REED v. EMPIRE AUTO PARTS, INC. et al

Filing 36

OPINION. Signed by Judge Renee Marie Bumb on 2/23/2015. (TH, )

NOT FOR PUBLICATION

[Docket No. 18]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JASON REED,
Plaintiff,

Civil No. 13-5220 (RMB/AMD)
OPINION

v.
EMPIRE AUTO PARTS, INC., et al.,
Defendants.

Appearances:
Matthew Miller, Esq.
Swartz Swidler, LLC
1878 Marlton Pike East, Suite 10
Cherry Hill, NJ 08003
Attorneys for Plaintiff
Richard Hertzberg, Esq.
Greenbaum, Rowe, Smith & Davis LLP
P.O. Box 5600
Woodbridge, NJ 07095
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon a motion by
Plaintiff, Jason Reed (“Reed”), seeking to conditionally certify
a collective action pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C § 216(b).

Reed also moves to have this

matter certified as a class action pursuant to Federal Rule of
Civil Procedure 23(b)(3) for violations of the New Jersey Wage
1

and Hour Law, N.J.S.A. 34:11-56a et seq. (“NJWHL”).

For the

reasons set forth below, the Plaintiff’s motion is denied in its
entirety.
I.

Background
Plaintiff’s Employment
Reed worked for the Defendant (“Empire”) in Cinnaminson,

New Jersey as a full-time delivery driver from April 2010 until
February 2013, when he was terminated after being involved in an
accident while speeding.
1 & Def.’s Br. at 2.

Pl.’s Statement of Facts (“SOF”) at ¶

During his time working for Empire, Reed

was a non-exempt, hourly employee who earned a base hourly rate
between $12.00 and $13.75 per hour.

Pl.’s SOF at ¶¶ 2-3.

The Employee Handbook
Per Empire’s employee handbook, the normal work schedule
for drivers is 8 hours a day, 5 days a week.

Pl.’s Ex. E.

In

addition, “drivers . . . are provided with a 30 minute unpaid
lunch break for meals during each work period.”

Id.

Empire

automatically deducted the 30 minute unpaid meal break from the
calculation of compensable time.

Pl’s SOF at ¶ 14.

At all

relevant times, Reed’s work periods were scheduled to last 8.5
hours, comprised of 8 work hours and 30 minutes for an unpaid
meal break.

Id. at ¶ 10.

Reed states that the other drivers in

Cinnaminson worked similar schedules.
2

Empire’s handbook provides that “[a]ccurately recording
time worked is the responsibility of every non-exempt employee.”
Pl.’s Ex. E.

In addition, the terms of the handbook dictate

that “[n]on-exempt employees should accurately record the time
they begin and end their work, as well as the beginning and
ending time of each meal period.”

Id.

Finally, the handbook

states that employees would receive overtime compensation “at
one and one-half times their straight time rate for all hours
worked in excess of 40 hours per week.”

Id.

Reed states that

when he “worked over 40 hours in a workweek (exclusive of the
2.5 hours per week that [Empire] designated as unpaid meal
breaks and deducted from his total hours), [Empire] paid [him]
overtime wages of one and one-half times his regular rate for
each hour he worked in excess of 40.”

Pl.’s SOF at ¶ 15.

Process for Missed Meal Breaks
Reed states that he and other drivers employed at Empire’s
Cinnaminson warehouse regularly worked more hours than the 40
hours per week for which they were scheduled to work, Pl.’s SOF
at ¶¶ 15-16, and that he “rarely, if ever took an uninterrupted,
30-minute meal break.”

Id. at ¶ 19.

Empire contends that all

drivers were advised to take their lunch break and that Empire
has a procedure through which a driver can have his paycheck
adjusted in the event that the driver fails to take a lunch
3

break.

Defs.’ Br. at 3-4.

More specifically, drivers were to

inform Chief Operations Officer, Steve Moskal, when they did not
take their break so that their compensation could be adjusted to
reflect the actual work performed.

Id. at 4.

Empire contends

that the drivers were repeatedly advised that they should take
their lunch break.

Moskal Decl. at ¶ 3.

Reed asserts that the

policies “requiring” drivers to take lunch or to inform Empire
that such breaks were not taken are not in the Empire handbook.
Pl’s SOF at ¶¶ 37 & 38.

