Bradford v. CVS Caremark Corp. et al
Filing
317
OPINION AND ORDER granting 296 Motion for Decertification. Signed by Judge Thomas W. Thrash, Jr on 8/6/15. (dr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PHILIP BRADFORD
on behalf of himself and others
similarly situated,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:12-CV-1159-TWT
CVS PHARMACY, INC.,
Defendants.
OPINION AND ORDER
This is an action under the Fair Labor Standards Act. It is before the Court on
the Defendant CVS Pharmacy, Inc.’s Motion for Decertification [Doc. 296]. For the
reasons set forth below, the Defendant CVS Pharmacy, Inc.’s Motion for
Decertification [Doc. 296] is GRANTED.
I. Background
The Plaintiff Philip Bradford and the collective action class members are
current and former “Regional Loss Prevention Managers” (“RLPMs”) for the
Defendant CVS Pharmacy, Inc. RLPMs are part of the Defendant’s Loss Prevention
Department, and each RLPM is assigned to around fifty to eighty CVS retail stores.
Bradford brought suit against the Defendant claiming that the Defendant improperly
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classified him and all other RLPMs as exempt under the FLSA, and thus unlawfully
failed to provide them with overtime pay. On July 3, 2012, Bradford moved for
conditional certification of a collective action class consisting of current and former
RLPMs of the Defendant.1 On February 4, 2013, the Court granted Bradford’s
motion.2 Since then, thirty-eight parties have opted in to this lawsuit. Now, with the
benefit of discovery, the Defendant moves for decertification of the collective action
class.
II. Discussion
The “FLSA authorizes collective actions against employers accused of violating
the FLSA.”3 29 U.S.C. § 216(b) states that “[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.” The “FLSA itself does not define
how similar the employees must be before the case may proceed as a collective
action” and the Eleventh Circuit has not “adopted a precise definition of the term.”4
1
[Doc. 32].
2
[Doc. 61].
3
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258 (11th Cir.
2008).
4
Id. at 1259.
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At minimum, the employees must be similarly situated “with respect to their job
requirements and with regard to their pay provisions.”5
The Eleventh Circuit has “sanctioned a two-stage procedure for district courts
to effectively manage FLSA collective actions in the pretrial phase.”6 The first step
is “referred to as conditional certification since the decision may be reexamined once
the case is ready for trial.”7 A plaintiff simply has to show a “‘reasonable basis’ for
his claim that there are other similarly situated employees.”8 The “standard for
determining similarity, at this initial stage . . . [is] not particularly stringent.”9 The
“second stage is trigger by an employer’s motion for decertification.”10 At this stage,
“the district court has a much thicker record” and the “plaintiff bears a heavier
burden.”11 The “similarities necessary to maintain a collective action . . . must extend
beyond the mere facts of job duties and pay provisions and encompass the defenses
5
Id. (internal quotation marks omitted).
6
Id. at 1260.
7
Id. at 1261.
8
Id. at 1260.
9
Id. at 1260-61 (internal quotation marks omitted).
10
Id. at 1261.
11
Id.
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to some extent.”12 Thus, the Court considers “a number of factors . . . such as: (1)
disparate factual and employment settings of the individual plaintiffs; (2) the various
defenses available to defendant[s] [that] appear to be individual to each plaintiff; [and]
(3) fairness and procedural considerations.”13 However, these “factors . . . are not
mutually exclusive – there is considerable overlap . . . [e]ach factor directly influences
the others.”14 At bottom, the Court must decide whether the Plaintiffs’ job duties and
pay provisions are sufficiently similar such that it is likely that the Court may
determine liability on a class-wide basis. The “ultimate decision” to decertify a
conditionally certified collective action class “rests largely within the district court’s
discretion.”15
The Defendant argues that the discovery has revealed multiple distinctions in
the job duties performed by the various opt-in Plaintiffs. According to the Defendant,
these distinctions will force the Court to conduct an individualized inquiry for each
opt-in Plaintiff to determine whether a particular FLSA defense – e.g., the
administrative exemption – applies.
12
Id. at 1262.
13
Id. at 1261 (internal quotation marks omitted).
14
Knott v. Dollar Tree Stores, Inc., 897 F. Supp. 2d 1230, 1234 (N.D. Ala.
2012).
15
Anderson v. Cagle’s, Inc., 488 F.3d 945, 953 (11th Cir. 2007).
