Moody v. Associated Wholesale Grocers, Inc.
Filing
129
ORDER AND REASONS: GRANTING 105 MOTION to Decertify Collective Action. The Court DECERTIFIES this collective action, and the claims of all opt-in Plaintiffs are DISMISSED WITHOUT PREJUDICE. Signed by Judge Jane Triche Milazzo on 11/14/2019.(am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DE’ON MOODY ET AL.
CIVIL ACTION
VERSUS
NO. 17-10290
ASSOCIATED WHOLESALE
GROCERS, INC.
SECTION: “H” (4)
ORDER AND REASONS
Before the Court is Defendant’s Motion to Decertify Collective Action
under the Fair Labor Standards Act (“FLSA”) (Doc. 105). For the following
reasons, Defendant’s Motion is GRANTED.
BACKGROUND
This is a collective action for unpaid wages under the FLSA. 1 Defendant
Associated Wholesale Grocers, Inc. (“AWG”) is a national food wholesaler that
operates a warehouse complex in Pearl River, Louisiana as part of its
distribution network. Plaintiff De’on Moody (“Moody”) began working for
Defendant as a selector in 2006. In this position, his job duties included loading
and unloading delivery trucks and repackaging delivery pallets. The position
entitled him to compensation at an hourly rate. He regularly worked overtime
hours and was compensated by Defendant accordingly.
1
See 29 U.S.C. § 201 et. seq.
1
In November 2012, Defendant promoted Moody to a supervisor position.
Defendant classified the supervisor position as exempt from FLSA’s overtime
requirements, and Moody was compensated with a salary. Moody alleges that
Defendant misclassified him as a supervisor because his “job descriptions and
duties do not qualify [him] to be exempt from the FLSA overtime provisions.” 2
Moody further alleges that he regularly worked overtime and is entitled to
payment for that work under the FLSA.
Moody moved the Court to conditionally certify a class of “all individuals
employed by AWG from October 7, 2014 to the present who held the position
of supervisor in AWG’s Pearl River facility.” 3 The Court conditionally certified
the class pursuant to the Lusardi approach for certification. 4 Seventeen opt-in
Plaintiffs have since joined the action. Defendant argues that Moody and all
other opt-in Plaintiffs were properly classified as exempt from FLSA’s overtime
provisions.
In the instant motion, Defendant AWG asks the Court to decertify the
collective action, arguing that Moody and the seventeen opt-in Plaintiffs are
not sufficiently “similarly situated” to proceed with the collective action.
Defendant asserts that Plaintiffs are not similarly situated for four reasons:
(1) the job duties for the different types of supervisors differ to the extent that
a decision about one type’s FLSA exemption cannot provide the basis for a
decision about a different type; (2) even within a single type of supervisor role,
the duties differed among those supervisors to a degree that would impact the
analysis as to each Plaintiff’s exempt status; (3) some of the Plaintiffs
performed unique or special job duties during the relevant period; and (4) some
Doc. 14 at 4.
Doc. 35 at 2.
4 Doc. 56; see also Lusardi v. Werox Corp., 118 F.R.D. 351 (D.N.J. 1987).
2
3
2
Plaintiffs may be ineligible to participate in the collective action. 5 AWG argues
that, because of the significant differences among the Plaintiffs’ primary
duties, an individualized analysis will be necessary to assess the Plaintiffs’
FLSA-exempt status, rendering a collective action inappropriate. 6 The Court
agrees.
LEGAL STANDARD
The FLSA generally provides that employers must pay their employees
one and a half times their regular rate of pay for all hours worked in excess of
forty per week. 7 However, employers do not have to pay overtime wages to
individuals “employed in a bona fide executive, administrative, or professional
capacity.” 8 To qualify for one of these exemptions, an employee’s “primary
duty” must be the performance of exempt work. 9 The exemptions “constitute
affirmative defenses to overtime pay claims,” and the employer bears the
burden of proving that an employee is properly classified as exempt. 10
The FLSA provides a cause of action for employees to recoup improperly
denied overtime wages. 11 The FLSA further allows for one or more employees
to bring such a claim on their own behalf and on behalf of others who are
“similarly situated” in the form of a collective action. 12 The FLSA does not
define what it means for employees to be “similarly situated.”
Doc. 105-1 at 5.
Id. at 2.
7 29 U.S.C. § 207(a)(1).
8 Id. § 213(a)(1). The FLSA does not provide the necessary criteria to qualify for one of these
exemptions; instead, “it delegates authority to the Secretary of Labor to promulgate rules
that define these exemptions.” Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567, 572
(E.D. La. 2008).
