FRISCIA v. DOHERTY ENTERPRISES, INC., DBA PANERA BREAD COMPANY
Filing
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OPINION. Signed by Judge Esther Salas on 6/26/2018. (ld, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JACQUELINE FRISCIA, and all other
persons similarly situated,
Plaintiff,
v.
PANERA BREAD COMPANY, and
PANERA, LLC,
Defendants.
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Civil Action No. 16-3754 (ES) (SCM)
OPINION
SALAS, DISTRICT JUDGE
Plaintiff Jacqueline Friscia brings this putative collective and class action against
Defendants Panera Bread Company and Panera, LLC (together, “Panera”) under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and the New Jersey Wage and Hour Law
(“NJWHL”), N.J.S.A. 34:11-56a, et seq. Friscia, a former Panera assistant manager, alleges that
Panera misclassified her and other assistant store managers as “exempt” under the FLSA and
therefore failed to pay them overtime wages.
Pending before the Court are (i) Friscia’s motion for conditional certification of a proposed
collective action under Section 216(b) of the FLSA (D.E. No. 38); and (ii) Panera’s motion to
strike Friscia’s motion and supporting declarations (D.E. No. 55). The Court has subject-matter
jurisdiction over Friscia’s FLSA claims under 28 U.S.C. § 1331 and Friscia’s NJWHL claims
under 28 U.S.C. § 1367. The Court has considered the parties’ submissions regarding the pending
motions and decides these matters without oral argument. See Fed. R. Civ. P. 78(b). For the
following reasons, the Court GRANTS-in-part and DENIES-in-part Friscia’s motion for
conditional certification and DENIES without prejudice Panera’s motion to strike.
I.
Background
Friscia worked as a full-time assistant manager at Panera’s Woodbridge, New Jersey
location from August 2012 to January 2015. (D.E. No. 36, Second Amended Collective and Class
Action Complaint ¶ 11). She alleges that her “primary job duty was to perform manual, nonmanagerial tasks which included making coffee, taking food orders, making sandwiches, cleaning
the store, working the cash register, and washing dishes.” (Id. ¶ 34). According to Friscia, her
“primary job duty was not managing the enterprise, or managing a customarily recognized
department or subdivision of the restaurant.” (Id. ¶ 33). She seeks conditional certification of the
following proposed collective:
Plaintiff and all other individuals who currently or formerly worked for Panera
Bread Company and/or Panera, LLC as assistant managers in New Jersey, New
York, or Massachusetts from February 1, 2014 to the present and did not receive
overtime compensation for hours worked over 40 in a work week.
(D.E. No. 39 at 2).
II.
Legal Standard
“The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees
that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69
(2013). In Section 216(b), the FLSA grants employees the right to bring suit on behalf of
“themselves and other employees similarly situated.” 29 U.S.C. § 216(b); see Symczyk, 569 U.S.
at 69. Such an FLSA suit—not to be confused with a class action under Federal Rule of Civil
Procedure 23—is known as a “collective action.” See Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 169-70 (1989). “A collective action allows . . . plaintiffs the advantage of lower
individual costs to vindicate rights by the pooling of resources.” Id. at 170. To become parties to
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an FLSA collective action, employees “must affirmatively opt-in by filing written consents with
the court.” Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 242-43 (3d Cir. 2013) (citing
29 U.S.C. § 216(b)). “This feature distinguishes the collective-action mechanism under Section
216(b) from the class-action mechanism under Rule 23, where, once the class is certified, those
not wishing to be included in the class must affirmatively opt-out.” Id. at 243.
Courts approach collective-action certification under the FLSA through a two-step process.
Id. The first step is deciding whether to grant “conditional certification”—the type of certification
at issue here. Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011), rev’d on
other grounds, 569 U.S. 66. Applying a “fairly lenient standard,” courts make a preliminary
determination on whether the named plaintiff has made a “modest factual showing” that the
employees identified in their complaint are “similarly situated.” Zavala v. Wal Mart Stores Inc.,
691 F.3d 527, 536 & n.4 (3d Cir. 2012). “Being similarly situated” means that members of a
collective action are “subjected to some common employer practice that, if proved, would help
demonstrate a violation of the FLSA.” Id. at 538. “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.” Symczyk, 656 F.3d at 193 (internal quotation marks and citations omitted).
