Richter v. Dolgencorp, Inc. et al

Filing 344

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 10/22/12. Associated Cases: 7:06-cv-01537-LSC, 7:07-cv-00512-LSC(KGE, )

FILED
2012 Oct-22 PM 03:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
CYNTHIA RICHTER et al.,
Plaintiffs,
v.
DOLGENCORP, INC., et al.,
Defendants.

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CIVIL ACTION NO.
7:06-cv-1537-LSC

MEMORANDUM OF OPINION
I.

Introduction
Plaintiffs, who worked at different Dollar General Stores throughout the

country as store managers, filed the above actions pursuant to the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., claiming that they were wrongfully
classified as exempt and thus improperly denied overtime compensation. Pending
before this Court is the Motion to Decertify the Collective Action (Doc. 319) filed by
Defendants Dolgencorp, Inc., Dolgencorp of New York, Dolgencorp of Texas, and
Dollar General Partners, (collectively “Dollar General”) as well as the responses
thereto filed by Plaintiffs. After due consideration, the Motion will be granted.
II.

Background
Dollar General owns and operates more than 10,000 retail stores in 39 U.S.
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states. Dollar General’s retail operations are divided into divisions, with each division
subdivided into regions, which are further subdivided into districts. Each district
contains several Dollar General stores, and each store operates under the direction and
supervision of a store manager, who must report to a district manager.
On August 7, 2006, the complaint in this matter was filed as a collective action
pursuant to 29 U.S.C. § 216(b), the FLSA’s class action provision, by Cynthia Richter,
a former Dollar General store manager, on behalf of herself and all similarly situated
employees. This Court initially granted class status to Plaintiffs1 on March 23, 2007,
and simultaneously granted the motion to facilitate notice pursuant to section 216(b).
(Doc. 79.)
Dollar General asserts in its present motion (Doc. 319), that the originally
certified class is due to be decertified because the members of the class are not
“similarly situated.” Dollar General contends the evidence indicates dissimilar
responsibilities and duties among the opt-in Plaintiffs and argues that it should not be
forced to defend the current class action with and against representative evidence and
testimony. Not surprisingly, Plaintiffs see the members of the present class as
sufficiently similar in that they, for the most part, operate under a system of detailed

1

Hereinafter, the opt-in class of plaintiffs will be referred to as the “opt-in Plaintiffs,” and
the collective group of all plaintiffs will be referred to as “Plaintiffs.”
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upper management control with little discretion. Plaintiffs assert that Dollar General
has a blanket policy of denying overtime compensation to its store managers and forces
all of its managers to spend substantially more than fifty percent of their time
performing manual labor. (Doc. 325.)
III.

Discussion
A.

