ESSEX et al v. THE CHILDRENS PLACE, INC.
Filing
73
OPINION fld. Signed by Judge John Michael Vazquez on 8/16/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANGELA R. ESSEX, et al,
Civil Action No. 15-562!
Plaintzjfr
OPINION
V.
THE CHILDREN’S PLACE, INC.,
Defendant.
John Michael Vazgucz, U.S.D.J.
I.
INTRODUCTION
This matter comes before the Court on the Motion for Notice Pursuant to Section 16(b) of
the Fair Labor Standards Act (“FLSA”) filed by named Plaintiffs Angela R. Essex and Gabriela
Maradiaga. and eight “opt-in” Plaintiffs (collectively “Plaintiffs”).
Plaintiffs, former store
managers (“SMs”) at Defendant The Children’s Place, Inc. (“Children’s Place” or “Defendant”),
request the Court to conditionally certify and provide notice to a class of SMs who were allegedly
misclassified as exempt employees and not paid overtime wages as required by the FLSA. D.E.
63. Defendant filed a brief in opposition to Plaintiffs’ motion (D.E. 65) to which Plaintiffs’ replied
(D.E. 70). The Court reviewed all submissions made in support and in opposition to the motion,
and considered the motion without oral argument pursuant to L. Civ. R. 78.1(b). For the reasons
stated below, Plaintiffs’ motion for notice is GRANTED.
As explained more filly below,
Defendant is ordered to produce the names and limited contact information for all SMs employed
I
by Children’s Place within the last three years (excluding SMs who worked at stores in California).
In addition, the parties are ordered to meet and confer regarding the form and content of notice
that will be sent to the class then provide the proposed notice to the Court for review and approval.
II.
FACTS AND PROCEDURAL HISTORY
The named Plaintiffs filed their complaint on July 17, 2015, alleging that they were
misclassified as exempt under the FLSA. and therefore, are entitled to unpaid overtime wages)
Compl. i 1,33, D.E. 1. Plaintiffs were store managers at Children’s Place. a national retail store
that sells children’s clothing and related goods. Id.
¶]J
11-12, 14. Plaintiffs allege that they, and
similarly situated employees, “worked in excess of 40 hours per workweek, without receiving
overtime compensation as required by the FLSA.” Id.
¶ 20.
Plaintiffs further claim that the work
they performed did not “include managerial responsibilities, or the exercise of meaningffil
independent judgment and discretion.” Id. 928. Plaintiffs allege that their primary job duties “did
not materially differ from the duties of non-exempt hourly paid employees,” and included
“working the cash registers, stocking shelves, cleaning and straightening the store, assisting
customers, organizing the store according to detailed corporate directives, and unpacking
merchandise.” Id.
was
¶T
29, 32. Plaintiffs also contend that the decision to classify SMs as exempt
a “centralized, company-wide policy.” Id.
¶ 33.
Since filing the complaint, eight individuals
who were formerly employed as SMs at Children’s Place have voluntarily opted-in to the suit.
D.E. 14-16, 26, 35, 37, 56.
Although not at issue in this motion, Plaintiff Maradiaga also seeks to certify a class under Fed.
R. Civ. P. 23 on behalf of all store managers within the state of Maryland for violations of the
Maryland Wage and Hour Law, MD Code Ann. Lab. & Empi. §* 3-401, ci seq, and the Maryland
Wage Payment and Collection Law, MD Code Ann. Lab. & EmpI. §* 3-501, et seq. Compl. ¶ 2.
