Carr et al v. Autozoners LLC et al

Filing 566

MEMORANDUM OPINION AND ORDER GRANTING 333 MOTION Decertify the Collective Action filed by AutoZone Stores Inc, Autozoners LLC. The court ORDERS the parties to submit a status report regarding their progress on a tolling agreement by email to the undersigned chambers on or before November 19, 2021, and this matter is SET for a telephone status conference on November 22, 2021 at 12:15pm. Signed by Judge Abdul K Kallon on 10/20/2021. (AKD)

FILED
2021 Oct-20 AM 10:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
HOPE M. CARR, et al.,
Plaintiffs,
vs.
AUTOZONER, LLC; AND
AUTOZONE STORES, INC.,
Defendants.

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Civil Action Number
5:15-cv-00356-AKK

MEMORANDUM OPINION AND ORDER
Plaintiffs, who work or worked as store managers for AutoZone stores across
the country, allege that AutoZoner, LLC and AutoZone Stores, Inc. (collectively
“AutoZone”) violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., by
improperly classifying them as exempt employees under the Act. Doc. 1. After a
period of discovery, the court conditionally certified this action as a collective action
under 29 U.S.C. § 216(b). Doc. 67. AutoZone has now moved to decertify this
action, doc. 333, arguing that the class members are not similarly situated because
their duties as store managers and discretion over managerial tasks differ from store
to store and district to district, docs. 341; 498. For the reasons discussed below, and
especially because the record reveals differences with respect to the plaintiffs’

performance of and discretion over their managerial duties and their authority for
hiring and promotions, AutoZone’s motion is due to be granted.
I.
The FLSA requires employers to pay their employees time and a half for hours
worked in excess of forty hours per week, unless, relevant to this case, the employee
is “employed in a bona fide executive, administrative, or professional capacity.” 29
U.S.C. §§ 207(a), 213(a)(1). The FLSA authorizes collective actions against an
employer for unpaid overtime compensation “by any one or more employees for and
on behalf of himself or themselves and other employees similarly situated.” 29
U.S.C. § 216(b). Thus, “[t]o maintain a collective action under the FLSA, plaintiffs
must demonstrate that they are ‘similarly situated.’” Anderson v. Cagle’s, Inc., 488
F.3d 945, 953 (11th Cir. 2007) (quotation in original omitted).
The Eleventh Circuit suggests a two-stage procedure for district courts to
effectively manage FLSA collective actions. See Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1260 (11th Cir. 2008). First, at the conditional certification
stage, the court determines whether to authorize notice of the action to other
employees or former employees who may elect to opt-in to the suit.1 See id. “The
standard for determining similarity, at this initial stage, ‘is not particularly

1

The FLSA requires that would-be plaintiffs affirmatively opt-in to the suit. 29 U.S.C. § 216(b).

2

stringent.’” Id. (quoting Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1214
(11th Cir. 2001)). An employer’s motion to decertify triggers the second stage,
during which the court determines whether the named plaintiffs and the opt-ins are
in fact similarly situated. Hipp, 252 F.3d at 1218. The plaintiffs bear a heavier
burden to show similarity at this stage, and they “must rely on more than just
‘allegations and affidavits.’” Morgan, 551 F.3d at 1261 (quoting Anderson, 488
F.3d at 953). At all times, the certification determination “remains soundly within
the discretion of the district court.” Hipp, 252 F.3d at 1219.
II.
AutoZone operates over 6,000 stores across the United States, Puerto Rico,
Mexico, and Brazil that are organized into divisions, regions, and districts. Doc.
335-13 at 2. Each district includes seven to fifteen stores overseen by a district
manager who is responsible for the overall economic performance of the district. Id.
at 3. AutoZone stores are classified as retail, commercial, or hub stores, and the
stores vary widely in size, sales volume, and number of employees. Id. at 3-5. Retail
stores generally employ between five and twenty hourly employees in various
positions, including assistant store manager, parts sales manager, and full- and parttime sales positions.2 Id. at 4. In addition to those positions, the commercial stores,

2

AutoZone refers to assistant store managers and parts sales managers as “Gray Shirts,” and to
employees in sales positions as “Red Shirts.” Doc. 335-13 at 4.

3

which employ between three and forty hourly employees, also employ hourly
employees as commercial sales managers, commercial specialists, and drivers. Id.
Finally, the hub stores act as distribution centers for surrounding AutoZone retail
and commercial stores, and employ additional hourly employees as hub
coordinators, hub specialists, hub drivers, and hub pickers. Id. at 5. The hub stores
are generally larger than retail and commercial stores, and employ between fifteen
and more than one hundred employees. Id.
Despite those differences between store categories and stores, each store
operates under the direction of a single store manager who reports directly to a
district manager. Id. at 3, 6. The store manager is the highest-level and highest-paid
employee at each store, and the hourly employees report directly to him or her. Id.
at 6; see also docs. 336-13 at 6; 336-19 at 5; 336-22 at 10; 336-44 at 6. With the
exception of managers in California and Puerto Rico, AutoZone classifies all store
managers as exempt executive employees. Docs. 335-38 at 3; 494-1 at 14-15. As
such, store managers earn a salary, and AutoZone does not pay them overtime for
any hours they work over forty hours per week even though it expects store manager
to work at least fifty hours each week. Docs. 335-8 at 2; 335-13 at 7; 494-1 at 23;
494-7 at 10; 494-13 at 22. Store managers are the only employees at the store level
who are paid on a salary basis, and they are the only store-level employees eligible

4

for an incentive bonus based upon the store’s financial performance. Doc. 335-13
at 7.
The plaintiffs claim they work between fifty-five and sixty-five hours per
week and spend eighty to ninety-five percent of their time performing nonmanagerial tasks that hourly employees also perform. See, e.g., docs. 336-2 at 29;
494-23 at 4; 494-26 at 2-4; 494-115 at 3-4; 494-124 at 3-4; 494-126 at 3-4; 494-127
at 3-4; 494-128 at 3-4; 494-129 at 3-4; 494-130 at 3-4; 494-131 at 2-3; see also docs.
494-21 – 494-136. The plaintiffs also contend that, in light of AutoZone’s policies,
sales and customer service are their most important job duties. See docs. 494-23 at
2-5; 494-26 at 10; see also docs. 494-21 – 494-136. Based in part on these
contentions, the plaintiffs assert that AutoZone incorrectly classified them as exempt
management employees and that they should receive overtime pay under the FLSA.
Docs. 1; 493.
III.
Consistent with the Circuit’s two-step approach,3 the court conditionally
certified a class of store managers, doc. 67, and the plaintiffs gave notice to potential
class members, see doc. 73. Subsequently, more than 1,500 current and former
AutoZone store managers opted into this suit. See docs. 74-77. Thereafter, the
parties conducted discovery that, in part, limited depositions to a maximum of 50

3

Morgan, 551 F.3d at 1260.

