HARRIEL v. WAL-MART STORES, INC.
Filing
50
MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 7/13/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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: CIVIL ACTION NO. 11-2510 (MLC)
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MEMORANDUM OPINION
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JEFFERY HARRIEL,
Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant.
COOPER, District Judge
Plaintiff, Jeffery Harriel (“Plaintiff”), brings this action
against defendant, Wal-Mart Stores, Inc. (“Wal-Mart” or
“Defendant”), on behalf of himself and others similarly situated,
asserting violations of, inter alia, (1) the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq., and (2) the New Jersey
Wage and Hour Law (“NJWHL”), N.J.S.A. § 34:11-56a et seq.
entry no. 1, Compl.)
(Dkt.
Plaintiff asserts the FLSA claim as a
collective action pursuant to 29 U.S.C. § (“Section”) 216(b), and
the NHWHL claim as a class action pursuant to Federal Rule of
Civil Procedure (“Rule”) 23.
Plaintiff now moves for conditional
collective action certification.
Certify.)
(Dkt. entry no. 27, Mot. to
Defendant opposes the motion.
Def. Opp’n.)
(Dkt. entry no. 34,
Limited discovery pertaining to the issue of
collective action certification has been conducted.
no. 22, 9-26-11 Order.)
motion on June 19, 2012.
(Dkt. entry
The Court heard oral argument on the
The Court, because of the existence of a federal cause of
action under the FLSA, exercises subject matter jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367.
For the reasons stated
herein, the Court will deny the motion.
BACKGROUND
I.
Overnight Assistant Manager Position at Sam’s Club Stores
Defendant operates approximately 608 Sam’s Club stores
throughout the United States.
(Compl. at ¶ 6; dkt. entry no. 28,
Lesser Decl., Ex. B, Tinsley Dep. 85:11-17.)
Sam’s Club stores
generally have one overnight assistant manager position (“OAM”),
though in some instances the position is vacant and waiting to be
filled, and approximately 15-20 stores employ two OAMs.
Dep. 83:1-86:12.)
(Tinsley
Approximately 1,625 individuals have held the
the position of OAM since May 2008.
(Dkt. entry no. 34,
Sellinger Decl., Ex. B, Roskow Decl. at ¶ 5.)
According to the
Human Resources Director for the Northeast Region of Sam’s Club,
“OAMs are typically scheduled to work opposite shifts from the
Club Manager and other Assistant Managers and are therefore often
the most senior member of management in the Club while working
their shift, with ultimate responsibility for all operational and
supervisory efforts in their assigned Club.”
(Roskow Decl. at ¶
7; see also Sellinger Decl., Ex. D, Dayton-Driggers Decl. at ¶ 21
(explaining that “[t]he OAM is the only manager in the building
during overnight hours”).)
2
II.
Plaintiff’s Employment and Termination
Plaintiff was employed by Defendant for approximately twenty
years.
(Lesser Decl., Ex. C, Pl. Dep. at 15:21-23.)
Beginning
in 1991, Plaintiff held various management positions at Wal-Mart.
(Pl. Dep. at 17:15-23, 20:3-11, 21:12-17, 22:15-20, 23:20-25,
26:6-16.)
He became an OAM at a Sam’s Club store in Edison, New
Jersey, in January 2010.
74:23-75:1.)
(Compl. at ¶ 4; Pl. Dep. at 26:13-18,
He was one of two OAMs employed at that store.
(Pl. Dep. at 95:25-98:2; dkt. entry no. 35, Sellinger Decl., Ex.
D, Capuano Decl. at ¶ 12.)
In that position, Plaintiff was
disciplined and ultimately terminated after his supervisor
received multiple written complaints from those under his
supervision, including complaints “for spying on his crew,
speaking to associates in a threatening manner, and mishandling
new hires.”
(Def. Opp’n at 10; Sellinger Decl., Ex. I, Open Door
Investigation.)
On October 22, 2010, Plaintiff was terminated on
the bases of inadequate “Respect for the Individual” and “Job
Performance.”
(Id. at 15.)
The report of that termination
observed that under Plaintiff’s control, “many aspects of his job
were not handled properly, left undone, or just ignored,” and
further noted that as an employee having twenty years with the
3
company, should have done “a much better job at planning, time
(Id.)1
management and merchandising.”
III. Allegations and Evidence Regarding Exempt Status of OAM
Position
Plaintiff alleges that Defendant violated Section 207 of the
FLSA by “failing to compensate Plaintiff and other [OAMs]” by
classifying the OAM position as exempt under the FLSA’s
requirement that employers pay overtime wages for hours worked
per week in excess of 40.
See 29 U.S.C. § 207 (providing for
overtime pay for employees to whom the statute applies); id. §
213(a)(1) (providing that “any employee employed in a bona fide
executive, administrative, or professional capacity” is exempt
from the protections of the FLSA).
49.)
(Compl. at ¶¶ 17-19, 32-36,
Plaintiff contends that the OAM position should not be
considered exempt because it
“required little skill and no
capital investment,” duties “did not include managerial
responsibilities or the exercise of independent judgment,” and
OAMs’ primary work included “accept[ing] shipments, stocking
1
Plaintiff apparently responded to his termination by
advising two Sam’s Club managers that they should “expect no less
than 6 lawsuits and 2 class action suits” against Defendant.
(Open Door Investigation at 15; Pl. Dep. at 317:11-19.) The
other OAM at the Edison store advised the store manager in a
written statement that Plaintiff “would never ‘get his hands
dirty’” as an OAM, which “would be alright if he was playing the
role of administrative manager but he wasn’t even doing that. I
still had to do evals, scheduling vacations, dealing with
associate issues[,] even ringing up associates at the end of the
night if they wanted to purchase something,” because Plaintiff
refused to do these things. (Open Door Investigation at 20.)
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merchandise, replenishing supplies and other such non-managerial
tasks.”
(Id. at ¶ 34.)
He further contends that OAMs did “not
(Id.)2
have the authority to hire or fire other employees.”
Plaintiff relies on the “uniform job description” and
uniform job training of OAMs to support his motion for
conditional certification.
Specifically, he contends that “he
performed the same non-exempt tasks that the Defendant, in its
own documents, states OAMs should perform.”
Pl. Br. at 4.)
(Dkt. entry no. 27,
Plaintiff further argues that conditional
certification of a nationwide collective action of all persons to
have held the OAM position at Sam’s Clubs during the relevant
time period is appropriate because “Defendant’s centrally
derived, corporate-created policies and guidelines apply to all
Sam’s Club stores nationwide.”
(Pl. Br. at 5-6 (“[Defendant’s]
hierarchical, standardized business practices through which the
Defendant maintains top-down control . . . ensure that each store
operates the same way.”).)
Defendant admits that it did not pay Plaintiff or other OAMs
overtime pay in accordance with Section 207, insofar as the OAM
2
At his deposition, Plaintiff conceded that as an OAM, he
was responsible for, e.g., training people on the overnight shift
how to properly stock merchandise, as well as supervising,
evaluating, and when necessary, disciplining the “team leads” who
worked the overnight shift. (Pl. Dep. at 108:22-109:24, 117:11118:3.) Plaintiff claimed that in general, he would not manage
the twenty or so employees working the night shift because he
“[d]idn’t have time; [he] was stocking.” (Pl. Dep. at 102:24103:3.)
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position is a salaried one, and denies that the OAM position was
misclassified as “exempt” under the FLSA.
(Pl. Br. at 3; id. at
8 (stating that “[a]ll Sam’s Club OAMs are paid a fixed annual
salary . . . without consideration of the size or sales volume of
the store in which they work and the hours which any OAM
worked”).)
Defendant proffers that “OAMs receive a pay and bonus
package reflective of their exempt status. . . . rang[ing] from
approximately $43,500 to as much as $68,000” in base compensation
annually.
(Def. Opp’n at 6; Sellinger Decl., Ex. C, Tinsley Dep.
at 240:17-241:4.)
Plaintiff, at the time of his separation from
the company, was earning an annual base salary of $60,000, “a
rate justified by the types of managerial and supervisory
functions he was expected to perform.”
(Def. Opp’n at 6.)
The parties agree that the “Assistant Manager” job
description used by Defendant covers the OAM position.
at 7; Def. Opp’n at 4-5.)
(Pl. Br.
That document provides, in pertinent
part, that the “essential functions” of the position require that
such person, inter alia: create budgets; drive sales by ensuring
effective merchandise presentation; assess economic trends and
community needs; ensure proper personnel procedures are followed
for selection, recruiting, and training; manage facility
operations, including participation in management meetings;
communicate with other managers and associates about operations,
merchandising, and company direction; provide direction and
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guidance to associates; oversee and enforce the execution of food
safety standards; provide supervision and development
opportunities for associates by hiring, training, mentoring,
assigning duties, providing recognition, and ensuring diversity
awareness; and work as part of the management team to ensure that
all opening and closing procedures are followed.
(Sellinger
Decl., Ex. F, Assistant Manager Job Description.)
Plaintiff argues in support of the motion that he “performed
the same non-exempt tasks that the Defendant, in its own
documents, states OAMs should perform,” though the only task he
specifically refers to as falling within this non-exempt category
is “stocking various areas of the store for the next day”;
Plaintiff testified at his deposition that he “spent the majority
of his time,” up to 90%, stocking.