7
On November 30, 2015, Judge Falk entered a scheduling order that provided for two phases
of discovery
--
the first of which was focused on “whether Plaintiffs’ FLSA claims can be
conditionally certified as a collective action for notice purpose.” D.E. 46. Pursuant to this Order,
the parties engaged in limited discovery, which included two Federal Rule of Civil Procedure
30(b)(6) depositions of Children’s Place representatives, the depositions of both named Plaintiffs
and three opt-in Plaintiffs, and the exchange of more than 12,000 pages of documents. Plfs’ Br.
at 2 (D.E. 63-2), Del’s Br. at 4 (D.E. 65). After the completion of phase one discovery, Plaintiffs
filed this motion arguing that a class should be conditionally certified because they meet “their
lenient burden to demonstrate a modest factual showing that Children’s Place SMs are similarly
situated.” P11’s’ Br. at I (internal quotation marks omitted). Plaintiffs argue that notice should be
sent to all SMs who worked at Children’s Place within the last three years (except for SMs in
California) and that Children’s Place should be ordered to provide a list with the names and contact
information for all eligible employees to facilitate notice. Id. at 16-20. Children’s Place argues
that there is not enough evidence to establish that Plaintiffs are similarly situated, and maintains
that SMs “satisify] the executive exemption to the FLSA’s overtime requirement, as set forth in
29 U.S.C.
§
213(a).” Del’s Br. at 4, 26.
Plaintiffs were SMs at Children’s Place stores in Colorado, Illinois, Maryland, Missouri,
New Jersey, New York, and Texas. Sec Deposition of Gabriela Maradiaga (“Maradiaga Dep.”)
27:10-13 Deposition of Angela Essex (“Essex Dep.”) 29:20-25, 3 1:24-32:2, Deposition of Karen
Vance (“Vance Dep.”) 9:25-10:3; Deposition of Rachel Joseph (“Joseph Dep.”) 25:2-24;
Deposition of Tammy Brooks (“Brooks Dep.”) 109:2-12; Declaration of John Estrada (“Estrada
Dccl.”)
9
2: Declaration of Tinda Kilo (“Kilo Dccl.”)
(“Murabito DecI.”)
¶ 2;
¶
2; Declaration of Tiffany Murabito
Declaration of Jessica Shelby (“Shelby DecI.”)
3
¶ 2;
Declaration of Rafael
Vasquez (“Vasquez Decl.”)
¶ 2.2
Children’s Place has a single job description for SMs and SMs
are responsible for the same primary duties regardless of the location, size, or volume of sales at
the store where they work. Grosso DecI. Ex. 5 (SM Job Description); Deposition of Eric Collier
(“Collier Dep.”) 50:9-51:21, 53:23-55:1; Deposition of Deana Spak (“Spak Dep.”) 52:l7-2l. In
addition, SMs nationwide are compensated in the same manner; that is, they are salaried employees
and are eligible for monthly bonuses according to the “Store Leadership Incentive Plan.” See
Grosso DecI. Ex. 21 (“Store Leadership Incentive Plan”); Spak Dep. 67:3-17. In addition, SMs
are uniformly classified as exempt under the FLSA so they are not paid overtime wages if they
work more than forty hours a week. Collier at 43:12-17; Spak at 51:15-52:3.
Plaintiffs testified that they’ consistently worked more than forty hours a week. Maradiaga
Dep. 216:17-19 (worked an average 50 to 55 hours per week): Essex Dep. 33:19-24 (worked 60
to 70 hours per week); Vance Dep. 235:10-14 (worked an average of 55 to 60 hours per week);
Joseph Dep. 23:15-24 (worked 50 to 60 hours per week). Plaintiffs also testified that for a majority
of the hours worked, they did not perfonn managerial tasks. Maradiaga Dep. 235:22-237:10
(ninety percent of day was spent on non-managerial tasks); Essex Dep. 26 1:9-263:2 (ninety-five
to ninety-eight percent of work was on non-managerial tasks); Vance Dep. 235:15-237:18 (ninety-
2
Excerpts from Plaintiffs’ deposition testimony were produced by Plaintiffs and Children’s Place.
See Declaration of Seth R. Lesser (“Lesser DecI.”) Exs. A-E (D.E. 63-4 to 63-8); Declaration of
Michael T. Grosso (“Grosso Decl.”) Exs. 2-12, 15-43, 46-50 (D.E. 66). Because there is overlap
in the excerpts provided by the parties, the Court will refer directly to the deposition transcripts.
Plaintiffs also provided declarations from the five opt-in Plaintiffs who were not deposed. Lesser
DecI. Exs. F-i (D.E. 63-9 to 63-13).