5

per side. See doc. 80 at 3. AutoZone is now moving to decertify, arguing that the
plaintiffs have not shown that their employment settings and job duties are similar
with respect to the factors relevant to its executive exemption defense—whether the
plaintiffs’ primary duty was management, whether the plaintiffs regularly directed
the work of two or more other employees, and whether the plaintiffs had authority
to hire or fire or their recommendations were given particular weight. Doc. 341 at
13-30. AutoZone further contends that differences among the plaintiffs will require
it to present an individualized defense for each plaintiff, which would result in
numerous mini-trials, and, therefore, fairness and procedural concerns weigh in
favor of decertification. Id. at 25-33. The plaintiffs counter that the evidence reveals
that the class members work in similar settings with similar oversight, and their work
is governed by the same mandatory corporate policies. Doc. 493.
The plaintiffs bear the burden of proving the named plaintiffs and opt-in class
members are similarly situated and that the action should proceed as a collective
action. See Anderson, 488 F.3d at 952. The FLSA contains no guidance on the level
of similarity required, and the Eleventh Circuit has not precisely defined the term
“similarly situated.” Morgan, 551 F.3d at 1259. The Circuit has admonished that
“under 216(b), courts determine whether employees are similarly situated—not
whether their positions are identical.” Id. (citing Grayson v. K Mart Corp., 79 F.3d
1086, 1096 (11th Cir. 1996)). Nevertheless, “the similarities necessary to maintain
6

a collective action under § 216(b) must extend ‘beyond the mere facts of job duties
and pay provisions.’” Anderson, 488 F.3d at 953 (quoting White v. Osmose, Inc.,
204 F. Supp. 2d 1309, 1314 (M.D. Ala. 2002)) (internal citation omitted). The
similarities must also “encompass the defenses to some extent,” and the court “must
consider whether the defenses that apply to the opt-in plaintiffs’ claims are similar
to one another or whether they vary significantly.” Morgan, 551 F.3d at 1262 (citing
Anderson, 488 F.3d at 953-54).

And, logically, “as more legally significant

differences appear amongst the opt-ins, the less likely it is that the group of
employees is similarly situated.” Id. at 1261 (citing Anderson, 488 F.3d at 953).
To determine whether the plaintiffs are similarly situated, the court considers:
“‘(1) disparate factual and employment settings of the individual plaintiffs; (2) the
various defenses available to defendants that appear to be individual to each plaintiff;
and (3) fairness and procedural considerations.’” Id. (alteration in original omitted),
This entails ascertaining whether the court “can coherently manage the class in a
manner that will not prejudice any party.” Briggins v. Elwood TRI, Inc., 882 F.
Supp. 2d 1256, 1263 (N.D. Ala. 2012) (internal citation omitted).

These three

factors are not mutually exclusive, and the court must consider the individual class
members’ factual and employment settings in light of the employer’s executive

7

exemption defense. 4 See Knott v. Dollar Tree Stores, Inc., 897 F. Supp. 2d 1230,
1234-35 (N.D. Ala. 2012). Thus, to decide whether maintaining a collective action
is appropriate, the court must consider the similarity in the plaintiffs’ employment
settings with respect to (1) whether their primary duty is management, (2) whether
they regularly direct the work of other employees, and (3) whether they have
authority to hire or fire or whether AutoZone gives particular weight to their
recommendations. The court turns to these issues now, beginning with whether the
plaintiffs’ primary duty is management.
A.
According to AutoZone, differences exist in how the plaintiffs perform their
duties that preclude this court from finding that the plaintiffs are similarly situated
on the “primary duty is management” prong. Allegedly, “no single decision, policy,
or plan” AutoZone implemented requires a store manager to perform nonmanagerial tasks as their primary duty,5 and material differences exist in the
4

An employee qualifies as an exempt executive if (1) she is compensated on a salary basis at a
rate of at least $455 per week; (2) her primary duty is management; (3) she customarily and
regularly directs the work of two or more other employees; and (4) she has authority to hire or fire
other employees, or her suggestions and recommendations as to the hiring, firing, or promotion of
other employees are given particular weight. 29 C.F.R. § 541.100(a) (2006) (effective to
December 31, 2019). Only the second, third, and fourth factors are at issue in this case. See doc.
341 at 13.
5

An employee’s primary duty is “the principal, main, major or most important duty that the
employee performs,” and determining “an employee’s primary duty must be based on all the facts
in a particular case, with the major emphases on the character of the employee’s job as a whole.”
29 C.F.R. § 541.700(a). Factors the court considers when determining whether in employee’s
primary duty is management include “[1] the relative importance of the exempt duties as compared

8

managerial duties the plaintiffs actually performed and in their discretion over those
duties.6 Doc. 341 at 9-13. On the other hand, the plaintiffs maintain that they work
in “virtually identical factual and employment settings” in part because the same,
uniform policies govern operation of AutoZone’s stores throughout the country and
those policies mandate that customer service and sales are a store manager’s primary
duties. Doc. 493 at 6, 9-28. Indeed, Nancy Stephens, Director of Field Human
Resources, testified that the same mandatory policies and procedures, including
those related to scheduling, employee training, appraisals, discipline, termination,
hiring, opening and closing procedures, ordering, sales, and customer service, apply
to all AutoZone stores. Doc. 494-1 at 20-22. But, uniform corporate policies alone
are not dispositive on the similarly-situated issue. “Rather, it is necessary to review
the actual job duties of [the store managers] to determine whether they are similarly

with other types of duties; [2] the amount of time spent performing exempt work; [3] the
employee’s relative freedom from direct supervision; and [4] the relationship between the
employee’s salary and the wages paid to other employees for the kind of nonexempt work
performed by the employee.” 29 C.F.R. § 541.700(a).
6

The relevant regulations provide that managerial duties “include[], but [are] not limited to,
activities such as interviewing, selecting, and training of employees; setting and adjusting their
rates of pay and hours of work; directing the work of employees; maintaining production or sales
records for use in supervision or control; appraising employees' productivity and efficiency for the
purpose of recommending promotions or other changes in status; handling employee complaints
and grievances; disciplining employees; planning the work; determining the techniques to be used;
apportioning the work among the employees; determining the type of materials, supplies,
machinery, equipment or tools to be used or merchandise to be bought, stocked and sold;
controlling the flow and distribution of materials or merchandise and supplies; providing for the
safety and security of the employees or the property; planning and controlling the budget; and
monitoring or implementing legal compliance measures.” 29 C.F.R. § 541.102.

9

situated and whether the exemption defense can be collectively litigated.” Morgan,
551 F.3d at 1264, n.46. 7 In that regard, and as discussed below, the record reveals
differences in the plaintiffs’ performance of and discretion over their managerial
duties, and whether they perform their managerial duties concurrently with sales and
customer service tasks.
1.
AutoZone maintains mandatory and standardized policies regarding customer
service, see docs. 494-1 at 20-21; 494-2; 494-8 at 37, which the plaintiffs maintain
undermine AutoZone’s contention that the plaintiffs’ primary duty is management.
According to the plaintiffs, these policies, including Drop-Stop/30/30, 8 GOTTChA,9
WITTDTJR, 10 Go the Extra Mile, Jackson 5, and WOW! Customer Service,
mandate that a store manager’s primary duties are customer service and sales and
ensure that all store managers perform those duties in the same way. Doc. 493 at 6,
12-14. Indeed, some AutoZone witnesses testified that customer service and sales

7

Likewise, AutoZone’s blanket classification decision for store managers outside of California
and Puerto Rico does not on its own render the plaintiffs similarly situated. See Morgan, 551 F.3d
at 1264, n.46; Knott, 897 F. Supp. 2d 1239-40.
8

Drop-stop/30/30 refers to AutoZone’s policy that any employee who is at the front of the store is
to drop or stop what they are doing to greet a customer before the customer gets thirty feet into the
store, or has been in the store for thirty seconds. See doc. 494-2 at 3.
9

GOTTChA stands for “go out to the customer’s automobile.” Doc. 494-2 at 3.

10

WITTDTJR stands for “whatever it takes to do the job right.” Doc. 494-1 at 76.

10

are employees’ most important job duties. Docs. 494-1 at 76; 494-4 at 17, 45-46;
494-8 at 36; 494-14 at 19-20; 494-16 at 10-11. The plaintiffs also submitted
numerous declarations uniformly stating that customer service and sales are their
most important job duties and that, like the non-managerial employees, they spent
the vast majority of their time performing those duties instead of management tasks.
See docs. 494-21 – 494-136. But, the time spent performing non-managerial tasks
is not dispositive and is just one factor courts consider when determining primary
duty. 29 C.F.R. § 541.700. In addition, “[c]oncurrent performance of exempt and
nonexempt work does not disqualify an employee from the executive exemption if
the requirements of [the exemption] are otherwise met.” Id. at § 541.106(a); see also
Morgan, 551 F.3d at 1268. Thus, the court must consider whether the plaintiffs
performed management duties concurrently with their non-managerial tasks, as
AutoZone contends. See doc. 341 at 22.
According to the plaintiffs, AutoZone’s requirement that employees focus on
customer service and sales policies prevents the plaintiffs from performing
managerial duties concurrently with customer service and sales duties. Doc. 493 at
13, 26-27. Many of the plaintiffs submitted declarations stating that, in light of
AutoZone’s mandatory policies, they “could not do anything else when [they were]
performing customer service.” See docs. 494-112 at 4; 494-113 at 4; 494-114 at 4;
494-21 at 2-5; see also docs. 494-21 – 494-136. While that may be the case for these
11

plaintiffs, several plaintiffs testified that they were always responsible for and
managing their stores even when they were performing customer service and sales.
Docs. 336-2 at 22-23; 336-3 at 46; 336-13 at 8; 336-14 at 39; 336-17 at 26-27; 33618 at 28, 36-37; 336-19 at 7; 336-20 at 17; 336-23 at 30; 336-26 at 27-28; 336-24 at
23-24; 336-43 at 31.11 For example, a plaintiff who is a store manager in Idaho and
Oregon testified that he supervises approximately thirty employees even when he is
at the counter selling or performing other non-managerial tasks, and he agreed that
he remained accountable for his store’s performance at all times. Doc. 336-2 at 2223. Likewise, a store manager in Indiana reported that she supervises approximately
eight or nine employees even when she is performing non-managerial tasks, and that
she can delegate tasks to those hourly employees. Doc. 336-23 at 30. And, a store
manager in Oklahoma testified that if a customer or employee has a problem that
another employee cannot resolve, he is responsible for handling those problems even
when he is performing non-managerial duties. Doc. 336-43 at 31.
This testimony establishes that at least some of the plaintiffs perform
managerial or supervisory duties concurrently with customer service and sales.

11

The plaintiffs correctly note that testimony that a plaintiff is always “in charge” of a store is not
sufficient to establish that a plaintiff’s primary duty is management. Doc. 493 at 27. Instead, to
determine the plaintiff’s primary duty, the court must “scrutinize the factors in the Secretary’s
regulations . . . .” Morgan, 551 F.3d 1272, n.60 (citation omitted). Still, the plaintiffs’ testimony
that they were in charge of their stores at all times is relevant to the question whether the plaintiffs
performed managerial duties concurrently with non-managerial tasks such as sales and customer
service.

