Drew v. Shoe Show, Inc.

Filing 79

MEMORANDUM AND ORDER Denying 71 MOTION for Reconsideration re 67 Memorandum & Opinion, Terminate Motions filed by Colleen Drew, Denying 73 MOTION for Certificate of Appealability Under 28 U.S.C. 1292(b) filed by Colleen Drew. Signed by Judge J. Phil Gilbert on 11/22/11. (bkl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
COLLEEN DREW, individually and on
behalf of others similarly situated,
Plaintiff,
v.

No. 10-cv-656-JPG-PMF

SHOE SHOW, INC., d/b/a SHOE SHOW
and d/b/a SHOE DEPT. and d/b/a
BURLINGTON SHOES,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Colleen Drew’s motion for
reconsideration (Doc. 71) of the Court’s September 19, 2011, order (Doc. 67) denying her
motion for conditional collective action certification pursuant to 29 U.S.C. § 216(b) (Doc. 39).
Defendant Shoe Show, Inc. has responded to the motion (Doc. 77). The Court also considers
Drew’s motion for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (Doc.
73), to which Shoe Show has responded (Doc. 78).
I.

Motion for Reconsideration (Doc. 71)
“A court has the power to revisit prior decisions of its own . . . in any circumstance,

although as a rule courts should be loathe to do so in the absence of extraordinary circumstances
such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’”
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v.
California, 460 U.S. 605, 618 n. 8 (1983)); Fed. R. Civ. P. 54(b) (providing a non-final order
“may be revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities”). The decision whether to reconsider a previous ruling in the same

case is governed by the law of the case doctrine. Santamarina v. Sears, Roebuck & Co., 466
F.3d 570, 571-72 (7th Cir. 2006). The law of the case is a discretionary doctrine that creates a
presumption against reopening matters already decided in the same litigation and authorizes
reconsideration only for a compelling reason such as a manifest error or a change in the law that
reveals the prior ruling was erroneous. United States v. Harris, 531 F.3d 507, 513 (7th Cir.
2008); Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007).
The Court denied Drew’s motion for conditional collective action certification under §
216(b) because she failed to make the required “modest factual showing” that other salaried
store managers were similarly situated to her with regard to the amount of time they spent
performing non-managerial tasks such that they would be similarly categorized with respect to
overtime pay exemption status under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
213(a)(1).
Drew argues now that the Court misunderstood what was required to make a “modest
factual showing” when it (1) made credibility determinations and resolved factual disputes and
(2) required Drew to show “all store managers perform similar activities for the same percentage
of work time such that they are similarly situated with respect to the question of whether they are
properly categorized as exempt under the FLSA.” Mem. & Order at 6.
The Court did not make credibility determinations or resolve factual disputes. It
examined whether Drew was competent to testify as to all the things about which she testified,
credited the testimony she was competent to give and disregarded the testimony she was not
competent to give. Furthermore, it is clear from reading the order as a whole that the Court did
not require Drew to show that all store managers spent the same percentage of time on certain
tasks. It only required her to show that other exempt store managers were similarly situated with
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respect to their work relevant to the FLSA exempt classification, which she failed to do.
The Court notes that Drew seems to miss the significance of the fact that other store
managers with the same duties are not similarly situated with respect to the FLSA if they
perform them for different percentages of the time they work. For example, assume two
managers both perform Duty A, a managerial duty, and Duty B, a non-managerial duty. If
Manager A performs Duty A 80% of the time and Duty B 20% of the time, she is exempt; if
Manager B performs Duty A 20% of the time and Duty B 80% of the time, she is not exempt.
Thus, they can perform the same duties but are not similarly situated with respect to their work
relevant to the FLSA.
Because Drew has not presented a compelling reason for reconsidering the Court’s denial
of conditional collective action certification under the FLSA, the Court will deny Drew’s motion
for reconsideration (Doc. 71).
II.

Motion for Certification (Doc. 73)
The Court will further deny Drew’s motion for certification of an interlocutory appeal

pursuant to 28 U.S.C. § 1292(b) (Doc. 73). “There are four statutory criteria for the grant of a
section 1292(b) petition to guide the district court: there must be a question of law, it must be
controlling, it must be contestable, and its resolution must promise to speed up the litigation.”
Ahrenholz v. Board of Trustees of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000) (emphasis in
original). The motion must also be filed “within a reasonable time after the order sought to be
appealed.” Id. (citing Richardson Elecs., Ltd. v. Panache Broad. of Pa., Inc., 202 F.3d 957, 958
(7th Cir. 2000)). Interlocutory appeals under § 1292(b) are disfavored, and the Court of Appeals
will accept them only in exceptional cases. See Coopers & Lybrand v. Livesay, 437 U.S. 463,
473-74 (1978); F.D.I.C. v. First Nat’l Bank of Waukesha, Wis., 604 F. Supp. 616, 620 (E.D.
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Wis. 1985).
Although Drew filed her motion within a reasonable time after the order she seeks to
appeal, the Court is not of the opinion that the issues decided in that order involve a controlling
question of law as to which there is substantial ground for difference of opinion or that an
immediate appeal from the order denying conditional collective action certification would
materially advance the ultimate termination of this case. On the contrary, Drew simply disagrees
with the way the Court has applied what it agrees is the law to the facts of this case. Moreover,
even if the Court of Appeals were to resolve the questions of law Drew wants to present on
appeal in Drew’s favor, that decision would not control or expedite the outcome of the case.
This is because, as explained above, the Court did not apply the principles of law Drew claims it
did when it decided this case.
III.

Conclusion
For the foregoing reasons, the Court DENIES Drew’s motion for reconsideration (Doc.

71) and DENIES Drew’s motion for certification of an interlocutory appeal pursuant to 28
U.S.C. § 1292(b) (Doc. 73).
IT IS SO ORDERED.
Dated: November 22, 2011
s/ J. Phil Gilbert
U.S. District Court Judge

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