Lovett v. SJAC Fulton IND I, LLC et al

Filing 142

OPINION AND ORDER ADOPTING in part 103 Report and Recommendation. The portions of the R&R regarding the Court's jurisdiction and denying conditional certification of a class including Shift Supervisors, are ADOPTED. To the extent the Magistr ate Judge recommends that Plaintiff's Motion for Conditional Class Certification be granted in part, the Court SUSTAINS Defendants' Objections 128 and the Magistrate Judge's recommendation that Plaintiff be found similarly situated t o other Assistant Managers and that a class of Assistant Managers be conditionally certified, is NOT ADOPTED. The Court, on de novo review, finds that Plaintiff is not similarly situated to other Assistant Managers and determines, in its discretion, to deny conditional certification. DENYING 15 Motion to Dismiss for Lack of Jurisdiction; DENYING 14 Motion to Certify Class; DENYING AS MOOT 16 Motion for Partial Summary Judgment; DENYING AS MOOT 19 Motion for Voluntary Dismissal; DENYING AS MOOT 107 Motion to Decertify Class; the 113 Report and Recommendation and 118 Report and Recommendation are NOT ADOPTED because they are moot; GRANTING 123 Motion to Strike 121 Bill of Costs. Signed by Judge William S. Duffey, Jr on 6/23/2015. (adg) Modified on 6/23/2015 (adg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

I

AYOTUNDA LOVETT, individually
and on behalf of all similarly situated I
persons,
j
Plaintiff,

v.

I
i
1:14-cv-983-WSD

SJAC FULTON IND I, LLC d/b/a
Zaxby's, SJAC FOOD GROUPS,
LLC d/b/a Zaxby's, and DOES 1
THROUGH 10,
Defendants.

OPINION AND ORDER
This matter is before the Court on Defendants SJAC Fulton Ind I, LLC
("SJAC Fulton Ind I") and SJAC Food Groups, LLC's ("SJAC Food Groups")
(together, "Defendants") Objections [128] to Magistrate Judge Justin S. Anand's
Non-Final Reports and Recommendations, issued on March 23, 2015
("March 23rd R&R") [103], and April 28, 2015 ("April 28th R&R") [118].
In his March 23rd R&R, the Magistrate Judge recommends that Defendants'
Motion to Dismiss for Lack of Jurisdiction ("Motion to Dismiss") [15] be denied,
and that Plaintiff Ayotunda Lovett's ("Plaintiff' or "Lovett") Motion for
Conditional Class Certification [14] be granted in part and denied in part.

In his April 28th R&R, the Magistrate Judge considers Defendants’ “Motion
for Reconsideration of Report and Recommendation on Motion for Conditional
Class Certification or, in the Alternative, Motion to Decertify Class” [107]. The
Magistrate Judge (i) denied Defendants’ Motion to the extent it seeks
reconsideration of the March 23rd R&R, and (ii) recommends that Defendants’
Motion, to the extent it seeks decertification, be denied without prejudice.
Also before the Court is the Magistrate Judge’s April 10, 2015, Non-Final
Report and Recommendation (“April 10th R&R”) [113], which recommends that
Plaintiff’s Motion to Dismiss Opt-in Plaintiff Ashley Greene (“Motion for
Voluntary Dismissal”) [19] be granted, that her claim be dismissed without
prejudice, that Defendants be awarded reasonable costs incurred in defending
against Greene’s claim, and that Defendants’ Motion for Partial Summary
Judgment [16] on Greene’s claim be denied as moot. Although the parties do not
object to the April 10th R&R, Plaintiff has filed a Motion to Strike [123]
Defendants’ Bill of Costs [121].
I.

BACKGROUND
This is a putative collective action brought by Plaintiff against Defendants,

who own and operate various Zaxby’s fast-food restaurants in the Atlanta, Georgia,
area. Plaintiff claims that Defendants misclassified its Assistant Managers,

2

including Plaintiff, and Shift Supervisors as “exempt” employees, and, as a result,
failed to pay overtime compensation to Plaintiff for hours worked in excess of
forty (40) hours per week, in violation of the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201, et seq.1
A.

Facts

Plaintiff seeks to conditionally certify a class consisting of “all current or
former ‘Assistant Managers’ or former ‘managers’ (not ‘General Manager’) [sic],”
and including Shift Supervisors, “whom Defendants classified as exempt, over the
past three years.” (Pl’s Reply at 11). Plaintiff relies on her declaration, and the
declarations of Opt-in Plaintiffs Tishuna Norman (“Norman”) and Ashley Greene
(“Greene”), to support that she is similarly situated to the employees who Plaintiff
claims are categorically misclassified as “exempt” employees, who did not receive
overtime pay as required by the FLSA. Defendants oppose conditional
certification and, in support of their opposition, submit the declarations of Tracey
Stalling, Chief Financial Officer for STL Management Company, Inc., which
provides management services for Defendants, and declarations from thirteen (13)
Assistant Managers currently employed by Defendants (“Current Assistant
1

Plaintiff also asserts claims, in her individual capacity, for retaliation and sex
discrimination, under Title VII of the Civil Rights Act of 1964. These claims are
not the subject of any current motion.
3

Managers”). Defendants argue this declaration evidence shows that Plaintiff did
not meet her burden to show she is similarly situated to other Assistant Managers
and Shift Supervisors and thus the Court should not conditionally certify the class
Plaintiff seeks to represent.
1.

Defendants and their locations

Plaintiff asserts that “Defendants owned and operated six or seven Zaxby’s
restaurants” in Georgia and that “Defendants’ common management
interchangeably assigned [her] to work at the[ir] various [ ] restaurants” located at:
5350 Cambelton-Fairburn Road, Fairburn (“Fairburn Restaurant”); 2530 Flat
Shoals Road, College Park (“College Park Restaurant”); 925 Camp Fulton
Parkway, Atlanta (“Camp Fulton Restaurant”); 7541 Highway 85, Riverdale
(“Riverdale Restaurant”); 7149 Mount Zion Boulevard, Jonesboro (“Jonesboro
Restaurant”); and 5201 South Cobb Drive, Smyrna (“Smyrna Restaurant”)
(collectively, the “Restaurants”).2
It appears that each of the Restaurants is owned and operated by a separate
legal entity, although it also appears that Sterling Coleman, who is not named as a
defendant in this action, is the sole member of each entity. Defendant SJAC
2

It appears that a seventh restaurant, located on Ponce De Leon Avenue in
Atlanta (“Ponce Restaurant”) is also in Defendants’ alleged “restaurant group,”
although Plaintiff does not assert that she worked at that location and it is not clear
whether the Ponce Restaurant was open during Plaintiff’s employment.
4

Fulton Ind I owns and operates the Camp Fulton Restaurant. (First Stalling Decl.
[15.2] ¶ 2). Defendant SJAC Food Groups owns and operates the Smyrna
Restaurant. (Id.).
Plaintiff also names as defendants “Does 1 through 10,” which, she asserts,
“either separately or jointly, own and operate approximately six other Zaxby’s
franchise restaurants where members of the putative class work or have worked
within the past three years,” and “were organized by and have the same owners as
Defendants SJAC Fulton Ind I, LLC and SJAC Food Groups, LLC.” (Compl. [1]
at ¶¶ 10-11). Plaintiff has not filed a motion to join, or to amend her complaint, to
identify the Doe Defendants. She does not distinguish between the named
Defendants and the Doe Defendants, instead referring to “Defendants” generally.3
2.