Defendant’s Rule 30(b)(6) witnesses are Eric Collier, Vice President of Operations, and Deana
Spak, Vice President of Human Resources. Plfs’ Br. at 4, 8. Selected excerpts of both Rule
30(b)(6) witnesses were provided by Plaintiffs and Children’s Place. See Lesser DecI. Exs. K-L
(D.E. 63-14 to 63-15), Grosso Decl. Exs. 12-14, 44-45. Because there is overlap in the excerpts
provided by the parties, the Court will refer directly to the deposition transcripts.
4
five percent of time was devoted to non-managerial tasks); Joseph Dep. 118:2-8, 121:22-122:1
(majority of day was spent performing same non-managerial tasks as associates); Brooks Dep.
196:10-1 97:23 (eighty-five percent of time was devoted to non-managerial tasks).
Plaintiffs
testified that they perfonned the same non-managerial tasks as salaried employees, which included
operating the cash register, cleaning, unpacking and moving merchandise onto the sales floor, and
folding clothes.4 Id.
In addition, Children’s Place provided SMs with more than six hundred
standard operating procedures (“SOPs”). See, e.g., Collier Dep. 100:2-102:23 (confirming that
SOPs are made available to all store managers). While the SOPs cover an array of topics, many
provide detailed instructions for simple, non-managerial tasks like how to allocate stockroom
shelving (Lesser Decl. Ex M), clean the store (Id. Ex. 0), and fold, hang, and display merchandise
(Id. Ex. V). Plaintiffs, however, also testified that they were responsible for some managerial
duties such as completing new hire paperwork, training employees, sales performance at their
stores, setting associate pay within a predetermined range. and informal employee discipline. See,
e.g., Essex Dep. 70:3-7 (held accountable for store’s sales performance); Maradiaga Dep. 122:123 (responsible for associate training); Brooks Dep. 116:5-9 (responsible for setting associate pay);
Joseph Dep. 152:10-153:11 (ability to provide informal, verbal corrective action to sales
associates); Vance Dep. 5 1:8-25 (trained new associates and completed new hire paperwork). In
addition, at least three of the Plaintiffs testified that at times, they performed their managerial
The declarations from the five opt-in Plaintiffs state that they routinely’ worked more than forty
hours per week, were salaried employees, did not receive overtime pay, and primarily performed
the same non-managerial duties as hourly employees. The non-managerial duties included
stocking shelves, operating the cash register, cleaning, folding clothes, and moving merchandise
to the sales floor. See Estrada DecI. ¶J 1-2, 7; Kilo Deel. ¶ 1-2, 7; Murabito Deel. ¶ 1-2, 7;
Shelby Deel. ¶J 1-2,7; Vasquez DecI. ¶J 1-2, 7.
5
duties concurrently with non-managerial duties. See Brooks Dep. 124:12-23; Maradiaga Dep.
230:21-231:3; Vance Dep. 256:6-13.
ILl.
LEGAL STANDARD
The FLSA requires employers to pay overtime compensation for an employee’s work that
is in excess of forty hours per week. 29 U.S.C.
§ 207(a). Employees who work in a bonafide
executive capacity, however, are exempt from FLSA overtime requirements.
29 U.S.C.
§
213(a)(1). To qualify under the executive exemption, an employee must satisfy the criteria set
forth in 29 C.F.R.
§ 541.100, which requires that (1) the employee receive compensation on a
salary basis, (2) her primary duty is management of a recognized department, (3) she customarily
and regularly directs the work of two or more employees, and (4) she has authority to hire or fire
employees. 29 C.F.R.
§ 541.100. An employee’s primary duty is “the principal, main, major or
most important duty that the employee performs.” 29 C.F.R.
§ 541.700(a).5 Accordingly, if an
employee falls under the bona ,fide executive exemption, she is not entitled to overtime pay
pursuant to the FLSA. See Lava! y. Jersey City Hozis. Auth., No. 10-4416, 2011 WL 1792795, at
*6 (D.N.J. May 10, 2011) (dismissing FLSA claim because plaintiffs job responsibilities, which
included supervising and evaluating staff members, fell into the executive exemption).