(Pl. Br. at 4; Pl. Dep. at
148:4-19 (stating that he spent 90% of his time stocking the
store, and the other 10% performing “all the other functions of
the” OAM position).)
Plaintiff also points to, inter alia,
Defendant’s Borrowing Company Assets Policy, Independent Service
Provider Policy, and Bad Weather Conditions Policy, as
demonstrating a lack of discretion in the OAM position.
at 5.)
(Pl. Br.
However, none of those documents contradict or undermine
the supervisory and managerial aspects of the job description
itself.
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The “Performance Standards Reference Document” used in
evaluating Assistant Managers, including OAMs, does not include
hourly wage tasks such as stocking among the performance
standards to be assessed.
Rather, that document shows that OAMs
are evaluated for acting as a conduit for bringing lower-level
associates’ ideas for improvement to upper management, developing
and implementing plans for improving the customer experience,
managing merchandising operations, planning for team-based
improvement, and supervising sales associates.
(Sellinger Decl.,
Ex. H, Performance Standards Reference Document.)
OAMs are also
evaluated for use of appropriate judgment to set appropriate
priorities and make optimal decisions, even in complex
situations.
(Id.)
DISCUSSION
I.
Collective Action Certification Under the FLSA
Section 216(b) of the FLSA permits a plaintiff to maintain
an action for such an alleged violation against an employer on
“behalf of himself . . . and other employees similarly situated.”
29 U.S.C. § 216(b); see Rogers v. Ocean Cable Grp., Inc., No. 104198, 2011 WL 6887154, at *2 (D.N.J. Dec. 29, 2011).
Unlike a
traditional class action governed by Rule 23 in which class
members must opt out of the class, a FLSA collective action
requires that potential class members opt-in by providing written
consent, and file such written consent in the court where the
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action is brought.
29 U.S.C. § 216(b); Holesapple v. E-Mortg.
Mgmt., LLC, No. 11-769, 2011 WL 6887684, at *2 (D.N.J. Dec. 29,
2011) (citing Manning v. Gold Belt Falcon, LLC, 817 F.Supp.2d
451, 452-53 (D.N.J. 2011)).
The FLSA does not define “similarly situated.”
See 29
U.S.C. § 203; Ruehl v. Viacom, Inc., 500 F.3d 375, 389 n.17 (3d
Cir. 2007).
There is a two-part test to determine whether a
putative collective action’s members are “similarly situated” so
as to allow the action to proceed as such.
6887154, at *2.
Rogers, 2011 WL
In the first step, or “notice stage” of the
analysis, occurring early in the case, the Court determines
whether it should conditionally certify a collective action and
give notice of the action to potential collective action members.
Id.; Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.Supp.2d 493,
497 (D.N.J. 2000).
The Court usually only has minimal evidence
before it at this stage, in the form of pleadings and affidavits
submitted by parties.
Morisky, 111 F.Supp.2d at 497.
As such,
the Court uses a fairly lenient standard, requiring a “modest
factual showing,” to determine whether potential collective
action members are similarly situated.
Id.; see also Symczyk v.
Genesis HealthCare Corp., 656 F.3d 189, 193 (3d Cir. 2011)
(“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
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affected her and the manner in which it affected other
employees.”); Smith v. Sovereign Bancorp, Inc., No. 03-2420, 2003
WL 22701017, at *3 (E.D. Pa. Nov. 13, 2003) (rejecting “automatic
preliminary certification route” endorsed by some courts and
requiring FLSA putative collective action plaintiffs “to make a
basic factual showing that the proposed recipients of opt-in
notices are similarly situated to the named plaintiffs”).
At the second step, or “reconsideration stage,” the Court
“makes a second determination after discovery is largely complete
and the case is ready for trial.”
Morisky, 111 F.Supp.2d at 497.
At this stage, with the benefit of additional available evidence,
the Court employs a stricter standard than the notice stage.
Id.
If the Court finds at the reconsideration stage that the named
plaintiffs are similarly situated to the plaintiffs who have
opted in, the case may proceed to trial as a collective action.
Id.
At both stages, the plaintiff bears the burden of
demonstrating that he or she is similarly situated to the
proposed class and ultimately the opt-in class.
Symczyk, 656
F.3d at 192-93; Troncone v. Velahos, No. 10-2961, 2011 WL
3236219, at *4 (D.N.J. July 28, 2011).
Certification at the notice stage, though governed by a
lenient standard, is not automatic.
Evancho v. Sanofi-Aventis
U.S. Inc., No. 07-2266, 2007 WL 4546100, at *2 (D.N.J. Dec. 19,
2007).