During his deposition, however, Reed

admitted that he was aware of the procedure for calling Moskal
when he skipped his lunch break and that his paycheck was
adjusted for working through lunch when Reed informed Moskal
that he had skipped lunch.
23; 48:11-22. 1

Defs.’ Ex. A, Pl.’s Dep. at 31:19-

Reed further stated that there were times when he

worked through lunch and did not inform his supervisors.
48:11-14.

Id. at

Finally, Reed testified that he did not know of any

other driver who did not take his lunch break.

Id. at 35:25-

36:3. 2

1

Q: When you called up and advised that you had skipped
lunch, who did you call?
A. I spoke with Steve
Q. Steve Moskal?
A. Yes.
Pl.’s Dep. at 31:19-23.
2

Q: Do you know whether everybody else didn’t take their
half hour lunch?
A: No, I don’t know that or not.
4

Empire’s GPS System
Empire has a policy that prohibits its drivers from using
company vehicles for “personal use of any kind” “at any time.”
Pl.’s Ex. D.

Reed was issued two warnings in 2012 for making

stops not related to his delivery schedule.

Pl.’s Ex. L.

Reed

contends that he did not have sufficient time in his schedule to
complete all his stops and take his 30 minute lunch break and
that Empire is able to determine whether its drivers in fact
took their breaks because all of the vehicles driven by Reed and
other drivers were equipped with GPS tracking to record, inter
alia, the drivers vehicle location, time spent driving, time
stopped, and speed.

Pl.’s SOF at ¶¶ 19 & 35.

Because of the

presence of the GPS units, Reed avers that “Defendants were able
to easily determine whether [the drivers] took an uninterrupted
30-minute meal break while they were out on their routes.” Id.
at ¶ 20.

In contrast to Reed’s position, Mr. Moskal wrote in

his declaration that Empire does not utilize or check GPS
records in connection with payroll.

Moskal Decl. at ¶ 8.

Declarations of Other Drivers
In conjunction with the instant motion, the parties have
provided this Court with the sworn declarations of five other
delivery drivers, Pl.’s Ex. N, and the sworn declaration of

5

supervisor and driver Jeffrey Bealer.

Pl.’s Ex. O.

The sworn

declarations state, in relevant part, as follows:
•

•

•

•

Drivers Michael Diamante and Kenneth Tongue declared:
o “I have always been instructed to take my thirtyminute meal break.”
o “I have never heard of drivers being instructed
to not take their thirty-minute meal break, or
being disciplined for taking a thirty-minute meal
break.”
o “Occasionally, I will skip my thirty-minute meal
break, voluntarily, so that I can finish my route
faster. In those instances, I have not reported
this to my supervisors.”
o “I have never had any issue with Empire
compensating me and paying me overtime.”
Driver David Pierce declared:
o “I have always been instructed to take my thirtyminute meal break.”
o “Occasionally, I will skip my thirty-minute meal
break, voluntarily, so that I can finish my route
faster and get home sooner.”
o “If I do take my thirty-minute meal break, and
arrive back at the Cinnaminson office later than
the time I am supposed to, I am paid overtime.”
o “I have never had any issue with Empire
compensating me and paying me overtime.”
Drivers Jeffrey Jones and Kurt Loescher declared:
o “I have always been instructed to take my thirtyminute meal break.”
o “Occasionally, I will skip my thirty-minute meal
break, voluntarily, so that I can finish my route
faster. In those instances, I have not reported
this to my supervisors.”
o “I have never had any issue with Empire
compensating me and paying me overtime.”
Jeffrey Bealer declared:
o “I have always instructed the delivery drivers to
take their thirty-minute meal break.”
o “I have always been instructed to take my thirtyminute meal break.”
o “I have never heard of drivers being instructed
to not take their thirty-minute meal break, or
being disciplined for taking a thirty-minute meal
break.”
6

o “I generally take my thirty-minute meal break,
but, occasionally, I will skip my thirty-minute
meal break, voluntarily, so that I can finish my
route faster. In those instances, I have not
reported this to my supervisors.”
o “I have never had any issue with Empire
compensating me and paying me overtime.”
o “I have never heard of delivery drivers, other
than Jason Reed, complaining that they were not
allowed or not supposed to take a thirty-minute
meal break.”
Plaintiff’s Complaint
Pursuant to his Complaint filed with this Court, Reed
contends that Empire violated the FLSA and “New Jersey Wage
Laws” by failing to pay Reed and other drivers overtime.
Ex. A at Counts I-III.

