HENRY v. EXPRESS SCRIPTS HOLDING COMPANY

Filing 24

OPINION AND ORDER denying 19 Motion for conditional certification of class. Signed by Judge Stanley R. Chesler on 2/24/2015. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERTA HENRY, individually and on
behalf of a Class of other persons similarly
situated,

:
:
:
:
Plaintiff, :
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v.
:
:
:
EXPRESS SCRIPTS HOLDING
:
COMPANY,
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Defendant.

Civil Action No. 14-2979 (SRC)
OPINION & ORDER

CHESLER, District Judge
This matter comes before the Court on Plaintiff’s motion for conditional certification of
her Fair Labor Standards Act (“FLSA”) claim as a collective action. Defendants have opposed
the motion. The Court has opted to rule based on the papers submitted and without oral
argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons expressed below, the
Court will deny Plaintiff’s motion.
In relevant part, the FLSA authorizes an employee to pursue a civil action to recover
unpaid overtime on her own behalf as well as on behalf of other employees who are “similarly
situated.” 29 U.S.C. § 216(b). A FLSA collective action allows individuals who are similarly
situated to the named plaintiff to opt in to the action by filing a written consent with the Court.
Id. District courts have the discretionary power to authorize the sending of notice to potential
class members in a collective action brought pursuant to § 216(b). Symczyk v. Genesis
Healthcare Corp., 656 F.3d 189, 194 (3d Cir. 2011), rev’d on other grounds, 133 S. Ct. 1523
(2013).

In Symczyk, the Third Circuit established a two-stage approach to the certification
process in a FLSA collective action:
In deciding whether a suit brought under § 216(b) may move forward as a
collective action, courts typically employ a two-tiered analysis. During the initial
phase, the court makes a preliminary determination whether the employees
enumerated in the complaint can be provisionally categorized as similarly situated
to the named plaintiff. if the plaintiff carries her burden at this threshold stage, the
court will “conditionally certify” the collective action for the purposes of notice
and pretrial discovery.
Id. at 192. At the first stage, the plaintiff must make a “modest factual showing” for conditional
certification to be granted. Id. at 193. “Under the ‘modest factual showing’ standard, a plaintiff
must 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. The Second Circuit has similarly held: “The court may send this notice after
plaintiffs make a ‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were
victims of a common policy or plan that violated the law.’” Myers v. Hertz Corp., 624 F.3d 537,
555 (2d Cir. 2010).
Plaintiff helpfully summarizes her factual showing as follows:
•

In early December 2013, Express Scripts decided to reclassify 170
employees, including Plaintiff, as non-exempt . . .

•

Express Scripts did not review the job duties that these employees
performed during the prior three years . . .

•

The Company did not pay back overtime wages to any of the 170
reclassified employees . . .

(Pl.’s Br. 12-13.) These facts do not satisfy the requirement for a modest factual showing. The
problem is that there is nothing about these facts to suggest that any of the reclassified
employees were victims of a common policy or plan that evaded the law. Breaking this down
further, there are no facts suggesting that: 1) the previous classifications as exempt were

incorrect at the time; or 2) the previous classifications as exempt originated in a common policy,
such that the those misclassified are similarly situated; or 3) that the previous classifications as
exempt resulted in FLSA violations. It is not possible to infer any FLSA violations from these
facts. Reclassification, alone, does not evidence a FLSA violation.
In Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 n.4 (3d Cir. 2012), the Third
Circuit, albeit in dicta, shed additional light on the two-stage certification process by citing
approvingly the Second Circuit’s decision in Myers: “The Second Circuit has described this
initial step as determin[ing] whether ‘similarly situated’ plaintiffs do in fact exist.” 624 F.3d at
555. Based on the present record, this Court is not persuaded that similarly situated plaintiffs
exist. Plaintiffs have pointed to no evidence that a common policy or plan violated the law. In
fact, they have pointed to no common policy or plan that could possibly be viewed as violating
the FLSA.
Plaintiff has failed to make the modest factual showing required to grant the conditional
certification motion. The motion for conditional certification will be denied.
For these reasons,
IT IS on this 24th day of February, 2015
ORDERED that Plaintiff’s motion for conditional certification (Docket Entry No. 19) is
DENIED.

s/Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge