Roberts et al v. The TJX Companies Inc. et al

Filing 186

Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER. "...Plaintiffs Motion for Conditional Certification [ECF No. 124] is GRANTED, and Plaintiffs Motion for Equitable Tolling [ECF NO. 161] is DENIED without prejudice. It is hereby O RDERED that Defendants shall produce the names and last known addresses of the conditionally certified collective action members within 14 days of this order. Within seven (7) days of this order, Plaintiffs shall submit a proposed notice letter and c onsent form to which the Defendants will have seven (7) days to object. Once the Court approves the notice letter and consent form, Plaintiffs are authorized to issue notice to all members of the conditionally certified collective action. SO ORDERED."(Folan, Karen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*

CELINA ROBERTS, ANTHONY
SCIOTTO, ERIC BURNS, KERI DICKEY,
ANGELA RAMIREZ, DIANA
SANTILLAN, CAMILLE GHANEM,
ARNOLD WILLIAMS, OLUWATOSIN
BABALOLA, TOMMY ZAHTILA,
TODD JUSTICE, GIANFRANCO
PIROLO, MICHAEL O’GRADY,
AND JASON FOSTER, individually, and
on behalf of other persons similarly situated,
Plaintiffs,
v.
THE TJX COMPANIES, INC., a Delaware
Corporation; MARSHALLS OF MA, INC.,
a Massachusetts Corporation; MARMAXX
OPERATING CORP., a Delaware
Corporation, d/b/a MARSHALLS
HOMEGOODS, d/b/a
MARSHALLS, d/b/a T.J. MAXX
HOMEGOODS; HOMEGOODS, INC., a
Delaware Corporation;
Defendants.

Civil Action No. 13-cv-13142-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
In this putative class and collective action, the plaintiffs allege that their employers, the
TJX Companies, Inc.; Marshalls of MA, Inc.; Marmaxx Operating Corp.; and HomeGoods, Inc.
(together, the “Defendants”) misclassified them as exempt from the overtime requirements of the
Fair Labor Standards Act (the “FLSA”) and the New York Labor Law (the “NYLL”), and then
failed to pay them overtime as required by the FLSA and the NYLL. Presently before the Court

1

are Plaintiffs’1 Motion for Conditional Certification under FLSA [ECF No. 124], and Plaintiffs’
Motion for Equitable Tolling [ECF No. 161]. For the reasons set forth herein, the Motion for
Conditional Certification is GRANTED, and the Motion for Equitable Tolling is DENIED
without prejudice.
I.

BACKGROUND
The plaintiffs in this case, who all worked as Assistant Store Managers (“ASMs”) at

Marshalls, HomeGoods, or T.J. Maxx stores in various states (excluding California), alleged that
the Defendants misclassified them as exempt from the overtime requirements of the FLSA and
the NYLL (1) during the period when Plaintiffs participated in a formal “ASM Training
Program” sponsored by their employer (the “ASM Training Claims”); and (2) during their
subsequent employment as ASMs (the “ASM Misclassification Claims”). Defendant TJX
Companies, Inc. is the parent company of Defendants HomeGoods, Inc. and Marshalls of MA,
Inc. See [ECF No. 63 at ¶¶ 42–43 (cited as “Answer”)]. There are more than 1300 HomeGoods
or Marshalls retail stores in the United States. Answer ¶ 1. The Plaintiffs seeking conditional
certification under the FLSA in the pending motion [ECF No. 124] have all worked as
Merchandise ASMs in a Marshalls or HomeGoods store.
This case originally stems from three separate putative class and collective actions filed
between December 2013 and May 2014: Roberts v. TJX Companies, Inc., 1:13-cv-13142; Burns
v. TJX Companies, Inc., 1:14-cv-10306; and Ghanem v. TJX Companies, Inc., 1:14-cv-12104.
The three cases were consolidated on August 8, 2014, when the plaintiffs filed their Second

1

The plaintiffs bringing this motion, who are a sub-set of the plaintiffs who initiated the suit, are
Celina Roberts, Eric Burns, Keri Dickey, Angela Ramirez, Diana Santillan, Camille Ghanem,
and also opt-ins Eugene Costa, Jr., Norma McKenzie, Natalie Cromartie, Jerry Freedman, and
Karen Razzetti-Giamis (hereinafter, the “Plaintiffs”). [ECF No. 125 at 1 n.1].
2