Pl.’s

Plaintiff seeks to assert claims on

behalf of himself and “all persons presently and formerly
employed by [Empire] as delivery drivers or in positions with
similar duties subject to [Empire’s] unlawful pay practices and
policies . . . and who worked for [Empire] at any point in the
three years preceding the date the instant action was initiated
. . . .”

Pl.’s Ex. A. at ¶ 12. 3

The gravamen of Reed’s

Complaint is that “Defendants automatically deducted 30 minutes
from each shift worked by Class Plaintiffs despite not
permitting Class Plaintiffs to take bona fide meal breaks[.]”
Id. at ¶ 25.

3

That said, Reed only identifies seven other drivers with whom
he worked in the Cinnaminson warehouse. Pl.’s Br. at 4.
7

II.

Standard of Review
a. FLSA Conditional Certification

“The FLSA establishes federal minimum-wage, maximum-hour,
and overtime guarantees that cannot be modified by contract.”
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1527
(2013).

Under 29 U.S.C. § 216(b), the FLSA authorizes employees

to bring a claim on behalf of other employees “similarly
situated” who were affected by an employer’s common policy.
White v. Rick Bus Co., 743 F. Supp. 2d 380, 386 (D.N.J. 2010).
Unlike class actions subject to Federal Rule of Civil Procedure
23, where each person within the class is presumed to be a
member of the class unless he “opts-out,” collective actions
under the FLSA require members of the class to “opt-in” to a
civil action.

See 29 U.S.C. § 216(b); Ornelas v. Hooper Holmes,

Inc., No. 12-3106, 2014 U.S. Dist. LEXIS 172162, at *5 (D.N.J.
Dec. 12, 2014).
In determining whether a suit should proceed as a
collective action under the FLSA, most courts utilize a twotiered analysis.

Symczyk v. Genesis HealthCare Corp., 656 F.3d

189, 192 (3d Cir. 2011), rev’d on other grounds, 133 S. Ct. 1523
(2013); Ornelas, 2014 U.S. Dist. LEXIS at *5.

During the first

stage of the analysis, the court “makes a preliminary
8

determination whether the employees enumerated in the complaint
can be provisionally categorized as similarly situated to the
named plaintiff.”

Id. at 192-193 (citations omitted).

“At the

step-one inquiry, the Court does not weigh the evidence, resolve
factual disputes, or reach the merits of Plaintiff’s claims . .
. . The Court does not, however, review Plaintiff’s evidence in
a vacuum.

It reviews Plaintiff’s evidence in light of the

evidence submitted by Defendants.” Holley v. Erickson Living,
11-2444, 2012 U.S. Dist. LEXIS 70335, at *4 n.4 (E.D. Pa. May
21, 2012).
To determine whether the proposed recipients of opt-in
notices are similarly situated, 4 the Third Circuit utilizes a
“modest factual showing” standard.

Symczyk, 656 F.3d at 192

(stating that the modest factual showing standard “best comports
with congressional intent and with the Supreme Court's directive
that a court ‘ascertain[ ] the contours of [a collective] action
at the outset’”)(quoting Hoffmann–La Roche, 493 U.S. at 172)).
This modest factual showing analysis is performed using a

4

The Third Circuit applies an ad-hoc approach in determining
whether proposed collective plaintiffs are similarly situated.
See Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 (3d Cir.
2012). Factors relevant to this ad hoc analysis include, but
are not limited to, whether the plaintiffs are employed in the
same corporate department, division and location; advance
similar claims; seek substantially the same form of relief; and
have similar salaries and circumstances of employment. Id. at
536-37.
9

lenient standard, but “a plaintiff must [still] produce some
evidence ‘beyond pure speculation,’ of a factual nexus between
the manner in which the employer’s alleged policy affected her
and the manner in which it affected other employees.” Id.
(citing Smith v. Sovereign Bancorp, Inc., No. 03-2420, 2003 U.S.
Dist. LEXIS 21010, at * 3 (E.D. Pa. Nov. 13, 2003)); Zavala, 691
F. 3d at 537 n.4.
“The underlying question is the extent to which the claims
of the putative class can be proven through common evidence,
versus individualized testimony.” Banks v. RadioShack Corp., No.
13-685, 2014 U.S. Dist. LEXIS 60764, at *5 (E.D. Pa. Apr. 25,
2014).