9 29 C.F.R. § 541.700(a).
10 Johnson, 561 F. Supp. 2d at 572.
11 29 U.S.C. § 216(b).
12 Id.
5
6
3
Courts have utilized two methods for determining whether plaintiffs are
similarly situated, commonly referred to as the Lusardi approach and the
Shushan approach. 13 The Fifth Circuit has not determined whether either
approach is required. 14 The Eastern District of Louisiana, however, has
consistently applied the approach first articulated in Lusardi v. Werox Corp. 15
This approach uses a two-step analysis. First, at the “notice stage,” the court
determines whether notice should be given to potential members of the
collective action, “usually based only on the pleadings and any affidavits.” 16
Because the court has little evidence at this stage, “this determination is made
using a fairly lenient standard, and typically results in ‘conditional
certification’ of a representative class.” 17
If the court grants conditional certification, the case proceeds as a
collective action through discovery. 18 After discovery, the defendant may move
for decertification. 19 At that point, the court makes a factual inquiry, with the
benefit of considerably more information, as to whether the employees are
similarly situated. 20
Under the Lusardi approach, courts apply a three-factor test to
determine whether plaintiffs and potential members of the collective action are
Compare Shushan v. Univ. of Colorado, 132 F.R.D. 263 (D. Colo. 1990) with Lusardi v.
Werox Corp., 118 F.R.D. 351 (D.N.J. 1987).
14 See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (“We find it
unnecessary to decide which, if either, of the competing methodologies should be employed
in making an ADEA class certification decision.”), overruled on other grounds, Desert
Palace, Inc. v. Costa, 539 U.S. 90, 123 (2003).
15 See, e.g., Smith v. Offshore Specialty Fabricators, Inc., No. 09-2985, 2009 WL 2046159, at
*2 (E.D. La. July 13, 2009); Xavier v. Belfor USA Grp., Inc., 585 F. Supp. 2d 873, 876 (E.D.
La. 2008); Johnson, 561 F. Supp. 2d at 569.
16 Mooney, 54 F.3d at 1213–14.
17 Id. at 1214.
18 Id. at 1213–14.
19 Id.
20 Id.; Xavier, 585 F. Supp. 2d at 878.
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similarly situated. The factors include: “(1) the extent to which the employment
settings of employees are similar or disparate; (2) the extent to which any
defenses that an employer might have are common or individuated; and (3)
general fairness and procedural considerations.” 21 “The more dissimilar
plaintiffs’ job experiences are from one another and the more individuated an
employers’ defenses are, the less appropriate the matter is for collective
treatment.” 22 “[T]he burden is on the plaintiff to prove that the individual class
members are similarly situated.” 23
LAW AND ANALYSIS
I.
The Exemptions
Because AWG asserts that Plaintiffs “were properly classified as exempt
pursuant to the executive exemption, administrative, and the combination
exemptions,” 24 this Court must consider the Plaintiffs’ job duties in light of the
aforementioned exemptions. The Court will first provide a brief overview of the
pertinent exemptions.
A. Executive Exemption
To qualify as an executive, an employee must (1) be paid on a salary basis
at least $684 per week; (2) have management of the enterprise as his or her
“primary duty;” (3) “customarily and regularly” direct the work of two or more
other employees; and (4) have the authority to hire or fire other employees or
make recommendations about hiring, firing, advancement, promotion or any
Johnson, 561 F. Supp. 2d at 573.
Id.
23 Snively v. Peak Pressure Control, LLC, 314 F. Supp. 3d 734, 739 (W.D. Tex. 2018).
24 Doc. 105-1 at 6.
21
22
5
other change of status of other employees that are given “particular weight.” 25
Only the latter three requirements are at issue in this case.
1. Management as a Primary Duty
A “primary duty” is the principal, main, major, or most important duty
performed by the employee, based on all the facts and with an emphasis on the
character of the employee’s job as a whole. 26 The amount of time spent
performing exempt work can be a useful guide to determine whether such work
is the employee’s “primary duty.” 27 While time alone is not the sole test to
determine primary duties, an employee who spends more than fifty percent of
his or her time performing exempt work will generally satisfy the “primary
duty” requirement. However, concurrent performance of exempt and
nonexempt work does not disqualify an employee from the executive exemption
if the statutory requirements are otherwise met. 28
Exempt management activities include directing the work of employees;
maintaining production records for use in supervision or control; appraising
employees’ productivity and efficiency for the purposes of recommending
promotions or other changes in status; handling employee complaints and
grievances; disciplining employees; planning the work; determining the
techniques to be used; apportioning the work among the employees; controlling
the flow and distribution of materials or merchandise and supplies; and
providing for the safety and security of the employees or the property. 29
2. Customarily and Regularly Directing the Work of Two or More
Employees
29 C.F.R. § 541.100.
Id. § 541.700(a).
27 Id. § 541.700(b).
28 Id. § 541.106(a).
29 Id. § 541.102.
25
26
6
An executive employee must customarily and regularly direct the work
of two or more employees. “Customarily and regularly” requires something
more than occasional but may be less than constant; it includes work normally
and recurrently performed every workweek. 30 The requirement of “two or more
employees” contemplates two full-time employees or their equivalent. 31 An
employee who merely assists the manager of a particular department and
supervises two or more employees only in the actual manager’s absence does
not meet this requirement. 32
3. Authority to Hire or Fire or Make Recommendations with Particular
Weight
An executive employee must have the authority to hire or fire other
employees. Alternatively, the executive employee’s recommendations as to
hiring, firing, promoting, or advancement must be given “particular weight.”
To determine whether an employee’s suggestions and recommendations are
given “particular weight,” factors to be considered include whether it is part of
the employee’s job duties to make such suggestions and recommendations; the
frequency of suggestions; and the frequency with which the employee’s
suggestions and recommendations are relied upon. 33 It does not include an
occasional suggestion with regard to the change in status of a co-worker. 34
B. Administrative Exception
To qualify as an exempt administrator, the employee must (1) be paid on
a salary basis of not less than $684 per week; (2) have the primary duty of office
work or non-manual work directly related to management or general
operations of the employer; and (3) exercise discretion and independent
Id. § 541.701.
Id. § 541.104(a).
32 Id. § 541.104(c).
33 Id. § 541.105.
34 Id.
30
31
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judgment with respect to matters of significance when engaged in primary
duties. 35 Only the latter two requirements are at issue in this case.
1. Office Work or Non-Manual Work Related to Management or General
Operations as a Primary Duty
The primary duty of an administrative employee must be office work or
non-manual work directly related to management or general operations. Work
is “directly related to the management or general business operations” if it
assists with the running or servicing of the business. 36 This includes work in
functional areas such as auditing; quality control; purchasing; procurement;
safety and health; personnel management; human resources; computer
network, internet and database administration; legal and regulatory
compliance; and similar activities. 37
2. Discretion and Independent Judgment on Matters of Significance
An exempt administrative employee’s primary duty must consist of
exercising discretion and independent judgment on matters of significance.
The employee must have the “authority to make an independent choice, free
from immediate direction or supervision. However, employees can exercise
discretion
and
independent
judgment
even
if
their
decisions
or
recommendations are reviewed at a higher level.” 38 Exercising discretion and
independent judgment “must be more than the use of skill in applying wellestablished techniques, procedures or specific standards described in
manuals.” 39 It does not include “clerical or secretarial work, recording or
Id. § 541.200.
Id. § 541.201(a).
37 Id. § 541.201(b).
38 Id. § 541.202(c).
39 Id. § 541.202(e).
35
36
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tabulating data, or performing other mechanical, repetitive, recurrent or
routine work.” 40
Factors to consider when determining whether an employee exercises
discretion and independent judgment with respect to matters of significance
include whether the employee has authority to formulate, affect, interpret, or
implement management policies or operating practices; whether the employee
carries out major assignments in conducting the operations of the business;
whether the employee has authority to waive or deviate from established
policies and procedures without prior approval; whether the employee provides
consultation or expert advice to management; and whether the employee
investigates and resolves matters of significance on behalf of management. 41
C. Combination Exemptions
Finally, an employee may be exempt from the FLSA’s overtime
requirements if he or she falls under the “combination exemption.” This
exemption is for “[e]mployees who perform a combination of exempt duties as
set forth in the regulations . . . for executive [and] administrative
. . . employees.” 42
II.
Analysis
For this suit to continue as a collective action, the Court must determine
that the Plaintiffs are similarly situated after considering the extent to which
the Plaintiffs’ job duties are similar or disparate, whether AWG would be
required to deploy individualized defenses, and any fairness or procedural
concerns.
Id.
Id. § 541.202(b).
42 Id. § 541.708.
40
41
9
A. Similarities and Differences in Job Duties
For a collective action to properly function as an efficient procedural
mechanism, the testimony of a handful of plaintiffs must be representative of
all opt-in plaintiffs’ experiences. Here, Plaintiffs argue that their actual, dayto-day responsibilities render them misclassified. Thus, the testimony of some
Plaintiffs as to their day-to-day duties—which will speak to any applicable
exemptions—must be representative of the entire class of opt-in Plaintiffs. If
the testimony of some Plaintiffs establishes that an exemption may be
applicable to them, while the testimony of other Plaintiffs establishes the
opposite, it can hardly be said that they are “similarly situated.” Indeed, such
a situation would, in the context of a collective action, place the Court in the
precarious position of properly granting relief to some while improperly
granting relief to others, or properly denying relief to some while improperly
denying relief to others.