Amended Complaint in the above-captioned action. [ECF No. 60]. After several months of
negotiations, the ASM Training Plaintiffs and the Defendants reached a settlement on the ASM
Training Claims. [ECF No. 82 (the “Settlement Agreement”)]. On March 25, 2015, the plaintiffs
filed a Third Amended Complaint that reflected the Settlement Agreement. [ECF No. 89]. On
May 6, 2015, this Court issued an order preliminarily approving the Settlement Agreement with
revisions to the Settlement Notice and Proposed Order. [ECF Nos. 111, 112]. On September 30,
2016, the Court entered a final approval order on the Settlement. [ECF No. 171]. Therefore, what
remains at issue and before this Court are the ASM Misclassification Claims.
On July 23, 2015, Plaintiffs moved to conditionally certify a class under the FLSA for
purposes of notice. [ECF No. 124]. They filed a memorandum [ECF No. 125 (cited as
“P.Brief”)] and a declaration [ECF Nos. 126, 132] in support of the motion. Defendants opposed
the motion for conditional certification [ECF No. 147 (cited as “D.Brief”)], and submitted an
affidavit with exhibits in opposition [ECF No. 148, 151]. On October 14, 2015, Plaintiffs filed a
reply in further support of their motion for conditional certification. [ECF No. 156]. On June 3,
2016, Plaintiffs filed a motion to equitably toll the statute of limitations for putative collective
action members until ten days after the Court issues an order on the motion for conditional
certification [ECF Nos. 161, 162]. Defendants opposed the motion for equitable tolling [ECF No.
163], and filed an affidavit with an attached exhibit in opposition [ECF No. 164]. The parties
stipulated to the tolling of the statute of limitations for the remaining ASM claims from February
23, 2015 until the filing of Plaintiffs’ Motion for Conditional Certification on July 23, 2015. See
Seth R. Lesser Declaration (“Lesser Decl.”) [ECF No. 126 at ¶ 5].

3

II.

PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
a. Legal Standard
The FLSA allows employees to sue on behalf of themselves and “other employees

similarly situated.” 29 U.S.C. § 216(b). The FLSA, however, also provides that “[n]o 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. Thus, in a
FLSA collective action, unlike in a Rule 23 class action, potential plaintiffs are required to
affirmatively opt in. See Garcia v. E.J. Amusements of N.H., Inc., 98 F. Supp. 3d 277, 289 (D.
Mass. 2015), appeal dismissed, 15-8011 (1st Cir. Nov. 10, 2015). In order to facilitate the
FLSA’s collective action mechanism, district courts have the discretion to authorize that notice
be sent in “appropriate cases” to putative plaintiffs informing them of “the pendency of the
action and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624
F.3d 537, 554 (2d Cir. 2010) (citing Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169
(1989)). “[N]othing in FLSA in fact requires certification, it is instead a recognized case
management tool for district courts to employ in appropriate cases to facilitate the sending of
notice to potential class members.” Heitzenrater v. OfficeMax, Inc., 2014 WL 448502, at *1
(W.D.N.Y. Feb. 4, 2014) (citing Myers, 624 F.3d at 555 n.10). To be conditionally certified for
purpose of notice under the FLSA, “the putative class members [must be] ‘similarly situated’
with the named plaintiffs.” O’Donnell v. Robert Half Int’l, Inc., 429 F. Supp. 2d 246, 249 (D.
Mass. 2006).
Neither the FLSA nor the First Circuit has established a standard that district courts must
apply in determining whether potential plaintiffs are “similarly situated,” but courts in this
Circuit have predominantly applied a two-tier approach. See Trezvant v. Fid. Emp’r. Servs.

4

Corp., 434 F. Supp. 2d 40 (D. Mass. 2006) (“the majority of courts addressing this issue in the
First Circuit have adopted the two-tier approach”); see also Torrezani v. VIP Auto Detailing,
Inc., No. 16-40009, 2017 WL 888309, at *6 (D. Mass. Mar. 6, 2017) (applying two-tier approach
and allowing conditional class certification even though discovery had completed); Lapan v.
Dick’s Sporting Goods, Inc., No. 13-11390, 2014 WL 4206212, at *1 (D. Mass. Aug. 20, 2014)
(“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. . . .”); Perez v. Prime Steak Rest. Corp., 959 F.
Supp. 2d 227, 230 (D.P.R. 2013); Johnson v. VCG Holding Corp., 802 F. Supp. 2d 227, 233 (D.
Me. 2011); O’Donnell, 429 F.Supp.2d at 246. Courts in other circuits have likewise applied a
two-tier approach. See Myers, 624 F.3d at 554–55 (explaining that courts in the Second Circuit
have utilized a “two-step method” to determine whether to exercise the discretion to implement
§ 216(b)); see also In re HCR Manorcare, Inc., 2011 U.S. App. LEXIS 26241, at *3 (6th Cir.
Sept. 29, 2011) (“[w]e have . . . implicitly upheld” the two-step approach); Symczyk v. Genesis
Healthcare Corp., 656 F.3d 189, 192 (3d Cir. 2011) (finding that courts in the Third Circuit
“typically employ a two-tiered analysis” in “deciding whether a suit brough under § 216(b) may
move forward as a collective action”); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,
1261 (11th Cir. 2008). Accordingly, this Court will apply the two-tier approach generally
accepted in this Circuit to the pending motion for conditional certification under the FLSA.
Using this approach, a court, first, makes a preliminary determination of whether the
potential plaintiffs are “similarly situated” (tier one) and then “makes a final ‘similarly situated’
determination” after discovery (tier two). See Trezvant, 434 F. Supp. 2d at 42–43 (quoting Kane
v. Gage Merch. Servs., Inc., 138 F. Supp. 2d 212, 214 (D. Mass. 2001)). The first stage or tier,
often referred to as the “notice stage,” ordinarily happens before discovery when plaintiffs move