Plaintiff’s testimony

From May 3, 2010 to May 2012, Plaintiff was employed as an Assistant
Manager and worked at the Fairburn, College Park, Camp Fulton, Riverdale,
Jonesboro, and Smyrna Restaurants. She asserts that “Defendants’ common
management interchangeably assigned [her] to work at the various Zaxby’s
3

In her Complaint, Plaintiff claims that Defendants SJAC Fulton Ind I and
SJAC Food Groups “either jointly or separately, owned and operated [the Fairburn
Restaurant].” (Compl. ¶ 8). Defendants assert, and Plaintiff’s pay stubs support,
that SJAC South Fulton I, LLC (“SJAC South Fulton”) owns and operates the
Fairburn Restaurant, the location at which Plaintiff worked and where her FLSA
claims are not barred by the statute of limitations. (Ans. [4] at ¶ 8).
5

restaurants owned by Defendants, as needed, for varied periods of time.” (First
Lovett Decl. ¶¶ 5, 8-9). From January 2011 through May 2012, Plaintiff worked
only at the Fairburn Restaurant. (Id. ¶ 10).
Plaintiff asserts that, as an Assistant Manager, her “primary job duties were:
(a) to prepare and cook the food, (b) to serve customers, and (c) to keep the
restaurant clean.” (Id. ¶ 16). Plaintiff “observed that all the primary duties of all
Assistant Managers and Shift Supervisors required them to [perform these same
duties].” (Id. ¶ 17). Plaintiff “relied exclusively on Zaxby’s Operations Manuals,
which outlined all of the procedures and details needed to perform these
standardized manual tasks.” (Id. ¶ 18). For example, Plaintiff seasoned and
cooked chicken, cut vegetables to a specific size, made salads, and labeled food, all
according to the recipes and procedures outlined in the manuals. (Id. ¶ 19). The
manuals also explained how to interact with customers and how to clean the
restaurant. (Id. ¶ 21).
Plaintiff states that she “spent the majority of [her] time performing these
primary duties,” that she “performed these same duties at the other Zaxby’s
restaurants in Defendants’ restaurant group, and [her] primary duties did not
change in any material way over the course of [her] employment, regardless of the
Zaxby’s location in which Defendants assigned [her] to work.” (Id. ¶ 23). Plaintiff

6

“did not manage any of the restaurants in Defendants’ restaurant group,” she “was
not authorized to, nor did [she] ever hire or fire employees on behalf of
Defendants,” and her “duties did not include the exercise of discretion and
independent judgment.” (Id. ¶¶ 26-28). “Virtually all of the duties [Plaintiff]
performed were strictly governed by the policies and procedures contained in
Defendants’ various manuals, and [Plaintiff] lacked the discretion to vary from
these procedures and policies in performing [her] duties.” (Id. ¶ 29).
Plaintiff asserts that, although she “worked overtime hours many weeks of
[her] employment, Defendants did not pay [her] an overtime premium” “because
Defendants uniformly classified their Assistant Manager position as ‘exempt’ from
federal overtime requirements.” (Id. ¶¶ 31-32). Plaintiff claims: “During my
employment, I personally observed that there were numerous similarly situated
Assistant Managers (and/or Shift Supervisors) who: (a) performed the same or
similar job duties that I performed; (b) were paid a salary; (c) worked over 40
hours in many workweeks; and (d) were not paid an overtime premium due to
Defendants’ uniform misclassification.” (Id. ¶ 33).
3.

Norman’s Testimony

Norman “began working for Defendants in May 2010 and resigned in
January 2013.” (Norman Decl. [14.3] ¶ 5). She states that “[d]uring most of [her]

7

employment, [she] was an Assistant Manager,” that “Defendants’ common
management interchangeably assigned [her], as needed, to work at the various
Zaxby’s restaurants in Defendants’ restaurant group,” and that she worked at the
College Park, Camp Fulton and Smyrna Restaurants. (Id. ¶¶ 6, 8-9) (emphasis
added). Norman does not identify when, or in what position, she worked at each
Restaurant. The evidence submitted by Defendants shows that, from
April 9, 2011, through July 2, 2012, Norman worked as an Assistant Manager at
only the Camp Fulton Restaurant. (First Stalling Decl. ¶¶ 5-6 & Ex. 2 [15.2 at
35-87]). After July 2, 2012, Norman worked as an hourly, non-exempt
“Cashier/Cook,” at the College Park Restaurant. (Id.).
Although it is not always clear whether she is describing the duties she
performed as an Assistant Manager or a “Cashier/Cook,” Norman states that she
“did not manage any of the restaurants in Defendants’ restaurant group,” she was
not authorized to hire or fire employees, and her “primary job duties were: (a) to
prepare and cook the food, (b) to serve the customers, and (c) to keep the restaurant
clean.” (Id. ¶¶ 10-11, 19). Norman asserts that “[v]irtually all of the duties that
[she] performed as an Assistant Manager were governed by the policies and
procedures set forth in Defendants’ various manuals” and she “lacked discretion to
vary from these policies and procedures in performing [her] job duties.” (Id. ¶ 13).

8

Norman claims that “[t]hroughout [her] employment, [she] regularly worked over
40 hours per week,” but “Defendants did not pay [her] an overtime premium for
[her] overtime hours” “because Defendants uniformly classified their assistant
manager position as ‘exempt’ from federal overtime requirements.” (Id. ¶¶ 30-32).
4.

Greene’s Testimony

In the summer of 2010, Greene began working for Defendants as a Crew
Member. (Greene Decl. [14.4] ¶¶ 5-6). From December 26, 2011, to July 2, 2012,
Greene worked as a Shift Supervisor. (Id.; First Stalling Decl. ¶ 7 & Ex. 3).
Greene worked at the Fairburn, College Park, Camp Fulton, Riverdale, and
Jonesboro Restaurants, although from January 2011 through January 2012, she
worked at only the Fairburn Restaurant. (Greene Decl. ¶¶ 15-16).
Greene states that the Shift Supervisor and Assistant Manager positions were
“essentially the same. Employees in those positions had similar training and
similar job duties,” and [t]here was no material difference between the two
positions.” (Id. ¶ 7). “As a Shift Supervisor, [her] primary duties were: (a) to
prepare and cook the food; (b) to serve the customers; and (c) to keep the
restaurant clean,” and, “like the Assistant Managers, [Greene] relied exclusively on
Zaxby’s Operations Manuals to perform these duties.” (Id. ¶¶ 17, 19). Greene
states that she “did not ever manage any of the restaurants in Defendants’

9

restaurant group” and she was not authorized to hire or fire employees. (Id.
¶¶ 26-27).
Greene asserts that, although she regularly worked over forty hours per
week, “Defendants did not pay [her] an overtime premium for all of [her] overtime
hours, particularly when [she] was a Shift Supervisor.” (Id. ¶¶ 29-30). Greene
does not claim that she, or other Shift Supervisors, were paid a salary or
misclassified as exempt. The evidence submitted by Defendants shows that
throughout her employment, including as a Shift Supervisor, Greene was paid as
an hourly wage employee and she was classified as non-exempt. (First Stalling
Decl. ¶¶ 7 & Ex. 2).
5.