12

Moreover, the amount of time the plaintiffs spend on non-managerial tasks does not
preclude a finding that their primary duty is management.

See 29 C.F.R.

§ 541.106.12 Thus, the plaintiffs have not shown that the amount of time the
plaintiffs spend on non-managerial tasks mandates a finding that they all performed
sales and customer service as their primary duty or that they are all similarly situated
with respect to their primary duty.
2.
The court turns now to the evidence relating to the plaintiffs’ performance of
their managerial duties and discretion over those duties. One of the plaintiffs’
managerial duties is scheduling. The plaintiffs assert that they have no discretion
over this function because AutoZone maintains mandatory policies and procedures
that govern scheduling. Docs. 335-1 at 6; 494-1 at 67, 70; 494-6 at 16-17; 494-7 at
15; 494-137 at 2-59. Those procedures include utilizing a computer program to
generate a weekly schedule based on employee availability entered by a store
manager or employees and a labor budget for the store that AutoZone determines at
the corporate level without any input from the store manager.13 Docs. 336-10 at 39;

12

See 29 C.F.R. § 541.106(b) (“An assistant manager can supervise employees and serve
customers at the same time without losing the exemption. An exempt employee can also
simultaneously direct the work of other employees and stock shelves.”).
13
The labor budget reflects the collective number of hours a store’s employees can be scheduled
to work. See doc. 494-7 at 11-12; 494-8 at 13. Under AutoZone’s policies, store managers should
not deviate from the labor budget provided to them. Docs. 494-4 at 31; 494-5 at 31; 494-7 at 12;
494-13 at 26.

13

494-1 at 67, 70-71; 494-4 at 30-31; 494-5 at 30; 494-7 at 12-13; 494-8 at 13; 494-12
at 24; 494-13 at 24. After a store manager checks the computer-generated schedule
and adjusts it as needed within AutoZone’s parameters, the schedule is only finalized
after a district manager reviews, approves, and publishes it. Docs. 336-2 at 14-15;
336-6 at 32; 336-17 at 17-18, 29; 336-18 at 17; 336-24 at 27; 336-31 at 46; 494-1 at
67, 70-71; 494-4 at 34; 494-5 at 32; 494-6 at 16-17; 494-8 at 17, 20; 494-12 at 2425; 494-14 at 16.
Variations exist, however, in how store managers carry out their responsibility
for scheduling employees. For example, at least six plaintiffs indicated that they
prepared their store’s schedules, docs. 336-13 at 7; 336-17 at 17; 336-19 at 7; 33621 at 4; 336-22 at 16; 336-43 at 19, while other plaintiffs reported that they shared
the responsibility with their assistant store managers and sales managers, docs. 3362 at 13, 26; 336-6 at 15, 32; 336-7 at 9; 336-20 at 19-20; 336-23 at 19; 336-26 at 18;
336-35 at 48; 336-44 at 13-14. And, although one plaintiff testified that AutoZone’s
policies prevent him from modifying the computer-generated schedule, doc. 336-8
at 126, others testified that they made numerous changes to the schedule, or even
started “from scratch,” without first seeking district manager approval, docs. 336-3
at 11; 336-10 at 39; 336-17 at 17; 336-35 at 15. In addition, while some district
managers routinely changed the store schedule before approving it, docs. 336-2 at
15; 336-17 at 29; 336-18 at 17, 30; 336-20 at 20; 336-24 at 27, a plaintiff and store
14

manager in Florida testified that his district manager never made changes to the
schedule, doc. 336-3 at 11. Also, some plaintiffs indicated that they had authority
to change the schedule during the week if necessary, see docs. 336-2 at 14, 26; 33614 at 9; 336-18 at 17; 336-23 at 19; 336-26 at 18; 336-43 at 20; see also docs. 33611 at 21; 336-44 at 15; 494-6 at 32; 494-12 at 25, while at least three other plaintiffs
had to check with their district managers before making any changes, docs. 336-7 at
12; 336-9 at 17; 336-24 at 27. Finally, some plaintiffs testified that even after the
schedule was approved and finalized, their district managers regularly told them to
send workers home or cut employees’ hours during the week, which often resulted
in the plaintiffs working longer hours. See docs. 336-2 at 26; 336-7 at 12; 336-8 at
61; 336-10 at 15; 336-17 at 29; 336-18 at 35; 336-20 at 18; 336-21 at 22; 336-22 at
16; 336-23 at 18; 336-24 at 27; 336-31 at 45; 336-33 at 9; 336-34 at 13; 336-35 at
28; 336-44 at 15; 494-131 at 5-6; see also docs. 336-3 at 12; 494-4 at 31-32; 494-5
at 32-33; 494-8 at 15; 494-14 at 15; 494-16 at 28.
This evidence reveals that, although all store managers are subject to the same
policies and general procedures regarding scheduling, the plaintiffs exercise
differing amounts of discretion and authority with respect to scheduling employees
for their stores.

15

3.
The record also reflects that the plaintiffs have differing levels of authority
and responsibility for other supervisory duties, including training, evaluating
employees, recommending pay raises, and disciplining employees.
a.
AutoZone maintains uniform modules to train its store managers and hourly
employees, including a foundations workshop that all employees must attend on
their first day. Doc. 494-1 at 37-40, 45-47; see also doc. 335-1 at 7, 63-67. These
modules provide detailed training regarding store operations, including how to
perform certain tasks and which days to perform them, and AutoZone designs the
modules to help ensure “consistency across the company.” Docs. 494-1 at 45-47;
494-20. According to AutoZone’s training policies, district managers coordinate
and schedule the foundations workshop for new employees, and store managers bear
responsibility for ensuring that their employees attend the workshop. Docs. 335-1
at 64; 494-1 at 41; see also docs. 336-6 at 38; 336-20 at 29; 336-25 at 11.
Nevertheless, some plaintiffs testified that they shared that responsibility with their
subordinates. Docs. 336-23 at 27-28; 336-26 at 29; 336-33 at 8. With respect to
additional training for new employees, some plaintiffs testified that they provided
personalized feedback to employees about their performance, see docs. 336-9 at 16,
31; 336-10 at 27; 336-11 at 26-27; 336-17 at 20; 336-18 at 15-16; see also doc. 33616