5

for conditional certification. See O’Donnell, 429 F. Supp. 2d at 249. The second stage or tier is
triggered after discovery if the defendants move for de-certification based on the contention that
the plaintiffs that have opted in are not in fact similarly situated. Id. If the Court finds that the
plaintiffs are not “similarly situated” at the second stage, it can then de-certify the class and
dismiss the opt-in plaintiffs without prejudice. Kane, 138 F. Supp. 2d at 214. “At that [second]
stage, courts consider factors such as: 1) the disparate factual and employment settings—e.g.
whether plaintiffs were employed in the same corporate department, division, and location; 2)
the various defenses available to defendant which appear to be individual to each plaintiff; and 3)
fairness and procedural considerations.” Trezvant, 434 F. Supp. 2d at 45 (quoting Melendez
Cintron v. Hershey P.R., Inc., 363 F. Supp. 2d 10, 16 (D.P.R. 2005)). Thus, the two-stage
process allows the Court to have the benefit of knowing who has opted in when determining
whether the plaintiffs are actually similarly situated and if the named plaintiffs are representative.
Here, at the first stage, the Court need only make a “preliminary finding” as to whether
the named plaintiffs are similarly situated as to other potential plaintiffs. See id. at 43 (citing
Melendez Cintron, 363 F. Supp. 2d at 16). The standard for the preliminary showing is lenient,
and “[a]t this stage, courts do not need to make any findings of fact with respect to contradictory
evidence presented by the parties or make any credibility determinations with respect to the
evidence presented.” Id. (internal quotation marks omitted) (citing Kalish v. High Tech Inst., No.
04-1440, 2005 WL 1073645, at *2 (D. Minn. Apr. 22, 2005)). “[A] modest factual showing or
asserting substantial allegations that ‘the putative class members were together the victims of a
single decision, policy, or plan that violated the law’” is sufficient. Id. (quoting Thiessen v. Gen.
Elec. Capital, 267 F.3d 1095, 1102 (10th Cir. 2001)). The Second Circuit has explained that, in a
FLSA case, this burden is met when the plaintiffs “mak[e] some showing that ‘there are other

6

employees . . . who are similarly situated with respect to their job requirements and with regard
to their pay provisions,’ on which the criteria for many FLSA exemptions are based, who are
classified as exempt pursuant to a common policy or scheme.” Myers, 624 F.3d at 555
(alterations in original) (quoting Family Dollar, 551 F.3d at 1259). It is overall a “low standard
of proof.” Id.
b. Analysis
Plaintiffs seek conditional class certification under the FLSA for all Merchandise ASMs
who have worked at Marshalls and HomeGoods since February 23, 2012. P.Brief at 1.
Conditional certification would allow them to issue notice to an estimated 3000 putative class
members. In support of conditional certification, Plaintiffs have provided: (1) the deposition
testimony of eight plaintiffs who worked at over 30 Marshalls and HomeGoods stores in eight
different states (Florida, Indiana, Maryland, Massachusetts, New York, Texas, and Virginia); (2)
the deposition testimony of Defendants’ Corporate Representatives; and (3) internal company
documents obtained during preliminary discovery. Plaintiffs do not argue that the company
policy of exempting Merchandise ASMs was facially invalid; rather, they assert that, in practice
and based on their work responsibilities, Merchandise ASMs should not have been exempt from
the overtime requirements of the FLSA and thus that exempting them was a de facto violation of
the law.
Defendants oppose conditional certification, arguing that Plaintiffs have not met their
burden at this stage. In their view, Plaintiffs must, but have not, shown that there was a “common
policy or plan that violated the law,” and “provide evidence sufficient for the Court to reasonably
infer that thousands of ASMs across the country performed nonexempt tasks as their primary
duty.” D.Brief at 13.

7

In the view of the Court, for present purposes, the Plaintiffs have adduced sufficient
evidence to support the inference that Merchandise ASMs were similarly situated with respect to
their job requirements and FLSA classification. The job title for Merchandise ASMs was the
same throughout all Marshalls and HomeGoods stores. D.Brief at 4 n.6. Although there were two
job descriptions for Merchandise ASMs nationwide—one for Marshalls and one for
HomeGoods—both job descriptions share nearly the same “major areas of responsibility.” See
Justin R. Marino Affidavit (“Marino Aff.”) [ECF No. 148, Ex. 19]. Every Merchandise ASM
was classified as exempt under FLSA for all TJX stores nationwide, regardless of the size of the
store, where it was located, the particular Store Manager on premises, or any theoretical variation
in the actual duties performed. See Seth R. Lesser Declaration (“Lesser Decl.”) [ECF No. 126,
Ex. A at 9–12]. In 2013, Defendants audited whether the ASMs performed the managerial duties
as listed in their job descriptions, and determined that they did (although the extent to which
remains disputed by the parties), which suggests that the job was generally the same from store
to store. See Marino Aff., Ex. 18 at ¶ 4.2
There is also evidence that all Merchandise ASMs were subject to the same corporate
policies, including “BEST Methods.” According to Robert Borek, one of Defendants’ corporate
representatives, “Best Methods are the best practice of how to execute tasks, [and] processes.”
Lesser Decl., Ex. O at 24:4–5. Tasks and processes include, among other things, receiving
freight, ringing the cash register, customer service, and processing goods. Id. at 24:17–23. All
ASMs also had to adhere to the same code of conduct, see Lesser Decl., Exs. B at 63–64, E at 5,
7, and underwent the same initial training program, see id., Exs. B at 52–53, E at 19–20. The

2

 For the audit, Defendants interviewed 26 Marshalls ASMs and 10 HomeGoods ASMs, see
Marino Aff., Ex. 18 at ¶ 4, although it is unclear what percentage of them were Merchandise,
rather than Operations, ASMs. 

8

existence of detailed corporate policies guiding how Merchandise ASMs were to do their jobs,
similar job descriptions, and a uniform FLSA classification practice all support an inference that
the experiences of a small sample of geographically diverse Merchandise ASMs may be
representative of the experience of other Merchandise ASMs.
Finally, the eight plaintiff depositions demonstrate that they, as Merchandise ASMs, were
performing nonexempt tasks the vast majority of their time, although they also performed
managerial tasks as well. See P.Brief at 4 n.6 (citing plaintiff depositions). For purposes of
conditional certification, the Court need not make a determination as to whether management
was or was not the primary duty of the putative plaintiffs. See, e.g., Indergit v. Rite Aid Corp.,
Nos. 08-9361, 08-11364, 2010 WL 2465488, at *9 (S.D.N.Y. June 16, 2010) (deciding not to
credit Defendant’s argument that the fact-intensive nature of primary duty inquiry precludes
FLSA collective action because it would mean that “no FLSA action that is premised upon an
alleged misclassification under the executive exemption could be resolved through the collective
action process, thereby defeating the stated purpose of the FLSA and wasting judicial resources
by requiring courts to consider each individual plaintiff’s claims in a separate lawsuit.”).
Furthermore, Plaintiffs’ deposition testimony also reveals that they regularly worked
more than 40 hours per week. See P.Brief at 9 n.41 (citing plaintiff depositions). Again, the
Court need not make any credibility assessments, weigh the evidence at this stage, or determine
whether the putative class members did in fact work overtime or not. See Trezvant, 434 F. Supp.
2d at 43. A more searching assessment of the evidence is appropriate at the second stage of
certification based on the putative plaintiffs who have actually opted in. See id. at 45 (listing
factors to consider at second stage). Accordingly, for present purposes, there is a supportable
inference, based on the experience of the named plaintiffs and otherwise—including the number