Both parties agree that all Plaintiffs held the position of “Warehouse
Supervisor” while employed at AWG. Plaintiffs argue that, in addition, each of
them worked under the same managerial structure, was compensated under
the same compensation plan, held “essentially the same position with the same
responsibilities and job duties,” and suffered from the same policy of
misclassification by AWG. 43 Essentially, Plaintiffs argue that “[t]hey differed
only in where they were assigned to work in the warehouse.” 44 Plaintiffs
describe the extent of these differences as “whether an employee is [responsible
for] unloading pallets or loading pallets.” 45
Doc. 115 at 2, 5.
Id. at 6.
45 Id. at 8.
43
44
10
Defendant argues that, rather, there were different types of Warehouse
Supervisors, each with their own unique set of duties and responsibilities:
Inbound Supervisors, Outbound Warehouse Supervisors, and Outbound Dock
Supervisors. 46 Further still, Defendant argues that even within a specific type
of supervisor role—such as the Outbound Dock Supervisor position—the
testimony of Plaintiffs reveals that their duties greatly differed. 47
According to Defendant, Inbound Supervisors were responsible for
instructing trucks on where to dock; supervising the unloading process for
accuracy, efficiency, and cleanliness; meeting with taggers and forklift drivers
at the beginning of each shift to debrief safety and quality issues; and
performing audits of pallets for accuracy and quality. 48 Outbound Warehouse
Supervisors were responsible for supervising forklift drivers; coordinating
forklift work to prevent stocking issues; and reallocating resources to resolve
problems that arose when items went out of stock. 49 Outbound Dock
Supervisors were responsible for meeting with loaders at the beginning of each
shift to handout assignments; overseeing loaders for efficiency, safety, and
quality; resolving problems brought to them by loaders; closing out loads by
auditing pallets for proper wrapping and quality conditions; coordinating
moving trucks to the staging yard; and making sure loaders cleaned up after
the shift. 50
Plaintiff asserts that these are mere “distinct semantic labels” and that
each Plaintiff “performed essentially the same functions.” 51 According to
Plaintiff, these purported differences in job duties:
Doc. 105-1 at 5.
Id.
48 Id. at 7–10.
49 Id. at 11–12.
50 Id. at 13–14.
51 Doc. 115 at 8.
46
47
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boil down to this: they, the Plaintiffs, start their shifts at different
times; their handling or placement of product differs; the
productivity of employees and the location where they worked
differs; the titles of the employees they worked alongside differs;
the information used during their shifts, and the quality control
measures for each section all differed. 52
The Court disagrees. The differences outlined by the Defendant are more
significant. For example, there is no evidence that Outbound Warehouse
Supervisors conducted audits of product for quality control purposes—a factor
that favors the administrative exemption. 53 On the other hand, ample evidence
suggests that Inbound Supervisors and Outbound Dock Supervisors conducted
audits of product. 54
But even if the Court agreed with Plaintiffs that the differences in duties
were more so a result of location than actual function, testimony of the
Plaintiffs reveals that, in practice, their day-to-day duties differed
significantly. These reported differences in duties speak directly to the
defenses available to AWG at trial.
B. AWG’s Individualized Defenses
AWG plans to use the administrative, executive, and combination
exemptions as a defense against Plaintiffs’ unpaid overtime claims at trial. If
AWG cannot deploy the same defense(s) against each Plaintiff, then a collective
action is inappropriate, as the Plaintiffs would not be sufficiently “similarly
situated.”
AWG presented the deposition testimony of numerous Plaintiffs,
demonstrating that their self-reported duties were, in fact, disparate—and
Doc. 115 at 7.
Plaintiffs claim, in a chart summarizing the Defendant’s proffered job descriptions, that
Outbound Warehouse Supervisors did “perform audits of outgoing pallets to confirm order
accuracy and look for damage,” but they fail to cite to any evidence in the record for this
claim. See id. at 8.
54 See id. at 7–8; see also Doc. 105-1 at 8–10, 13–14.
52
53
12
significantly, that different defenses would therefore have to be used. For
example, for AWG to properly deploy the administrative exemption defense,
the primary duty of the employee must be office work or non-manual work
directly related to management or general operations. In the context of a
collective action, if AWG can deploy that defense against any one opt-in
Plaintiff, AWG should be able to properly apply that defense against all others.