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In support, the Defendant introduces testimony from various opt-in Plaintiffs.
This testimony reveals a number of differences in the duties they each performed. For
example, not all of the Plaintiffs managed “market investigators,” which are
employees that work undercover in CVS stores to combat shoplifting.16 During the
relevant time period, there were no market investigators in Bradford’s or Kirt Lovett’s
“span of control” (the stores for which an RLPM is responsible).17 By contrast, at least
nine Plaintiffs did manage market investigators.18 And even among those nine
Plaintiffs, there are varying degrees of responsibility. For example, Timothy Fulton
oversaw the entire market investigator program in Detroit, Michigan, which included
market investigators outside of his span of control.19 He was responsible for hiring,
firing, training, evaluating, and managing the work of the market investigators.20
16
Spargo Dep., at 68 (“The market investigator’s role is to deter external
theft and basically almost in an undercover type role to monitor the store floor, look
for suspicious activity, identify shoplifting, [and] shoplifting patterns.”).
17
Bradford Dep., at 45, 320; Lovett Dep., at 242.
18
Def.’s Mot. for Decertification, at 20.
19
Fulton Dep., at 56-59.
20
Fulton Dep., at 59-61, 66-67, 69-70.
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However, Dennis Douress testified that he only managed three or four market
investigators, and they were all within his span of control.21
Additionally, different Plaintiffs took on various, unique duties. For example,
due to a surge in pharmacy robberies in Maine, Kenneth Huber helped create and
implement a “pharmacy anti-robbery strategy that entailed putting GPS tracking
devices in drug bottles, training pharmacists regarding the use of GPS devices,
educating store and pharmacy personnel regarding basic safety during robberies,
coordinating with vendors and police to track the drugs, selecting which stores would
implement this strategy, and implementing other aspects of deterrence.”22 Huber was
also responsible for helping to create and implement the “Emerging Leader Program”
for candidates seeking to become RLPMs.23 However, Huber never took on a
leadership role among those that already were RLPMs.24 But Douress did.25 He was
involved with overseeing and training current RLPMs.26
21
Douress Dep., at 204-06.
22
Def.’s Mot. for Decertification, at 23-24 (citing to Huber Dep., at 191-94,
262-64).
23
Huber Dep., at 205-09.
24
Huber Dep., at 50.
25
Douress Dep., at 275.
26
Douress Dep., at 101-02, 266-67, 275.
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The Defendant further argues that even among the duties that the Plaintiffs did
share, they each exercised different levels of discretion and independent judgment. For
example, the RLPMs often trained others within the Defendant’s business on loss
prevention. Bradford and Huber testified that they exercised very little discretion in
training other employees. Bradford typically gave training presentations using
PowerPoints he obtained “from other loss prevention reps” and “corporate.”27
Similarly, Huber testified that he only provided training when instructed to do so.28
By contrast, Lester Klein often created his own training materials, and held weekly
training calls for loss prevention.29 According to the Defendant, similar distinctions
may also be found in the level of discretion exercised by the various Plaintiffs in
conducting investigations and audits.
Based on these distinctions, and others revealed by the evidence in the record,
the Court concludes that the opt-in Plaintiffs are not “similarly situated,” as that
phrase is used in the FLSA. The differences in the duties performed by the various
Plaintiffs, as well as the varying degrees of discretion and independent judgment they
27
Bradford Dep., at 190.
28
Huber Dep., at 380.
29
Klein Dep., at 87-89, 131-32.
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each exercised, will make individualized inquiries inevitable when determining
whether a particular FLSA defense applies.
A brief discussion of the Defendant’s executive and administrative exception
defenses may help illustrate this point. Section 13(a)(1) of the FLSA “provides an
exemption from the Act’s . . . overtime requirements for any employee employed in
a bona fide executive [or] administrative . . . capacity.” 29 C.F.R. § 541.0(a). The
“term ‘employee employed in a bona fide executive capacity’ . . . mean[s] any
employee: (1) Compensated on a salary basis at a rate of not less than $455 per week
. . . ; (2) Whose primary duty is management of the enterprise in which the employee
is employed or of a customarily recognized department or subdivision thereof; (3)
Who customarily and regularly directs the work of two or more other employees; and
(4) Who 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.”30 And “‘management’
includes, but is not limited to, activities such as interviewing, selecting, and training
of employees; . . . directing the work of employees; . . . planning the work; . . . [and]
apportioning the work among the employees.”31 Due to the differences among the
30
29 C.F.R. § 541.100(a).
31
29 C.F.R. § 541.102.
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various opt-in Plaintiffs, the Court obviously cannot assess this defense on a
class-wide basis. As explained earlier, some Plaintiffs oversaw many market
investigators, and even had the authority to hire or fire them. Others, however, had no
contact with market investigators at all. Thus, the Court would have to conduct an
individualized inquiry for each party against whom this defense is asserted.
