Lapan et al v. Dicks Sporting Goods, Inc.

Filing 101

Judge Richard G. Stearns: MEMORANDUM & ORDER entered granting 56 Motion to Certify Class; denying 57 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-11390-RGS
CHERYL LAPAN
v.
DICK’S SPORTING GOODS, INC.
MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION FOR
CONDITIONAL CLASS CERTIFICATION AND NOTICE AND
DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT
August 20, 2014
STEARNS, J.
This is a Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, case
in which plaintiffs Cheryl Lapan and Michelle Shutt1 allege that they, and
all other “Assistant Store Managers” (ASMs) employed by defendant Dick’s
Sporting Goods, Inc. (DSG), have been, and continue to be, improperly
classified as exempt employees by DSG, which failed to pay them for all
hours worked and failed to pay overtime.2 The court heard a spirited oral

A third original named plaintiff, Victoria Montanez, was dismissed
from the case, and her claims are no longer at issue. Six other individuals
have since ‘opted-in’ with consents to sue and have filed affidavits along
with plaintiffs’ motion.
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Plaintiff Michelle Shutt also brought Massachusetts State law claims
under Mass. Gen. Laws ch. 149 §§ 148 and 150, and Mass. Gen. Laws ch. 151
§§ 1A and 1B. LaPan originally plead State claims as well, but has since
2

argument on June 2, 2014, in which experienced counsel focused on the
propriety of conditionally certifying a nationwide class of ASMs.
After careful consideration, the court sees no reason to blaze new
trails or to revisit the two-tier approach laid out by Judge Young in
Trezvant v. Fid. Empl. Servs. Corp., 434 F. Supp. 2d 40 (D. Mass. 2006).
Judge Young explained that, in taking this two-tier approach, “the court
makes an initial determination of whether the potential class should receive
notice of the pending action and then later, after discovery is complete, the
court makes a final ‘similarly situated’ determination.” Id. at 42, citing
Kane v. Gage Merch. Servs., Inc., 138 F. Supp. 2d 212, 214 (D. Mass. 2001)
(Gorton, J.). This is in contrast to an approach that applies the standards
of Fed. R. Civ. P. 23 (numerosity, commonality, typicality, and adequacy of
representation) when determining whether to order notice to a potential
class. As Judge Young noted, his recommended course of proceeding was
the one then preferred by a majority of federal courts.

It has further

support in this district, see O'Donnell v. Robert Half Int’l, Inc., 429 F. Supp.
2d 246 (D. Mass. 2006) (Gorton, J.), and outside, see Myers v. Hertz Corp.,
624 F.3d 537, 554-555 (2d Cir. 2010). Consequently, the court will ALLOW

conceded that the statute of limitations (she did not work at DSG within the
past two years) bars her from going forward on these claims.
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plaintiffs’ motion for conditional class certification. The court directs the
parties to file a joint proposal (to the extent agreement is possible) by
September 3, 2014, for a form and mechanism of notice to putative class
members and a procedure for adopting those who timely elect to opt-in.
Defendant’s motions for summary judgment are DENIED without
prejudice as premature. Plaintiffs’ motion to strike is DENIED as moot.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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