A court’s grant of conditional certification is an exercise of its “discretionary power, upheld
in Hoffmann-La Roche, to facilitate the sending of notice to potential class members, and is neither
necessary nor sufficient for the existence of a representative action under FLSA.” Id. at 194
(internal quotation marks and citations omitted). Upon a court’s preliminary determination that
the plaintiff has successfully produced some evidence of similarly situated employees, notice of
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the suit is sent to this class of employees, who may join the action by returning a signed consent
form to the court. Camesi, 729 F.3d at 242-43 (citing 29 U.S.C. § 216(b)).
The second step is deciding whether to grant final certification. Symczyk, 656 F.3d at 192.
During this step, the plaintiffs must satisfy a preponderance-of-the-evidence standard. Zavala,
691 F.3d at 537. That is, they will have to show it is “more likely than not” that “plaintiffs who
have opted in are in fact similarly situated to the named plaintiff[].” Id. (internal quotation marks
and citations omitted).
III.
Discussion
A.
Friscia’s Motion for Conditional Certification under § 216(b) of the FLSA
1.
Friscia’s Evidence
Friscia supports her motion with two declarations—one from her and one from Diana
Manrique, a former Panera assistant manager, general manager, and training manager. (D.E. Nos.
40-1 (“Friscia Decl.”) & 40-2 (“Manrique Decl.”)). Friscia testifies that she “routinely worked
five (5) days a week” and “was scheduled to work forty-five (45) hours per week, but actually
worked approximately fifty-five (55) to sixty (60) hours per week.” (Friscia Decl. ¶¶ 11-12). She
says she “was paid $800 per week, and [] sometimes received a minimal quarterly bonus,” but was
not paid overtime compensation. (Id. ¶¶ 10, 8). She also says she “was directed by management,
several times a week, to stay before [her] shift and/or work after [her] shift to take over the duties
of other workers so the company could avoid paying the other employees their wages and overtime
pay.” (Id. ¶ 9). According to Friscia, “Assistant managers like [her] did not hire or fire other
employees. It was company policy that only store managers at each location could hire and fire
employees.” (Id. ¶ 5). She adds, “All training manuals, policies and procedures came from
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corporate and were required to be followed by me and all other assistant managers at Panera
locations nationwide.” (Id. ¶ 15).
Friscia “attended training sessions in several of Panera’s restaurant locations throughout
New Jersey with employees who worked at many different Panera restaurant locations.” (Id. ¶ 14).
Friscia states that the “other assistant managers present at these training sessions” came “from the
Edison, North Brunswick, East Brunswick, Manalapan, and Old Bridge stores, as well as other
stores . . . .” (Id. ¶ 16). Friscia attests that these other assistant managers “discussed their day to
day duties, which were the same as [hers].” (Id.). Friscia recounts that “[t]hese meetings were run
by managers that instructed [her] and all other assistant managers present on our day to day tasks
and duties, and on Panera’s corporate time and pay policies . . . .” (Id. ¶ 14). She explains that
“[i]t did not matter what restaurant location [they] worked at—[they] were all told the same thing
and expected to follow the same training, rules and procedures.” (Id.). Friscia also says that,
“[w]hile at these other locations, [she] personally observed assistant managers performing the
same manual tasks that assistant managers performed at the Woodbridge location where [she]
worked.” (Id. ¶ 16).
Friscia’s supporting witness, Diana Manrique, worked at Panera’s Woodbridge, New
Jersey location from approximately 2005 to 2014. (Manrique Decl. ¶ 2). Manrique testifies that
she “was hired as an assistant manager and spent approximately 4 months in that position,” after
which she was “promoted to a general manager.” (Id.). Manrique “also worked as a training
manager, where [she] trained general managers who worked at corporate Panera locations
throughout New Jersey, New York, and Massachusetts.” (Id.). To become a training manager,
Manrique “was required to be trained in all restaurant positions, including the assistant manager
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position.” (Id. ¶ 3). She therefore “received training about the [assistant manager] position, and
trained others about the job duties of the assistant manager and their role at the restaurant.” (Id.).
Manrique testifies that the “assistant manager primarily performed the same job duties as
associates. Assistant managers and associates spent their work day making coffee, sandwiches
and other food, cleaning[,] and taking orders from customers as a cashier.” (Id. ¶ 9). She explains
that “[a]ssistant managers were placed on the schedule with the same shifts and job duties as
Associates, such as morning shift – cashier, afternoon shift – sandwiches, etc.” (Id.). Manrique
also describes Panera’s “Deployment Charts,” which “mapped out every employee in a specific
position.” (Id.). “If you weren’t the manager in charge (“MIC”) of the shift then you were placed
in a position, [e.g.,] cashier, expeditor, barista, etc.” (Id.).
According to Manrique, the “assistant manager spent approximately 5-10 hours a week on
additional tasks helping the general manager, such as helping with the schedule, training if needed,
cash management, and help with inventory and placing food orders.” (Id. ¶ 10). She explains that
“[a]ssistant managers were not required to clock in and out and there was no system keeping track
of their time spent working.” (Id. ¶ 12). She also states that “[a]ssistant managers would routinely
work at least 45 hours a week, but their paychecks would list 40 hours on it as a default because
their time was not tracked.” (Id.).
In her role as general manager, Manrique “attended monthly meetings at other corporate
Panera locations.” (Id. ¶ 4). She recalls going to Panera locations “in Princeton, Edison, Old
Bridge, and Manalapan, New Jersey,” among others. (See id.). She states that “[f]rom 2004-2014,
[she] probably went to these locations a total of 36 to 40 times.” (Id.). And she says that “[w]hile
at these other locations, [she] personally observed assistant managers performing the same tasks
that assistant managers performed at the Woodbridge location where [she] worked.” (Id.).
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Manrique testifies that “[a]ll training manuals, policies and procedures came from
corporate and were required to be followed by [her] and all other managers at Panera locations
nationwide.” (Id. ¶ 5). According to Manrique, “[t]hese policies and procedures are sent down
from corporate, to district managers, and then to general managers at each store location.” (Id.).
Finally, Manrique attests that “[a]ll assistant managers, regardless of the Panera location
where they worked, would have spent the vast majority of their time as a cashier, making
sandwiches, or performing the other types of tasks performed by associates.” (Id. ¶ 13). She adds,
“[t]his is how [she] was trained, how [she] trained [her] associates, how [she] trained other general
managers, and what [she] personally observed at all the Panera locations [she] visited.” (Id.).
2.
Panera’s Opposition
Panera mounts a robust opposition to Friscia’s motion. To start, Panera argues that Friscia
“falls woefully short of the requisite factual showing that she and the former salaried Assistant
Managers she seeks to represent are sufficiently similarly situated to warrant converting this from
a single-plaintiff case into a case involving hundreds of plaintiffs.” (D.E. No. 45 at 2). Panera
emphasizes that Friscia worked in only one Panera location and for only a fraction of the relevant
timeframe. (See id. at 4). Panera challenges Friscia’s declaration as “self-serving,” “riddled with
inadmissible hearsay,” and “devoid of basic detailed facts.” (Id. at 2). And Panera contends that
Friscia “establishes nothing about the day-to-day duties of the limited group of Assistant Managers
she may have attended [training sessions] with, much less the hundreds more she purports to
represent.” (Id. at 5).
Panera also challenges Friscia’s reliance on Manrique. Panera points out that Manrique is
Friscia’s aunt, who “was terminated after allowing an associate to work ‘off the clock,’ in violation
of Panera policy and the very laws Plaintiff places at issue.” (Id. at 16). Panera says Manrique’s
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“biased testimony does little to help Plaintiff’s case.” (Id.). Generally, Panera characterizes
Manrique’s declaration as “(i) inaccurate, (ii) inconsistent with lessons others took from her, and
(iii) irrelevant to the actual day-to-day duties Assistant Managers performed across the three-state
area during 2014, 2015, and 2016.” (Id. at 2).