In addition, “concurrent performance of exempt and nonexempt work does not disqualify an
employee from the executive exemption if the requirements of 541.100 are otherwise met.” 29
C.F.R. § 541.106(a). Whether the employee performs concurrent duties “is detennined on a caseby-case basis.” Id. Defendant argues that Plaintiffs’ performance of concurrent duties means that
Plaintiffs were properly categorized as exempt. Defs Br. at 21-22. However, as explained below,
it is premature to consider this argument at this stage of the proceedings. See Goodman v.
Burlington Coat Factory, No. 11-4395, 2012 WL 5944000, at *5..5 (D.N.J. Nov. 12, 2012). Three
of the Plaintiffs testified that they sometimes performed concurrent duties, not that they always
did so. See Brooks Dep. 124:12-23; Maradiaga Dep. 230:21-231:3; Vance Dep. 256:6-13.
6
The FLSA provides employees with a private right of action to bring a collective suit
against an employer to recover unpaid wages. Pursuant to 29 U.S.C.
§ 2 16(b), an employee and
additional “similarly situated” employees can file a collective action suit against an employer to
recover unpaid overtime compensation required by Section 207.6 The term “similarly situated,”
however, is not defined by the FLSA or the supporting regulations. See Ru/fin v. Avis Budget car
Rental, LLC, No. 11-1069,2014 WL 294675, at *2 (D.N.J. Jan. 27, 2014). As a result, courts have
interpreted similarly situated to mean that 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.” Svrnczvk v. Genesis HealthCare Coip.
(Svmczvk
coip.
i’.
fl, 656 F.3d 189, 193 (3d Cir. 2011), rev’d on other grounds by Genesis Healthcare
Svmczvk (Svmczvk II,), 133 S. Ct. 1523 (2013). Further. “[nb 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.”
§ 2 16(b). Thus, employees must
actively “opt-in” to an FLSA collective action suit.7
While the group of similarly situated employees is frequently called a class, there are a number
of key differences between a Rule 23 class action and an FLSA collective action. First, FLSA
collective action plaintiffs must “opt-in” to the class, rather than “opt-out,” which occurs in a Rule
23(b)(3) class action. Bob,yk v. Durand Glass Mfg., Inc., 50 F. Supp.3d 637, 642 (D.N.J. 2014).
In addition, in a Rule 23 class, plaintiffs must establish that “the putative class meets the threshold
requirements of Rule 23(a) as ‘veil as one of the three Rule 23(b) categories.” Id. In contrast, in
an FLSA collective action, plaintiffs must only establish that they are “similarly situated.” Id. at
641-42. Last, in a Rule 23 class action, the statute of limitations for the entire class is tolled when
the complaint is filed. For each individual FLSA collective action member, however, the statute
of limitations is only tolled when that employee files written consent to opt into the class. Adatni
v. (‘ardo Windows, Inc., No. 12-2804, 2015 WL 1471844, at *5 (D.N.J. Mar. 31, 2015).
In response to “excessive litigation spawned by plaintiffs lacking a personal interest in the
outcome,” the FLSA was amended in 1947 to, among other things, add the opt-in requirement.
See Hoffinann-La Roche Inc. v. Speuling, 493 U.S. 165, 173 (1989).
7
The Third Circuit follows a two-step process for deciding whether a case may proceed as
an ELSA collective action. Camesi v. Univ. of Pittsburgh Med. Cm, 729 F.3d 239, 243 (3d Cir.
2013).
In the first step, a court must determine whether plaintiffs make “a modest factual
showing’ that the employees identified in their complaint are ‘similarly situated.” Id. (quoting
Zaiala v Wa/-Mart Stores Inc., 691 F.3d 527, 536 & n.4 (3d Cir. 2012)). If plaintiffs satisfy this
burden, “the court will ‘conditionally certify’ the coLlective action for the purpose of facilitating
notice to potential opt-in plaintiffs and conducting pre-trial discovery.” Maddv
Gen. Elec. Co..