43 at 21, and at least one plaintiff provided personalized training to new employees
regarding changing car batteries and windshield wipers for customers, doc. 336-35
at 41. But, two plaintiffs testified that they did not have time to provide new
employees with one-on-one coaching, docs. 336-8 at 107; 336-17 at 19, and one of
those plaintiffs delegated the task to the “strong[est]” hourly employees at his store,
doc. 336-17 at 19.
b.
The plaintiffs also have responsibility for monitoring hourly employees’
compliance with AutoZone’s policies and procedures and conducting their annual
performance appraisals. Docs. 336-2 at 12; 336-6 at 37; 336-17 at 20; 336-18 at 14;
336-22 at 23; 336-23 at 22; 336-24 at 34; 336-26 at 17; 336-34 at 15. Under the
relevant policy, store managers complete a written evaluation form for each
employee that includes a numerical rating and then meet privately with the employee
to conduct an annual appraisal. See doc. 494-139; 336-2 at 28; 336-18 at 34; 33623 at 22. District managers must review and approve the evaluation forms before a
store manager meets with employees to conduct the review, and district managers
may make changes to the forms, including to the performance rating. Docs. 336-2
at 28; 336-8 at 67-68; 336-18 at 34; 336-23 at 22; 336-24 at 38; 336-31 at 15-16;
494-1 at 60; 494-16 at 14-15; see also doc. 336-22 at 23. As with other duties, the
district managers’ involvement varied. Some plaintiffs testified that their district
17

managers changed their evaluations of employees, including the substance of the
review, see docs. 336-2 at 28; 336-20 at 30; 336-23 at 22-23; 336-26 at 31, but other
plaintiffs testified that their district managers never changed the content of their
evaluation forms, and only changed pay recommendations, docs. 336-8 at 68-69;
336-10 at 35-36; 336-43 at 25, 29.
c.
Performance-based raises for hourly employees depend upon the employees’
performance ratings, which district managers must approve. See docs. 336-2 at 28;
336-6 at 38; 494-1 at 62-63. The rating impacts whether store employees are eligible
for a raise and the potential amount of the raise. Docs. 336-8 at 68-70. Store
managers also recommend the amount hourly employees should receive, subject to
district managers’ approval. See docs. 336-18 at 26; 336-20 at 10. AutoZone does
not maintain a written policy regarding the weight a district manager should give to
a store manager’s recommendation, docs. 494-1 at 49; 494-4 at 44; 494-8 at 29; 49416 at 34, and, as in other areas, there is variation in the practice. Some plaintiffs
testified that their district managers usually or always agreed with their
recommendations. Docs. 336-8 at 70; 336-19 at 5. But, another plaintiff testified
that his district managers often made changes, or changed at least half of his
recommendations for pay raises. See doc. 336-10 at 36.

18

d.
When issues arise with employees’ job performance, AutoZone policy
mandates that store managers contact their district manager to determine the
appropriate corrective action. Docs. 335-2 at 17; 494-1 at 34-35; 494-4 at 25. This
policy is designed to ensure consistent treatment of employees in all AutoZone
stores. Doc. 494-1 at 36. Nevertheless, some store managers have discretion to
address the issue at the store level by coaching or writing an informal “memo to file”
before contacting their district managers about a potential disciplinary issue. See
docs. 336-10 at 31; 336-13 at 6; 336-18 at 15; see also docs. 336-20 at 30; 336-21 at
22; 336-22 at 17; 494-16 at 31. Even so, store managers cannot issue a corrective
action form, including written warnings, or place employees on a performance
improvement plan without first receiving the approval of their district and regional
managers. Docs. 335-2 at 17; 336-2 at 18; 336-3 at 17; 336-8 at 102-03; 336-21 at
19; 494-16 at 31; 494-144 at 3-5. Store managers also lack authority to discharge
employees, and must obtain approval from a district manager or regional manager.
Docs. 336-7 at 16; 336-9 at 28-29; 494-4 at 29-30; 494-12 at 23; 494-16 at 30-31.
The evidence reveals variation in store managers’ level of authority with
respect to recommending what corrective actions to issue. Some plaintiffs make
recommendations to their district managers regarding discipline and corrective
actions. See docs. 336-11 at 27; 336-14 at 26; 336-17 at 33; 336-18 at 19-20; 33619

23 at 21; 336-31 at 38; 336-34 at 19; 336-44 at 18. But, several plaintiffs testified
that they only provided the pertinent facts and made no recommendations about what
corrective action they believed was appropriate. Docs. 336-25 at 13; 336-26 at 2223; 336-35 at 31; 336-43 at 24. And, one plaintiff testified that he never made a
recommendation or offered an opinion, and relied instead on his district manager to
tell him the appropriate action to take and what to include in a written warning. Doc.
336-9 at 16, 32-34.
Moreover, there is no uniformity even within the group of plaintiffs who
testified that they made recommendations regarding corrective actions. Some
plaintiffs reported that their district manager usually or always followed their
recommendations, see docs. 336-23 at 22; 336-34 at 19; 336-35 at 51; 336-44 at 18,
while one plaintiff testified that his district manager followed his recommendation
only about half of the time, doc. 336-18 at 18, 32. In addition, some plaintiffs
testified that their district managers often made changes to the corrective action
forms before approving them. See docs. 336-17 at 30; 336-18 at 19; 336-23 at 2122; see also doc. 336-18 at 32. And, at least one plaintiff added that his district
manager followed his recommendations to discharge hourly employees, doc. 33619 at 5, but one other plaintiff reported that his district manager did not approve his
requests to discharge employees for bad attitude or poor customer service, doc. 3367 at 16-17.
20

*

*

*

To summarize, based on the plaintiffs’ own testimony, material differences
exist regarding their involvement with and discretion over supervisory duties
relating to training, evaluating employees, recommending raises, and discipline.
4.
According to AutoZone, the plaintiffs exercised varying levels of discretion
over their managerial tasks due to differences in the amount of oversight each store
received from its district manager. Doc. 341 at 20-21. Indeed, the plaintiffs concede
that differences exist on the frequency of district manager visits to their stores. See
doc. 493 at 17. The parties agree that the frequency depends on the district’s physical
size or geography, the experience or skill of the store manager, the store’s
performance, and the district manager’s personality or management style. See docs.
336-10 at 42-43; 336-17 at 24; 336-18 at 26; 336-19 at 7-8; 336-22 at 24; 336-24 at
48; 336-25 at 17; 336-33 at 16; 336-43 at 30; see also docs. 335-23 at 9-10; 335-28
at 4.