9

of similarities in the job regardless of the store, location, or supervisor as more fully described
above—that other Merchandise ASMs were also performing nonexempt tasks and working more
than 40 hours per week.
To further bolster the inference that other Merchandise ASMs nationwide performed
nonexempt tasks, Plaintiffs have supplied an internal company document from March 2009—
supposedly the results of an internal study by the BEST development team—that indicates that
the Defendants were aware that “significant tasking [was] preventing managing from occurring”
and that “[m]anagement roles [were] not clear.” Lesser Decl., Ex. P at 12. Defendants argue that
this document is unreliable because it is over six years old, covers only three stores in
Massachusetts, and was created by a vendor to review efficiencies, rather than the classification
status of ASMs. D.Brief at 22 n.46. Definitively assessing the strength of the evidence is not
necessary at this preliminary stage. See Trezvant at 45. In viewing this 2009 study in an earlier
case, the court in Jenkins v. TJX Companies Inc. did not seem to place any weight on it because
the plaintiffs in that case failed to provide any context for the document, such that any inferences
drawn from it would have been “completely speculative.” See Jenkins v. TJX Companies Inc.,
853 F. Supp. 2d 317, 321–22 (E.D.N.Y. 2012). Here, the document is part of what appears to be
a longer presentation, called “B.E.S.T Training Session,” for HomeGoods. Lesser Decl., Ex. P at
12. The 2009 study is on a page labeled “Example 4.” A few slides earlier, in what appears to be
an introduction to the “Examples,” the presentation explains that a “[d]iagnostic was
commissioned by HomeGoods to assess areas of opportunity for the business,” “[w]e visited 10
pilot stores and observed from open to close, weekdays and weekends,” and “510 observations
were made by our 6 person team over 530 observation-hours.” Id. at 6. Leading up to the 2009
study slide, the presentation includes a chart listing “several types of potential improvement.” Id.

10

at 7. One of the areas of potential improvement was “[u]pdating the specifics of what
management, coordinators, and associates do on a daily basis, and optimizing the management
structure and tools needed to operate efficiently.” Id. In “Example 3: Staffing to demand in
cashiering and customer service,” a bullet point reads: “‘All to register’ backup calls caused
delays, confusion, and lost productivity.” Lesser Decl., Ex. P at 10. The Court finds this
document, even discounted for its age and geographic limits, bolsters the inference that
Merchandise ASMs performed nonexempt tasks throughout the HomeGoods stores in the United
States and will extend the inference to Marshalls stores at this stage given the other evidence that
seems to link the experience of the Merchandise ASMs at both stores.
The Court is well aware of the earlier cases involving the same Defendants and ASMs,
where district courts in New York declined to conditionally certify a class under the FLSA, and
has considered these opinions carefully. See Ahmed v. T.J. Maxx Corp.,3 Guillen v. Marshalls of
MA, Inc.,4 and Jenkins v. HomeGoods, Inc., 853 F. Supp. 2d 317 (E.D.N.Y. 2012) (together, the
“Prior TJX Cases”). In those Prior TJX Cases, the judges determined that there was not enough
evidence to permit a finding that the named plaintiffs were “similarly situated” to the putative
plaintiffs. Those cases are largely distinguishable based on the quantity and quality of the
evidence offered in support of conditional certification. In Jenkins, for example, the plaintiff

3

Ahmed v. T.J. Maxx Corp., No. 10-cv-3609, 2013 WL 2649544, at *7 (E.D.N.Y. June 8, 2013)
[hereinafter Ahmed I] (Spatt, J.) (overruling magistrate judge order granting conditional
certification as “clearly erroneous” and “contrary to law.”); Ahmed v. T.J. Maxx Corp., 103 F.
Supp. 3d 343, 357 (E.D.N.Y. 2015) [hereinafter Ahmed II] (overruling plaintiff’s Rule 72
objections to the magistrate judge order denying Plaintiff’s second motion for conditional
certification).
4
Guillen v. Marshalls of MA, Inc., 841 F. Supp. 2d 797, 804 (S.D.N.Y. 2012) [hereinafter
Guillen I] (Gorenstein, M.J.) (denying Plaintiffs’ second motion for conditional certification);
Guillen v. Marshalls of MA, Inc., 09-9575, 2012 WL 2588771, at *3 (S.D.N.Y. July 2, 2012)
[hereinafter Guillen II] (Preska, C.J.) (upon a de novo review of Guillen I, finding the Magistrate
Judge’s decision “to be correct and appropriate” and adopting his decision).
11