A plaintiff’s “[u]nsupported assertions of widespread

violations are not sufficient.”

Evancho v. Sanofi-Aventis U.S.

Inc., No. 07-2266, 2007 U.S. Dist. LEXIS 93215, *8 (D.N.J. Dec.
19, 2007).

Specifically, a plaintiff cannot rely solely on the

allegations in the complaint, and must instead provide factual
support in the form of pleadings, affidavits, deposition
testimony, or other supporting documents.

See Anyere v. Wells

Fargo Co., No. 09-2769, 2010 WL 1542180, at *2 (N.D. Ill. Apr.
12, 2010) (“A ‘modest factual showing’ . . . cannot be founded
solely on allegations in the complaint; some factual support
must be provided, such as in the form of affidavits,
declarations, deposition testimony, or other documents.”).
10

While there exists a “modest” standard at this stage,
“courts have not hesitated to deny conditional certification
when evidence is lacking.”

Rogers v. Ocean Cable Group, Inc.,

No. 10-4198, 2011 U.S. Dist. LEXIS 149197, at *8 (D.N.J. Dec.
29, 2011)(quotations and citations omitted).

If, however, the

plaintiff carries his burden at this juncture, “the court will
‘conditionally certify’ the collective action for the purposes
of notice and pretrial discovery.”

Symczyk, 656 F.3d at 192-93.

b. Rule 23(b)(3)
In order to proceed as a class action under Federal Rule of
Civil Procedure 23, the four requirements of Rule 23(a) and the
requirements of either Rule 23(b)(1), (2), or (3) must be met.
To satisfy Rule 23(a)[:] (1) the class must be "so numerous
that joinder of all members is impracticable" (numerosity);
(2) there must be "questions of law or fact common to the
class" (commonality); (3) "the claims or defenses of the
representative parties" must be "typical of the claims or
defenses of the class" (typicality); and (4) the named
plaintiffs must "fairly and adequately protect the
interests of the class" (adequacy of representation, or
simply adequacy).
Marcus v. BMW of North America, LLC, 687 F.3d 583, 590-91 (3d
Cir. 2012)(citing In re Cmty. Bank of N. Va., 622 F.3d 275, 291
(3d Cir. 2010)); See Fed. R. Civ. P. 23.

Moreover, Rule 23

(b)(3), the basis for certification in the instant matter,
“requires that (i) common questions of law or fact predominate
(predominance), and (ii) the class action is the superior method
11

for adjudication (superiority).”

Id.

“Class certification is

only proper ‘if the trial court is satisfied, after a rigorous
analysis, that the prerequisites’ of Rule 23 are met.”

In re

Hydrogen Peroxide Litigation, 552 F.3d 305, 309 (3d Cir.
2008)(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161
(1982)).

When performing this rigorous analysis, “the court

cannot be bashful.

It ‘must resolve all factual or legal

disputes touching on elements of the cause of action.’”

Marcus,

687 F.3d at 591 (quoting Hydrogen Peroxide, 552 F.3d at 307),
and, “[f]requently, that ‘rigorous analysis’ will entail some
overlap with the merits of the plaintiff’s underlying claim.
That cannot be helped. ‘[T]he class determination generally
involves considerations that are enmeshed in the factual and
legal issues comprising the plaintiff’s cause of action.’”

Wal-

Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52
(2011)(alteration in original)(quoting Falcon, 457 U.S. at 160).
In addition, “[f]actual determinations supporting Rule 23
finings must be made by a preponderance of the evidence, and the
burden of proof rests on the movant.”

Hayes v. Wal-Mart Stores,

Inc., 725 F.3d 349, 354 (3d Cir. 2013)(internal quotations and
citations omitted).

12

III. Analysis
a. FLSA Conditional Certification
As set forth above, while the threshold for conditional
certification is modest, at this stage Reed must, nevertheless,
demonstrate that he is similarly situated to the other employees
enumerated in the Complaint and provide evidence beyond mere
speculation of a “factual nexus between the manner in which the
employer’s alleged policy affected [him] and the manner in which
it affected other employees.”

Symczyk, 656 F.3d at 192.

Reed

has failed to meet this burden.
Reed argues that all drivers are subject to the same policy
of automatically deducting the meal break period and the
prohibition of personal use of Empire’s vehicles.