Many plaintiffs testified that their district manager visited their store

approximately once a week or less. Docs. 336-3 at 10; 336-10 at 43; 336-14 at 1011; 336-18 at 26; 336-19 at 7; 336-21 at 17; 336-22 at 24; 336-23 at 29; 336-25 at
16; 336-26 at 25; 336-31 at 25; 336-33 at 16; 336-34 at 22; 336-35 at 12; 336-43 at

21

30; 336-44 at 23; see also doc. 335-36 at 5; 494-16 at 6. 14 But, for other plaintiffs,
their district manager visited the store multiple times each week, docs. 336-7 at 17;
336-9 at 13; 336-17 at 24; 336-20 at 17, and one plaintiff testified that he had daily
visits from his district manager, doc. 336-6 at 39.
Regardless of the visitation schedule, the plaintiffs assert that district
managers still controlled essentially all store operations and that they had regular
and constant contact from their district managers. Doc. 493 at 17-18; see also docs.
494-21 – 494-136. For example, the majority of plaintiffs testified or declared that
their district managers called or texted them multiple times a day about store
operations. Docs. 336-6 at 39; 336-7 at 17; 336-10 at 43; 336-18 at 35; 336-20 at
17-18; 336-33 at 16; 336-44 at 23; 494-124 at 6; 494-127 at 5; 494-129 at 6; 494130 at 6. Others testified that they talked with their district managers only about
once or twice a week. Doc. 336-3 at 10; 336-10 at 43; 336-19 at 7; 336-25 at 16;
see also docs. 335-36 at 5; 494-6 at 19. And, as one would expect based on the
varying amount of a district manager’s contact and involvement in store operations,
some store managers reported that they felt “micromanaged,” see docs. 336-8 at 10304; 336-10 at 43; 336-11 at 13, while others felt more empowered and accountable
for their store’s operation, see docs. 335-5 at 2; 335-14 at 12; 335-21 at 5; 335-36 at

14

A former store manager in Illinois and a store manager in Kansas testified that their district
managers visited their stores only about four times a year. Docs. 336-25 at 16; 336-44 at 23.

22

2-4; 336-2 at 13; 336-17 at 24-25. Finally, in light of the variation in different district
managers’ supervision and involvement in store operations, some plaintiffs concede
that one store manager generally would not have personal knowledge of the level of
supervision other store managers received from other district managers, or how
involved district managers were in the operations of other stores. See docs. 335-5 at
2; 336-6 at 26, 29, 39; 336-17 at 23; 336-22 at 23-24.
*

*

*

To close, based on this record, the plaintiffs’ duties and discretion over their
performance of managerial duties can vary significantly from store-to-store and
district-to-district. Thus, this matter is distinguishable from Morgan, where the
Circuit found that Family Dollar only introduced “scant evidence” to support its
arguments that the duties of its store managers varied significantly depending on
store size, sales volume, and district. See 551 F.3d at 1263. And, the testimony
reveals material distinctions in the plaintiffs’ employment settings with respect to
their performance of and discretion over their managerial duties and whether they
performed

managerial

duties

concurrently

with

non-managerial

tasks.

Consequently, differences may exist between the plaintiffs with respect to whether
their primary duty is management that preclude a finding that they are similarly
situated.

23

B.
The court turns next to AutoZone’s contention that the plaintiffs are not
similarly situated as to whether they regularly directed the work of two or more
employees. Doc. 341 at 22. According to the plaintiffs, the district managers’
oversight of the store schedule and AutoZone’s scheduling policies uniformly limit
their ability to direct the work of or delegate tasks to hourly employees. Doc. 493
at 22-23. The record shows that the schedule generated by AutoZone’s scheduling
program identifies daily tasks for the store to perform, denotes the time allocated to
each task, and names the employee responsible for each task.15 Docs. 494-1 at 71;
494-4 at 31, 34; 494-7 at 13; 494-23 at 6. In addition, AutoZone sends all stores a
weekly Management Action Plan that provides tasks that the stores must complete
during the week, doc. 494-1 at 76-77, and some district managers send weekly task
lists to their store managers as well, see doc. 494-16 at 16, 18.

Moreover,

AutoZone’s policies generally forbid store managers from assigning certain tasks to
hourly employees on weekends which are dedicated to customer service. Docs. 4941 at 46; 494-23 at 6-7; 336-2 at 26; 336-31 at 23.
In spite of those general similarities and limitations, variations exist in how
the plaintiffs delegate and assign tasks to employees. Some plaintiffs had discretion

15

AutoZone determined how long it should take employees to perform each task based on an
analysis involving a relatively small number of stores. See doc. 494-7 at 24-25.

24

to delegate tasks to employees and routinely did so, including completing
planograms 16 and inventory. See docs. 336-2 at 29; 336-6 at 40; 336-14 at 11; 33617 at 28-29; 336-18 at 15-16, 23-24; 336-20 at 13-14 ; 336-22 at 28; 336-26 at 17,
20; 336-31 at 25; 336-33 at 10; 336-34 at 17; 336-35 at 23; 336-43 at 21; 336-44 at
16; see also docs. 336-9 at 31; 336-35 at 50. But, other plaintiffs testified that they
could not delegate inventory or other merchandising tasks because they had to
perform those tasks themselves. Docs. 336-8 at 128; 336-10 at 28; 336-19 at 7. One
plaintiff testified that he did not delegate any tasks because employees “just get it
done.” Doc. 336-43 at 23. In addition, some plaintiffs reported that they shared
responsibility for delegating tasks with “Gray Shirts,” or that they delegated the
assignment of tasks to those hourly employees. Docs. 336-2 at 13, 25; 336-17 at 28;
336-18 at 30, 36; 336-22 at 22; 336-23 at 16-17; 336-33 at 10; 336-44 at 12-13; see
also docs. 336-6 at 9, 40; 336-7 at 8; 336-26 at 32. Based on this testimony,
notwithstanding the corporate policies or practices the plaintiffs reference,
differences exist between plaintiffs’ ability to direct the work of two or more
employees that preclude the court from finding that they are similarly situated with
respect to this element of the executive exemption defense.