provided only his own deposition testimony. Jenkins, 853 F. Supp. 2d at 321. In Guillen I, the
plaintiffs presented seven depositions of Marshalls ASMs, but those ASMs worked in stores only
in the New York City area. Guillen I, 841 F. Supp. 2d at 799. In Ahmed I, the plaintiffs offered
deposition testimony of ASMs working only in New York and Connecticut. Ahmed I, 2013 WL
2649544, at *13. In contrast, here, the Plaintiffs have provided depositions from eight
Merchandise ASMs who worked in eight different states from different regions of the United
States across thirty Marshalls and HomeGoods stores. In Ahmed I, the court emphasized the
importance of geographic diversity in distinguishing that case from another FLSA case, Stevens
v. HMSHost Corp., No. 10-3571, 2012 WL 4801784, at *1 (E.D.N.Y. Oct. 10, 2012). See
Ahmed I, 2013 WL 2649544, at 14. In Stevens, the court conditionally certified a FLSA
collective action of assistant store managers, finding that plaintiffs had met their burden at the
conditional certification stage “by submitting evidence on identical job classification and training
materials across all ASMs nationwide, and presenting testimony from former ASMs across the
country regarding their actual job duties.” Stevens, 2012 WL 4801784, at *2. The Ahmed I court
noted that “the Stevens plaintiffs offered deposition testimony from nine potential plaintiffs,
located across the nation, who all alleged that as assistant store managers they were required to
primarily do nonexempt tasks. As such, due to this, the Stevens court found that the plaintiffs
had offered sufficient evidence at the preliminary certification stage to show that a de facto
illegal policy existed that affected all assistant store managers.” Ahmed I, 2013 WL 2649544, at
*14. The Plaintiffs here have provided a more representative sample of Merchandise ASMs than
in Jenkins, Guillen, or Ahmed I, and more akin to Stevens.
In Ahmed II, the court found that the plaintiff’s testimony regarding his job duties
conflicted with that of the potential opt-ins, which, “[u]nlike [p]laintiff’s testimony,”

12

“suggest[ed] that the Defendants did properly classify [the potential opt-ins] as exempt from
overtime.” Ahmed II, 103 F. Supp. 3d at 354. Here, the Plaintiffs’ testimony regarding their job
duties as ASMs is sufficiently consistent to allow for the inference that the Merchandise ASMs
performed nonexempt tasks such that they may have been improperly classified under the
FLSA.5 Furthermore, other courts in the Second Circuit have conditionally certified classes
under the FLSA using a less demanding standard than it appeared was used in the Prior TJX
Cases, including Ahmed II. See, e.g., McEarchen v. Urban Outfitters, Inc., No. 13-03569, 2014
WL 4701164, at *2 (E.D.N.Y. Sept. 23, 2014) (“Urban’s admissions [that putative plaintiffs had
similar job duties] and corporate documents [that putative plaintiffs uniformly categorized]
satisfy the lenient conditional certification standard.”); Kalloo v. Unlimited Mech. Co. of NY,
908 F. Supp. 2d 344, 346 (E.D.N.Y. 2012) (“At this conditional certification stage, the focus of
the inquiry ‘is not on whether there has been an actual violation of law but rather on whether the
proposed plaintiffs are similarly situated under 29 U.S.C. § 216(b) with respect to their
allegations that the law has been violated.’” (internal quotation marks omitted) (quoting Young
v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005))); Ibea v. Rite Aid Corp., 2012
WL 75426, at *3 (S.D.N.Y. Jan. 9, 2012) (affirming magistrate judge’s grant of conditional
certification and explaining that, at the first stage, inquiry only involves whether “similarly
situated plaintiffs likely exist” (emphasis added)); Levy v. Verizon Info. Servs. Inc., No. 061583, 2007 WL 1747104, at *5 (E.D.N.Y. June 11, 2007) (“Because the allegations of unpaid

5

Defendants argue that Plaintiffs “robotically answered” questions from their counsel during
depositions and that there were significant variations among the depositions with respect to each
Merchandise ASM’s personal experience. See [ECF No. 147 at 6–10]. The Court declines to
engage in a more robust inquiry into the consistency of the Plaintiffs’ testimony at this stage,
which would effectively result in an inquiry into the merits and force the Court to make
credibility determinations and engage in fact-finding not appropriate at this time.
13