Stalling’s Testimony

Stalling is the Chief Financial Officer for STL Management Company, Inc.,
which provides management services for certain companies that own Zaxby’s
franchises, including Defendant SJAC Fulton Ind I and Defendant SJAC Food
Groups. (Second Stalling Decl. [20.3] ¶ 2). Stalling testified, based on her
personal knowledge, about the job descriptions, duties, classifications and
compensation for Assistant Managers and Shift Supervisors. (Id. ¶ 3).4

4

It appears that “Shift Supervisor” and “Shift Manager” are different names
for the same position.
10

Stalling states that each restaurant typically employs one General Manager,
who has ultimate authority over the restaurant when he or she is working his or her
shift. (Id. ¶ 4). Assistant Managers report directly to the restaurant’s General
Manager. (Id.). Assistant Managers “are expected to be able to manage the
restaurant” and “frequently, even when the General Manager is present, manages
the shifts at the restaurant,” which includes “managing operations, including
controlling costs and inventory and providing quality control, as well as managing
personnel, including directing the work of Shift Managers and Crew Members and
providing training.” (Id. ¶ 5). Assistant Managers have the authority to make
hiring and firing decisions “subject to the hiring and termination policies in place
at each restaurant.” (Id. ¶ 6). The scope of this authority, whether and how it is
exercised, varies among restaurants and individual Assistant Managers. (Id.).
According to Stalling, “[m]ost Assistant Managers will spend a small
portion of their work day, subject to their own discretion, performing duties
alongside Crew Members,” including “running a cash-register, operating a
drive-thru window and preparing food.” (Id. ¶ 7). The amount of time an
Assistant Manager spends performing these “‘Crew Member duties’ depends on
the Assistant Manager’s management style.” (Id.). Some Assistant Managers
spend only 5-10% of their work day performing these “Crew Member duties,”

11

while others may spend more time if they prefer a “hands-on training/management
style.” (Id.).
Each restaurant classifies its Assistant Managers as exempt from the
overtime provisions of the FLSA. Assistant Managers are paid a salary, are not
required to record their hours worked, and earn the same gross pay each pay
period, excluding bonuses, regardless of how many hours they work per week. (Id.
¶ 9).
Restaurants also employ hourly, non-exempt Shift Managers, also called
“Third Assistant Managers,” who are supervised by Assistant Managers. (Id.
¶¶ 9-10). Shift Managers “focus on working along-side Crew Members while
actively coaching those Crew Members on proper procedures” and “assist Crew
members with completing their online training modules.” (Id.). Shift Managers do
not manage the operations of the restaurant and do not have the authority to hire or
fire other employees. (Id.). Stalling also states that, during Greene’s employment
as a Shift Supervisor, Plaintiff was Greene’s supervisor. (Id. ¶ 11).
6.

Current Assistant Managers’ Testimony

Defendants submitted declarations from thirteen (13) Current Assistant
Managers employed at the various Restaurants, some of whom have worked at
more than one of the Restaurants. The Current Assistant Managers state that they

12

are paid a salary for all hours worked and that they do not wish to join this
collective action. The Current Assistant Managers state that their job duties
include coaching, training, and supervising Crew Members in the performance of
their job duties (Armstrong Decl. ¶ 5; Borden Decl. ¶¶ 3, 5; Burden Decl. ¶ 5; Fike
Decl. ¶¶ 4, 8; Gooding Decl. ¶¶ 3-4, 8; Green Decl. ¶ 3; Harding Decl. ¶¶ 3, 5;
Hightower Decl. ¶¶ 3-5, 9; Kyle Decl. ¶¶ 3, 5, 7, 14; LaFleur Decl. ¶¶ 4-5; Lawson
Decl. ¶¶ 3, 5, 7; McThay Decl. ¶ 3; Rodriguez Decl. ¶¶ 4, 6, 12). They also ensure
that Crew Members are complying with the Restaurant’s policies and procedures,
identify and correct errors, and supervise quality control and customer service.
(Armstrong Decl. ¶¶ 5-6; Borden Decl. ¶¶ 3, 6, 7; Burden Decl. ¶¶ 3, 5; Fike Decl.
¶¶ 7-8; Gooding Decl. ¶ 4; Harding Decl. ¶¶ 5, 8; Hightower Decl. ¶¶ 3-5; Kyle
Decl. ¶¶ 3, 5, 7-8; LaFleur Decl. ¶¶ 4-5; Lawson Decl. ¶ 6; McThay Decl. ¶ 6;
Rodriguez Decl. ¶ 4).
All Current Assistant Managers have the authority to issue disciplinary
warnings and make termination recommendations. (Armstrong Decl. ¶ 12; Borden
Decl. ¶ 11; Burden Decl. ¶ 10; Fike Decl. ¶ 11; Gooding Decl. ¶ 12; Green ¶ 9;
Harding Decl. ¶ 11; Hightower Decl. ¶ 7; Kyle Decl. ¶ 13; LaFleur Decl. ¶ 10;
Lawson Decl. ¶ 9; McThay Decl. ¶ 8; Rodriquez Decl. ¶ 10). They are also
involved, to varying degrees, in interviewing applicants, hiring, or collaborating on

13

whether to hire new Crew Members and conducting current Crew Member
performance evaluations. (Armstrong Decl. ¶¶ 10-11; Burden Decl. ¶ 9; Borden
Decl. ¶ 9; Fike Decl. ¶¶ 9-10; Gooding Decl. ¶¶ 9-11; Green ¶¶ 7-8; Harding Decl.
¶¶ 9-10; Hightower Decl. ¶¶ 5-6; Kyle Decl. ¶¶ 11-12; LaFleur Decl. ¶¶ 8-9;
McThay Decl. ¶ 8; Rodriquez Decl. ¶¶ 8-9).
Most Current Assistant Managers set up positioning charts, assign Crew
Members their duties, and determine at which station a Crew Member will work,
depending on the Crew Member’s individual skills and the current volume and
needs of the Restaurant. (Borden Decl. ¶ 3; Burden Decl. ¶ 6; Fike Decl. ¶ 7;
Gooding Decl. ¶¶ 3-4; Harding Decl. ¶¶ 3, 4, 7; Hightower Decl. ¶¶ 3-4; Kyle
Decl. ¶ 3; Lawson Decl. ¶¶ 3, 5, 7; McThay Decl. ¶ 5; Rodriquez Decl. ¶¶ 3, 5).
Most of them also create and manage Crew Members’ weekly work schedules and
decide whether to send a Crew Member home early if the Restaurant is
overstaffed. (Id.; see also Green ¶ 4; LaFleur Decl. ¶ 5).
Some Current Assistant Managers are responsible for ensuring the
equipment and grounds are properly maintained (Borden Decl. ¶ 3; Gooding Decl.
¶ 3; Hightower Decl. ¶ 3; Kyle Decl. ¶ 3), counting inventory (Borden Decl. ¶ 3;
Fike Decl. ¶ 8; Hightower Decl. ¶ 3; Kyle Decl. ¶ 3; LaFleur Decl. ¶ 4), and
counting the cash in the Restaurant’s safe (Borden Decl. ¶ 4; Burden Decl. ¶ 3;