The Certification Standard

Section 216(b) provides that “[a]n action . . . may be maintained against any
employer . . . by any one or more employees for and on behalf of himself or themselves
and other employees similarly situated.” (emphasis added.) Thus it is necessary, in
order to maintain a collective action under the FLSA, for Plaintiffs to demonstrate that
they are similarly situated. Anderson v. Cagle’s Inc., 488 F.3d 945, 952 (11th Cir. 2007).
There is no guidance in the FLSA for determining how similar a group of
plaintiffs must be before a collective action may proceed, nor has the Eleventh Circuit
precisely defined the term “similarly situated.” Morgan v. Family Dollar Stores, Inc.,
551 F.3d 1233, 1259 (11th Cir. 2008). The Eleventh Circuit has, however, suggested
a two-tiered approach to dealing with collective action certification and notice pursuant
to § 216(b). See Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.
2001). When this Court addressed class certification “at the initial stage, [it] appl[ied]
a ‘fairly lenient standard’ for determining whether the plaintiffs are truly similarly
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situated.” Anderson, 488 F.3d at 953. At that stage, “plaintiff[s] ha[d] the burden of
showing a ‘reasonable basis’ for [their] claim that there [were] other similarly situated
employees.” Morgan, 551 F.3d at 1260–61.
At the current stage, “triggered by an employer's motion for decertification . . .
[the standard is] . . . less lenient, and the plaintiff[s] bear[] a heavier burden.” Id. at
1261. The Eleventh Circuit has “refused to draw bright lines in defining similarly, but
explained that as more legally significant differences appear amongst the opt-ins, the
less likely it is that the group of employees is similarly situated.” Id. (emphasis added).
The Eleventh Circuit has also observed that “the ‘ultimate decision rests largely within
the district court’s discretion,’ and . . . in order to overcome the defendant’s evidence,
a plaintiff must rely on more than just ‘allegations and affidavits.’” Morgan, 551 F.3d
at 1261 (quoting Anderson, 488 F.3d at 953). Further, “although the FLSA does not
require potential class members to hold identical positions . . . , the similarities
necessary to maintain a collective action under § 216(b) must extend ‘beyond the mere
facts of job duties and pay provisions.’” Anderson, 488 F.3d at 953 (citing White v.
Osmose, Inc., 204 F. Supp. 2d 1309, 1314 (M.D. Ala. 2002)). To properly address the
issue, this Court must consider several factors, such as: “(1) disparate factual and
employment settings of the individual plaintiffs; (2) the various defenses available to
defendant[] [that] appear to be individual to each plaintiff; [and] (3) fairness and
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procedural considerations.” Morgan, 551 F.3d at 1261 (hereinafter, these three factors
will be referred to as the “Morgan analysis”).
The three factors of the Morgan analysis are not mutually exclusive—there is
considerable overlap among them. Each factor directly influences the others. For
example, the ability of Dollar General to assert its executive exemption defense
depends on the experiences and job duties of each individual employee. Also, the more
dissimilar Plaintiffs are and the more individuated Dollar General’s executive
exemption defense is, the greater doubts there are about the fairness of a ruling on the
merits that is reached on the basis of purportedly representative evidence.
The executive exemption criteria set forth in the Department of Labor’s
regulations must be considered, as the executive exemption is a defense at issue in this
case. The executive exemption, which applies to “any employee employed in a bona
fide executive capacity,” 29 U.S.C. § 213(a)(1), is an affirmative defense to the
FLSA’s requirement that employees be paid overtime hours at time and one-half the
regular rate of pay. Id. § 207(a)(1); Morgan, 551 F.3d at 1265. Under the current
regulations, “[t]o establish an employee is a bona fide executive, an employer must
show: (1) the employee is ‘[c]ompensated on a salary basis at a rate of not less than
$455 per week’; (2) the employee’s ‘primary duty is management of the enterprise in
which the employee is employed or of a customarily recognized department or
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subdivision thereof’; (3) the employee ‘customarily and regularly directs the work of
two or more other employees’; and (4) the employee ‘has the authority to hire or fire
other employees or whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other employees are given
particular weight.’” Morgan, 551 F.3d at 1266 (quoting 29 C.F.R. § 541.100(a)). Prior
to this test for the executive exemption—effective August 23, 2004—there was no
independent requirement that the employee have the authority to hire or fire other
employees, or that the employee's recommendation be given particular weight. Instead,
the "old regulations" "considered the selection of employees as a management task
under the primary duty inquiry." Morgan, 551 F.3d at 1267 n.51.
Both parties agree that all Plaintiffs were compensated on a salary basis at the
requisite rate under both regulations and all Plaintiffs customarily and regularly direct
the work of two or more other employees; so, for the purposes of this opinion these two
prongs are met as to each Plaintiff.2 Therefore, the only elements where Plaintiffs must
show substantial similarity are: (1) whether Plaintiffs’ primary duty is management, and
(2) whether Plaintiffs have the authority to hire or fire other employees or whether their
suggestions and recommendations as to the hiring, firing, advancement, promotion, or
2

Such a finding would benefit Dollar General on the overall issue of whether the executive
exemption applies, but benefits Plaintiffs on the current issue of whether the opt-in Plaintiffs are
“similarly situated” for purposes of section 216(b) certification.
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any other change of status of other employees are given particular weight.
B.

Application of Morgan Analysis
1.

Differences in Employment Experiences and Job Duties

In order to examine the first factor of the Morgan analysis, the extent to which
Plaintiffs’ relevant employment experiences and job duties as Dollar General
employees were similar or disparate, a separate examination of both the “primary
duty” and “authority to hire or fire” factors of the executive exemption test is
necessary.
i.

