FREEMAN et al v. SAM'S EAST INC. et al
Filing
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OPINION. Signed by Judge William J. Martini on 11/8/18. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TERRENCE FREEMAN and BRADLEY
WARD, individually and on behalf of all other
persons similarly situated,
Plaintiffs,
Civ. No. 2:17-1786 (WJM)
OPINION
v.
SAM’S EAST INC., et al.,
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Bradley Ward brings this putative wage and hour class and collective action,
on behalf of himself and all other Fresh Assistant Managers similarly situated who were
employed by Defendants since March 16, 2014, against Defendants Sam’s East Inc.,
Sam’s West, Inc., Sam’s Club, an operating segment of Wal-Mart Stores, Inc., and
Wal-Mart Stores, Inc. (collectively, “Defendants” or “Sam’s Club”).1 Plaintiff alleges
Defendants’ failure to pay overtime wages violates the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. § 201 et seq., and now moves for conditional certification of the
FLSA claims as a collective action under 29 U.S.C. § 216(b).2 The Court has jurisdiction
under 28 U.S.C. § 1331 and decides the matter without oral argument. Fed. R. Civ. P.
78(b). For the following reasons, Plaintiff’s motion for conditional certification of the
FLSA collective action will be DENIED without prejudice.
I.
BACKGROUND
Sam’s Club is the eighth largest retailer in the United States, currently operating
almost 600 Sam’s Club locations nationwide. Cert. of Kristine J. Feher, Ex. 10,
Deposition of John Engel, Apr. 24, 2018, 55:11–17, ECF No. 63-1. Named Plaintiff
Bradley Ward (“Plaintiff”), and opt-in plaintiffs Rupinder Nahal and Steven Hoggard (the
“Opt-Ins”) all worked as Fresh Assistant Managers (“FAMs”) at Sam’s Club. Plaintiff’s
Under Rule 37(d), the Court granted Defendants’ unopposed motion to dismiss with prejudice
named Plaintiff Terrence Freeman for failure to both prosecute his claims and appear for a
properly noticed deposition. ECF No. 59.
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Plaintiff also asserts a Rule 23 class action claim under the New Jersey Wage and Hour Law,
N.J. Stat. Ann. § 34:11-56a et seq. See Compl. ¶ 2, ECF No. 2. Those allegations are not relevant
to the pending motion here.
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length of employment covers less than two weeks of the collective period he seeks to
certify. Decl. of Marc Hepworth (“Hepworth Decl.”), Ex. A, Deposition of Bradley
Ward, May 8, 2018, 174:14–178:11, ECF No. 60-1.
Plaintiff alleges that during the collective action period, he and other FAMs were nonexempt employees entitled to overtime compensation under the FLSA for performing
more than forty hours of work per week. Compl. ¶¶ 1, 13, 73. Plaintiff further alleges that
Defendants improperly categorized FAMs as exempt employees to avoid paying overtime
wages. Id. ¶ 85. In sum, Plaintiff alleges that Defendants implemented and used corporate
policies in violation of the FLSA by:
1. Willfully misclassifying its FAMs as exempt from the FLSA’s overtime
requirements;
2. Willfully failing to pay its FAMs overtime wages for hours worked in excess of
forty hours per week;
3. Willfully failing to provide enough money in each Sam’s Club’s labor budgets for
its non-exempt employees to perform their job duties and responsibilities, forcing its
FAMs to perform such non-exempt tasks.
Id. ¶ 98.
The parties have engaged in limited discovery to determine whether Plaintiff is
similarly situated to those in the proposed collective and if the FLSA claims can be
certified as a collective action. See ECF Nos. 19, 27, 29, 41. This limited, first-phase
discovery took almost a year to complete. Plaintiff now moves for conditional
certification of a nationwide FLSA collective action. ECF No. 60. Defendants oppose,
arguing that Plaintiff has failed to demonstrate the existence of a definable collective of
potential plaintiffs. See Defs.’ Opp’n Br. 1–2, ECF No. 63.
In support of the motion for conditional certification, Plaintiff submitted:
(1) Plaintiff’s and the Opt-Ins’ deposition testimonies; (2) Defendants’ corporate policies
and procedures; (3) an excerpt of Defendants’ SEC Form 10-K filing; and (4) two Rule
30(b)(6) depositions of Sam’s Club corporate representatives. See Pl.’s Br., ECF No.
60-2; Hepworth Decl. ¶¶ 5–27.
