Lytle v. Lowe's Home Centers, Inc.

Filing 340

ORDER: Plaintiff Lizeth Lytle's Amended Motion for Conditional Certification of Collective Class and Issuance of Notice 205 is GRANTED to the extent provided herein. Plaintiff Lizeth Lytle's Motion for Equitable Tolling 205 is DENIED. The parties are directed to file briefs supplementing their respective position regarding the proposed class notice and means of dissemination of the notice by January 27, 2014. Signed by Judge Virginia M. Hernandez Covington on 1/10/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LIZETH LYTLE, individually
and on behalf of all others
similarly situated who consent
to their inclusion in a
collective action,
Plaintiff,
v.

Case No.

8:12-cv-1848-T-33TBM

LOWE’S HOME CENTERS, INC.;
LOWE’S COMPANIES, INC.;
and LOWE’S HIW, INC.,
Defendants.
______________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Lizeth Lytle’s Amended Motion for Conditional Certification
of Collective Class and Issuance of Notice and Motion for
Equitable Tolling (Doc. # 205), which was filed on July 26,
2013. Defendants Lowe’s Home Centers, Inc., Lowe’s Companies,
Inc., and Lowe’s HIW, Inc. filed a response in opposition to
Lytle’s Motion for Conditional Certification of Collective
Class on August 21, 2013. (Doc. # 221). Thereafter, with leave
of Court, Lytle filed a reply on September 4, 2013. (Doc. #
235). Upon review and for the reasons stated below, the Court
grants the Motion for Conditional Certification of Collective

Class as provided herein. However, the Court denies the Motion
for Equitable Tolling of the statute of limitations.
I.

Background
Lytle worked for Defendants from June of 2007 until March

of 2012 as a Human Resources Manager. (Doc. # 186 at ¶ 13).
Lytle asserts that Defendants have
willfully and intentionally engaged in a nationwide
pattern and practice of violating the provisions of
the [Fair Labor Standards Act (FLSA)], by
misclassifying Human Resources Managers as exempt
under the FLSA overtime wage provision, thereby
improperly failing and/or refusing to pay [Lytle]
and the Plaintiff Class, comprised of all current
and former similarly situated employees who work or
have worked over forty (40) hours per week,
overtime compensation pursuant to FLSA [29 U.S.C.
§§ 206-207].
(Id. at ¶ 60; Doc. # 205 at ¶ 10). Accordingly, Lytle filed
an

action

for

unpaid

overtime

compensation,

liquidated

damages, pre-judgment and post-judgment interest, attorneys’
fees, costs and other compensation pursuant to 29 U.S.C. §
216(b) and injunctive relief pursuant to 29 U.S.C. § 217
against

Defendants

on

August

15,

2012

(Doc.

#

1),

and

thereafter filed an Amended Complaint (Doc. # 76) on April

2

15, 2013.

Lytle filed a Second Amended Complaint on July 5,

2013.1 (Doc. # 186).
At this juncture, Lytle seeks conditional certification
of this case as a nationwide collective action pursuant to 29
U.S.C. § 216(b), consisting of:
All Human Resources Managers or other Human
Resources store employees with other titles, who
are or were employed with [Defendants], within the
past three years preceding this lawsuit to the day
of trial, and elect to opt-in to this action
pursuant to FLSA 29 U.S.C. Section 216(b) who have
worked in excess of forty (40) hours per week and
were not paid overtime wages.
(Doc. # 205 at ¶ 11).
II.

Legal Standard
The FLSA expressly permits collective actions against

employers accused of violating the FLSA’s mandatory overtime
provisions. See 29 U.S.C. § 216(b) (“[a]n action . . . may be
maintained against any employer . . . by any one or more
employees for and in behalf of himself or themselves and other
employees similarly situated.”).

1

In prospective collective

The Court notes that in the Second Amended Complaint,
Lytle alleges a claim pursuant to the Employment Retirement
Income Security Act of 1974 (“ERISA”). However, as the present
Motion specifically requests conditional certification of a
nationwide collective action pursuant to 29 U.S.C. § 216(b),
the Court will limit its discussion to the FLSA claim.
3

actions brought pursuant to § 216(b), potential plaintiffs
must affirmatively opt into the collective action. Id. (“No
employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is
brought.”).
The

Eleventh

procedure
whether

for

to

Circuit

district

certify

a

has

courts

recommended
to

collective

follow
action

a
in

under

two-tiered
determining
§

216(b).

Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d
1240, 1243 (11th Cir. 2003)(citing Hipp v. Liberty Nat’l Life
Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)). The first
tier, known as the notice stage, is relevant here.

“At the

notice stage, the district court makes a decision - usually
based on the pleadings and any affidavits which have been
submitted - whether notice of the action should be given to
potential class members.” Cameron-Grant, 347 F.3d at 1243.
The

Court

must

determine

whether

there

are

other

employees who desire to opt-in and whether those employees
are similarly situated. Morgan v. Family Dollar Stores, Inc.,
551 F.3d 1233, 1258 (11th Cir. 2008); Dybach v. State of Fla.
Dep’t of Corrs., 942 F.2d 1562, 1567-68 (11th Cir. 1991).
4

This determination is made using a “fairly lenient standard.”
Hipp, 252 F.3d at 1218. Factors considered in determining
whether the potential plaintiffs are similarly situated to
the named plaintiffs include (1) job duties and pay provisions
and (2) whether they were subject to a common policy, plan,
or scheme that forms the basis of the alleged FLSA violation.
Dybach, 942 F.2d at 1567-68; Vondriska v. Premier Mort.
Funding, Inc., 564 F. Supp. 2d 1330, 1335 (M.D. Fla. 2007).
The plaintiffs bear the burden of showing a reasonable basis
for

the

claim

that

there

are

other

similarly

situated

employees who desire to join in the litigation. Id.
The

second

stage

of

the

certification

process

is

“typically precipitated by a motion for ‘decertification’ by
the

defendant

usually

filed

after

discovery

is

largely

complete and the matter is ready for trial.” Hipp, 252 F.3d
at 1218. During the second stage of the certification process,
the

standard

to

show

substantial

stringent. Morgan, 551 F.3d at 1261.

similarity

is

more

If it is determined at

the second stage that the representative plaintiffs and the
opt-in plaintiffs are not similarly situated, the district
court “decertifies” the collective action. Id.

Notably, the

Court does not make credibility determinations or resolve
5

contradictory evidence presented by the parties during the
notice stage.

See, e.g., Henderson v. Holiday CVS, LLC, No.

09-cv-80909, 2010 U.S. Dist. LEXIS 53604, at *10 (S.D. Fla.
May

11,

2010)(declining

to

“indulge

in

a

fact

finding

determination on the merits, which is improper” at the notice
stage of the litigation).
III. Conditional Certification Analysis
A.

Do Others Seek to Join in the Action?

As noted, Lytle bears the onus of demonstrating that
there

are

litigation

other
and

employees

that

these

who

desire

other

to

opt

into

the

employees

are

similarly

situated with respect to their job requirements and pay
arrangements. Dybach, 942 F.2d at 1567-68. In their response,
Defendants concede that “[Lytle] has satisfied the first
prong” of the Eleventh Circuit’s two-tiered procedure. (Doc.
# 221 at 5). Therefore, the Court will analyze whether Lytle
has satisfied the second prong – whether the potential class
members are similarly situated.
B.

Are the Potential Class Members Similarly Situated?

In determining whether the potential class members are
similarly

situated,

the

Court

must

consider

whether

the

employees are similar with respect to their job requirements
6

and pay provisions and the commonality of their claims.
Dybach, 942 F.2d at 1567-68; Horne v. United Serv. Auto Ass’n,
279 F. Supp. 2d 1231, 1234 (M.D. Ala. 2003). Lytle must only
demonstrate that her position is similar, not identical, to
the positions of the potential class Plaintiffs. Grayson v.
K-Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). “[A]
unified policy, plan, or scheme of discrimination may not be
required to satisfy the more liberal “similarly situated”
requirement of § 216(b). Id. at 1095. As explained in Morgan,
the plaintiff’s burden of showing a “reasonable basis” for
the claim that there are other similarly situated employees
is “not particularly stringent, fairly lenient, flexible, not
heavy, and less stringent than that for joinder under Rule
20(a) or for separate trials under 42(b).” 551 F.3d at 126061 (internal citations omitted).
Lytle
similarly

submits
situated

that

the

potential

and,

therefore,

class

members

national

are

class

certification is warranted because Lytle, and the opt-in
Plaintiffs, allege “identical job duties, hours [worked],
lack of authority, lack of supervision of others and nearly
identical employment history working as [Human Resources
Managers] in [Lowe’s] stores across the United States.” (Doc.
7

#

205

at

18).