Panera says it has “developed overwhelming evidence confirming that the putative
collective cannot be bound together in ways that matter for the conditional certification inquiry.”
(Id. at 3). To that end, Panera submits fourteen declarations from various Panera employees,
managers, executives, and partners. (See D.E. Nos. 45-2 through 45-15). Panera uses this
testimony, for example, to distinguish the various cafes within the proposed collective, arguing
that they differ in their location (“An Assistant Manager who managed a cafe with a large dining
room had a different operation to manage than another who manages a food court cafe with no
dining room at all.” (D.E. No. 45 at 10)); services (“Some cafes feature ‘kiosk order,’ ‘rapid
pickup,’ drive-thru service, delivery, a mix of these services, or none at all.” (id.)); hourly staff
makeup (“Even within the same market, associates per cafe could range from as few as 25 or 30,
to as many as 90.” (id. at 11)); business volume (“Even within a single market, cafes differed by
tens of thousands of dollars in weekly revenue, from $25,000 per week to $90,000 or more.” (id.));
and variations in GM style (“Some GMs are regularly involved in the day-to-day running of the
cafe, while others take a more ‘hands off’ approach.” (id. at 12)). Panera also argues that about
half the proposed collective is covered by an arbitration agreement (which Panera implemented in
June 2016), further distinguishing at least those potential plaintiffs from Friscia. (See id. at 2, 22,
33).
Finally, Panera argues that if the Court conditionally certifies the proposed collective, the
parties should “work together to draft a notice and opt-in form.” (Id. at 33). Panera complains
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that Friscia’s proposed documents are “misleading and confusing.” (Id.). Among other things,
Panera points out that “the notice contains the case caption, which implies the case is endorsed by
the Court.” (Id. at 33-34) (citing Woods v. New York Life Ins. Co., 686 F.2d 578, 581 (7th Cir.
1982)). Panera details its objections to Friscia’s proposed documents in its Notice of Objections.
(See D.E. No. 45-1).
B.
Panera’s Motion to Strike Friscia’s Motion and Supporting Declarations
Four months after the parties briefed Friscia’s motion to conditionally certify the proposed
collective, Panera moved to strike Friscia’s motion and supporting declarations. (D.E. No. 55).
Panera’s motion stems from its depositions of Friscia and Manrique, which, according to Panera,
establish that “the declarations are, in fact, a sham.” (D.E. No. 55-5 at 2). Panera argues that
Friscia’s and Manrique’s deposition “testimony confirms that critical portions of their earlier
declarations, which [Friscia] solely relied on in support of her Motion for Notice, are untrue and/or
based on guesswork, not personal knowledge.” (Id.). Panera identifies five general areas where
Friscia’s or Manrique’s declarations purportedly proffer inconsistent, inaccurate, or purely
speculative testimony: (i) common corporate training manuals, policies, and procedures; (ii)
assistant managers’ authority to hire or fire other employees; (iii) day-to-day job duties of assistant
managers; (iv) amount of time devoted to managerial duties; and (v) Friscia’s discussions with and
observations of other assistant managers. (See id. at 5-10).
In opposition, Friscia lodges two threshold arguments before attacking the merits of
Panera’s motion. First, Friscia argues that Panera’s motion “should be denied as an impermissible
sur-reply, and nothing more than a transparent attempt to take a second bite at the apple with
respect to Plaintiff’s Conditional Certification Motion.” (D.E. No. 59 at 3). Second, Friscia argues
that Panera erroneously invokes the sham affidavit doctrine, which is limited to the summary-9
judgment context. (See id. at 7). As another court in this District explained: “[T]he sham affidavit
doctrine states that ‘a party may not create a material issue of fact to defeat summary judgment by
filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible
explanation for the conflict.’” In re Front Loading Washing Mach. Class Action Litig., No. 080051, 2013 WL 3466821, at *9 (D.N.J. July 10, 2013) (quoting Baer v. Chase, 392 F.3d 609, 624
(3d Cir. 2004)).
Turning to the merits of Panera’s motion, Friscia argues that even if the sham affidavit
doctrine does apply, “the challenged declarations would not constitute a ‘sham.’” (D.E. No. 59 at
11). She contends that neither she nor Manrique lack personal knowledge of their declarations,
and that neither declaration is so outlandish as to be facially false. (See id. at 11-22). She also
argues that “independent evidence in the record—namely, the testimony of [Panera’s] own
witnesses—corroborates the declarations that [Panera] now challenge[s].” (Id. at 23). Finally,
Friscia argues that Panera’s motion is inappropriate at the first stage of conditional certification,
where the Court does not weigh the claims’ merits or assess witness credibility. (See id. at 28).
Friscia notes that Panera “will ultimately have opportunities to challenge credibility and merits
issues after discovery—at the second stage of collective certification, upon a motion for
decertification, or upon summary judgment motion.” (Id. at 32).
Panera counters that its motion to strike “is plainly a permissible motion to strike brought
in good faith based on the falsities and mischaracterizations revealed in Plaintiff’s and Manrique’s
declarations by their own sworn deposition testimony.” (D.E. No. 61 at 2). Panera also argues
that its motion “is not premised on the ‘sham affidavit doctrine” itself, but rather on “the seemingly
basic notion that a party should not benefit from baseless and self-contradicted sworn testimony.”
(Id. at 4). And Panera seizes on Friscia’s arguments about independent corroborating evidence
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and suggests that, if the Court considers the “newly proffered ‘evidence’ and arguments,” it should
apply a heightened standard to Friscia’s motion. (Id. at 1-2) (citing Sloane v. Gulf Interstate Field
Servs., Inc., 2017 WL 1105236, at *6 (M.D. Pa. 2017) (“[D]istrict courts in this circuit have applied
an intermediate standard . . . if the parties have already engaged in discovery.”)).
C.
Panera’s Motion to Strike is Denied
The Court declines at this time to strike Friscia’s motion for conditional certification or the
supporting declarations. In the Court’s view, Panera’s arguments are better suited for the second
stage of the certification process. See, e.g., Meals v. Keane Frac GP LLC, No. 16-1674, 2017 WL
2445199, at *4 (W.D. Pa. June 6, 2017) (denying without prejudice defendants’ motion to strike
plaintiffs’ brief and affidavits in FLSA stage-one context and rejecting defendants’ “requests that
[the court] make credibility determinations” because defendants “will have another opportunity to
object to class certification following further discovery”); Viscomi v. Diner, No. 13-4720, 2016
WL 1255713, at *5 (E.D. Pa. Mar. 31, 2016) (“To the extent that defendants invite the Court to
evaluate the credibility of the affiants or the merits of their claims, it is more properly considered
at the second stage of the certification inquiry or on a motion for summary judgment.”) (citation,
internal quotation marks, and alterations omitted); In re Enter. Rent-A-Car Wage & Hour Empl.
Practices Litig., No. 09-0210, 2010 WL 3447783, at *21 (W.D. Pa. Aug. 13, 2010) (“At the initial
assessment stage, before discovery is completed, the court does not resolve factual disputes, decide
substantive issues going to the ultimate merits or make credibility determinations.”) (citation and
internal quotation marks omitted).
To be sure, Panera cites only a handful of cases in the FLSA stage-one context, and not
one involves a separate—let alone successful—motion to strike. (See D.E. No. 55-5 at 13-14).1
1
(Citing Postiglione v. Crossmark, Inc., No. 11-0960, 2012 WL 5829793, at *6 (E.D. Pa. Nov. 15, 2012);
Valcho v. Dallas Cty. Hosp. Dist., 574 F. Supp. 2d 618, 623 (N.D. Tex. 2008); Trinh v. JP Morgan Chase & Co., No.