59 F. Supp. 3d 675,681 (D.N.J. 2014) (quoting Zrnala, 691 F.3d at 536). A court usually considers
conditional certification after the parties have engaged in limited discovery. See, e.g., Goodman
v. Burlington Coat Facron’, No. 11-4395, 2012 WL 5944000. at *lfl (D.N.J. Nov. 20, 2012).
The term conditional certification is actually a misnomer. Conditional certification of an
FLSA matter does not produce a class with independent legal status and is not necessary “for the
existence of a representative action under the FLSA.” Svmczvk 1,656 F.3d at 194. Rather, “[t]he
sole consequence of conditional certification is the sending of court-approved written notice to
employees, who in turn become parties to a collective action only by filing written consent with
the court.” Swnczvkll. 133 S. Ct. at 1530 (internal quotations omitted).
There is no express provision in the FLSA pertaining to court-facilitated notice to potential
opt-in plaintiffs. In Hoffman-La Roche Inc. v. Speiling, the Supreme Court concluded that district
courts have discretion, in appropriate Section 216(b) cases, to authorize and facilitate notice to
potential class members. 493 U.S. 165, 171(1 939)8 The Court stated that collective actions allow
plaintiffs to pool their resources and provide an efficient vehicle to resolve “common issues of law
8
Hoffman-La Roche involved an age discrimination class under the ADEA, “which incorporates
enforcement provisions of the FLSA.” 493 U.S. at 167 (internal citation omitted).
8
and fact arising from the same alleged [wrongful] activity” in one proceeding. Id. at 170. “These
benefits, however, depend on employees receiving accurate and timely notice concerning the
pcndency of the collective action.” Id. As a result, the Supreme Court concluded that trial courts
are responsible for ensuring that the joinder of additional plaintiffs is accomplished in an efficient
manner. Id. at 170-71. Early involvement in the notice process frequently permits district courts
to “manage collective actions in an orderly fashion” and ensures that notice is “timely, accurate,
and informative.” Id. at 172-73. In facilitating notice, however, “courts must be scrupulous to
respect judicial neutrality” as it pertains to the merits of the action. Id. at 174.
For the second step, which usually occurs after the close of Ml discovery, courts apply a
“stricter standard” to determine whether the plaintiffs are, in fact, similarly situated. ZinnIa, 691
F.3d at 535-36. To make this determination, courts “consider[j all the relevant factors and make[]
a detenTlination on a case-by-case basis.” Id. at 536. While case specific, the relevant factors may
include whether employees have the same job description, are subject to the same compensation
plan, received the same training, or whether they advance similar claims and seek substantially the
same form of relief. Id. at 536-37. Plaintiffs have the burden of proof. Therefore. Plaintiffs must
establish by a preponderance of the evidence that they are similarly situated. Id. at 537.
In
addition, just because a class was conditionally certified at the first step does not mean that the
class will also be certified at the second step. See, e.g., Adaini
i’.
Cardo IVindoi’s, Inc.. No. 12-
2804, 2016 WL 1241798, at *5_il (D.N.J. Mar. 30, 2016) (decertifying class at second step
because plaintiff failed to establish that he was similarly situated to other employees). If plaintiffs
satisfy their burden at the second step, “the case may proceed to trial as a collective action.”
Synzczvkl, 656 F.3d at 193.
IV.
ANALYSIS
9
Under the first step as set forth by the Third Circuit, Plaintiffs here seek to conditionally
certify a class of SMs employed by the Children’s Place within the last three years. During the
first step, courts apply “a fairly lenient standard” to determine whether the employees are
“similarly situated.” Mac/dy, 59 F. Supp. 3d at 68!. It is sufficient if Plaintiffs establish that they
“bring the same claims and seek the same form of relief.” Id. Plaintiffs are not required to show
that their positions are identical to the position of other potential class members. Rather, as noted,
Plaintiffs must “produce some evidence, beyond pure speculation, of a factual nexus between the
manner in which the employer’s alleged policy affected them and the manner in which it affected
other employees.”