Primary Duty of Management

An employee’s “primary duty” is “the principal, main, major or most important
duty that the employee performs.” 29 C.F.R. § 541.700(a). “Determination of 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.” Id. The current
regulations note that “employees who spend more than [fifty] percent of their time
performing exempt work will generally satisfy the primary duty requirement.” Id. §
541.700(b). That is, they will generally be considered as exempt.
The current regulations list several non-exclusive factors to consider in
determining the primary duty of an employee, including: (1) “the relative importance
of the exempt duties as compared with other types of duties;” (2) “the amount of time
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spent performing exempt work;” (3) “the employee's relative freedom from direct
supervision;” and (4) “and the relationship between the employee's salary and the
wages paid to other employees for the kind of nonexempt work performed by the
employee.” Id. § 541.700(a). The old regulations included "the frequency with which
the employee exercises discretionary powers." Morgan, 551 F.3d at 1268. The current
regulations define “management” to include:
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.
Id. § 541.102. In addition to these activities, the old regulations "considered the
selection of employees as a management task under the primary duty inquiry." Morgan,
551 F.3d at 1267 n.51.
Plaintiffs first argue that all Plaintiffs have “submitted a declaration asserting that
they spent the majority of their time performing nonmanagerial duties,” and that “Dollar
General has failed to highlight a single deposed plaintiff that did not spend the majority
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of their time performing manual-labor duties.” (Doc. 325 at 44–45.) It appears from the
evidence submitted to the Court that a majority of the opt-ins who responded to
discovery directed at the issue of their performance of “manual labor” may well have
spent more than fifty percent of their time at work performing “manual labor” rather
than “exempt work.” (Id. See Doc. 317-23.) If that were all that need be considered,
this Court’s opinion addressing the motion to decertify the existing class would be
much more concise. Regrettably, it is not. “Employees who do not spend more than
[fifty] percent of their time performing exempt duties may nonetheless meet the primary
duty requirement if the other factors support such a conclusion.” 29 C.F.R. §
541.700(b). “In other words, an employee's performance of nonexempt work does not
preclude the exemption if the employee's primary duty remains management.” Morgan,
551 F.3d at 1268-69.
In addition, “[c]oncurrent performance of exempt and nonexempt work does not
disqualify an employee from the executive exemption if the requirements of [executive
employee status] are otherwise met.” Id. § 541.106(a). “Whether an employee meets
the requirements of [executive employee status] when the employee performs
concurrent duties is determined on a case-by-case basis and based on the factors set
forth in § 541.700.” Id. In this case, several Plaintiffs have admitted to simultaneously
performing exempt and nonexempt work. (Doc. 304-11 at 42; Doc. 307-14 at 46; Doc.
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308-5 at 40; Doc. 310-16 at 42; Doc. 310-34 at 43; Doc. 311-10 at 51.)3 Therefore,
it would be impossible to determine whether Plaintiffs are “similarly situated” based
solely on the fact that most, if not all of them, spent over fifty hours per week on
nonexempt work. Rather, this Court must consider Plaintiffs individually, on a case by
case basis, to see if they are truly “similarly situated.”
Plaintiffs also argue that they are “substantially similar” with respect to their
primary duty because the fourteen factors the district court found in Morgan
demonstrating that the opt-in store managers were factually similar are all present in
this case. (Doc. 325 at 21–22.)4 The Eleventh Circuit in Morgan determined that the
3

For the sake of brevity, this Court does not list each example of or citation to a named
difference in Plaintiffs’ circumstances. Those listed sufficiently demonstrate the substantial
variations.
4

Specifically, the district court in Morgan found that opt-in plaintiffs were similar in a
number of respects, including:
(1) their universal classification as store managers with the same job duties; (2) the
small fraction of time they spent on managerial duties; (3) the large amount of time
they spent on non-managerial duties such as stocking shelves, running the cash
registers, unloading trucks, and performing janitorial work; (4) the restrictions on
their power to manage stores as compared to the district manager's sweeping
managerial discretion; (5) the amount of close district manager supervision of store
managers; (6) the lack of managerial discretion that Family Dollar corporate
policies afforded to store managers; (7) their day-to-day responsibilities; (8) their
receiving base salaries regardless of the hours worked and no overtime pay; (9)
their sharing certain managerial duties with hourly employees; (10) their
maintaining production and sales records; (11) their inability to authorize pay
raises; (12) their power to train subordinates; (13) their restricted authority to
close stores in the event of emergencies; and (14) their inability to select outside
vendors without district manager approval.
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district court did not abuse its discretion when it determined that a § 216(b) class of
plaintiffs was similarly situated based on several findings of similarity. However, in
addition to the “ample evidence support[ing] the district cout’s fact-findings,” The
Eleventh Circuit in Morgan also found “scant evidence to support [the] argument”
that “the duties of store managers varied significantly depending on the store’s size,
sales volume, region, and district.” Morgan, 551 F.3d at 1263. This case is different for
two reasons.
First, in affirming the district court’s decision, the Eleventh Circuit in Morgan
was simply deciding that the district court had not abused its discretion by finding the
multiple plaintiffs similarly situated. It does not necessarily follow that a contrary
ruling would have been an abuse of the district court’s discretion.
Second, there is not an abundance of evidence in this case showing that
Plaintiffs are similarly situated. On the contrary, the other evidence tends to show
substantial differences between the multiple Plaintiffs’ job duties and the potential
importance of those duties. For example, Plaintiffs differ in the amount of time spent
performing exempt work—the second factor to be considered under the current
regulations. Some Plaintiffs spent little time solely performing exempt managerial