Furthermore,

Lytle

contends

she

and

the

potential class Plaintiffs were all “subject to the same
common practice or scheme by Defendants [-] misclassifying
them as salaried, exempt and requiring overtime work.” (Id.
at 17, 20).
To

support

her

contention,

Lytle

tenders

the

declarations of approximately 60 former and current Human
Resources Managers, each sharing common core allegations
regarding their personal employment and the standard business
practices

of

Lowe’s

stores

across

the

United

States.

Specifically, Lytle provides the declarations of former Area
Human Resources Managers - Jamey Feltman and Michael Ferrara
– to demonstrate that the “[Human Resources Managers] are
similarly situated across all Lowe’s stores throughout the
United States and that they are subjected to a common practice
or scheme that violated the law.” (Id. at 22).
The Court reproduces salient portions of Feltman and
Ferrara’s declarations below:
The Lowe’s stores are mirror images of each other,
including management, policies, hours, job duties,
merchandise and layout. . . .

As to the [Human

Resources] Managers, Lowe’s mandates uniformity in
hours and job duties.
8

Lowe’s corporate sets job duties and parameters for
how each employee is to perform his or her job.
Lowe’s corporate sets the number of hours each
[Human Resources] Manager is to be scheduled for,
as well as other employees in a uniform manner.
[Human Resources] Managers were not given the
authority [to] use their discretion to fire or
discipline employees.
Each store [Human Resources] Manager required the
approval of the Area Manager or the Store Manager
when it came to making any decisions affecting the
store or Lowe’s.
The [Human Resources] Managers
had little if any discretion or decision making
authority.
All [Human Resources] Managers were required to
work overtime, above forty (40) hours per week.
All [Human Resources] Managers were scheduled for
eleven (11) hours per day as well and always working
every other Saturday.
The [Human Resources] Managers routinely worked
beyond the scheduled hours.
The [Human Resources] Managers were all treated as
salaried exempt employees and not paid for their
overtime hours.
The primary duties of the [Human Resources] Manager
position did not involve the exercise of discretion
and independent judgment with respect to matters of
significance of Lowe’s.
9

The [Human Resources] Managers did not supervise
employees and only [in] rare instances was there
even a [Human Resources] coordinator subordinate
employee in the [Human Resources] department of
each store.
(Doc. # 205-5).
However, in response, Defendants contend that nationwide
class certification is improper because in order to determine
whether

the

situated,

potential

the

Court

class
would

Plaintiffs
be

required

are
to

similarly
engage

in

“individualized, factual determinations of each opt-in class
member” (Doc. # 221 at 2).

Furthermore, “[a] potential opt-

in class is not similarly situated if ‘a determination of
which employees are entitled to overtime compensation under
the FLSA depends on an individual, fact-specific analysis of
each

employee’s

job

responsibilities

under

the

relevant

statutory exemption criteria.’” (Id. at 19)(quoting Tyler v.
Payless

Shoe

3133763, at *6

Source,

Inc.,

No.

2:05-cv-33F(WO),

2005

WL

(M.D. Ala. Nov. 23, 2005)).

Specifically, Defendants submit that the Court would
have to inquire as to each Human Resources Manager’s daily
job duties, authority to supervise, hire, and discipline, and
the classification of each Human Resources Manager as exempt
10

or non-exempt for the time period in question, which would
defeat the purpose of conditional certification. (Doc. # 221
at 21). “[S]uch individualized differences [amongst the optin class members] destroy the purpose underlying collective
action treatment and defeat attempts at collective action
certification, even at this initial conditional certification
stage.” (Id. at 3).
This Court was faced with a similar argument as that
posed

by

Defendants

in

Vondriska.

There,

the

defendant

alleged that the proposed class was not similarly situated
because “the job titles and job duties of its employees vary
from branch to branch.” 564 F. Supp. 2d at 1335-36. The Court
found that “[v]ariations in specific duties, job locations,
working hours, or the availability of various defenses are
examples of factual issues that are not considered at [the
notice] stage” and as a result, the Court found that the
record

evidenced

a

uniform

class

of

similarly

situated

employees. Id. at 1335 (quoting Scott v. Heartland Home Fin.,
Inc., No. 01:05-cv-2812, 2006 WL 1209813, at *3 (N.D. Ga. May
3, 2006)(granting conditional certification to loan officers
despite allegations their duties differed among branches));
see also Pendlebury v. Starbucks Coffee Co., No. 04-cv-80521,
11