14

Hightower Decl. ¶ 3; Kyle Decl. ¶ 6). Some Current Assistant Managers review
their Restaurant’s sales numbers against its labor and food costs (Borden Decl. ¶ 3;
Green Decl. ¶¶ 3-4; Hightower Decl. ¶ 3; Kyle Decl. ¶ 6; LaFleur Decl. ¶¶ 4-5;
McThay Decl. ¶ 3), handle customer complaints (Borden Decl. ¶ 5; Kyle Decl.
¶ 7), and manage the opening or closing of the Restaurant (Burden Decl. ¶ 3;
LaFleur Decl. ¶ 6; Lawson Decl. ¶ 3).
Although all Current Assistant Managers spend some portion of their day
performing Crew Member duties, such as cooking, cleaning, and serving
customers, the amount of time spent, and reasons for doing so, vary. For example,
Aneshia Armstrong, who currently works at the Smyrna Restaurant and has
worked at the College Park, Jonesboro, Riverdale and Ponce Restaurants, performs
“Crew Member duties up to 30% of [her] time” because “[t]here are occasions
when [the Restaurant] may become very busy and [she] must jump in and perform
tasks typically performed by Crew Members” and, because of her training, she
“can determine when [she] is needed to assist Crew Members in their duties.”
(Armstrong Decl. ¶¶ 3-4, 9).
Chelsea Kyle, who currently works at the Camp Fulton Restaurant and has
worked at the Smyrna Restaurant, states that she spends 60% of her time
performing management duties and that she performs Crew Member duties as

15

needed, to relieve a Crew Member for his break or during times of high volume.
(Kyle Decl. ¶ 10).
Kimberly Lawson, who works at the College Park Restaurant, states that she
is “the type of manager that likes to step-in and work beside [her] Crew members.”
(Lawson Decl. ¶ 8). She “often work[s] alongside them on various posts” and,
although she “probably do[es] this more than 50% of the time [she] is working,”
she is “still managing and directing the Crew Members’ work” and “still tell[s]
them which tasks to perform and when to perform them.” (Id.).
Michelle McThay, who works at the Jonesboro Restaurant, spends “about
20% her [her] time exclusively performing management duties,” while “[t]he other
80% of [her] time, [she] multi-task[s] and help[s] Crew Members with their duties
while simultaneously directing their work.” (McThay Decl. ¶ 7).
Myia Borden, who works at the Riverdale Restaurant, spends
“approximately 90% of [her] time performing management tasks,” and “may spend
around 10% of [her] time assisting Crew Members in their duties.” (Borden Decl.
¶ 8). Borden “only perform[s] Crew Member duties to relieve a Crew Member
. . . for his or her break,” “make[s] the decision on [her] own to assist Crew
Members with their duties,” and “use[s] [her] own judgment and discretion on
when extra assistance is needed.” (Id.). Borden “assign[s] cleaning duties to the

16

Crew members and [she] very rarely assist[s] with such duties but [has] done so in
the past to show the Crew Members that [she] is willing to do it.” (Id.).
Defendants also submit declarations from Joseph Fike and Virdelia Harris,
current employees who worked with Plaintiff at the Fairburn Restaurant. Fike,
who is currently an Assistant Manager at the Smyrna Restaurant, states:
I worked with Ayotunda Lovett for a short period of time at the
[Fairburn] location. At that time, I served as the General Manager and
Ms. Lovett served as my Assistant Manager. Ms. Lovett was
responsible for scheduling the Crew Members and even did the
mangers’ schedule. I put the most emphasis on Ms. Lovett’s
scheduling duties and her duties with respect to training and
developing the Crew Members.
(Fike Decl. ¶ 14). Harris, who is currently a Shift Supervisor at the Riverdale
Restaurant, states:
When I worked as a Crew Member at [the Fairburn Restaurant],
Ayotunda Lovett was the Assistant Manager. Ms. Lovett trained me
on how to prepare salads. She also made my work schedule and
decided which hours I would work. Ms. Lovett directed Crew
Members, including myself, in the performance of our duties. Ms.
Lovett was definitely a manager; she did not operate as just another
Crew Member. In fact, Ms. Lovett was responsible for closing the
store more often that [sic] the General Manager was.
(Harris Decl. [20.2 at 6-9] ¶ 12).
B.

Procedural History

On April 3, 2014, Plaintiff filed her Complaint in this putative collective
action. Plaintiff asserts that Defendants misclassified its Assistant Managers,
17

including Plaintiff, and Shift Supervisors as “exempt” employees, and, as a result,
failed, in violation of the FLSA, to pay overtime compensation to Plaintiff for
hours she worked in excess of forty (40) hours per week.
On May 13 and May 20, 2014, Greene and Norman, respectively, opted-in
to this litigation [5, 6].
On September 11, 2014, Plaintiff filed her Motion for Conditional Class
Certification [14]. Plaintiff seeks to represent a class of current and former
Assistant Managers and Shift Supervisors “who were employed by Defendants
over the last three years, worked over 40 hours during one or more workweeks,
and were not paid time-and-a-half compensation for all hours worked over 40.”
(Pls’ Mot. for Cond. Class Cert. at 1). In her Reply Brief, Plaintiff “refined [her]
class definition” and seeks now to include Shift Supervisors only “to the extent that
Defendants classified any of their shift supervisors as exempt . . . .” (Pl’s Reply in
Support of Mot. for Cond. Class Cert. [29] at n.2).5 Plaintiff requests that the
Court conditionally certify the class as “all current or former ‘assistant managers’
or former ‘managers’ (not ‘General Manager’) [sic] whom Defendants classified as
exempt, over the past three years.” (Id. at 11).

5

There is nothing in the record to show that Defendants here, now or in the
past, classified Shift Supervisors as exempt.
18

On September 25, 2014, Defendants moved to dismiss Plaintiff’s FLSA
claim, arguing that the Court lacks subject matter jurisdiction because Defendants
made an offer of judgment, pursuant to Rule 68 of the Federal Rules of Civil
Procedure, which moots Plaintiff’s claims. (Defs’ Mot. to Dismiss [15]).
Also on September 25, 2014, Defendants moved for partial summary
judgment on Opt-in Plaintiff Greene’s claim [16]. Defendants assert that, because
Greene was paid on an hourly basis throughout her employment and was never
classified as an exempt employee, Greene does not fall within the scope of the
class of allegedly misclassified exempt employees Plaintiff seeks to represent.
On October 2, 2014, Greene withdrew her consent to opt-in to this litigation
[18], and Plaintiff moved to voluntarily dismiss Greene from this action [19].
Plaintiff states that “[a]fter having received and reviewed Ms. Greene’s Payroll
Records, it has become clear that [Greene] is not similarly situated to Plaintiff
Lovett or similarly situated to Opt-In Plaintiff Tishunda Norman . . . .” (Pl’s Mot.
to Dismiss [19] at 2). Defendants do not oppose dismissal, but the parties disagree
whether Greene’s claim should be dismissed with, or without, prejudice.
On March 23, 2015, Magistrate Judge Anand recommended that
Defendants’ Motion to Dismiss for Lack of Jurisdiction be denied, and that
Plaintiff’s Motion for Conditional Certification be granted in part and denied in

19

part. The Magistrate Judge recommended that the Court conditionally certify a
class of all Assistant Managers who work or worked for Defendants during the last
three (3) years. The Magistrate Judge recommended that Plaintiff’s Motion for
Conditional Certification be denied to the extent it seeks to include Shift
Supervisors in the class conditionally certified.
On March 27, 2015, Defendants filed their “Motion for Reconsideration of
Report and Recommendation on Motion for Conditional Class Certification or, in
the Alternative, Motion to Decertify Class” [107].
On April 10, 2015, the Magistrate Judge recommended that Plaintiff’s
Motion for Voluntary Dismissal be granted, that Greene’s claims be dismissed
without prejudice, and that Defendants be awarded their reasonable costs incurred
in defending against Greene’s claims. The Magistrate Judge also recommended
that Defendants’ Motion for Partial Summary Judgment on Greene’s claims be
denied as moot. The parties did not object to the April 10th R&R.
On April 28, 2015, the Magistrate Judge, pursuant to 28 U.S.C. § 636,
(i) denied Defendants’ motion for reconsideration, and (ii) recommended that
Defendants’ motion for decertification be denied without prejudice.
On May 12, 2015, Defendants filed their Objections [128] to the March 23rd
and April 28th R&Rs. Defendants argue that the Magistrate Judge erred in

20

recommending that the Court conditionally certify a class of all Assistant
Managers who work or worked for Defendants during the last three (3) years.
Defendants argue further that, even if conditional certification was appropriate at
the time Plaintiff filed her motion, the Magistrate Judge nevertheless should have
granted Defendants’ Motion to Decertify the class because discovery is now
complete and Plaintiff is not similarly situated to the putative class members.
II.