From the

interplay of these policies, Plaintiff asks this Court to infer
that Empire’s “meal break policy is a sham and has resulted in
[Empire] knowingly failing to pay overtime wages in violation of
the FLSA.”

Pl.’s Br. at 17.

Plaintiff supports this argument

with his own declaration and the other driver declarations, 5

who

stated they occasionally skipped meal breaks to finish their

5

In addition to the declaration, Reed argues that his co-worker
Jose Colon “was disciplined for making an unauthorized stop to
take a meal break,” Pl.’s Br. at 2, but has provided no evidence
in support thereof other than Reed’s own testimony – i.e., there
is no declaration or deposition testimony of Colon in support of
this averment.
13

routes faster and did not notify management when they skipped
the break.

Reed then asks this Court to draw another inference

that, because of the declarations regarding unreported, skipped
meal breaks, Empire maintains “an unwritten policy of
discouraging [d]rivers from taking meal breaks [as] an
explanation of the declarants’ curious refusal to recover ages
owed to them.”

Pl.’s Reply Br. at 3.

Finally, Reed contends that the presence of GPS in the
drivers’ vehicles to track their routes is sufficient to
constitute evidence of the requisite “factual nexus” between
Empires policies and the effect of those policies on him and on
other drivers.

Pl.’s Br. 4.

In other words, Reed argues that

Moskal was responsible for calculating and paying wages of the
drivers and he reviewed the GPS data to determine if drivers
were using vehicles in an unauthorized manner.

According to

Reed, this fact, coupled with the driver declarants stating that
they did not report occasional skipped meal breaks, “supports .
. . Reed’s allegation that [Empire] maintained a company-wide
policy of deducting for meal breaks [d]rivers do not take.”
Pl.’s Reply. Br. at 4.

In addition, Reed points to the fact

that Empire did not provide evidence showing that the drivers
regularly used Empire’s “alleged policy for reporting missed

14

meal breaks to get their pay corrected” in support of the
necessary factual nexus.

Reply Br. at 4.

In response, Empire contends that conditional certification
is inappropriate as Reed cannot demonstrate that he is similarly
situated to other drivers as evidenced by his own testimony.
For example, when asked whether he knew if the other drivers did
or did not take their half hour lunch, he responded, “No, I
don’t know that or not.”
36:3.

Def.’s Ex. A, Pl.’s Dep. at 35:25-

Moreover, Empire contends that Reed’s speculation that

there is an unstated policy that drivers will not get paid for
skipped meal breaks is insufficient.

An automatic meal

deduction is not, per se, unlawful, 6 and Reed has failed to
present evidence of the alleged unstated policy.

The fact that

Reed chose not to tell his supervisors that he skipped meal
breaks and have his time adjusted accordingly sheds no light on
the experience of other drivers.

Instead, it was Reed’s

individual decision to not comply with the policy.

See Def.’s

Ex. A, Pl.’s Dep. 48:25-49:3 (“I’m not going to keep calling
every time I need an adjustment made when it was clearly said to
me make sure you take your lunch.”).

6

Finally, with respect to

Dep't of Labor, Wage & Hour Div., Opinion Letter FLSA2007-INA
(May 14, 2007) ("[T]he [automatic deduction policy] does not
violate the FLSA so long as the employer accurately records
actual hours worked, including any work performed during the
lunch period.").
15

Reed’s GPS arguments, Empire contends that there is no evidence
that Empire knew or should have known that drivers were skipping
breaks and failing to notify Empire as the GPS data was not used
for payroll purposes.
This Court agrees that conditional certification is
inappropriate in the instant case.

If anything, Plaintiff’s

arguments, briefs and, most importantly, his deposition, only
serve to highlight the fact that he is not similarly situated to
other drivers and that he lacks sufficient knowledge, and
certainly evidence, demonstrating that he is similarly situated
to other drivers.

First, in his deposition, Plaintiff appeared

to be unclear even as to the basis of his claims:
Q: It’s your position, sitting here today, that you’re owed
overtime for having to work through lunch. Is that right?
A: Not necessarily. It’s just it was as many hours that I
worked during the week. If it’s, you know, already at 40 and I
didn’t work through the lunch, then, obviously that would be in
the overtime favor.
Q: Well, that’s what you’re saying happened, right?
A: I guess, yeah.
Def.’s Ex. A, Pl.’s Dep. 33:7-17.

