or geography, doc. 39-1 at
52:21–53:7—is not enough to establish that employees are similarly situated (true, see
Pickering v. Lorillard Tobacco Co., No. 2:10-CV-633-WKW, 2012 WL 314691, at *11
(M.D. Ala. Jan. 30, 2012)), that the job description Prince uses is read selectively, that
the minutiae-regulating policies are not probative, and that a common policy of
exemption is insufficient. The problem with Prince’s objections is that its divide and
conquer

strategy—describing each fact as individually insufficient,

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and

hence,

collectively insufficient—is contrary to the law. Because facts can (and often do) form
a gestalt, the court must assess them in their totality. See, e.g., Whineglass v. Smith, No.
8-11-CV-2784-T-23TGW, 2012 WL 6163067, at *9 (M.D. Fla. Nov 12, 2012).
Cato objects to Prince’s reading of the job description on two grounds. First,

by

emphasizing the function weights, which reflect a task’s relative importance, doc. 39-1
at 53:23–54:8, assigned to each job task, Prince ignores the fact that the store manager
is vested with “responsibil[ity] for all activities and objectives in one store.” (Doc 39-2
at 4). Second, Cato says it is entirely unremarkable that a retail manager’s most important
duty is sales. All that is true, but the job description, when itemizing the function weights,
provides that well over fifty-percent of the function weight assigned to the store
manager’s responsibilities are for duties that are not obviously management duties, like
sales and loss prevention, which at least suggestive that the store manager is not, in fact,
managing.
Additionally, Cato’s 30(b)(6)1 deponent, Vice President for Associate Relations,

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FED. R. CIV. P. 30(b)(6) provides that:
(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may
name as the deponent a public or private corporation, a partnership, an association, a governmental
agency, or other entity and must describe with reasonable particularity the matters for examination.
The named organization must then designate one or more officers, directors, or managing agents, or
designate other persons who consent to testify on its behalf; and it may set out the matters on which
each person designated will testify. A subpoena must advise a nonparty organization of its duty to
make this designation. The persons designated must testify about information known or reasonably
available to the organization. This paragraph (6) does not preclude a deposition by any other
procedure allowed by these rules.
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Risk Management, and Cato Overseas Human Resources, John Warsinsky, confirmed that
sales generation and customer service are the most important tasks the store manager
performs. (Doc. 39-1 at 54:22–55:2). So the job description is at least vague as to
whether the store manager actively sells products and serves customers more than
managing other employees doing so, and Prince’s reading of the description is buttressed
by her deposition, the affidavits she has provided from other store managers, and Cato’s
Vice-President. Further, the performance of managerial tasks alongside non-managerial
tasks does not necessarily mean that the employee is a manager. See Rodriguez v. Farm
Grocery Stores, Inc., 518 F.3d 1259 (11th Cir. 2008). At this early stage, there is
sufficient evidence buttressing Prince’s reading of the job description to rely on it, at
least in part, in concluding that notice should issue.
Prince summarizes the minutiae-regulating policies as showing that the store
managers uniformly lack authority to hire, fire, and manage personnel, doc. 35 at 9–10;
that district managers and/or the corporate offices uniformly control store operations
id. at 10–11; that store managers uniformly lack control over budget and payroll, id. at
11; they uniformly lack control over employee hours, work schedules, and payrolls, id.
at 12; they uniformly lack control over merchandising, marketing, and Plan-O-Grams, id.;
and they uniformly lack control over store maintenance and vendors. Id. In support of
each of these contentions, Prince cites divers Cato policies, depositions, and affidavits.

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Cato does not appear to dispute the veracity of Prince’s underlying evidence,
except to the extent Cato disputes Prince’s and the opt-in plaintiffs’ typicality (a
discussion reserved for section IV-A, infra). Rather, Cato appears to argue that, first, the
treatment of these policies as probative of similar situation lacks a limiting principle;
“any company seeking to implement uniform policies across all operations will
necessarily have created a situation where all persons employed in a given capacity are
similarly situated.” (Doc. 40 at 15). Cato’s second apparent argument on the point is that
these “randomly selected” policies do not suggest that the store managers are similarly
situated in their “day-to-day duties.” (Id. at 14–15). The first argument was implicitly
rejected by the Eleventh Circuit when that court explicitly relied on comparable policies
in affirming a finding of similar situation. Morgan, 551 F.3d at 1248–51 (describing the
extent to which corporate policies regulated the lilliputian details of a store manager’s
duties). As to the second argument, if Prince has cherry-picked these policies, Cato has
introduced no evidence of it.
III-B. OTHER EMPLOYEE INTEREST
Prince has presented affidavits from two other former Cato store managers in
North Alabama. (See docs. 39-8 and 39-9). One is from Tracy Ford, who worked as a
store manager from June 2007 to October 21, 2011 in Muscle Schoals and Russellville,
Alabama. (Doc. 39-8, ¶¶ 2–3). The other is from Kimberly Terrell, who worked as a