DISCUSSION
A.

Legal Standard on Review of an R&R

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). A district judge “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).

21

The parties have not objected to the Magistrate Judge’s recommendation that
Defendant’s Motion to Dismiss for Lack of Jurisdiction be denied, and that
Plaintiff’s Motion for Conditional Class Certification, to the extent it seeks to
conditionally certify a class including Shift Supervisors, be denied. The Court
reviews those portions of the March 23rd R&R for plain error.
In their Objections, Defendants argue that the Magistrate Judge erred in
recommending that the Court conditionally certify a class of all Assistant
Managers who work or worked for Defendants during the last three (3) years. The
Court conducts a de novo review of whether Plaintiff is similarly situated to the
class of current and former Assistant Managers whom she seeks to represent.6
B.

Defendants’ Motion to Dismiss

In their Motion to Dismiss, Defendants argue that its August 8, 2014, offer
of judgment, pursuant to Rule 68 of the Federal Rules of Civil Procedure, moots
the controversy in Plaintiff’s FLSA claim, and thus the Court lacks subject matter

6

Plaintiff fails to provide any authority to support that, because the Magistrate
Judge had the authority to issue an order granting conditional certification, the
Court is limited to conducting a plain error review of the record. Even if the
Magistrate Judge was authorized to decide Plaintiff’s Motion for Conditional Class
Certification, in view of the parties’ extensive briefing, and Defendants’ argument
that the Magistrate Judge improperly applied the more lenient “notice stage”
standard and failed to consider the declarations submitted by Defendants, the Court
exercises its discretion to conduct a de novo review of the record regarding
conditional certification of the proposed class of Assistant Managers.
22

jurisdiction over that claim. Defendants assert that they served Lovett and Opt-in
Plaintiff Norman with offers of judgment, each “for an amount in excess of the
maximum potential overtime liability to which the recipient would have been or
could be awarded under the FLSA, inclusive of all damages, liquidated damages,
and interest.” (Defs’ Br. in Supp. of Mot. to Dismiss [15.1] at 2-3).
The Magistrate Judge found that the Eleventh Circuit’s opinion in
Stein v. Buccaneers Ltd. P’ship, which was issued while Defendants’ Motion to
Dismiss was pending, makes it clear that “a plaintiff’s individual claim is not
mooted by an unaccepted Rule 68 offer of judgment.” 772 F.3d 698, 709
(11th Cir. 2014). The Magistrate Judge recommended that Defendants’ Motion to
Dismiss for Lack of Jurisdiction be denied, and the Court finds no plain error in the
Magistrate Judge’s findings or recommendation. See Stein, 772 F.3d at 709;
see also Walker v. Fin. Recovery Servs., Inc., 559 F. App’x 359 (11th Cir. 2015)
(per curium) (applying Stein). Defendants’ Motion to Dismiss for Lack of
Jurisdiction is denied.
C.

Plaintiff’s Motion for Conditional Class Certification
1.

Legal Standard

The FLSA requires covered employers to pay non-exempt employees who
work more than forty hours in a week an overtime rate of one and one-half times

23

the employee’s regular pay rate for all hours worked that exceed forty. 28 U.S.C.
§ 207(a). Section 216(b) imposes liability on employers for violations of Section
207 and authorizes employees to bring an action for an employer’s failure to pay
overtime. Employees may bring an FLSA overtime action individually or as a
collective action on behalf of themselves and other “similarly situated” employees:
An action . . . may be maintained against any employer (including a public
agency) in any Federal or State court of competent jurisdiction by any one or
more employees for and in behalf of himself or themselves and other
employees similarly situated. 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.
Id. § 216(b). In contrast to a class action under Federal Rule of Civil Procedure 23,
which generally requires potential plaintiffs to opt-out if they do not wish to be
represented in the lawsuit, a collective action under Section 216(b) requires
potential plaintiffs to affirmatively opt into the lawsuit. Hipp v. Liberty Nat’l Life
Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001). “The decision to create an opt-in
class under § 216(b) . . . remains soundly within the discretion of the district
court.” Id. at 1219.7

7

Hipp involved a collective action under the Age Discrimination and
Employment Act of 1967. That statute incorporates the FLSA’s collective action
provision, and Hipp therefore applies in both contexts. Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1259 n.37 (11th Cir. 2008).
24

The Eleventh Circuit encourages district courts to perform a two-step
process to certify a collective action under Section 216(b). Id. In the initial,
so-called “notice stage,” the question is whether notice of the action should be
given to potential class members. Id. at 1218 (quoting Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1213 (5th Cir. 1995)). Relying on the pleadings and affidavits
submitted by the parties, the court applies a “fairly lenient standard” that “typically
results in ‘conditional certification’ of a representative class.” Id. (quoting
Mooney, 54 F.3d at 1213-14). Plaintiffs bear the burden of establishing that they
are “similarly situated” to the employees they seek to represent. Beecher v. Steak
N Shake Operations, Inc., 904 F. Supp. 2d 1289, 1297 (N.D. Ga. 2012).
Unsupported, generalized allegations of similarly are not sufficient. Id. at 1297-98.
The plaintiffs may meet this burden, which is not heavy, “by making substantial
allegations of class-wide discrimination, that is, detailed allegations supported by
affidavits which successfully engage defendants’ affidavits to the contrary.” Id.
(quoting Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996)).
Plaintiffs are required only to show that they and the potential class-members are
similarly, not identically, situated. Grayson, 79 F.3d at 1096. They are not
required to show they were subjected to a common or unified policy, plan, or
scheme, see id. at 1095, although this is a common and effective way to satisfy the

25

“similarly situated” requirement. Plaintiffs “must [at least] make some
rudimentary showing of commonality between the basis for [their] claims and that
of the potential claims of the proposed class, beyond the mere facts of job duties
and pay provisions.” Beecher, 904 F. Supp. 2d at 1298 (quoting
Williams v. Accredited Home Lenders, Inc., No. 1:05-cv-1681-TWT,
2006 WL 2085312, at *3 (N.D. Ga. July 25, 2006)); see also Barron v. Henry
Cnty. Sch. Sys., 242 F. Supp. 2d 1096, 1103 (M.D. Ala. 2003) (“[W]hile a unified
policy, plan, or scheme of discrimination may not be required to satisfy the more
liberal similarly situated requirement, some identifiable facts or legal nexus must
bind the claims so that hearing the cases together promotes judicial efficiency.”).
If the Court conditionally certifies a class, potential class members receive
notice and an opportunity to opt into the class and the parties complete discovery.
Hipp, 252 F.3d at 1218 (quoting Mooney, 54 F.3d at 1213-14). Whether notice
shall be given also focuses on whether there are other employees who would desire
to opt-in, and who are “similarly situated” to plaintiffs. See Dyback v. State of Fla.
Dep’t of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991). Plaintiffs must show
there are other employees who wish to opt in and that these other employees are
similarly situated. See Delano v. MasTec, Inc., No. 8:10-cv-320-T-27MAP,
2011 WL 2173864, at *4 (M.D. Fla. June 2, 2011). “A plaintiff’s or counsel’s