2005 WL 84500, at *3-4 (S.D. Fla. Jan. 3, 2005)(granting
conditional certification and refusing to consider factual
dispute raised by defendant at the conditional certification
stage

where

plaintiff

offered

affidavits

establishing

a

similarly situated class).
Following the sound reasoning in Vondriska, this Court
determines that Lytle has shown that there are similarly
situated Human Resources Managers who seek to join this action
and

that

Defendants’

certification

are

arguments

premature.

against

conditional

Defendants’

contentions

pinpointing variations in the performance of Human Resources
Managers duties depending on the particular store, store
manager,

Area

Human

Resources

Manager,

Human

Resources

Manager’s personal experience, or when the particular duties
were performed do not convince the Court that conditional
certification

is

unwarranted.

Instead,

“Defendant[s’]

arguments appear to be relevant to the application of various
exemptions from the FLSA, which is more properly addressed
after discovery is completed.” Vondriska, 564 F. Supp. 2d at
1335-36; see Morgan, 551 F.3d at 1261-62 (courts should
consider at the second stage “the various defenses available

12

to

defendant[s]

[that]

appear

to

be

individual

to

each

plaintiff.”).
Therefore,

although

the

Court

will

re-examine

the

similarly situated status of the putative class members, if
asked to do so at a later stage in a motion to de-certify
filed by Defendants, at this point in the proceedings, Lytle
has satisfied the burden of demonstrating that there are
similarly situated persons who have suffered a pattern and
practice of FLSA violations sufficient to warrant conditional
certification of a collective action in this case.
IV.

Notice
Lytle requests that this Court review her proposed form

of class notice and require the notice to be posted at all
Lowe’s stores that Human Resources Managers are employed.
(Doc. # 205 at 35). However, upon review of the present
Motion, Lytle has not provided the Court with a proposed form
of class notice. Exhibit H, which Lytle submits contains the
proposed form of class notice, is instead a copy of HoffmanLa Roche, Inc. v. Richard Sperling, et al., 49 U.S. 165
(1989).
Nevertheless,

in

the

event

this

Court

granted

conditional certification, which it has, Defendants, in their
13

response, reserved the right to “comment . . . on the notice
to be issued to the potential opt-ins since the proposed
notice has defects and is unfair to [Defendants]. For example,
[Lytle] asks that the notice be posted in all stores. This
request

is

highly

unusual,

and

is

not

necessary

(or

appropriate) in this case, where there is only one potential
class member in each store.” (Doc. # 221 at n.8).
As there is disagreement between the parties regarding
the proposed notice and means of dissemination, the parties
are directed to file briefs supplementing their respective
position on this matter by January 27, 2014. The Court,
however, encourages the parties to confer in good faith
regarding this issue in hopes that the parties will come to
an agreement and file a jointly proposed notice and method of
dissemination.
V.

Production of Names and Addresses of the Class
Lytle requests that this Court require Defendants to

produce the names and addresses of all putative class members
in order to carry out the notice. (Doc. # 205 at 35). However,
the Court defers its ruling on this issue until the Court has
been fully briefed on the proposed notice and means of
dissemination.
14

VI.

Equitable Tolling
By her present Motion, Lytle seeks an Order tolling the

statute of limitations on the putative class members from “at
least thirty (30) days after [Lytle] filed her Reply to
Defendants Opposition to Plaintiff’s Motion for Conditional
Certification or May 19, 2013, which would have provided the
Court with a reasonable amount of time to rule upon [Lytle’s]
original

Motion

for

Conditional

Certification.”

(Id.

at

39)(emphasis in original).
“Equitable

tolling

is

the

doctrine

under

which

plaintiffs may sue after the statutory time period has expired
if they have been prevented from doing so due to inequitable
circumstances.” Ellis v. Gen. Motors Acceptance Corp., 160
F.3d 703, 706 (11th Cir. 1998). In Wallace v. Kato, the
Supreme Court described equitable tolling as “a rare remedy
to be applied in unusual circumstances, not a cure-all for an
entirely common state of affairs.” 549 U.S. 384, 396 (2007).
In the Eleventh Circuit, the doctrine is “applied sparingly.”
Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). “[A]
litigant

seeking

equitable

tolling

bears

the

burden

of

establishing two elements: (1) that he has been pursuing his
rights

diligently,

and

(2)
15

that

some

extraordinary

circumstance stood in his way.”