Defendants respond that the paucity of Plaintiff’s proof prohibits granting conditional
certification of a nationwide collective action. Defs.’ Opp’n Br. at 1. Defendants; argue
that: (1) Plaintiff and the Opt-Ins are not even similarly situated to one another—much
less a putative collective of thousands of FAMs, id. at 26–27, 30–32; (2) its classification
of FAMs as exempt is insufficient to show how they are together victims of a common
policy or plan that violated the law, id. at 27–28; (3) even if Defendants used a common
job description, that adds little in answering if other FAMs performed non-exempt duties
not listed in the job description, id. at 28–30;3 and (4) courts have rejected the notion that
In connection with Plaintiff’s motion, Defendants submitted several “happy camper”
declarations from current employees, which Plaintiff asks the Court to disregard because the
declarations address the merits of the claims and is therefore premature. Pl.’s Reply Br. 13–15,
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uniform corporate policies and procedures are enough to pass the “similarly situated”
threshold, id. at 29. Defendants also urge that if the Court finds it appropriate to issue
notice to individuals wishing to join the action, then the notice should be geographically
and temporally limited. Id. at 36. Plaintiff filed a reply, mainly reiterating his previous
points, adding that Defendants made merits-based arguments which are beyond the scope
of consideration at this conditional certification stage. Pl.’s Reply Br. at 2–4, 10–12.
II.
LEGAL STANDARD
The FLSA allows employees to bring a “collective action” on behalf of themselves
and similarly situated employees for alleged violations of its federal minimum-wage,
maximum-hour, and overtime guarantees. See 29 U.S.C. § 216(b). Courts use a two-step
approach to decide FLSA collective action certifications. Camesi v. Univ. of Pitt. Med.
Ctr., 729 F.3d 239, 243 (3d Cir. 2013). In step one, courts decide whether to grant
“conditional certification” – the type of certification at issue here. Symczyk v. Genesis
HealthCare Corp., 656 F.3d 189, 193 (3d. Cir. 2011), rev’d on other grounds by 133 S.
Ct. 1523 (2013).‘“[C]onditional certification’ is not really certification,” since it involves
the court using its “discretionary power . . . to facilitate the sending of notice to potential
[collective] members.” Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 536 (3d Cir. 2012)
(internal quotations and citations omitted). In step two, courts decide whether to grant
final certification. See Symczyk, 656 F.3d at 193.
At step one, courts apply a “fairly lenient standard” to determine whether the
employees enumerated in the named plaintiff’s complaint are similarly situated. Zavala,
691 F.3d at 536 & n.4. The named plaintiff need only “make a ‘modest factual
showing’—something beyond mere speculation—to demonstrate a factual nexus between
the manner in which the employer’s alleged policy affected him or her and the manner in
which it affected the proposed collective action members.” Halle v. W. Penn Allegheny
Health Sys. Inc., 842 F.3d 215, 224 (3d Cir. 2016) (quoting Zavala, 691 F.3d at 536 n.4).
III.
DISCUSSION
Defendants argue Plaintiff has failed to meet the burden of proof for conditional
certification. The Court agrees.
A. Use of Exempt Classification
Plaintiff’s reliance on a common exemption status among the proposed collective
members is misplaced. “[T]he 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 § 216(b) purposes.” Bramble v. Wal-Mart
Stores, Inc., Civil Action No. 09-4932, 2011 WL 1389510, at *4 (E.D. Pa. Apr. 12, 2011)
ECF No. 66. At this stage and with Plaintiff lacking the opportunity to obtain testimony from the
declarants, the Court agrees and will refuse to consider the declarations purporting “to show
individual differences among the [FA]Ms’ actual duties . . . .” See Goodman v. Burlington Coat
Factory, No. 11-435, 2012 WL 5944000, at *6 (D.N.J. Nov. 20, 2012).
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(internal quotation and citation omitted). “[C]ourts considering claims similar to those of
[P]laintiff[] have declined to grant conditional certification where consideration of the
propriety of an employer’s application of an exemption to its employees would require an
individualized or fact intensive analysis.” Bramble, 2011 WL 1389510, at *6 (citation
omitted) (declining to certify FLSA collective of thousands since the sole plaintiff offered
insufficient evidence); Moore v. PNC Bank, N.A., No. 12-cv-1135, 2013 WL 2338251, at
*5 (W.D. Pa. May 29, 2013) (citations omitted) (declining to certify FLSA collective
when the sole plaintiff provided no corroborating testimony from any alleged similarly
situated employee). As discussed below, Plaintiff’s own evidence demonstrates the need
for individualized inquiry to sustain the FLSA claims.