- 11
Instead, Panera relies on cases where the court denied motions for conditional certification because
the plaintiffs failed to make the “modest factual showing” that the proposed plaintiffs were
similarly situated. (See id.). And in support of Panera’s claim that “this Court has routinely
disregarded declarations offering assertions not based upon personal knowledge” (id. at 14),
Panera cites cases outside the FLSA context (see id. at 14-15).2
Accordingly, the Court denies without prejudice Panera’s motion to strike Friscia’s motion
for conditional certification and supporting declarations. Panera may raise these arguments at
stage two of the certification process. See Bowe v. Enviropro Basement Sys., No. 12-2099, 2013
WL 6280873, at *4 (D.N.J. Dec. 4, 2013) (“Importantly, it is possible for a class to be certified at
stage one but fail certification at stage two. Granting a conditional certification in stage one is not
a final or permanent decision.”) (citation, internal quotation marks, and alteration omitted).
D.
Friscia’s Motion for Conditional Certification is Granted-in-Part and Deniedin-Part
The Court will grant-in-part and deny-in-part Friscia’s motion to conditionally certify the
proposed collective. Specifically, the Court finds that Friscia has made a “modest factual
showing” of a factual nexus between the manner in which Panera’s alleged unlawful policy
affected her and the manner in which it affected other assistant managers at Panera locations in
New Jersey—but not New York or Massachusetts—during the proposed time period. The Court
will therefore conditionally certify the following collective:
07-1666, 2008 WL 1860161, at *4 (S.D. Cal. Apr. 22, 2008); Prizmic v. Armour, Inc., No. 05-2503, 2006 WL
1662614, at *3 (E.D.N.Y. June 12, 2006)).
2
(Citing Supernus Pharm., Inc. v. Actavis, Inc., No. 13-4740, 2014 WL 6474039 (D.N.J. Nov. 18, 2014)
(denying motion to seal); Younes v. 7-Eleven, Inc., No. 13-3500, 2014 WL 1959246 (D.N.J. May 15, 2014) (denying
motion to seal); Brennan v. Elizabeth Bd. of Educ., No. 07-0329, 2008 WL 756117 (D.N.J. Mar. 19, 2008) (denying
motion to disqualify attorneys); Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 510 (D.N.J. 2008) (granting-in-part
and denying-in-part Rule 12(b)(6) motion to dismiss); Contr. Drilling, Inc., 63 F. Supp. 2d 509 (D.N.J. 1999) (granting
motion to strike, in non-FLSA context, portions of a declaration that were “supported only by the complaint” in a
separate action)).
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Plaintiff and all other individuals who currently or formerly worked for Panera
Bread Company and/or Panera, LLC as assistant managers in New Jersey from
February 1, 2014 to the present and did not receive overtime compensation for
hours worked over 40 in a work week.
Friscia testified that when she was an assistant manager at Panera’s Woodbridge, New
Jersey location, she primarily performed manual, non-managerial tasks. (Friscia Decl. ¶¶ 3, 19).
She also testified that she attended training sessions “throughout New Jersey,” where Panera
managers instructed her and “all other assistant managers present” on their day-to-day job duties.
(Id. ¶ 14). Further, she personally observed assistant managers at other New Jersey Panera
locations “performing the same manual tasks that assistant managers performed at the Woodbridge
location . . . .” (Id. ¶ 16).
Manrique, a former Panera training manager, testified that she attended monthly meetings
at various Panera locations—including Princeton, Edison, Old Bridge, and Manalapan, New
Jersey—where she “personally observed assistant managers performing the same tasks that
assistant managers performed at the Woodbridge location . . . .” (Manrique Decl. ¶ 4). Like
Friscia, Manrique explained that these tasks included “making coffee, sandwiches and other food,
cleaning[,] and taking orders from customers as a cashier.” (Id. ¶ 9); (see also Friscia Decl. ¶¶ 3,
19).