16

Planogram refers to how an area of shelving in a store should look. Doc. 336-14 at 11.

25

C.
AutoZone also contends that differences exist in the plaintiffs’ authority to
hire or fire employees or whether their recommendations regarding hiring, firing,
and promotions are given particular weight. Doc. 341 at 23-24. The plaintiffs
disagree and maintain that they all have little discretion in hiring and promotions and
are subject to AutoZone’s uniform policies and practices. See doc. 493 at 18-20.
The record belies the plaintiffs’ contentions.
1.
There is no dispute that store managers must abide by AutoZone’s hiring
policies. Docs. 494-1 at 51-52; 494-4 at 37. Under those policies, candidates for
open positions submit applications on AutoZone’s eHire system, which prescreens
the applicants. Docs. 494-1 at 53; 494-138 at 3-4. Then, store managers review the
prescreened applications, select individuals to interview, conduct interviews, and
determine which candidates should receive further consideration by a district
manager, or who they recommend for hiring. Docs. 336-10 at 20; 336-14 at 7; 33623 at 25; 494-138 at 4-5. Next, a district manager must approve the store manager’s
recommendation, and it is only then that the store manager can extend an offer to a
candidate. Docs. 336-2 at 27; 494-1 at 52, 54-55; 494-4 at 43-44; 494-5 at 22; 4948 at 29; 494-138 at 5. Relatedly, store managers must first recommend a proposed
pay rate, and district managers must approve the rate of pay for a newly-hired
26

employee. Docs. 494-1 at 48, 55; 494-4 at 45; 494-5 at 22; 494-8 at 29; 494-14 at
18-19; 494-16 at 36. Once a district manager approves a candidate to hire and the
rate of pay, the store manager would then extend an employment offer to the
candidate. Docs. 336-26 at 24.
As with other policies in this case, variations exist in the plaintiffs’
participation in the hiring process and in the weight the plaintiffs’ recommendations
receive.17 For example, some plaintiffs had a role in making recommendations about
staffing needs to initiate the hiring process or in recruiting applicants, see docs. 3367 at 14; 336-10 at 28; 336-22 at 20; 336-24 at 30; 336-43 at 25-26; 336-44 at 19,
while at least one plaintiff testified he did not monitor staffing levels or have any
involvement in recruiting, doc. 336-8 at 126-27. Most, if not all, plaintiffs have
responsibility for interviewing applicants. See docs. 336-2 at 15; 336-10 at 28; 49414 at 17. 18 And while store managers must follow an interview guide, or script, that
AutoZone provides, see docs. 336-8 at 128; 494-1 at 57-58; 494-4 at 42-43, a few

17

Factors the court considers when determining whether an employee’s recommendations are
given particular weight include: “the frequency with which suggestions and recommendations are
made or requested; and the frequency with which the employee’s suggestions and
recommendations are relied upon.” 29 C.F.R. § 541.105. And, the employee’s “recommendations
may still be deemed to have ‘particular weight’ even if a higher level manager’s recommendation
has more importance and even if the employee does not have authority to make the ultimate
decision . . . .” Id.
18

Not all store managers are certified hiring managers, and only certified hiring managers can
participate in the hiring process and conduct interviews. Docs. 336-10 at 21; 494-4 at 37; 494-14
at 17.

27

plaintiffs indicated that they had discretion to vary from the script during interviews,
see docs. 336-10 at 20-21; 336-43 at 27. In addition, at least one plaintiff testified
that he only interviewed candidates selected by his district manager, doc. 336-6 at
35, while several other plaintiffs indicated they had discretion to interview and
disqualify candidates before involving their district managers in the process, see
docs. 336-43 at 26; 336-44 at 20. After a store manager interviews candidates and
makes recommendations, many district managers conduct second interviews for
“Gray Shirts,” see docs. 336-8 at 127; 494-4 at 44; 494-5 at 22; 494-8 at 28; 494-16
at 33, and some plaintiffs testified that their district managers conducted second
interviews for all positions, docs. 336-7 at 14; 336-10 at 22; 336-25 at 11; 336-26 at
23; 336-34 at 20; see also docs. 336-20 at 15; 336-23 at 26.
There are no set policies related to the weight that district managers should
give to hiring recommendations, docs. 494-1 at 49; 494-4 at 44; 494-8 at 29, and the
record reveals differences in the plaintiffs’ authority and the weight district
managers gave to their recommendations. For example, a former store manager in
Alabama testified that his district manager conducted all the hiring for that
manager’s store and selected candidates to interview, and that his district manager
never approved his hiring recommendations. Doc. 336-6 at 35-36.19 At the other

19

Other plaintiffs echoed similar sentiments—one plaintiff testified that he never made
recommendations to his district manager regarding who to hire, other than to express an opinion
that someone was an outstanding candidate, doc. 336-35 at 11, and another plaintiff reported that

28

extreme, a store manager in Virginia decided which candidates to interview and
made the hiring decisions for his store. Doc. 336-19 at 5. Similarly, a store manager
in Wyoming and Montana testified that she had discretion to hire “Red Shirts” for
her store, and that her district manager made the final decision for “Gray Shirts.”
Doc. 336-17 at 20-21. Other plaintiffs testified that their district managers agreed
with their hiring recommendations only about half of the time, docs. 336-8 at 53;
336-11 at 33; 336-20 at 15; 336-34 at 21, while several plaintiffs testified that their
district managers approved their hiring recommendations most of the time and hired
a majority of the candidates they selected, docs. 336-10 at 23; 336-14 at 8; 336-22
at 21; 336-31 at 15; see also docs. 336-23 at 26; 336-26 at 7, 24; 336-35 at 44. In
addition, at least two plaintiffs testified that their district managers always approved
their recommendations regarding candidates for sales positions or “Red Shirts.”
Docs. 336-18 at 21; 336-31 at 42.
This testimony shows material differences in the plaintiffs’ role in hiring and
the weight district managers give the plaintiffs’ recommendations. As such, the
plaintiffs have failed to show that they are similarly situated as to hiring authority.

his district manager rarely considered his recommendations regarding hiring and rarely hired the
candidates he recommended, doc. 336-7 at 14.