Morgan, 551 F.3d at 1262-63.
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duties. (Doc. 304-23 at 49; Doc. 305-14 at 48; Doc. 305-19 at 73; Doc. 305-27 at 36;
Doc. 306-7 at 30; Doc. 306-12 at 66.) Others spent over a quarter of their time solely
managing their store. (Doc. 306-2 at 41; Doc. 308-12 at 46-47; Doc. 311-5 at 24; Doc.
304-2 at 41; Doc. 304-25 at 63; Doc. 307-16 at 38; Doc. 310-7 at 57.)
Plaintiffs also differ in the amount of time concurrently performing exempt and
nonexempt work. Many Plaintiffs were always performing managerial duties while
concurrently performing manual labor. (Doc. 304-11 at 42; Doc. 307-14 at 46; Doc.
308-5 at 40; Doc. 310-16 at 42; Doc. 310-34 at 43; Doc. 311-10 at 51.) Others only
sometimes performed managerial duties and manual labor concurrently. (Doc. 304-9
at 43; Doc. 306-10 at 51; Doc. 307-25 at 42; Doc. 308-7 at 21; Doc. 309-8 at 79–80;
Doc. 309-13 at 50.) Some Plaintiffs could not perform manual labor and managerial
duties concurrently at all. (Doc. 305-9 at 9–10; Doc. 305-10 at 29–30; Doc. 306-11
at 49; Doc. 306-12 at 66; Doc. 306-30 at 42; Doc. 307-29 at 44; Doc. 308-28 at 34.)
In addition to the varying amounts of time Plaintiffs spent performing exempt
work, the type of exempt work performed also differed among Plaintiffs. Some worked
in large stores with more associates to manage and a larger stock room, while others
work in smaller stores with less management needed and thus more time available to
perform manual labor. (Doc. 304-4 at 47; Doc. 304-30 at 24–25; Doc. 305-9 at 26–28;
Doc. 305-11 at 8; Doc. 306-12 at 41; Doc. 309-18 at 10.) A store’s location may have
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also contributed to differences among Plaintiffs. A store in a high-crime location
required Plaintiffs to spend more time managing safety, securing the store, and
protecting company assets (Doc. 305-28 at 29; Doc. 307-14 at 24; Doc. 307-29 at 31;
Doc. 308-14 at 65; Doc. 308-26 at 8–9; Doc. 310-1 at 33–34), while a store in a highincome or highly competitive location required Plaintiffs to spend more time
interviewing and training associates because of high turnover. (Doc. 307-11 at 21, 28;
Doc. 307-21 at 24–25; Doc. 307-27 at 28; Doc. 309-22 at 21; Doc. 310-1 at 10, 33–34.)
Even if every Plaintiff spent a similar amount of time performing
“management” duties as a whole, the relative importance of the different types of
exempt work performed—the first factor to be considered under the current
regulations—may also lead to differing “primary duty” determinations. Simply stated,
while two separate employees may spend an equal amount of time performing exempt
work, they may still be classified differently if one spent all this time training
associates, while the other spent it managing safety, securing the store, and protecting
company assets, provided the importance of one of these exempt duties is considered
sufficiently greater than the importance of the other. Because of the differing amounts
and wide variety of exempt work performed, if each Plaintiffs’ claims were tried
separately, the primary duty of some would no doubt be found to be management,
while the primary duty of others would not. Thus, this factor in the Morgan analysis
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tends to show that Plaintiffs are not similarly situated regarding their primary duty.
ii.