As for working overtime, Friscia testified that she worked approximately fifty-five to sixty
hours per week and was not required to clock in and out for any part of the workday. (Friscia
Decl. ¶¶ 12-13). Friscia also testified that, during the training sessions in New Jersey, Panera
managers discussed “Panera’s corporate time and pay policies . . . .” (Id. ¶ 14). Similarly,
Manrique testified that assistant managers “would routinely work at least 45 hours a week” and
“were not required to clock in and out,” as “there was no system keeping track of their time spent
working.” (Manrique Decl. ¶ 12).
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This evidence is sufficient to satisfy Friscia’s lenient burden to conditionally certify a
collective.3 See, e.g., Essex v. Children’s Place, Inc., No. 15-5621, 2016 WL 4435675, at *5
(D.N.J. Aug. 16, 2016) (conditionally certifying a collective of assistant managers); Goodman v.
Burlington Coat Factory, No. 11-4395, 2012 WL 5944000, at *5-6 (D.N.J. Nov. 20, 2012) (same);
Stillman v. Staples, Inc., No. 07-0849, 2008 WL 1843998, at *4 (D.N.J. Apr. 22, 2008) (same).4
The Court reiterates that at this stage, Friscia needs to show only that “similarly situated plaintiffs
do in fact exist.” See Zavala, 691 F.3d at 563 n.4 (citation omitted). And Friscia is “not required
to show that [her] position[] is identical to the position of other potential class members.” Essex,
2016 WL 4435675, at *5. Moreover, the Court’s role at this stage is not to evaluate the merits of
Friscia’s claim that Panera misclassified assistant managers as “exempt.” See Goodman, 2012 WL
5944000, at *5. After notice in this case issues, at the second stage, the Court will address “whether
the plaintiffs who have opted in are in fact similarly situated to” Friscia. See Zavala, 691 F.3d at
563 n.4 (citation omitted).
As noted above, the Court will limit the collective to assistant managers who worked in
Panera locations in New Jersey during the proposed time period. See, e.g., Robels v. Vornado
Realty Tr., No. 15-1406, 2015 WL 5012597, at *4 (D.N.J. Aug. 21, 2015) (conditionally certifying
only certain subclasses of the proposed collective). Put simply, Friscia has not produced sufficient
evidence to show that she is similarly situated to assistant managers in New York or Massachusetts.
Nowhere in Friscia’s declaration does she specifically reference New York or Massachusetts. And
3
The Court notes Panera’s arguments regarding inadmissible hearsay in Friscia’s declaration. (See D.E. No.
45 at 25) (referencing Friscia Decl. ¶¶ 16, 18). The Court need not reach these arguments because it finds that, even
if it disregards these statements in Friscia’s declaration, Friscia has still satisfied her burden for conditional
certification.
4
Another district court recently conditionally certified a nationwide collective comprising assistant managers
who worked in certain Panera franchises. Kis v. Covelli Enters., Inc., No. 18-0054, 2018 WL 2227782 (N.D. Ohio
May 16, 2018).
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Manrique references New York and Massachusetts only once: “I also worked as a training
manager, where I trained general managers who worked at corporate Panera locations throughout
New Jersey, New York, and Massachusetts.” (Manrique Decl. ¶ 2). Indeed, all of Friscia’s and
Manrique’s specific personal observations occurred in New Jersey. (See, e.g., Friscia Decl. ¶¶ 14,
16; Manrique Decl. ¶ 4).
Panera’s arguments in opposition are largely unavailing for purposes of the notice stage.
To start, the Court declines to consider the fourteen declarations Panera submitted to show
individual differences among the assistant managers’ actual duties. As another court in this
District explained, “this inquiry necessarily addresses the merits of Plaintiff[’s] claim and is
therefore premature.” Goodman, 2012 WL 5944000, at *6 (declining to consider thirty-eight
declarations submitted in opposition to a motion for conditional certification); see also Kis, 2018
WL 2227782, at *2 (“[T]he fact that Defendant Covelli has produced evidence that contradicts the
Plaintiffs’ declarations is irrelevant. That evidence speaks to the credibility of Plaintiffs’ evidence,
which is not relevant at the conditional certification stage.”).