B. Use of a Common Job Description and Corporate Policies
Plaintiff failed to make the requisite factual showing that he is similarly situated to
FAMs nationwide. Indeed, Plaintiff’s claim rests on his own individualized work
experience, in which he never performed managerial responsibilities and frequently
worked more than forty hours per week. See Compl. ¶¶ 61, 73, 77–78, 108. But Plaintiff
failed to present any evidence that other FAMs had similar experiences. He essentially
asks the Court to assume that because he performed non-managerial tasks and worked in
excess of forty hours in a workweek, then other FAMs did too. “Courts in this Circuit . . .
have routinely found that such speculation is not proper.” Federman v. Bank of Am., N.A.,
No. 14-441 (MAS) (TJB), 2016 WL 3090631, at *5 (D.N.J. May 31, 2016) (citing cases);
see also Friscia v. Panera Bread Co., No. 16-cv-3754 (ES) (SCM), 2018 WL 3122330,
at *6–*7 (D.N.J. June 26, 2018) (limiting FLSA collective action treatment only to
assistant managers who worked in defendant’s New Jersey store locations since plaintiff
failed to show knowledge of an assistant manager’s duties at stores in two other states).
Plaintiff points to Defendants’ common job description for FAMs nationwide, but that
too also fails to warrant granting certification. “[I]f a uniform job description by itself
was sufficient, every business in corporate America would be subject to automatic
certification of a nationwide collective action on the basis of the personal experiences of
a single misclassified employee.” Costello v. Kohl’s Ill., Inc., No. 1:13–CV–1359–GHW,
2014 WL 4377931, at *4 (S.D.N.Y. Sept. 4, 2014). In short, Defendants’ use of a uniform
job description sheds little light on whether Plaintiff is similarly situated to FAMs across
the country. See Harriel v. Wal-Mart Stores, Inc., Civil Action No. 11-2510 (MLC), 2012
WL 2878078, at *5 (D.N.J. July 13, 2012) (citation and footnote omitted) (“The fact that
Plaintiff alone claims he spent most of his time performing non-managerial tasks,
combined with the evidence showing that the [assistant manager] position is subject to
nationwide standards under [d]efendant’s corporate policies, does not require the Court to
infer that a significant number of other [assistant managers] would have also deviated
from the written job description to spend most of their time performing non-managerial
tasks.”). Plaintiff does not allege the tasks described in the FAM job description
themselves are non-exempt, such that performing the described duties makes FAMs nonexempt employees. He argues instead to have regularly performed non-exempt tasks, and
therefore the Court should assume other FAMs nationwide perform non-exempt tasks
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most of the time. But as noted, “such speculation is not proper.” Federman, 2016 WL
3090631, at *5.
Plaintiff’s reliance on Gervasio v. Wawa Inc.—in which the court granted conditional
certification based on uniform job descriptions—is inapposite. No. 17-cv-245 (PGS),
2018 WL 385189, at *4 (D.N.J. Jan. 11, 2018). In Gervasio, the defendant’s assistant
manager job description listed managerial responsibilities but also included “a laundry
list of other non-managerial duties that [assistant general managers] [we]re expected to
do.” Id. at *4. And unlike here, the job description in Gervasio explicitly noted the
assistant general managers had to work more than forty hours per week and perform nonexempt job duties. Id. at *2. That is not the case here. Plaintiff’s claim is based on
performing “manual labor and non-exempt duties” not listed in the job description. See
Compl. ¶ 80. There is simply insufficient evidence to support a sweeping contention that
because Plaintiff performed non-managerial tasks not listed in the job description, then
other FAMs must have as well. See, e.g., Bramble, 2011 WL 1389510, at *5 (citing
Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469, 476 (S.D.N.Y. 2010) (denying
conditional certification since plaintiff’s claim that he spent most of his time performing
non-exempt managerial tasks “in contravention of the formal job description” was “very
different from an attack on a common formal policy”)).
The Court finds Plaintiff 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 (citation omitted). Instead, Plaintiff asks this Court to infer that because
his rights may have been violated, the rights of thousands of FAMs at almost 600 Sam’s
Clubs nationwide were violated. While Plaintiff need not show that FAMs nationwide
performed mainly non-exempt duties not listed in the job description, he has yet to
provide modest evidence from which the Court could infer that he and other FAMs were
together victims of a common policy or plan. See Karlo v. Pitt. Glass Works, LLC, 849
F.3d 61, 85–86 (3d Cir. 2017).
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for conditional certification of the FLSA
collective action is DENIED without prejudice. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Dated: November 8, 2018
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