26

belief in the existence of other employees who desire to opt in and ‘unsupported
expectations that additional plaintiffs will subsequently come forward are
insufficient to justify’ certification of a collective action and notice to a potential
class.” Id. (quoting Mackenzie v. Kindred Hosps. East, L.L.C., 276 F. Supp. 2d
1211, 1220 (M.D. Fla. 2003)) (citing Haynes v. Singer Co., Inc., 696 F.2d 884, 887
(11th Cir. 1983)).
The second stage is optional and usually occurs if the defendant moves for
“decertification” after the completion of all or most discovery in the case. Hipp,
252 F.3d at 1218 (quoting Mooney, 54 F.3d at 1213-14). Based on the more
extensive factual record, the court makes a factual determination whether claimants
are similarly situated. Id. (quoting Mooney, 54 F.3d at 1213-14). If they are, the
collective action proceeds on the merits. If not, the court decertifies the class, the
opt-in plaintiffs are dismissed without prejudice, and the original plaintiffs proceed
on their individual claims. Id. (quoting Mooney, 54 F.3d at 1213-14).
In cases where there is factual information available to evaluate the
similarity of potential class member claims, courts will combine the first and
second stages and apply the more stringent second stage standard. See, e.g.,
Williams, 2006 WL 2085312 at *4 (combining first and second stage where
plaintiffs disseminated informal notice to potential opt-in plaintiffs and substantial

27

discovery had been completed). The facts are not yet sufficiently developed in this
matter to justify this higher standard.8
This does not mean, however, that the Court limits its analysis to the
evidence presented by Plaintiff. Although Plaintiff asserts that the policies and
procedures in Defendants’ various manuals strictly governed how to cook, clean
and serve customers, Plaintiff does not argue that Defendants had a policy stating
that these were Assistant Managers’ primary duties. A close reading of Plaintiff’s
declaration shows that her claim is based on her anecdotal evidence that the duties
she actually performed, and observed other Assistant Managers performing, were
non-managerial.9 Defendants submit evidence describing the job description and

8

That some discovery has been conducted does not, as Defendants appear to
argue, require the Court to apply the more stringent second stage standard. See
Robinson v. Ryla Teleservs., Inc., No. CA 11-131-KD-C, 2011 WL 6667338, at *2
(S.D. Ala. Dec. 21, 2011) (“Simply put, the Court’s decision to grant the
Defendant’s request to conduct limited discovery to allow it to prepare an
opposition did not bump this proceeding from the first to the second stage.”).
9
For example, Plaintiff states that she “observed that all the primary duties of
all Assistant Managers . . . required them to: (a) to [sic] prepare and cook the food,
(b) to serve the customers, and (c) to keep the restaurant clean.” (First Lovett
Decl. ¶ 17) (emphasis added). A close reading of Plaintiff’s declaration shows that
Plaintiff does not claim that these were their primary duties, but rather that their
primary duties, whatever they were, required them to perform these tasks. It is
well-settled that “[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.” 29 C.F.R. § 106(a). Put another way, “an
employee’s performance of nonexempt work does not preclude the exemption if
28

duties for the Assistant Manager position generally, and the declarations of thirteen
(13) Current Assistant Managers who describe, in detail, the day-to-day duties they
actually perform as Assistant Managers. The Court finds that consideration of this
evidence is appropriate at this stage in the litigation because the issues in this
case—whether the duties Assistant Managers perform are consistent with their
categorical designation as exempt employees—requires the Court to evaluate the
day-to-day job duties the Assistant Managers actually performed. Put another way,
because Plaintiff asserts that she, and all other Assistant Managers, were
misclassified as exempt because the “primary duties” they actually performed were
non-managerial, the Current Assistant Managers’ descriptions of their day-to-day
duties therefore is relevant to whether Plaintiff is similarly situated to the class she
seeks to represent. The Court notes that, “if [it] were to allow the case to proceed
past stage one of the collective action certification process, the Court would have
to consider this evidence in revisiting the similarly-situated inquiry on the

the employee’s primary duty remains management.” Morgan, 551 F.3d at 1268.
29 C.F.R. § 541.106(b) further provides:
For example, an assistant manager in a retail establishment may
perform work such as serving customers, cooking food . . . and
cleaning the establishment, but performance of such nonexempt work
does not preclude the exemption if the assistant manager’s primary
duty is management. An assistant manager can supervise employees
and serve customers at the same time without losing the exemption.
29 C.F.R. § 541.106(b).
29

Defendant[s’] motion to decertify at stage two. Because the Court has the
evidence before it at stage one, the Court will consider it.” See Holt v. Rite Aid
Corp., 333 F. Supp. 2d 1265, 1272 n.4 (M.D. Ala. 2004). The Court also may
consider a defendant’s “affidavits to the contrary” in determining if a plaintiff has
met her burden to show she is similarly situated to proposed class members. See
Grayson, 79 F.3d at 1097 (at first stage, plaintiffs can show they are similarly
situated to proposed class “by making substantial allegations of class-wide
discrimination, that is, detailed allegations supported by affidavits which
successfully engage defendants’ affidavits to the contrary”) (emphasis added).10
2.

Analysis
a.

Shift Supervisors

In her Motion for Conditional Class Certification, Plaintiff sought to include
Shift Supervisors in this collective action, arguing that they perform the same
duties as Assistant Managers and are not paid overtime compensation. Defendants
present evidence to show that, unlike Assistant Managers, Shift Supervisors are
classified as non-exempt, are required to record their hours, and are eligible to
10

To the extent Plaintiffs argue that the Court should not consider the Current
Assistant Managers’ declarations because the declarants do not state whether they
received “a full disclosure about this case and that the information provided was
provided voluntarily and not under duress,” the Court considers only the
declarants’ statements regarding their job duties, to evaluate whether they and
Plaintiff are similarly situated.
30

receive overtime pay for hours worked in excess of forty hours per week. In
response to this evidence, Plaintiff “refine[d] [her] class definition” and now seeks
to include Shift Supervisors “to the extent that Defendants classified any of their
Shift Supervisors as exempt . . . .” (Pl’s Reply at n.2).
The Magistrate Judge found that Plaintiff’s claim is based on a
misclassification theory—that she was not paid overtime compensation because
she and all other Assistant Managers are categorically misclassified as exempt—
and Plaintiff is not similarly situated to Shift Supervisors who were paid hourly,
classified as non-exempt, and eligible for overtime compensation. The Magistrate
Judge also found that Plaintiff fails to present any evidence to support her
conclusory assertion that some Shift Supervisors may have been classified as
exempt, including because Greene does not allege, and the evidence does not
support, that Defendants ever classified Greene—or any other Shift Supervisor—as
exempt . The Magistrate Judge recommended that Shift Supervisors be excluded
from any class conditionally certified, and the Court finds no plain error in the
Magistrate Judge’s findings or recommendation. See Grayson, 79 F.3d at 1096
(plaintiffs must show they and potential class members are similarly situated);
Beecher, 904 F. Supp. 2d at 1297-98 (unsupported generalized allegations of
similarly are not sufficient; plaintiff must make some showing of commonality

31

between basis for their claims and potential claims of proposed class, beyond mere
facts of job duties and pay provisions). Plaintiff’s Motion for Conditional Class
Certification, to the extent it seeks to include Shift Supervisors in the class
definition, is denied.
b.