29

2.
Variations also exist in the plaintiffs’ authority to set pay rates. Some
plaintiffs reported that their district manager set the pay level for new employees
without their input. See docs. 336-2 at 27; 336-6 at 37; 336-22 at 21; 336-33 at 14;
336-43 at 27-28; see also doc. 336-11 at 33. Others testified that their district
managers considered their pay recommendations for new employees, docs. 336-17
at 20; 336-18 at 23; 336-23 at 26-27; 336-26 at 24; 336-44 at 30, with some of those
plaintiffs

adding

that

their

district

managers

usually

approved

their

recommendations for sales employees, docs. 336-22 at 21; 336-44 at 30. In addition,
several plaintiffs indicated that their district managers gave them some discretion to
set a new hire’s pay rate within the applicable range. See docs. 336-9 at 22; 336-10
at 24; 336-21 at 7. In other words, as to the setting of pay, the plaintiffs have also
failed to show they are similarly situated.
3.
Differences also exist in the plaintiffs’ ability to recommend store employees
for promotions. Generally, store managers can make recommendations, subject to
the district managers’ approval. Docs. 335-1 at 25; 336-2 at 25; 336-10 at 44; 33618 at 26; 494-1 at 49-50. However, the plaintiffs again report differing levels of
involvement in promotion decisions: At least four plaintiffs worked with their
district managers to select employees for promotion, or frequently recommended
30

employees for promotion, docs. 336-2 at 11; 336-3 at 10; 336-19 at 5; 336-33 at 1112; at least four other plaintiffs rarely recommended employees for promotion, see
docs. 336-9 at 21; 336-17 at 15; 336-25 at 15; 336-31 at 12; and at least one plaintiff
never made a recommendation, doc. 336-7 at 16. Likewise, variations exist in the
weight district managers gave to the promotion recommendations. At least three
plaintiffs indicated that their district managers usually followed their
recommendations, docs. 336-19 at 5; 336-26 at 29; 336-44 at 12, while another
plaintiff testified that his district manager followed his recommendations about half
of the time, doc. 336-11 at 19. On the other hand, one plaintiff indicated that his
district manager frequently disregarded his recommendations, doc. 336-33 at 12, and
two other plaintiffs testified that their district manager never approved the few
employees they recommended for promotions, see doc. 336-9 at 21; 336-20 at 24.
*

*

*

Taken together, the plaintiffs’ testimony reveals that they did not all have the
same role in or exercise the same amount of discretion over hiring, pay rates, and
promotions, and that their district managers gave the plaintiffs’ recommendations on
these issues differing amounts of weight. Thus, the plaintiffs are not similarly
situated with respect to their authority to hire or promote, or with whether AutoZone
gives their recommendations particular weight.

31

D.
The plaintiffs’ testimony shows substantial variations in the plaintiffs’ actual
performance of their job duties and their discretion over managerial tasks that raise
fairness and procedural concerns about maintaining this case as a collective action.
To prove it properly classified the plaintiffs as exempt, AutoZone would have to
question each opt-in plaintiff at trial about her day-to-day duties, her district
manager’s involvement in her store, and her discretion, if any, over managerial
duties. “That exercise is tantamount to conducting multiple individual trials on the
merits and is the antithesis of a collective action.” Johnson v. Big Lots Stores, Inc.,
561 F. Supp. 2d 567, 586 (E.D. La. 2008) (citation omitted). In other words,
AutoZone’s executive exemption defense appears to be individual to each plaintiff.
And, based on the differences in their testimony, the plaintiffs are unable to
fairly present their claims at trial using common testimony from a subset of plaintiffs
regarding their daily responsibilities and duties, or the weight given to their
recommendations for hiring, firing, and promotions.

To make a factual

determination on the appropriateness of the exempt classification based on the
representative testimony of plaintiffs with less authority and discretion than other
plaintiffs would raise procedural and fairness concerns for AutoZone. Likewise,
making that same determination based on the representative testimony of plaintiffs
with more authority and discretion than other plaintiffs would raise similar
32

procedural and fairness concerns for other opt-in plaintiffs. Thus, although a
collective action could reduce the burden on the plaintiffs by allowing them to
adjudicate their claims in this court instead of in multiple courts, maintaining a
collective action here would prove prejudicial or result in many individual minitrials, rendering a potential trial unmanageable. See Briggins, 882 F. Supp. 2d at
1278-80 (decertifying a collective action based in part on fairness and procedural
concerns). As a result, the court finds that fairness and procedural considerations
weigh in favor of decertifying this action.
IV.
In conclusion, because the plaintiffs’ deposition testimony reveals differences
in their daily responsibilities, discretion over managerial tasks, authority for hiring,
and the weight district managers gave the plaintiffs’ recommendations on hiring, pay
rates, and promotions, the plaintiffs have not met their burden to establish they are
similarly situated. Consequently, AutoZone’s motion, doc. 333, is due to be granted,
and the court will decertify this matter as a collective action.
However, because some of the opt-in plaintiffs’ claims that were timely when
those plaintiffs opted-in to this action may now be time-barred, the court will give
the parties time to confer about a tolling agreement to preserve the claims of the optin plaintiffs remaining in this action before it issues an order decertifying the class
and dismissing the claims of the opt-in plaintiffs without prejudice. The court
33

ORDERS the parties to submit a status report regarding their progress on a tolling
agreement by email to the undersigned chambers on or before November 19, 2021,
and this matter is SET for a telephone status conference on November 22, 2021 at
12:15pm.
DONE the 20th day of October, 2021.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

34