Authority to Hire or Fire or Recommendations given
Particular Weight

Plaintiffs contend that the fourth requirement of the primary duty test—that the
employee has the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring, firing, advancement, promotion or any other change
of status of other employees are given particular weight—has “no impact on the
Court’s decertification decision.” (Doc. 325 at 38.) According to Plaintiffs, the only
employees who do not satisfy this element are “floaters”—those who “did not have a
home store, but instead floated from store to store helping out.” Id. at 32. Dollar
General, on the other hand, argues that “[n]o reasonable jury can determine whether
[o]pt-[i]n Plaintiffs had the authority to make or recommend employment decisions
through representative testimony.” (Doc. 319 at 44.) Under the old regulations, hiring
and firing associates was regarded as a management function to be considered in the
Court’s primary duty analysis. Under the current regulations, the authority to hire or
fire associates or whether recommendations were given particular weight is considered
a separate element of the executive exemption test that must be satisfied. Either way,
Plaintiffs must be similarly situated in order to avoid decertification.
In this case, Plaintiffs’ authority to hire employees varied. Some hired associates

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unilaterally, or their ability to hire varied depending on a variety of factors (Doc. 305-7
at 20–21; Doc. 311-12 at 6; Doc. 304-2 at 17; Doc. 305-15 at 25; Doc. 306-7 at 20; Doc.
310-17 at 17), while others had to have district manager input. (Doc. 305-17 at 29–30;
Doc. 305-25 at 9; Doc. 306-29 at 19; Doc. 308-4 at 11; Doc. 308-5 at 12; Doc. 309-30
at 23–24.) In addition, while a few Plaintiffs occasionally terminated an associate
without a district manager’s approval (see Doc. 308-8 at 31; Doc. 310-27 at 8), many
could make termination recommendations. (Doc. 305-28 at 8; Doc. 307-30 at 29; Doc.
304-27 at 13; Doc. 306-16 at 50; Doc. 304-10 at 30.)
Even though the authority vested in Plaintiffs to hire or fire associates differs
among members of this class, the Morgan analysis may still favor a finding that the
class is similarly situated if their recommendations were all given “particular weight.”
29 C.F.R. § 541.100(a). The current regulations list several non-exclusive factors to
consider in determining whether an employee’s suggestions and recommendations are
given “particular weight,” including: (1) “whether it is part of the employee's job duties
to make such suggestions and recommendations;” (2) “the frequency with which such
suggestions and recommendations are made or requested;” and (3) “the frequency with
which the employee's suggestions and recommendations are relied upon.” 29 C.F.R.
§ 541.105. The regulations go on to note that “[a]n employee's suggestions and
recommendations may still be deemed to have ‘particular weight’ even if a higher level
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manager's recommendation has more importance and even if the employee does not
have authority to make the ultimate decision as to the employee's change in status.” Id.
These factors tend to show dissimilarity among Plaintiffs regarding the weight
their recommendations were given. For example, the frequency that each of them
made recommendations varies, as does the frequency that those recommendations
were relied upon. Many Plaintiffs’ recommendations were always accepted. (Doc. 3085 at 12; Doc. 305-28 at 8; Doc. 307-30 at 29; Doc. 310-5 at 37; Doc. 311-16 at 31; Doc.
307-11 at 32–33.) The recommendations of many others were only sometimes
accepted. (Doc. 304-27 at 13; Doc. 306-16 at 50; Doc. 306-21 at 16, 34; Doc. 307-10 at
3–4, 13; Doc. 309-12 at 27; Doc. 309-16 at 22.) Finally, a few of them related that their
recommendations were rarely or never accepted. (Doc. 304-10 at 30; Doc. 305-23 at
24; Doc. 306-8 at 19, 38, 42; Doc. 311-2 at 14; Doc. 305-10 at 21; Doc. 306-15 at 30.)
These differences in the frequency with which recommendations were made and
accepted could ultimately lead to differing conclusions as to whether an employee’s
recommendations were given “particular weight.” If each Plaintiffs’ claims were tried
separately, the recommendations of some would be found to be given particular
weight, while the recommendations of others would not. Thus, this factor of the
Morgan analysis tends to show that Plaintiffs are not similarly situated regarding their
ability to hire or fire, or regarding the weight given to their recommendations.
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2.