Current and Former Assistant Managers

Plaintiff, relying on her declaration, and the declaration of Opt-in Plaintiff
Norman, claims that she is similarly situated to the class of current or former
Assistant Managers who Plaintiff claims are categorically misclassified as
“exempt.”
Plaintiff and Norman assert that, although they were employed as “Assistant
Managers” and classified as exempt, their “primary duties” were, and the majority
of their time was spent performing, non-managerial duties. In their declarations,
which are largely identical, Plaintiff and Norman state that, as an Assistant
Manager, their “primary job duties were: (a) to prepare and cook the food, (b) to
serve customers, and (c) to keep the restaurant clean,” and they “observed that all
the primary duties of all assistant managers and shift supervisors required them to
[perform these same duties].” (First Lovett Decl. ¶¶ 16-17; Norman Decl.
¶¶ 19-20). Plaintiff and Norman assert that they “spent the majority of [their] time
performing these primary duties,” that they “did not manage any of the restaurants

32

in Defendants’ restaurant group,” and that they were “not authorized to . . . hire or
fire employees for Defendants.” (First Lovett Decl. ¶¶ 22, 26-27; Norman Decl.
¶¶ 10-11, 28). They further state that “[v]irtually all of the duties [they] performed
were strictly governed by the policies and procedures contained in Defendants’
various manuals, and [they] lacked the discretion to vary from these procedures
and policies in performing [their] duties.” (First Lovett Decl. ¶ 29; Norman Decl.
¶ 13). Plaintiff and Norman assert that they “personally observed that there were
numerous similarly situated assistant managers . . . who: (a) performed the same or
similar job duties that [they] performed; (b) were paid a salary; (c) worked over 40
hours in many workweeks; and (d) were not paid an overtime premium due to
Defendants’ uniform misclassification.” (First Lovett Decl. ¶ 33).11
Defendants submit declarations from thirteen (13) Current Assistant
Managers, at least some of whom worked as Assistant Managers at the same time
as Plaintiff and Norman. These declarations support that, while Assistant
Managers perform Crew Member tasks such as cooking, serving customers and
cleaning the restaurant, these are not their “primary duties,” and they engage in
11

Interestingly, Plaintiff does not assert that these individuals would be
interested in joining this collective action if a class is conditionally certified.
Indeed, the Current Assistant Managers affirmatively state they do not want to
opt-in, and in the fourteen (14) months this action has been pending, only one
Assistant Manager has opted-in to this action.
33

cooking, serving and cleaning duties in their own discretion, for varying lengths of
time, as means of managing, training and directing Crew Members, or when the
restaurant is experiencing high volume, it is necessary to allow Crew members to
take breaks, or to ensure Crew Members are performing their duties in accordance
with the Restaurant’s policies and procedures. (See, e.g., Armstrong Decl. ¶¶ 3-4,
9; Kyle Decl. ¶ 10; Lawson Decl. ¶ 8; McThay Decl. ¶ 7; Borden Decl. ¶ 8). The
Current Assistant Managers who most often perform Crew Member Duties state
that they do so because it is their management style, and even while working
alongside Crew Members at their posts, they are “still managing and directing the
Crew Members’ work” and “still telling them which tasks to perform and when to
perform them.” (See Lawson Decl. ¶ 8; see also McThay Decl. ¶ 7 (spends 80% of
her time “multi-tasking and helping Crew Members with their duties while
simultaneously directing their work”); Gooding Decl. ¶ 8 (performs Crew Member
duties 45% of her time “to train Crew Members in their efficiency and knowledge
of proper procedure”); Hightower Decl. ¶ 5 (“[E]ven when I need to jump in and
take on some of these duties, I am monitoring the Crew Members and training
them to ensure they are following proper procedures and policies.”); LaFleur Decl.
¶ 7 (same)).

34

The Current Assistant Managers also issue disciplinary warnings, make
hiring and firing recommendations, and use their experience, judgment and
discretion to create and manage Crew Members’ schedules, and assign and direct
Crew Members in performance of their duties. (See, e.g., Armstrong Decl. ¶ 12;
Borden Decl. ¶¶ 3, 11; Burden Decl. ¶¶ 6, 10; Fike Decl. ¶¶ 7, 11; Gooding Decl.
¶¶ 3-4, 12; Green ¶¶ 4, 9; Harding Decl. ¶¶ 3-4, 11; Hightower Decl. ¶¶ 3-4, 7;
Kyle Decl. ¶¶ 3, 13; LaFleur Decl. ¶¶ 5, 10; Lawson Decl. ¶¶ 3, 5, 7, 9; McThay
Decl. ¶¶ 5, 8; Rodriquez Decl. ¶¶ 3, 5, 10). Some Current Assistant Managers
perform additional other managerial duties, such as opening or closing the
Restaurant, counting inventory, or reviewing their Restaurant’s sales numbers
against its labor and food costs. (See Borden Decl. ¶ 3; Burden Decl. ¶ 3; Fike
Decl. ¶ 8; Green Decl. ¶¶ 3-4; Hightower Decl. ¶ 3; Kyle Decl. ¶¶ 3, 6; LaFleur
Decl. ¶¶ 4-6; Lawson Decl. ¶ 3; McThay Decl. ¶ 3).
The evidence before the Court does not support that Plaintiff is similarly
situated to the class of current and former Assistant Managers she seeks to
represent. Plaintiff, Norman, and the Current Assistant Managers share the same
job title, are paid a salary, and, for at least some portion of their workday, perform
non-managerial duties such as cooking, cleaning and serving customers. These
general statements, without more, are insufficient to support Plaintiff’s assertion

35

that she and the proposed class members are similarly situated because all
Assistant Managers perform non-managerial duties are therefore categorically
misclassified as exempt from the FLSA’s overtime pay requirements. See, e.g.,
Morgan, 551 F.3d at 1268-69 (“[A]n employee’s performance of nonexempt work
does not preclude the exemption if the employee’s primary duty remains
management. . . . Whether an employee meets the requirements of [the exemption]
when the employee performs concurrent duties is determined on a case-by-case
basis . . . .”).12 The evidence submitted by Defendants to the contrary significantly
discredits Plaintiff’s claim that she is similarly situated to other Assistant
Managers.
The evidence rather is that the job duties Assistant Managers actually
perform, and the time spent performing managerial versus non-managerial duties,
at least vary throughout the proposed class and more persuasively are different
12