In addition, Reed freely

admitted that he was not sure whether or not other drivers did
nor did not take their half hour lunch.

Id. at 44:6-12 (“Q: I

mean, do you know for a fact that other people didn’t take a
half hour lunch in the warehouse?
fact, no.”).

A: I don’t know that for a

Moreover, Reed’s own testimony supports the

conclusion that he viewed his own situation as different from
16

other drivers – e.g., his routes were unique and that he had a
personality conflict with this supervisor, Jeffrey Bealer.
Def.’s Ex. A, Pl.’s Br. at 46:24-47:24. 7

See

Finally, while Reed

claims he failed to report skipped lunch breaks due to Empire’s
alleged unwritten policy against taking such breaks, he stated
at his deposition that the one time he could remember skipping
lunch and reporting it, an adjustment was made to his paycheck.
Id. at 48:15-20 (“The one that I can remember calling Steve
[Moskal] and saying that I worked through lunch, he made the
adjustment.”).

Certainly, this admission undermines the

existence of the alleged unwritten policy.
While other drivers may occasionally have skipped the lunch
break and did not report it to obtain a payroll adjustment,
those same drivers made clear that they each “have never had any
issue with Empire compensating me and paying me overtime,”
unlike Reed’s allegation.
unique situation.

7

Again, this fact highlights Reed’s

Moreover, this Court will not draw the

Q: “[D]id you feel that your routes were different from the
other drivers?
A: I felt they weren’t switched up enough as they should be. I
mean that’s kind of like where the personality conflict with
Jeffrey Bealer came in.
* * *
Q: Okay. So just so I understand, did you feel that your route
in general was more demanding than some of the routes that other
drivers were running?
A: Yes.”
17

extremely attenuated inference Reed advances – i.e., that
somehow the reason these other declarants failed to report their
occasionally skipped meal breaks was because of an unwritten
Empire policy preventing drivers from taking lunch breaks.
There is no evidence to support the existence of such a policy
other than Reed’s own averments.

The only policies supported by

any evidence are the handbook policies, which provide drivers
with a 30 minute meal break and require the drivers to keep
accurate track of their time worked, including meal periods. 8
Reed has, admittedly, unsufficient knowledge with respect to
other drivers, and relies assumed facts rather than the
requisite factual nexus.
in inappropriate.

In light of the above, certification

See Asirifi v. West Hudson Sub-Acute Care

Center, No. 11-4039, 2014 U.S. Dist. LEXIS 9281, at *7 (D.N.J.
Ja. 24, 2014)(denying conditional certification where the
plaintiffs asserted that defendant regularly deducted thirty
minute meal break regardless of whether such a break was taken,
and stating that “the alleged application of a uniform policy
does not, without more, show that potential class members are
similarly situated.”); Rogers v. Ocean Cable Group, Inc., No.

8

See Pl.’s Ex. E, stating that “[a]ccurately recording time
worked is the responsibility of every non-exempt employee[,]”
and that “[n]on exempt employees should accurately record the
time they begin and end their work, as well as the beginning and
ending time of each meal period.” Id.
18

10-4198, 2011 U.S. Dist. LEXIS 149197, at *11 (D.N.J. Dec. 29,
2011)(denying conditional class certification where plaintiffs
had no personal knowledge of whether other technicians worked in
excess of a 40 hour week and where plaintiffs sought to rely on
assumed facts); Armstrong v. Weichert Realtors, No. 05-3120,
2006 U.S. Dist. LEXIS 31351, at *4 (D.N.J. May, 19
2006)(refusing to conditionally certify class where evidence in
support was the plaintiff’s declaration and court was unable to
determine whether plaintiff “actually knew other particular
officers who were required to perform unpaid overtime work, and
what he knew specifically about their unpaid work.”); see also,
Saleen v. Waste Management, Inc., 649 F. Supp. 2d 937, 941 (D.
Minn. 2009)(finding, in case where drivers alleged that their
employer maintained an unwritten policy of refusing to reverse
an automatic thirty-minute meal deduction even where drivers
worked through that time, that “there mere fact that a small
fraction of employees allege that they did not receive the
compensation to which they were entitled provides almost no
evidence that the reason that these employees were underpaid was
because of an unlawful company policy.”) 9

9

Even assuming, arguendo, that this Court found Reed’s arguments
more persuasive, Reed has failed to demonstrate that his
allegations extend to others outside of his warehouse. He has
not testified as to the circumstances of drivers beyond his
warehouse and has provided no declarations or evidence with
19

Reed’s attempt to rely on the presence of the GPS devices
in the drivers’ trucks is similarly unsuccessful.

