McKee v. PetSmart Inc.

Filing 77

MEMORANDUM AND ORDER. Signed by Judge Sue L. Robinson on 12/9/2013. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

NICHOLAS MCKEE (individually and
on behalf of all other persons similarly
situated),

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Plaintiffs,

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v.

) Civ. No. 12-1117-SLR
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PETSMART, INC.,

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Defendant.

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MEMORANDUM AND ORDER

At Wilmington this 9th day of December, 2013, having considered plaintiffs'
motion for conditional certification, and the papers filed in connection therewith, the
court issues its decision based on the following reasoning:
1. Background. Plaintiff Nicholas McKee, along with three other current or
former Operations Managers ("OMs") (collectively, "plaintiffs") of defendant PetSmart,
Inc. ("defendant" or "PetSmart"), has filed suit under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201, et seq., on behalf of all OMs employed by defendant
throughout the United States at any time from September 10, 2009 to the present, and
who were classified as exempt employees. Plaintiffs allege that defendant has violated
the FLSA by willfully misclassifying them, and other similarly situated OMs, as exempt
and failing to pay them overtime pay for all hours worked over 40 hours in a workweek.
Plaintiffs move for conditional certification and notice pursuant to§ 216(b) of the FLSA,

so that additional current and former OMs can be notified of their right to participate in
this lawsuit.
2. Standard. The FSLA was enacted to protect "those employees who lacked
sufficient bargaining power to secure for themselves a minimum subsistence wage."
Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 n.18 (1945). Section 216(b) of the
FLSA provides a '"collective action' mechanism" that allows "an employee alleging an
FLSA violation [to] bring an action on 'behalf of himself' ... and other employees
similarly situated."' Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir.
2011 ). In this regard, the United States Court of Appeals for the Third Circuit has
embraced a two-tiered analysis when deciding whether a suit under§ 216(b) may
move forward as a collective action.
During the initial phase, the court makes a preliminary determination
whether the employees enumerated in the complaint can be provisionally
categorized as similarly situated to the named plaintiff. If the plaintiff
carries her burden at this threshold stage, the court will "conditionally
certify" the collective action for the purposes of notice and pretrial
discovery. In the absence of statutory guidance or appellate precedent
on the proper definition of "similarly situated," a divergence of authority
has emerged on the level of proof required at this stage. Some trial
courts within our circuit have allowed a plaintiff to satisfy her burden simply
by making a "substantial allegation" in her pleadings that she and the
prospective party plaintiffs suffered from a single decision, plan or policy,
but the majority of our circuit's trial courts have required the plaintiff to make
a "modest factual showing" that the proposed recipients of opt-in notices are
similarly situated ....
Under the "modest factual showing" standard, a plaintiff must produce some
evidence, "beyond pure speculation," of a factual nexus between the manner
in which the employer's alleged policy affected her and the manner in which
it affected other employees.

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/d. at 193. If a plaintiff meets her burden at the "conditional certification" phase, the
parties would pursue discovery to aid the court in making its "conclusive determination
as to whether each plaintiff who has opted in to the collection action is in fact similarly
situated to the named plaintiff.... This second stage is less lenient, and the plaintiff
bears a heavier burden .... Should the plaintiff satisfy her burden at this stage, the
case may proceed to trial as a collective action." /d. (citations omitted).
3. In Hottman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989), the
Supreme Court recognized that
the efficacy of§ 216(b) hinges on "employees receiving accurate and timely
notice concerning the pendency of the collective action, so that they can
make informed decisions about whether to participate." ... To ensure this
task "is accomplished in an efficient and proper way," the Court interpreted §
216(b) as endowing district courts with "the requisite procedural authority to
manage the process of joining multiple parties in a manner that is orderly,
sensible, and not otherwise contrary to statutory commands or the Federal
Rules of Civil Procedure."

Symczyk, 656 F.3d at 194 n.7 (citing Hoffman, 493 U.S. at 170). See also Zavala v.
Wa/Mart Stores, Inc., 691 F.2d 527, 536 (3d Cir. 2012). The court must determine,
then, whether plaintiffs at bar have proffered sufficient factual support to justify ordering
and facilitating notice to a nationwide class of PetSmart OMs.
4. Discussion. Defendant PetSmart does not dispute that the OM job
description and training regimen, as well as its corporate policies and procedures, are
designed and intended to create uniformity among OMs in terms of their duties and
responsibilities. (D. I. 55 at 4-6) According to plaintiffs, this expected uniformity (along
with plaintiffs' testimony concerning their nonexempt duties) 1 is sufficient to pass
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See, e.g., D.l. 51, exs. G, H, I; D.l. 57, ex. D.

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muster under the lenient standard for conditional certification. That is, plaintiffs contend
that the record contains some evidence of a factual nexus between the manner in
which defendant's policies have affected plaintiffs and the manner in which the policies
have affected other employees. Defendant disagrees, arguing that the combination of
corporate uniformity and a plaintiff's allegations of FSLA violations should not on their
own be a sufficient nexus.
5. A similar quantum of evidence identified by plaintiffs has led to different
results in different courts. For example, the court in Goodman v. Burlington Coat
Factory, Civ. No. 11-4395, 2012 WL 5944000 (O.N.J. Nov. 20, 2012), concluded that,

[a]t this stage, the Court's role is not to evaluate the merits of Plaintiffs'
claim that Burlington misclassifies ASMs as "exempt"; rather, the
Court's role is to determine whether Mr. Goodman has made a modest
factual showing of the manner in which this allegedly unlawful policy
affected him and the way it affected other Burlington ASMs. Here, the
Court notes that all Burlington ASMs nationwide are subject to the same
uniform job descriptions, training procedures, work regulations, and
compensation policies, including a uniform classification of all ASMs
nationwide as "exempt" under the FLSA. Mr. Goodman's testimony and
the testimony of the ASM opt-ins indicate that they performed the work of
non-exempt hourly employees and worked over forty hours in a workweek
without receiving overtime compensation. Here, without weighing the merits
of Plaintiffs' FLSA claims, the Court finds that Mr. Goodman has made a
"modest factual showing" that to the extent that Burlington's allegedly
unlawful misclassification affected Mr. Goodman, it affected other potential
ASM collective action members.

/d. at *5.
6. In contrast, the court in Bramble v. Wai-Mart Stores, Inc., Civ. No. 09-4932,
2011 WL 1389510 (E.D. Pa. April12, 2011), faced with a similar record (uniform
corporate policies and the testimony of the plaintiffs), found that plaintiffs had failed to

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demonstrate that their experiences could be "more broadly applied" as opposed to
being "merely anecdotal evidence specific to them." /d. at *6. The court concluded:
Although plaintiffs and the putative opt-ins share the same job title and
essentially the same job description, an analysis of plaintiffs' claim that
APCs are misclassified as exempt would require an individualized inquiry
as to whether the tasks in fact performed by each putative collective action
member are or were similar to the tasks that plaintiffs claim they performed
and which render them more appropriately classified as non-exempt
employees.

/d. at *8.
7. The question then, is whether plaintiffs at bar have demonstrated a factual
nexus between their alleged experiences at select PetSmart stores and the experiences
of current and former OMs throughout the country? In this regard, plaintiff McKee
concedes that he does not know anything about the experiences of other OMs at
different PetSmart stores and that he simply assumed that other OMs had the same
experiences he did. (0.1. 51, ex. Gat 72, 179) Tabitha Hardiman characterized the
store where she worked as "smaller" with "a minimal staff" who were very "task
oriented." (/d., ex. I at 177) Although Kathleen Shively talked to other OMs about "how
much stocking we did," she did not know how much time these OMs actually spent
stocking. (!d., ex. H at 270-71)
8. A review of the record indicates that OMs generally "make sure the store[s]
ran smoothly with the team." (/d., ex. Hat 399) In other words, OMs perform whatever
tasks need to be performed to accomplish the above, including (inter alia) non-exempt
duties like stocking shelves, assisting customers, unloading delivery trucks, running the
cash register, and caring for pets. The court finds the very nature of the OM's job (and

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the manner in which OMs perform any work or task required to ensure that a store runs
smoothly) satisfies the modest factual showing required for the proposed recipients to
be similarly situated.
9. Conclusion. In sum, the court concludes that an analysis of plaintiffs' claim
that OMs are misclassified as exempt has been demonstrated by the record presented.
Accordingly, the court will conditionally certify the proposed class. An order shall issue.

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