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store manager from February 2010 to February 2013 in Muscle Shoals and Florence,
Alabama. (Doc. 39-9, ¶ 2).The affidavits describe their experience working as store
managers and reflect that they regularly worked in excess of forty-five hours per week
(docs. 39-8, ¶ 25; 39-9, ¶ 25), that they received a fixed salary and were not paid
overtime (docs. 39-8, ¶ 4; 39-9 ¶ 4), that approximately 90% of their time at work was
spent performing manual labor (docs. 39-8, ¶ 5; 39-9, ¶ 5), and that the job duties for
store manager are essentially the same as for assistant manager, except assistant
managers receive overtime. (Docs. 39-8, ¶ 8; 39-9, ¶ 9).
The district manager or someone higher in the corporation “had direct control over
the stores[’] payroll budget, hiring procedures, employee benefits, scheduling of
employees, banking procedures, employee testing procedures, salary determinations,
merchandise ordering

procedures,

merchandise

selection, merchandise location,

security, maintenance, overtime, and the store hours,” docs. 39-8, ¶ 21; 39-9, ¶ 21, and
the store managers had little to no input in these activities. (Docs. 39-8, ¶ 12; 39-9, ¶
12).
The foregoing reveals that there are individuals aside from Prince who desire to
opt-in and are similarly situated with regard to their job duties and pay provisions,
satisfying Dybach’s absolute minimum. See 942 F.2d at 1567–68. Furthermore, a
number of the facts deemed sufficient in Morgan are also present here: (1) they work

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more than forty hours per week; (2) the managers receive a fixed salary and no overtime
pay; (3) they spend 75 to 90% of their time on non-managerial tasks such as stocking
shelves, running the cash registers, unloading trucks, and performing janitorial duties; (4)
they lack the authority to discipline or terminate employees without first obtaining
permission from their district managers; and (5) they cannot select outside vendors
without their district managers' permission. Thus, Prince has made a sufficient showing
to facilitate

notice. However, no one has opted in from outside of north

Alabama—Morgan featured opt-ins from several states prior to conditional certification,
551 F.3d at 1242—and no acting store managers have opted in, so the court will not
include acting store managers, nor managers outside of north Alabama, within the
conditionally certified class. Cf. Guerra v. Big Johnson Concrete Pumping, Inc., No.
05-14237-CIV, 2006 WL 2290512, at *4 (S.D. Fla. May 17, 2006) (indication of
interest from opt-in plaintiffs raises lead

plaintiff’s

contention

beyond

“pure

speculation”).
IV-A. CATO’S AFFIDAVITS AND NON-TYPICALITY
Cato presents affidavits from other store managers and marshals them in support
of its contention that Prince, Ford, and Terrell are atypical of Cato managers. As Prince
points out, weighing the credibility of dueling affidavits is better reserved for step two,
when the plaintiffs’ burden is heavier. See Anderson, 488 F.3d at 953 (the burden is

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heavier at step 2); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir.
2001) (Step one “require[s] nothing more than substantial allegations that the putative
class members were together the victims of a single decision, policy, or plan.”);
Pendlebury v. Starbucks Coffee Co., No. 04-CV-80521, 2005 WL 84500, at *3 (M.D.
Fla. Jan. 3, 2005) (reserving credibility determinations, unless overwhelming, for step
two). The same goes for Cato’s concurrent duty, 29 C.F.R. § 541.106, argument.
Cato attacks the affidavits from Ford and Terrell on the ground that they contain
hearsay and speculation based on conversations with other Store Managers, see, e.g., doc
39-8 ¶¶ 9–11, although Cato cites no authority for the proposition that conditional
certification must be decided on the basis of admissible evidence. To the extent Cato’s
hearsay objection is an objection directed to the reliability of the declaration, the point
is taken, and the court does not rely on the hearsay portions of the affidavits.
Additionally, Cato suggests that the affidavits are “cookie-cutter” and self-serving, which
(aside from being dubiously probative of the affidavits’ truthfulness) are credibility
arguments more appropriately considered in step two.
IV-B. CATO’S ATTACK ON THE LIMITATIONS PERIOD
A final matter: the class period will differ depending on whether Cato’s alleged
violations of the FLSA are willful; three years if so, and two years if not. 29 U.S.C. §
255(a). Prince, in her initial brief, argued that willfulness is a jury question, so notice

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should issue for a three year period. Cato, in its response, argued that because it
constantly assesses exempt status, it cannot be found to be willful. Prince is correct; the
notice will go back three years.
V.
Accordingly, it is ORDERED that:
A class within the Northern District of Alabama, as
defined in 28 U.S.C. § 81(a), consisting of any person who
satisfies the following criteria:
1.

2.
3.

Current and former employees of Cato
Fashions who served as a Store Manager
between September 17, 2011 and the present;
Who were paid on a salary basis; and,
Worked at least 40 hours in any one week while
paid on a salary basis

is hereby conditionally certified.
The parties are further ORDERED, at the decertification stage, to comply with
Appendix II (governing summary judgment) of the court’s uniform initial order in
presenting their arguments. (See doc. 4 at 14–21). The court must emphasize that
citations to depositions or affidavits in the supporting briefing for step two must contain
pinpoint cites.

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DONE and ORDERED this 25th day of May, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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