Reed contends

that the fact that “Moskal regularly reviews data showing
exactly how much time Drivers spend idling, or stopped coupled
with the fact that none of the . . . declarants state that they
ever reported missed meal breaks to [Empire] supports . . .
Reed’s allegation that [Empire] maintained a company-wide policy
of deducting for meal breaks Drivers do not take.”
Br. at 4.

Pl.’s Reply

Reed, however, has not presented any evidence, nor

has he even argued, that the GPS data was used in disciplining
another drivers for taking their lunch breaks, again, failing to
satisfy the modest factual showing that Reed is similarly
situated to the drivers. 10

Moreover, the drivers’ declarations

in no way support Reed’s contention; while a few of the
declarants stated they occasionally skipped a break to finish
faster and did not report it, there is no evidence whatsoever
that this was influenced by an unwritten policy or because of
the GPS tracking.

respect to drivers beyond those working in the Cinnaminson
warehouse.
10

Reed does state that another driver, Jose Colon, was
disciplined for making an authorized stop to take his meal
break, but, again there is no declaration from Mr. Colon and no
averment that the GPS data was used in relation to this alleged
discipline. See Defs.’ Ex. A, Pl.’s Dep. at 34:16-35:9.
20

In making the argument that Empire knew or should have
known that employees were not taking their meal breaks and
failing to report the same, Reed asks this Court to make another
attenuated inference: that Empire reviewed all GPS data to
determine payroll accuracy even though the unrefuted declaration
of Moskal states that the GPS records were not used for payroll
purposes and the handbook makes clear that it is the duty of the
drivers to keep accurate time records, including time spent on
meal breaks.

See Moskal Decl. at ¶ 8; Pl.’s Ex. E (“[n]on-

exempt employees should accurately record the time they begin
and end their work, as well as the beginning and ending time of
each meal period.”).

Reed’s proposed inferences are further

undermined by the declaration of driver David Pierce, which
states, in relevant part: “If I do take my thirty-minute meal
break, and arrive back at the Cinnaminson office later than the
time I am supposed to, I am paid overtime.”

Pl.’s Ex. N.

Again, Reed has failed to show he is similarly situated to other
drivers such as Pierce.
Finally, this Court finds that the plain terms of Empire’s
written policies, which provide drivers with a 30 minute break,
yet prohibit personal use of vehicles, should be read in harmony
and not in the tortured fashion that Reed supports.

Clearly,

Empire wasn’t allowing and prohibiting drivers from eating lunch
21

in the same document.

Reed urges a nonsensical reading of

Empire’s policies, which is, again, unsupported by any evidence
that other drivers experienced a similar impact of those
policies.

Therefore, for the reasons set forth above, this

Court finds that Reed has failed to “produce some evidence
‘beyond pure speculation,’ of a factual nexus between the manner
in which the employer’s alleged policy affected [him] and the
manner in which it affected other employees.”

Symczyk, 656 F.3d

at 192.
b. Fed. R. Civ. P. 23(b)(3)
For reasons similar to those discussed above, this Court
finds that Reed’s request to certify a class pursuant to the
more stringent Rule 23(b)(3) analysis similarly fails.

See

e.g., Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir.
1996)(noting that the similarly situated requirement for FLSA
collective actions is "considerably less stringent than the
requirement of [Rule 23(b)(3)] that common questions
predominate.").
As an initial matter, this Court notes that in Plaintiff’s
reply brief, he does not even address any of Empire’s arguments
against Rule 23(b)(3) class certification.

Even so, this Court

has reviewed the arguments set forth in Plaintiff’s moving

22

papers and finds that Reed has failed to meet the requisite
commonality and predominance elements. 11
Commonality under Rule 23(a) requires the Plaintiff to
demonstrate that his claims depend upon a common contention.
Dukes, 131 S. Ct. at 2551.

“That common contention, moreover,

must be of such a nature that it is capable of classwide
resolution–-which means that determination of its truth or
falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke.”

Id. (emphasis added).

In other words, what matters to class certification is not the
raising of common questions “but, rather the capacity of a
classwide proceeding to generate common answers apt to drive the
resolution of the litigation.”

Id. (quoting Nagareda, Class

Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev.
97, 132 (2009)).

11

Because class certification fails on multiple grounds, this
Court need not reach the issues of numerosity, typicality or
adequacy. See Dukes, 131 S. Ct. at 2251, n. 5 (“In light of our
disposition of the commonality question . . . it is unnecessary
to resolve whether respondents have satisfied the typicality and
adequate-representation requirements of Rule 23(a)”); Eastman v.
First Data Corp., No. 10-4860, 2013 U.S. Dist. LEXIS 107163 at
*29 (D.N.J. July 31, 2013) (“Because of the lack of commonality,
the Court need not reach the other Rule 23(a) questions of
typicality and adequacy of representation or Rule 23(b).”).

23

In addition to the requirements of Rule 23(a), Reed must
also satisfy the predominance requirement of Rule 23(b)(3).
Pursuant to Rule 23(b)(3), a class action may only be maintained
if:
the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to
other available methods for fairly and efficiently
adjudicating the controversy.
Fed. R. Civ. P. 23(b)(3).

“Rule 23(b)(3)’s predominance

criterion is even more demanding than Rule 23(a).”
Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013).

Comcast

Where, as in

this matter, “an action is to proceed under Rule 23(b)(3), the
commonality requirement [of Rule 23(a)] is subsumed by [Rule
23(b)(3)'s] predominance requirement.”

Danvers Motor Co., Inc.

v. Ford Motor Co., 543 F.3d 141, 148 (3d Cir. 2008) (internal
quotations and citations omitted).

Thus, this Court will focus

its analysis on the whether Reed has satisfied Rule 23(b)(3)’s
requirements -- namely, whether “the element of [the legal
claims are] capable of proof at trial through evidence that is
common to the class rather than individual to its members.”
Hydrogen Peroxide, 522 F.3d at 311-12.
With respect to commonality, Reed contends that Empire’s
uniformly applied pay policies resulted in Empire failing to pay
drivers overtime in violation of the NJWHL, and thus the common
24

question as to all putative class members is whether the drivers
were denied compensation as a result of the policy of
automatically deducting 30 minutes of paid time for meal breaks
that were not taken.

With respect to predominance, Reed simply

states: “the claim that [Empire] failed to pay Named Plaintiff
Reed and putative class members wages for all hours worked is a
common issue that predominates over any hypothetical individual
issues.”

Pl.’s Br. at 25.

He further states that the GPS

tracking units can be used to calculate damages.
For reasons set forth above, the only evidence presently
before the Court points to Reed’s unique situation as compared
with other drivers.

Again, Reed testified that he was uncertain

whether other drivers took their lunch break, Pl.’s Dep. at
35:25-36:3, and the other declarants made clear that they,
unlike Reed, “have never had any issue with Empire compensating
[them] and paying [them] overtime.”

See Pl.’s Ex. N.

If

anything, the difference between Reed’s experience and that of
the other drivers underscores the fact that Reed cannot
demonstrate that “the element of [the legal claims are] capable
of proof at trial through evidence that is common to the class
rather than individual to its members.”
F.3d at 311-12.

Hydrogen Peroxide, 522

The necessarily individualized nature of the

inquiry needed into each driver’s individual circumstances with
25

respect to breaks taken or not taken and the reasons therefore
precludes the requisite finding of commonality and predominance.
Cf. Jarosz v. St. Mary Medical Center, 10-3330, 2014 U.S. Dist.
LEXIS 13218, at *29 (E.D. Pa, Sept. 22, 2014)(denying Rule
23(b)(3) certification in an automatic meal deduction case where
the Court found individual issues would predominate over common
questions). 12

As such, Reed’s request for certification pursuant

to Federal Rule of Civil Procedure 23(b)(3) will be denied.

III. Conclusion
For the reasons stated above, Plaintiff’s motion is denied
in its entirety.

An appropriate Order will issue this date.

s/Renée Marie Bumb
RENEE MARIE BUMB
United States District Judge
Date: February 23, 2015

12

Notably, the Jarosz court stated “[a]lthough the automatic
[meal] deduction policy is common to all class members, it is
not central to the validity of the state law claims . . . .
There are significant differences as to whether, why and how
often individual class members worked through meal breaks. . . .
These differences illustrate that whether and how often
potential class members worked through meal breaks would be an
individualized inquiry, rather than a common one.”).
26