Id. (internal bracket omitted) (quoting Svn,czvk 1, 656 F.3d at 193).
In
considering whether to conditionally certify a class, courts should consider “all relevant factors
and make a factual determination on a case-by-case basis.” Id. Courts, however, should not assess
the merits of either a plaintiffs claims or a defendant’s defenses during the conditional certification
stage. See Goodman, 2012 WL 5944000, at *56
Goodman v. Thwllngwn Coat Factoty is an illustrative case of the stage one, conditional
certification analysis. Much like this matter, Goodman involved the conditional certification of a
national class of assistant store managers (“ASMs”) at Burlington Coat Factory, a retail department
store chain. Plaintiffs in Goodman alleged that despite their managerial job title and description,
they largely performed non-managerial tasks. Id. at
*
1. Plaintiffs also alleged that they worked
more than forty hours a week but did not receive overtime compensation because they were
misclassified as exempt from FLSA overtime requirements. Id. After considering the relevant
evidence, the court determined that plaintiffs “made a modest factual showing of a factual nexus
between the manner in which Burlington’s alleged policy affected him and the manner in which it
affected other Burlington ASMs.” Id. at *5
The Goodman court determined that ASMs were
10
subject to the same job description, training, regulations, and compensation, and that plaintiffs
produced enough evidence at the conditional certification stage to establish that similarly situated
employees existed. Id. (quoting Zavala, 691 F.3d at 536 n.4). Because it was only the first step,
the court did not evaluate the merits of plaintiffs’ claim that Burlington Coat Factory’ misclassified
ASMs as exempt. Moreover, the court in Goodman refused to consider thirty-eight declarations
submitted by Burlington Coat Factory “to show individual differences among the ASMs’ actual
duties” because “this inquiry necessarily addresses the merits of Plaintiffs’ claim.” Id. at *56.
In this instance, the Court concludes that Plaintiffs have made “a modest factual showing
of a factual nexus” between Defendant’s alleged misclassification of their status as exempt and the
manner in which it affected other SMs. See Goodman, 2012 WL 5944000, at *5
Plaintiffs
establish that SMs nationwide are subject to a uniform job description and must adhere to SOPs
and corporate policies, many of which direct them how to perform non-managerial tasks.9 Grosso
DecI. Ex. 5 (SM Job Description); Collier Dep. 50:9-51:21, 53:23-55:1, 100:2-102:23; Spak Dep.
52:17-21. Moreover, Plaintiffs, SMs who worked at stores in seven states, testified that they
consistently worked more than forty hours per week and did not receive overtime compensation.
Defendant agrees that no overtime was paid and does not contest that the Plaintiffs worked over
forty hours per week. Plaintiffs also testified that they performed similar, non-managerial tasks
for a majority of the hours worked, which included operating the cash register, cleaning, unpacking
and moving merchandise onto the sales floor, and folding clothes. See supra Part II. This evidence
Children’s Place states that the SOPs “recommend best practices and organizational technique;
they are expressly intended to be used as guidelines for operating procedures.” Del s Br. at 8. The
fact that Children’s Place repeatedly refers to these documents as SOPs (see, e.g., Collier Dep.
98:24-25 (“It is the SOP checklist for 701, Shipping and Receiving”)), however, undermines its
assertion that these documents are nothing more than guidelines; Defendant itself has labeled them
standard operating procedures, not “guidelines for operating procedures.”
II
is sufficient to satisfy Plaintiffs’ lenient burden to conditionally certify a class. See, e.g., Stiliman
i’.
Staples, Inc., No. 07-849, 2008 WL 1843998, at *4 (D.N.J. Apr. 22, 2008) (conditionally
certifying a class of assistant managers).
Of note, Plaintiffs also argue that the corporate policies alone are sufficient to establish that
they are similarly situated and the evidence establishing that they performed similar nonmanagerial duties is not relevant.