Plaintiff asserts that the Defendants told her they “would pay [her] an annual
base salary of approximately $28,500, plus overtime” and “explained that the base
salary covered the first 45 hours that [she] worked each week and that [she] would
receive overtime pay, for all hours worked over 45, at a rate of time-and-one-half
[her] regular rate of pay, for all hours thereafter.” (Second Lovett Decl. [21.1]
¶¶ 6-7). The Court agrees with the Magistrate Judge’s finding that this alleged
individual agreement does not affect Plaintiff’s misclassification theory—the basis
for her collective action allegations—because the FLSA does not prohibit an
employer from paying its exempt employees additional compensation. The alleged
agreement could support an alternative basis, in contract or promissory estoppel,
for recovery of alleged unpaid wages.
36

than the duties Plaintiff and Norman claim they performed. While Plaintiff and
Norman assert that their “duties did not include the exercise of discretion and
independent judgment,” the Current Assistant Managers’ declarations show that
they exercise significant discretion in determining Crew Members’ work
schedules, assigning them to specific workstations, and deciding when they
themselves need to perform Crew Member duties as part of their broader
managerial responsibilities. Without deciding whether they were misclassified, the
Current Assistant Managers’ Declarations—which are not inconsistent with
Plaintiff’s and Norman’s declarations13—support that Plaintiff and Norman
performed different day-to-day duties than the class of Assistant Managers
Plaintiff seeks to represent. Simply put, although Plaintiff and Norman may be
similarly situated to each other, there is no evidence to support that they are
similarly situated to the Current Assistant Managers.14 Plaintiff fails to show that
13

That the Current Assistant Managers issue disciplinary warnings, make
hiring and firing recommendations, schedule, and direct Crew Members in
performance of their duties, is not inconsistent with Plaintiff’s description of her
job duties. Plaintiff merely states that she did not have authority to hire or fire
other employees, and she conclusorily asserts that she did not “manage” any of the
Restaurants. The Court also notes that Fike and Harris testified, and Lovett does
not dispute, that as an Assistant Manager during the time they worked with Lovett,
Lovett was responsible for scheduling and training Crew Members. (See Fike
Decl. ¶ 14; Harris Decl. ¶ 12).
14
The Court notes that, during the period for which she can recover for alleged
FLSA violations, Plaintiff was employed as an Assistant Manager at only the
37

she is similarly situated to the class she seeks to represent, and her Motion for
Conditional Class Certification is denied.
Defendants’ objections to the Magistrate Judge’s findings in his March 23rd
R&R regarding conditional certification, are sustained. Having found that Plaintiff
cannot maintain this as a collective action, Defendants’ motion to decertify class,
and the corresponding portion of the April 28th R&R, are deemed moot.
D.

Opt-in Plaintiff Greene

Having found that Plaintiff is not similarly situated to Shift Supervisors and
cannot bring this collective action on their behalf, Greene cannot be a potential
class member and the Court must dismiss her from this action without prejudice.
Cf. Hipp, 252 F.3d at 1218 (if the court finds claimants are not similarly situated
and decertifies class, opt-in plaintiffs are dismissed without prejudice and original
plaintiffs proceed on their individual claims). Plaintiff’s Motion to Voluntarily

Fairburn Restaurant, which is owned and operated by “SJAC South Fulton I,
LLC.” SJAC South Fulton I, LLC is not named as a defendant in this action, even
though Plaintiff, in her Motion for Conditional Class Certification, acknowledges
that Defendants identified it as one of the “Doe” Defendants in their Answer and as
the entity that responded as Plaintiff’s employer to the Equal Employment
Opportunity Commission charge Plaintiff filed based on alleged discrimination and
retaliation she suffered at the Fairburn Restaurant. It is difficult to conclude that
Plaintiff should be permitted to bring a collective action on behalf of others against
their employers when, as it currently stands, Plaintiff has failed to identify her
employer as a defendant in this action.
38

Dismiss, Defendant’s Motion for Partial Summary Judgment, and the Magistrate
Judge’s April 10th R&R addressing these motions, are therefore moot.
Although the Court dismisses Greene from this action on grounds other than
those asserted by the parties, the parties do not object to the Magistrate Judge’s
recommendation that Defendants be awarded the costs they incurred, through
October 2, 2014, in defense of Greene’s claim.15 The parties dispute, however,
whether the costs claimed by Defendants are allowable.
The costs permitted to be taxed against an opposing party are listed in 28
U.S.C. § 1920 and include “[f]ees for printed or electronically recorded transcripts
necessarily obtained for use in the case.” 28 U.S.C. § 1920(2) (emphasis added).
The Eleventh Circuit has consistently held that “[w]here the deposition costs were
merely incurred for convenience, to aid in thorough preparation, or for purposes of
investigation only, the costs are not recoverable.” EEOC v. W&O, Inc., 213 F.3d
600, 620 (11th Cir. 2000). Here, Defendants claim costs, in the amount of
$937.00, for the transcripts of witness interviews—not depositions—of four (4)
Shift Supervisors currently employed by Defendants. These transcripts are not
admissible and that Defendants chose to have transcribed these witnesses’
15

Had it not been deemed moot, the Court notes that it would have granted
Plaintiff’s Motion for Voluntary Dismissal and permitted Defendants to recover
their reasonable costs incurred in defending against Greene’s claim.
39

interviews does not support that the cost should be allowed. Defendants fail to
show that the transcripts of these interviews were necessarily obtained for use in
this case, rather than simply for Defendants’ convenience. See id.; see also
Massey, Inc. v. Moe’s Southwest Grill, LLC, No. 1:07-cv-741-RSW,
2013 WL 6190482, at * 5 (N.D. Ga. Nov. 26, 2013) (“[T]he Federal Rules do not
provide reimbursement for fees associated with fact finding or incurred for the
attorneys’ convenience.”).16 Having reviewed the Bill of Costs submitted by
Defendants, the Court finds that these are not allowable costs. Plaintiff’s Motion
to Strike Defendants’ Bill of Costs is granted.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s

March 23, 2015, Non-Final Report and Recommendation [103] is ADOPTED IN
PART. The portions of the R&R regarding the Court’s jurisdiction and denying
conditional certification of a class including Shift Supervisors, are ADOPTED.
16

The interviews were conducted on July 2, 2014, and the July 23, 2014,
invoice for the transcript includes a shipping and handling charge for the certified
transcripts and CD recordings of the interviews. The Court notes that the Shift
Supervisors’ declarations, which Defendants submitted in support of their
opposition to conditional certification, were also executed on July 2, 2014. It thus
appears that Defendants already had the signed declarations they argue were
necessary to their defense of Greene’s claim before they ordered, or at least
received, the certified transcripts and CD recordings.
40

To the extent the Magistrate Judge recommends that Plaintiff’s Motion for
Conditional Class Certification be granted in part, the Court SUSTAINS
Defendants’ Objections [128] and the Magistrate Judge’s recommendation that
Plaintiff be found similarly situated to other Assistant Managers and that a class of
Assistant Managers be conditionally certified, is NOT ADOPTED. The Court, on
de novo review, finds that Plaintiff is not similarly situated to other Assistant
Managers and determines, in its discretion, to deny conditional certification.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss for
Lack of Jurisdiction [15] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Conditional Class
Certification [14] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Partial
Summary Judgment [16], Plaintiff’s Motion for Voluntary Dismissal [19], and
Defendants’ Motion to Decertify Class [107], are DENIED AS MOOT.
IT IS FURTHER ORDERED that Magistrate Judge Anand’s April 10 and
April 28, 2015, Non-Final Reports and Recommendations [113, 118], because they
are moot, are NOT ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike [123]
Defendants’ Bill of Costs [121] is GRANTED.

41

SO ORDERED this 23rd day of June, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

42