Further, the administrative exception applies only to employees “[w]hose
primary duty is the performance of office or non-manual work directly related to the
management or general business operations of the employer or the employer’s
customers; and . . . [w]hose primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.”32 The “exercise of
discretion and independent judgment involves the comparison and the evaluation of
possible courses of conduct, and acting or making a decision after the various
possibilities have been considered.”33 And the regulations make clear that “[t]he
phrase ‘discretion and independent judgment’ must be applied in the light of all the
facts involved in the particular employment situation in which the question arises.”34
Again, the differences among the various opt-in Plaintiffs will require the Court to
32
29 C.F.R. § 541.200(a).
33
29 C.F.R. § 541.202(a).
34
29 C.F.R. § 541.202(b) (emphasis added).
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conduct individualized assessments when determining whether the administrative
exception applies. As noted earlier, certain opt-in Plaintiffs bore additional, significant
responsibilities which arguably required the exercise of discretion and independent
judgment (e.g., formulating an anti-robbery strategy or overseeing other RLPMs).
Even among the duties the Plaintiffs did share, some may have exercised greater
discretion than others (e.g., when training other employees). To be clear, the Court is
not concluding that the FLSA defenses will certainly turn on these factual distinctions.
The point is that the distinctions are relevant to the analysis, and so the Court would
have to conduct a separate inquiry for each Plaintiff to determine whether the defense
applies.35 Accordingly, the collective action mechanism is ill-suited for this case.36
Other courts have reached the same conclusion when confronted with similar
facts. For example, in Green v. Harbor Freight Tools USA, Inc.,37 the plaintiffs –
“store managers” for the defendant, a company that operates retail stores selling “tools
35
It is worth noting that, in their Response brief, the Plaintiffs do not
address the many job duty distinctions highlighted by the Defendant in its
Decertification Motion. Although the Plaintiffs claim that they shared certain primary
duties, they do not dispute the Defendant’s claim that there were still various, unique
duties bestowed on some of the Plaintiffs, but not others.
36
See Green v. Harbor Freight Tools USA, Inc., 888 F. Supp. 2d 1088,
1103 (D. Kan. 2012) (“[I]ndividualized defenses inhibit the efficiency of proceedings
on a collective basis.”).
37
888 F. Supp. 2d 1088 (D. Kan. 2012).
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and related products and accessories”38 – brought suit under the FLSA for unpaid
overtime. The plaintiffs were all “governed by the same job description.”39 The
defendant moved to decertify the collective action class, arguing that various
differences among the plaintiffs’ respective job duties would inhibit the court from
assessing any particular FLSA defense on a class-wide basis. The court granted the
defendant’s motion:
[The Defendant] has indicated that it intends to present individualized
evidence as to each opt-in Plaintiff’s claim and that the record reveals
that it is not possible to establish the Plaintiffs’ daily tasks through
common testimony, due to what it deems the individualized and fact
intensive nature of the exemption analysis under the circumstances of
this case. . . . Plaintiffs respond that [the Defendant] can only put forth
one common defense that applies across the board – the executive
exemption. According to Plaintiffs, this defense can be addressed
collectively and refuted by all Plaintiffs through generalized evidence.
The Court finds that the potential defenses of [the Defendant] would
make collective treatment of this action unmanageable. . . . The
deposition testimony shows that it is not possible to develop common
testimony from the [the plaintiffs] regarding their daily responsibilities
and duties, or the weight given their recommendations regarding hiring,
firing and discipline.40
38
Id. at 1093.
39
Id.
40
Id. at 1103-04.
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The case of Knott v. Dollar Tree Stores, Inc.41 is another example. There, the
plaintiffs – individuals who “worked at different Dollar Tree Stores throughout the
country as store managers” – brought suit under the FLSA “claiming that they were
wrongfully classified as exempt and thus improperly denied overtime
compensation.”42 The court noted that there were differences in the number of
employees each plaintiff managed,43 the amount of time each plaintiff spent training
employees,44 and the amount of authority each plaintiff had to hire and fire
employees.45 The court ultimately concluded that these differences would force the
court to conduct an independent inquiry for each plaintiff with regards to the
defendant’s executive exemption defense:
While Dollar Tree 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 of individual inquiry.
Furthermore, Dollar Tree may be able to apply the exemption to different
Plaintiffs based on different circumstances. Even if every Plaintiff spent
41
897 F. Supp. 2d 1230 (N.D. Ala. 2012).
42
Id. at 1233.
43
Id. at 1237.
44
Id.
45
Id. at 1238.
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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. Thus, a one-size-fits-all
determination is impossible.46
In Green and Knott, the plaintiffs shared the same job title and many of the same
responsibilities. Nonetheless, the differences in their respective job duties were
sufficient to warrant decertification of the collective action class. The same
considerations lead the Court to decertify the collective action class here.
In response, the Plaintiffs argue that only their primary duties are relevant to
the executive and administrative exemptions, and that they shared the same primary
duties: performing audits and investigations. The Defendant, however, disputes that
these are the only two primary duties for each Plaintiff. And as the Defendant
correctly points out, the Court would have to conduct yet another individualized
inquiry for each Plaintiff to determine who is correct.47 The “term ‘primary duty’
means the principal, main, major or most important duty that the employee
performs.”48 Factors “to consider when determining the primary duty of an employee
46
Id. at 1240-41.
47
See 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 emphasis on the
character of the employee’s job as a whole.”).
48
Id.
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include, but are not limited to, the relative importance of the exempt duties as
compared with other types of duties; the amount of time spent performing exempt
work; [and] the employee’s relative freedom from direct supervision.”49 Here, the
Defendant submits evidence to support its claim that auditing and investigating were
not the only two “primary duties” for each Plaintiff. For example, although Bradford
testified that he only had two primary responsibilities, the opt-in Plaintiff Spargo
testified that he had three: auditing, investigating, and training.50 To determine what
Spargo’s primary duties were, the Court would have to consider this testimony, along
with other factors that may be unique to Spargo. And given the various differences
among their job duties, it is likely that the Court would have to conduct a similar
individualized inquiry for each Plaintiff to determine what his or her primary duties
were. Thus, the Plaintiffs’ argument does not counsel in favor of preserving the
collective action class.51
49
Id.
50
Spargo Dep., at 40-41.
51
The Plaintiffs claim that they spent roughly 80% of their time performing
audits and investigations. But as the Defendant correctly points out, the Plaintiffs do
not submit sufficient evidence to establish that each opt-in Plaintiff truly spent “80%”
of his or her time on these two duties. Regardless, the regulations make clear that
“[t]ime alone . . . is not the sole test, and” employees need not “spend more than 50
percent of their time performing exempt work” for the exemption to apply. 29 C.F.R.
§ 541.700(b). The regulations further state that “[e]mployees who do not spend more
than 50 percent of their time performing exempt duties may nonetheless meet the
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The Plaintiffs then argue that the Defendant is only asserting one defense
against all of the Plaintiffs. Obviously this is incorrect. The Defendant asserts at least
two different defenses – the executive and administrative exceptions – which contain
different elements. But even if the Defendant had asserted only one defense, it does
not mean that the Court could evaluate the applicability of that defense on a
class-wide basis. Given the material distinctions between the respective job duties of
the Plaintiffs, the Court would still have to conduct a separate analysis for each
Plaintiff to determine whether that defense applies to him or her. Accordingly, the
Plaintiffs have failed to establish that they, the members of the collective action class,
are “similarly situated.” And because the “lead plaintiff[] bear[s] the burden of
showing that the opt-in plaintiffs are similarly situated to the lead plaintiff[],”52 the
collective action class should be decertified.
primary duty requirement if the other factors support such a conclusion.” Id.
52
O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 584 (6th Cir.
2009).
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III. Conclusion
For these reasons, the Court GRANTS the Defendant CVS Pharmacy, Inc.’s
Motion for Decertification [Doc. 296].
SO ORDERED, this 6 day of August, 2015.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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