Plfs’ Reply at 5 (D.E. 70) (“Children’s Place actually
acknowledges that the relevant standards are met when it admits that all store managers are exempt,
receive a salary, have the samejob description, are classified as exempt, and are expected to follow
the same lawful policies and procedures.”) (internal quotations omitted). The Court disagrees. If
Plaintiffs’ argument was correct, a nationwide policy that on its face does not violate the ELSA,
coupled with allegations of a sole plaintiff, would be sufficient to show that other employees are
sufficiently situated as to the improper conduct. The Court agrees with other District Courts who
have rejected this argument. See, e.g., Harriel v. Wal-Mart Stores, Inc., No. 11-25 10, 2012 WL
2878078, at *5 (D.N.J. July 13,2012) (refusing to conditionally certify class where plaintiff “offers
not a scintilla of evidence beyond his own unsubstantiated allegations that the
[] position included
only minimal managerial tasks”); Jenkins v. TJXCos. Inc., 853 F. Supp. 2d 317, 323 (E.D.N.Y.
2012) (“[Tjhe mere classification of a group of employees—even a large or nationwide group—
as exempt under the FLSA is not by itself sufficient to constitute the necessary evidence of a
common policy, plan, or practice that renders all putative class members as ‘similarly situated’ for
§
2 16(b) purposes.”). Here, the SM job description is facially valid under the FLSA because it
addresses solely managerial duties. This is not sufficient evidence, standing alone, to demonstrate
that Plaintiffs were similarly situated, although it may be considered in the similarly situated
analysis. However, here, evidence from SMs in seven states regarding the type and amount of
12
non-managerial duties that they performed permits the Court to conclude that Plaintiffs have met
their modest burden. The SOPs, which Defendant admits apply to SMs, likewise bolsters Plaintiffs
argument that they largely performed non-managerial tasks. Cf Gitilten v. Marshalls of/VIA, Inc.,
750 F. Supp. 2d 469, 476 (S.D.N.Y. 20l0).’°
Children’s Place argues that a class should not be conditionally certified because Plaintiffs
have not meet their modest burden of establishing that they are similarly situated. The cases cited
by Defendant to support its argument, however, are readily distinguishable or inapposite. See
DePs Br. at 26-35. The courts refused to conditionally certify classes in Jenkins. 853 F. Supp. 2d
at 324-25. Mow-c
.
PNC Bank, N.A.. No. 12-1135. 2013 WL 2338251, at *6 (W.D. Pa. May 29.
20 13), and Harriet, 2012 WL 2878078, at *5 because each case was brought by a single plaintiff
who provided no corroborating testimony from any allegedly similarly situated employee. Here,
the evidence establishes that SMs from seven different states performed similar non-managerial
duties for a majority of the time they spent working, worked more than forty hours per week, and
did not receive overtime compensation. See sup-a Section II. Courts frequently conclude that
plaintiffs meet their modest factual burden and conditionally certify classes based on evidence
similar to that provided by Plaintiffs here.
See, e.g., Goodman. 2012 WL 5944000, at *3
(concluding that plaintiff “produced the modest evidence required to show a factual nexus” by
providing job descriptions, several uniform corporate policies and procedures, and deposition
testimony from a Rule 30(b)(6) witness, a former district manager, and the named and two opt-in
plaintiffs) (internal quotation marks omitted); 5th/man, 2008 WL 1843998, at *4 & n.l
‘°
In Gui/ten, the court noted that job descriptions that included non-managerial duties could be
used to determine that employees were similarly situated for FLSA purposes. 750 F. Supp. 2d at
476 (citations omitted). As noted, Defendant’s SM job description set forth managerial
requirements. The SOPs, by comparison, included many non-managerial duties.
13
(concluding that “plaintiffhas presented sufficient evidence.
.
.
to show that he is similarly situated
to other employees who held or hold thejob title Sales Managers while employed at Staples” based
on documents, deposition testimony from two Rule 30(b)(6) witnesses and deposition testimony
and/or declarations from eleven opt-in plaintiffs who worked at different locations nationwide).