Downs v. McNeil, 520 F.3d

1311, 1324 (11th Cir. 2008).
Defendants have not challenged that Lytle has diligently
pursued her rights in this action. The issue before the Court
is

whether

extraordinary

circumstances

warrant

equitable

tolling. Lytle contends that such extraordinary circumstances
exist

because

the

issue

of

whether

nationwide

class

certification is warranted has been pending now for almost
ten months.
According to Lytle, Lytle filed her initial Motion for
Conditional Certification of Collective Class on March 14,
2013. (Doc. # 35). Based upon the filing of Lytle’s Second
Amended Complaint, the Court denied as moot Lytle’s Motion
for Conditional Certification “in order to promote accuracy
in the filings and clarity of the record.” (Doc. # 191). As
a result, Lytle was required to then file the present Amended
Motion for Conditional Certification on July 26, 2013. (Doc.
# 205). Lytle thus argues that “[T]he Court’s Order rendering
[Lytle’s] original Motion for Conditional Certification moot
has delayed sending notice to putative class members who,
through no fault of [Lytle], have been prevented from learning

16

of the existence of this action, and have been prejudiced and
financially

harmed.” (Id. at 39).

While it is “unusual” for a motion for conditional
certification to remain pending for 18 months, it is not
“extraordinary”

for

such

a

motion

–

and

the

issues

it

addresses - to remain pending for only ten months, as was the
case here.

See, e.g., Fiore v. Goodyear Tire & Rubber Co.,

No. 2:09-cv-843, 2011 U.S. Dist. LEXIS 24371, at *10 (M.D.
Fla. Mar. 10, 2011)(“plaintiff has failed to demonstrate that
extraordinary circumstances warrant tolling of the statute of
limitations” even though it took the court nine months to
grant the FLSA motion for conditional certification); Love v.
Phillips Oil, Inc., No. 3:08-cv-92, 2008 U.S. Dist. LEXIS
102366, at *6-8 (N.D. Fla. Dec. 9, 2008)(rejecting FLSA
plaintiffs’ request for equitable tolling when the motion for
conditional certification was pending for nine months before
being granted by the court); Pendlebury v. Starbucks Coffee
Co., No. 04-80521, 2008 U.S. Dist. LEXIS 20089 (S.D. Fla.
Mar. 13, 2008)(rejecting plaintiffs’ argument that statute of
limitations in FLSA action should be equitably tolled because
it took the court six months to rule on the motion for

17

conditional certification and four months to approve the
notice to the potential class members).
Furthermore, courts in the Eleventh Circuit routinely
deny motions like the present one because, during the pendency
of

the

Amended

Motion

for

Conditional

Certification,

“putative class members had two options for filing a timely
claim: (1) opt into this collective action if they were aware
of

it,

or

(2)

file

an

individual

FLSA

action.”

Ramos-

Barrientos v. Bland, No. 6:06-cv-89, 2010 U.S. Dist. LEXIS
37562, at *5 (S.D. Ga. Apr. 15, 2010); Bobbitt v. Broadband
Interactive, Inc., No. 8:11-cv-2855, 2012 U.S. Dist. LEXIS
96551, at *7-8 (M.D. Fla. July 12, 2012)(reasoning that, at
any time during the 13 month period in which the motion for
conditional certification was pending, any putative class
member “could have chosen to file suit against [defendant],
as nothing precluded them from doing so.”); see also Longcrier
v. HL-A Co., Inc., 595 F. Supp. 2d 1218, 1243-44 (S.D. Ala.
2008)(finding no equitable tolling “during the pendency of a
conditional class certification request”). Furthermore, this
Court

“did

nothing

to

lull

putative

class

members

into

inaction, so equitable tolling is not appropriate.” RamosBarrientos, 2010 U.S. Dist. LEXIS 37562, at *5.
18

Thus, the

Court declines to apply the extraordinary remedy of equitable
tolling to this matter.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Lizeth Lytle’s Amended Motion for Conditional
Certification of Collective Class and Issuance of Notice
(Doc. # 205) is GRANTED to the extent provided herein.

(2)

Plaintiff Lizeth Lytle’s Motion for Equitable Tolling
(Doc. # 205) is DENIED.

(3)

The parties are directed to file briefs supplementing
their respective position regarding the proposed class
notice and means of dissemination of the notice by
January 27, 2014.
DONE and ORDERED in Chambers, in Tampa, Florida, this

10th day of January, 2014.

Copies: All Counsel of Record

19