Extent Dollar General can assert its executive exemption
defense on a collective or individual basis

The Court now turns its attention to the second factor of the Morgan analysis,
whether there are defenses individual to each Plaintiff. While “applying the executive
exemption is ‘an inherently fact-based inquiry’ that depends on the many details of the
particular job duties and actual work performed by the employee seeking overtime
pay,” this “does not preclude a collective action where plaintiffs share common job
traits.” Morgan, 551 F.3d at 1263 (quoting Rodriguez v. Farm Stores Grocery, Inc., 518
F.3d 1259, 1263 (11th Cir. 2008)).
Plaintiffs argue that Dollar General “applied the executive exemption to all
[P]laintiffs, regardless of store size, region, or sales volume” similar to the defendant
in Morgan, which does not show that Dollar General’s “defense was so individulized
to render a collective action unwarranted or unmanageable.” (Doc. 325 at 34, 35.)
However, Morgan was not decided solely on the defendant’s classification of its
employees. Rather, “[g]iven the volume of evidence showing the [plaintiffs] were
similarly situated, and the fact that [the defendant] applied the executive exemption
across-the-board to every store manager–no matter the size, region, or sales volume
of the store” the defendant did not show “clear error in the district court’s finding
that its defenses were not so individually tailored to each [p]laintiff as to make [the]
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collective action unwarranted or unmanageable.” Morgan, 551 F.3d at 1263. This case
is different for two reasons.
First, as previously noted, the Eleventh Circuit in Morgan was only deciding
whether the district court had abused its discretion by finding the multiple plaintiffs
similarly situated. The Court of Appeals did not hold that a contrary finding given the
same evidence would have been an abuse of discretion, and this Court is not bound by
the district court’s determination in Morgan.
Second, the evidence in this case tends to show substantial differences between
the multiple Plaintiffs’ job duties and the potential importance of those duties. (See
supra Part III.B.1.i.) Unlike the employees in Morgan, some Plaintiffs in this case were
given significant authority and autonomy to run their stores, while others could
essentially be described as shelf-stockers. To make a ruling based on the representative
testimony of some Plaintiffs—specifically those with less authority and autonomy to
run their store—would be unfair to Dollar General.
While Dollar General applied its executive exemption across-the-board, the
defense is individuated in this case as Plaintiffs’ job duties and employment
experiences vary dramatically. Although some may have performed uniform tasks
mandated by a corporate manual, others routinely exercised their independent
judgment and the amount of time they spent performing managerial duties is a matter
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of individual inquiry. Furthermore, Dollar General may be able to apply the exemption
to different Plaintiffs based on different circumstances. Even if every Plaintiff spent
similar amounts of time performing exempt job duties as a whole, because they
performed a wide array of differing exempt job duties with varying degrees of
importance, one group of them cannot reasonably be said to be representative of them
all. For these reasons, the second factor of the Morgan analysis tends to show that
Plaintiffs are not similarly situated.
3.

Fairness and Procedural Concerns

Finally, the Court turns to the third factor of the Morgan analysis, whether it
would be just to collectively and finally adjudicate Plaintiffs’ claims on the
representative evidence before the Court. This determination is made in light of the
purposes of FLSA class actions: “(1) reducing the burden on plaintiffs through the
pooling of resources, and (2) efficiently resolving common issues of law and fact that
arise from the same illegal conduct.” Morgan, 551 F.3d at 1264.
A collective action in this case would certainly reduce the burden on Plaintiffs,
as they would not be forced to adjudicate their respective claims in multiple different
courts. Furthermore, “[t]here is nothing inherently unfair about collectively litigating
an affirmative executive-exemption defense [if a court makes] well-supported and
detailed findings with respect to similarity.” Morgan, 551 F.3d at 1264. This Court,
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however, is unable to make such findings here. While the executive-exemption defense
is common among all Plaintiffs, there is an abundance of evidence concerning their
differences. Because it is an extensively fact-based inquiry, these differences directly
affect an assessment of the executive-exemption for each individual Plaintiff. It would
be fundamentally unfair to Dollar General if the class were to remain certified. The
efficiency gained by holding one trial as opposed to many cannot be obtained at the
expense of Dollar General’s due process rights.
VI.

Conclusion.
For the reasons set forth above, Dollar General’s Motion to Decertify the

Collective Action is due to be granted. A separate order will be entered at a later date.
Done this 22nd day of October 2012.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
171032

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