Further, in Ginilen v. Marshalls of MA, Inc., the court reffised to conditionally certify a
national class of assistant store managers because the evidence only consisted of deposition
testimony and affidavits from employees in the metropolitan New York area. See 841 F. Supp. 2d
797. 800 (S.D.N.Y. 2012); 750 F. Supp. 2d 469, 477 (S.D.N.Y. 2010). In contrast, Plaintiffs here
worked at stores in seven different states. See supra Section 11. This is more than sufficient to
conditionally certify a national class of SMs. See. e.g., Puglisi v. i’D Batik WA., 998 F. Supp. 2d
95, 98, 100 (E.D.N.Y. 2014) (certifying national class based on affidavits from thirteen assistant
store managers “who worked in various branches throughout seven states”); Pippins
i’.
KPMG
LLP, No. 11-377,2012 WL 19379, at *9 (S.D.N.Y. Jan. 3,2012) (conditionally certifying class of
audit associates based on declarations from opts-ins located in six different states). In fact, courts
have certified national classes based on allegations and deposition testimony from a single
plaintiff. Ferreira v Modell’s Sporting Goods, Inc., No. 11-2395, 2012 WL 2952922, at *3
(S.D.N.Y. July 16, 2012) (conditionally certifying class of assistant store managers in part based
on testimony from plaintiff regarding violations at the seven stores where he worked).’’
The Court will not consider Defendant’s arguments as to whether Plaintiffs’ primary duties were
managerial, the amount of managerial work Plaintiffs actually performed, or the differences in
Plaintiffs’ testimony as to their job duties, as these would necessarily lead to a merits-based
decision of whether Children’s Place illegally classified Plaintiffs, and SMs as a whole, as exempt.
See Goodman, 2012 WL 5944000, at *5; Stilinian, 2008 WL 1843998, at *4 (“[Alt this stage the
Court does not engage in an analysis as to whether or not the Sales managers are exempt, but rather
concentrates on whether or not the plaintiff has satisfied the lenient burden of showing that the
other Sales Managers are similarly situated to him.”). As to the differences in job duties, Plaintiffs
have at this stage sufficiently met their burden to show that they are similarly situated. Plaintiffs
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V.
CLASS NOTICE
Plaintiffs argue that if the Court grants their motion, to facilitate notice, it should order
Children’s Place to produce a list of all individuals employed as SMs within the last three years.
Plaintiffs also request that the Court order Children’s Place to provide contact information, dates
of employment, locations of employment, and social security numbers for these SMs. Plfs’ Br. at
20. In ELSA collective action cases, courts routinely order employers to produce a list of potential
class members to plaintiffs. See, e.g., Pearsalt-Dineen
i’.
Freedom Along. Corp., 27 F. Supp. 3d
567, 574 (D.N.J. 2014); Stillman, 2008 WL 1843998, at *6. Consequently, the Court will grant
Plaintiffs’ request for a list of all SMs employed by Children’s Place within the last three years.
Children’s Place is required to provide a list of all SMs (excluding those employed in California),
date(s) and location(s) of employment, and last known contact information, including all known
telephone number(s) and email address(es). To the extent the information exists in an electronic
format, it should be provided in such a format. Defendant does not have to produce social security
numbers.
Although Plaintiffs provided a proposed form of notice and consent form (Lesser Deci. Ex.
Y), Children’s Place did not address the proposed notice. Therefore, the parties are also required
to meet and confer regarding the proposed notice and consent form, and submit the proposed
notice, with any objections, to the Court for review and approval within thirty days.
VI.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for notice pursuant to Section 16(b) of the
Fair Labor Standards Act is granted. In addition, within thirty days, Defendant shall provide a list
do not have to be identically situated. Since this threshold has been met, conditional certification
is appropriate, and Defendant’s arguments are more properly addressed at the second stage of the
certification process.
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of all SMs (excluding those employed in California) who worked at Children’s Place within three
years from the date of this order, their date(s) and location(s) of employment and their last known
contact information, including all telephone number(s) and email address(es). Last, the parties are
ordered to meet and confer regarding the proposed notice and consent form, and must submit the
proposed notice to the Court for review and approval within thirty days. An appropriate form of
order accompanies this opinion.
Dated: August 16, 2016
JohnMichae1 Vazqu U.D.J.
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