overtime do not derive from one geographic location, there is no reason to assume that the policy
was limited to only certain offices or areas.”).
Even more instructive, perhaps, is the fact that many courts in this Circuit have similarly
applied a relatively lenient standard for conditional FLSA certification. See, e.g., Torrezani, 2017
WL 888309, at *6 (finding plaintiffs meet the first stage’s “lenient standard”); Cunha v. Avis
Budget Car Rental, LLC, No. 16-10545, 2016 WL 6304432, at *3 (D. Mass. Oct. 26, 2016)
(finding that plaintiff “has shown that damage managers at Avis are all classified as salaried
employees who are exempt from overtime under FLSA [and] [t]hat alone may be sufficient to
issue notice”); Kane, 138 F. Supp. 2d at 215 (“The record thus suggests that the Defendants had
a policy of treating at least some of a discrete class of employees (i.e. Crew Coordinators) as
exempt from the FLSA overtime requirements. That showing is sufficient for this Court to
determine that a ‘similarly situated’ group of potential plaintiffs exists given the adopted lenient
standard for court-facilitated notice.”). Some courts have conducted a more searching analysis,
but nonetheless have conditionally certified a collective action where putative plaintiffs shared
similar job requirements and pay provisions. See Trezvant, 434 F. Supp. 2d at 44, 48 (holding
“that the plaintiffs are required to put forth some evidence that the legal claims and factual
characteristics of the class in this case are similar”).
Thus, in this Court’s view, Plaintiffs have satisfied their modest burden for conditional
certification by presenting evidence that allows the Court to plausibly infer that there may well
be putative plaintiffs who will choose to opt-in that are similarly situated to the Plaintiffs,
including (1) that they sometimes worked in excess of 40 hours per week, (2) that they were
classified by Defendants as nonexempt for FLSA purposes, (3) that they were not paid overtime,
(4) that they performed nonexempt work, and (5) that they had similar job requirements. The

14

Court declines to require Plaintiffs to show, at this stage, that putative plaintiffs’ primary duty
was not management. Such issues tread too deeply into the merits and are premature without
knowing who the actual class members will be.
The Court believes that the Plaintiffs here have provided more evidence than in the Prior
TJX Cases. That being said, although this Court too recognizes the risk of certifying a class
based largely on allegations that a facially valid classification scheme is, in practice, violating the
FLSA, it is also concerned about companies being able to escape responsibility for possible
FLSA violations by simply omitting references to managers’ performance of nonexempt tasks in
the relevant documentation. At the notice stage, the Court is not persuaded that Plaintiffs have to
meet an exceptionally high standard, particularly when the decision can be revisited at a later
stage. The purpose of the FLSA notice mechanism is to facilitate collective actions in FLSA
cases where plaintiffs are in fact similarly situated. It is difficult to definitively determine
whether the putative class members are similarly situated at this stage, at least in part because
most putative plaintiffs have likely not received notice of this action. At some point, and in this
case we have reached that point, the plaintiffs have done what they can with the information
available to them and adduced enough evidence to warrant notice to the other potential plaintiffs.
Once those potential plaintiffs have received notice, they will opt-in or not, the group will form,
and the Court will then be much better positioned to determine if the plaintiffs are in fact
similarly situated. If they are not, the class can be de-certified. If they are, the case will go
forward without further procedural wrangling. Taken together, the evidence submitted by the
parties supports an inference, at least at this stage, that the Merchandise ASMs in HomeGoods
and Marshalls were sufficiently similarly situated for FLSA notice purposes.

15

III.

PLAINTIFFS’ MOTION FOR EQUITABLE TOLLING
Plaintiffs also ask this Court to equitably toll the statute of limitations for putative

collective action members from July 23, 2015 until ten days after the Court rules on the Motion
for Conditional Certification. [ECF No. 161]. Defendants oppose equitable tolling, and challenge
Plaintiffs’ standing to even make the motion. [ECF No. 163].
a. Legal Standard
Equitable tolling is only warranted in “extraordinary circumstances,” Delaney v.
Matesanz, 264 F.3d 7, 14 (1st Cir. 2001), and should be granted “sparingly,” Bonilla v. Muebles
J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999). “Generally speaking—peculiar
circumstances may leave some wiggle room—equitable tolling is not appropriate unless a
claimant misses a filing deadline because of circumstances effectively beyond her control. . . .”
Id. at 279. In short, in order to have a limitations period equitably tolled, a plaintiff must “show[]
(1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstances
stood in his way.” Curtis v. Scholarship Storage Inc., No. 14-303, 2015 WL 1241365, at *6 (D.
Me. Mar. 18, 2015) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Courts generally
weigh five factors when considering whether to allow equitable tolling in a particular case: (1)
lack of actual notice of the filing requirement; (2) lack of constructive knowledge of the filing
requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and
(5) a plaintiff’s reasonableness in remaining ignorant of the [filing] requirement.” Mercado v.
Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 48 (1st Cir. 2005) (alterations in
original) (internal quotation marks omitted) (quoting Kelley v. N.L.R.B., 79 F.3d 1238, 1248 (1st
Cir. 1996)).
Some courts have held that equitable tolling for putative collective action members is

16

premature at the conditional certification stage because the individuals have not yet opted in and
are thus not yet parties to the case. See, e.g., Lemmon v. Harry & David Operations, Inc., No.
15-779, 2016 WL 234854, at *8 (S.D. Ohio Jan. 20, 2016); Weil v. Metal Techs., Inc., No. 1500016, 2015 WL 5827594, at *2 (S.D. Ind. Oct. 6, 2015); Atkinson v. TeleTech Holdings, Inc.,
14-cv-253, 2015 WL 853234, at *8 (S.D. Ohio Feb. 26, 2015); In re Amazon.com, Inc.,
Fulfillment Ctr. Fair Labor Standards Act and Wage and Hour Litig., No. 14-02504, 2014 WL
3695750, *3 (W.D. Ky. 2014); Tidd v. Adecco USA, Inc., No. 07-11214, 2010 WL 996769 (D.
Mass. Mar. 16, 2010); Ingersoll v. Royal & Sunalliance USA, No. 05-1774L, 2006 WL 859265,
at *3 (W.D. Wash. Feb. 10, 2006); United States v. Cook, 795 F.2d 987, 994 n.5 (Fed. Cir.
1986). The district court in Tidd explained that because some putative collective action members
might in fact never opt-in, a decision on equitable tolling prior to opt-in would result in an
impermissible advisory opinion. Tidd, 2010 WL 996769, at *3. Many courts have nonetheless
addressed the equitable tolling issue for putative plaintiffs at the conditional certification stage.
See, e.g., Kampfer v. Fifth Third Bank, No. 14-2849, 2016 WL 1110257, at *7 (N.D. Ohio Mar.
22, 2016) (collecting cases where courts equitably tolled statute of limitations for FLSA putative
collective action members).
b. Analysis
The limitations period for a claim under FLSA is two years, or three years if the violation
is willful. 29 U.S.C. § 255(a). The limitations period on claims of a potential opt-in plaintiff in a
FLSA collective action is not tolled by the filing of a complaint, but instead continues to run
until the putative plaintiff files a written consent to join the action. 29 U.S.C. § 256(b). Putative
plaintiffs are not prevented from bringing their own claim or from joining the lawsuit prior to the
issuance of court-facilitated notice, as evidenced by the plaintiffs who have already opted into

17

this case. See, e.g., [ECF Nos. 48, 125 at 1]; see also O’Donnell v. Robert Half Int’l, Inc., 534 F.
Supp. 2d 173, 182 (D. Mass. 2008) (explaining that, in FLSA action, “nothing has prevented
other individuals from joining the lawsuit”). Unlike members to a Rule 23 class action who fail
to opt-out, putative plaintiffs to a FLSA collective action case are not bound by the judgment in
the action unless they have affirmatively opted-in. Compare Cunha, 2016 WL 6304432, at *2
(explaining that FLSA requires employees to opt-in to be bound by any judgment) with Reppert
v. Marvin Lumber & Cedar Co., 359 F.3d 53, 56 (1st Cir. 2004) (explaining that, under Rule 23,
putative plaintiffs who fail to opt-out after appropriate notice are bound by court’s actions). The
Supreme Court has explained that “[c]ourt authorization of notice serves the legitimate goal of
avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the
action.” Sperling, 493 U.S. at 172.
Court-facilitated notice can also aid in preserving the claims of putative plaintiffs. See,
e.g., Patton v. Thomson Corp., 364 F. Supp. 2d 263, 268 (E.D.N.Y. 2005) (finding that “early
notice will help to preserve and effectuate the rights of potential plaintiffs whose claims might
otherwise become time-barred during the discovery phase of the case”). The Court recognizes
the possibility that the claims of some putative plaintiffs might have become time-barred while
the motion for conditional certification was under consideration. Nonetheless and given the
extraordinary nature of equitable tolling, the Court is reluctant to toll the limitations period for
thousands of putative collective action members, particularly where it is possible that no putative
plaintiffs whose claims are time-barred ultimately elect to opt-in.
Accordingly, the motion for equitable tolling is denied without prejudice, to be renewed
as appropriate.

18

IV.

CONCLUSION
Plaintiffs’ Motion for Conditional Certification [ECF No. 124] is GRANTED, and

Plaintiffs’ Motion for Equitable Tolling [ECF NO. 161] is DENIED without prejudice. It is
hereby ORDERED that Defendants shall produce the names and last known addresses of the
conditionally certified collective action members within 14 days of this order. Within seven (7)
days of this order, Plaintiffs shall submit a proposed notice letter and consent form to which the
Defendants will have seven (7) days to object. Once the Court approves the notice letter and
consent form, Plaintiffs are authorized to issue notice to all members of the conditionally
certified collective action.
SO ORDERED.
Dated: March 31, 2017
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE

19