However, that is not the case here.
Plaintiff Jermaine Bell testified that as an Outbound Dock Supervisor,
his primary duty consisted of loading trucks and getting trucks loaded by
others. 55 He further testified that he was one of the only supervisors who would
load trucks. 56 Sometimes he would load trucks for three to four hours in a
single shift; other times he would spend the entire shift loading trucks. 57 On
the other hand, Plaintiff Scott Kinley testified that as an Outbound Dock
Supervisor, he rarely loaded trucks, approximating the activity at less than
ten percent of his time. 58 He further testified that shortly after he started in
this position, he was instructed that he was not allowed to load trucks, so he
stopped and never did after that. 59 In fact, he described his main duty as
“paperwork basically.” 60 Finally, Plaintiff Albert Troyani testified that in his
entire time as an Outbound Dock Supervisor, he loaded trucks only five or six
times ever. 61 Because the primary duty of an administrative employee must be
non-manual work, AWG could theoretically deploy the administrative
exemption defense against Plaintiffs Kinley and Troyani but not against Bell.
Doc. 105-10 at 52–53.
Id. at 5–6.
57 Id. at 12.
58 Doc. 105-11 at 27–28.
59 Id.
60 Id. at 34.
61 Doc. 105-13 at 22.
55
56
13
Thus, the result is AWG being forced to deploy individuated defenses—
something antithetical to a collective action.
As explained in a similar case:
At a high level of generality opt-in plaintiffs’ job duties may be
similar in that they are subject to a uniform job description, are
required to run [their sections] according to corporate policies, and
are supervised by . . . managers. But in terms of individual job
duties, the evidence shows that the opt-in plaintiffs have different
responsibilities from one another and that individuals [within the
same functional position] will have different duties . . . . Such
diversity in individual employment situations inhibits [AWG] from
proving its statutory exemption defense[s] as to all [seventeen] optin plaintiffs on the basis of representative proof. And, because the
plaintiffs are dissimilar, the Court cannot confidently adjudicate
plaintiffs’ claims or [AWG’s] defense on the merits. 62
Thus, while Plaintiffs argue that the differences in their duties are more so a
matter of location than function, it is clear that the differences in duties result
in the inevitable conclusion that AWG’s defenses will not be applicable to all
Plaintiffs. As explained below, this would unfairly prejudice both Defendant
and Plaintiffs.
C. Fairness and Procedural Concerns
Under this final factor, the Court must consider the primary objectives
of FLSA’s collective action procedural mechanism: “(1) to lower costs to the
plaintiffs through the pooling of resources, and (2) to limit the controversy to
one proceeding which efficiently resolves common issues of law and fact that
arise from the same alleged activity.” 63 However, the Court must also consider
“whether it can coherently manage the class in a manner that will not
prejudice any party.” 64
Johnson, 561 F. Supp. 2d at 578–79.
Snively, 314 F. Supp. 3d at 743.
64 Id.
62
63
14
First, the Court notes that if the collective action was permitted to
proceed, then prejudice to the parties is certain. In this case, the Plaintiffs’ “job
responsibilities vary along the critically-important axis of exempt . . . duties
recognized by the regulations.” 65 Therefore, AWG “cannot be expected to come
up with ‘representative’ proof [of a proper exemption] when the plaintiffs
cannot reasonably be said to be representative of each other.” 66 Furthermore,
if AWG were to hypothetically successfully defend against one Plaintiff’s claim
on the basis of an exemption, this would be to the detriment of other Plaintiffs
who would not otherwise fall under an exemption.
Second, the Court notes that the Plaintiffs have already benefitted from
the “pooling of resources” by virtue of the Court’s earlier granting of conditional
collective action status. The Plaintiffs have had the benefit of pooling resources
up to and through the discovery stage of litigation. While decertification of this
suit could result in eighteen separately-filed and tried actions, this pales in
comparison to other decertification outcomes. 67
CONCLUSION
Accordingly, Defendant AWG’s Motion to Decertify Collective Action is
GRANTED. The Court DECERTIFIES this collective action, and the claims
of all opt-in Plaintiffs are DISMISSED WITHOUT PREJUDICE.
Johnson, 561 F. Supp. 2d at 582.
Id. at 587.
67 See Johnson, 561 F. Supp. 2d at 587 (where court decertified a class of over 900 opt-in
plaintiffs only after a full-blown trial on the merits).
65
66
15
New Orleans, Louisiana this 14th day of November, 2019.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
16
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