Panera argues that Friscia’s failure to identify—“much less present testimony from”—any
other potential plaintiffs underscores the inappropriateness of the collective action. (See D.E. No.
45 at 2). The Court finds this argument unpersuasive. For one, Friscia is not required to produce
additional plaintiffs at the notice stage. See, e.g., Essex, 2016 WL 4435676, at *6 (noting that
“courts have certified national classes based on allegations and deposition testimony from a single
plaintiff”) (citing Ferreira v. Modell’s Sporting Goods, Inc., No. 11-2395, 2012 WL 2952922, at
*3 (S.D.N.Y. July 16, 2012)). And Panera’s authority in support of this proposition is inapposite.
(See D.E. No. 45 at 2) (citing Tahir v. Avis Budget Grp., Inc., 2011 WL 1327861, at *4 n.1 (D.N.J.
Apr. 6, 2011)). In Tahir, the plaintiff moved for conditional certification after fact discovery
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closed, so the court adopted a heightened standard in analyzing his motion. See 2011 WL 1327861,
at *2. Here, Friscia moved before the close of fact discovery, and the Court is applying the
traditional stage-one standard.
Panera also argues that approximately half the proposed collective is covered by binding
arbitration agreements, further distinguishing at least those potential plaintiffs from Friscia. (See
D.E. No. 45 at 2, 22, 33). This argument is inappropriate at the notice stage, however, because it
goes to Panera’s merits defenses. See, e.g., Romero v. La Revise Assocs., L.L.C., 968 F. Supp. 2d
639, 647 (S.D.N.Y. 2013) (“[C]ourts have consistently held that the existence of arbitration
agreements is ‘irrelevant’ to collective action approval ‘because it raises a merits-based
determination.’”) (quoting D’Antuono v. C & G of Groton, Inc., No. 11-0033, 2011 WL 5878045,
at *4 (D. Conn. Nov. 23, 2011) (collecting cases)).
In sum, the Court finds that Friscia has satisfied her lenient burden to make a “modest
factual showing” of a factual nexus between the manner in which Panera’s alleged unlawful policy
affected her and the manner in which it affected other assistant managers at Panera locations in
New Jersey during the proposed time period.
E.
Friscia’s Proposed Form of Notice
Friscia submitted a proposed Notice of Lawsuit and Consent to Join Lawsuit forms to
notify potential collective-action members of this case. (D.E. Nos. 40-3 & 40-4). As noted above,
Panera objects to Friscia’s proposed forms. (D.E. No. 45-1). “The Supreme Court has instructed,
‘in exercising the discretionary authority to oversee the notice-giving process, courts must be
scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid even the
appearance of judicial endorsement of the merits of the action.’” Herring v. Hewit Assocs., Inc.,
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No. 06-0267, 2007 WL 2121693, at *9 (D.N.J. July 24, 2007) (quoting Hoffman-LaRoche, 493
U.S. at 174).
The Court instructs the parties to meet and confer about Friscia’s proposed forms and then
submit agreed-upon proposed forms—along with details regarding the method and timing of
notification—to the Hon. Steven C. Mannion, U.S.M.J., within fifteen days of the date of this
Court’s accompanying Order. See id. This process will ensure that timely notice is provided to
the potential collective-action members. See id. If the parties are unable to agree on proposed
forms, each party shall submit to Magistrate Judge Mannion, within twenty days of the date of the
accompanying Order, its own proposed forms—along with a letter brief (not to exceed three singlespaced pages) in support of its proposed forms—and details regarding the method and timing of
notification. See Bowe, 2013 WL 6280873, at *7.5
IV.
Conclusion
For the foregoing reasons, the Court GRANTS-in-part and DENIES-in-part Friscia’s
motion for conditional certification and DENIES without prejudice Panera’s motion to strike. An
appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
5
In light of this expedited meet-and-confer process, the Court declines to toll the claims of potential collectiveaction members. (See D.E. No. 46 at 15).
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