A plaintiff must show a “factual nexus” between his or
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her situation and the situation of other current and former
employees sufficient to determine that they are similarly
situated.
Aquilino v. Home Depot, Inc., No. 04-4100, 2006 WL
2583563, at *2 (D.N.J. Sept. 7, 2006).
“In spite of the modest
factual nexus evidentiary standard, courts have not hesitated to
deny conditional certification when evidence is lacking.”
Rogers, 2011 WL 6887154, at *3 (quoting Dreyer v. Altchem Env’l
Servs., Inc., No. 06-2393, 2007 WL 7186177, at *3 (D.N.J. Sept.
25, 2007)); see Bramble v. Wal-Mart Stores, Inc., No. 09-4932,
2011 WL 1389510, at *4 (“The right to proceed collectively may be
foreclosed where an action relates to specific circumstances
personal to the plaintiff rather than any generally applicable
policy or practice.”) (citation and quotation omitted).
II.
Analysis
This case, while at the notice stage, has seen significant
discovery proceed with respect to the certification issue.
The
Court has carefully reviewed the exhibits provided by the parties
in support of and opposition to the motion to conditionally
certify the class, and finds that even under the lenient standard
requiring a plaintiff to make a “modest” showing of a “factual
nexus,” conditional certification must be denied, and no notice
to the putative class should issue.
The record, particularly the Assistant Manager job
description, indicates that OAMs have managerial duties
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generally, and that plaintiff, as OAM at the Edison club, was
responsible for “supervising 22 or 23 associates on the night
shift. . . . includ[ing] dock associates, night team leaders,
night crew stockers, and overnight bakers.”
13.)
(Capuano Decl. at ¶
According to Capuano, who was the manager of the Edison
club at the time plaintiff served as one of its two OAMs, the
OAM’s “primary function is to get the club 100% ready for opening
in the morning,” and this includes responsibility for “overseeing
merchandising, receiving, stocking, and cleaning of the Club
during the overnight shift.”
(Id. at ¶ 14.)
The declarations provided by other individuals who have
served in the OAM position during the relevant time period
corroborate this assessment of the OAM position.
(See generally
Sellinger Decl., Ex. D, Declarations of Current and Former OAMs.)
These fifteen declarants each engaged in (1) receiving special
management training, (2) supervising associates, (3) analyzing
business reports, (4) training associates, (5) interviewing and
hiring associates, (6) coaching, evaluating, and terminating
associates, and (7) using their discretion in making
merchandising decisions.
(Sellinger Decl., Exs. D & E.)
In
contrast, plaintiff offers not a scintilla of evidence beyond his
own unsubstantiated allegations that the OAM position included
only minimal managerial tasks as he describes, e.g., that he
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spent approximately 90% of his time as an OAM performing nonmanagerial stocking tasks.
The failure to provide the existence of even one other
person who would choose to opt in to the putative collective
action is indicative of Plaintiff’s total failure of proof that
he has anything in common with other OAMs with respect to the
subject matter of this action; rather, the record indicates that
he was terminated for cause, including failure to perform
managerial tasks that were part of his job description.
(See Pl.
Dep. at 325:5-13 (statement of plaintiff that he was not aware of
any other OAMs who might want to join his lawsuit or would share
the same claim with him that he was not a true manager while
serving as an OAM); Sellinger Decl., Ex. I, Open Door
Investigation.)
See Holesapple, 2011 WL 6887684, at *5-6; cf.
Bramble, 2011 WL 1389510, at *2 (noting that plaintiff’s
declaration stated only that he “believe[d]” that his experience
was typical of others in the same position and denying
certification where defendant’s evidence “largely contradict[ed]
plaintiffs’ assessments of their own job responsibilities”).
The fact that Plaintiff alone claims he spent most of his
time performing non-managerial tasks, combined with the evidence
showing that the OAM position is subject to nationwide standards
under Defendant’s corporate policies, does not require the Court
to infer that a significant number of other OAMs would have also
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deviated from the written job description to spend most of their
time performing non-managerial tasks.
1389501, at *5-6.3
See Bramble, 2011 WL
The existence of a job description containing
“many managerial tasks” applicable to a certain position, paired
with a superficial allegation that the plaintiff was improperly
classified as exempt under the FLSA, “misses the point” of a
putative FLSA collective action such as the one pursued here,
3
In Bramble, as here, the plaintiffs did not argue that
employees holding their position were “required to perform nonexempt tasks for a majority of their working hours,” but instead
argued “‘that as a matter of fact, rather of formal job
description, they [were] performing their non-[exempt] duties for
the majority of their working hours.’” Bramble, 2011 WL 1389510,
at *5 (quoting Holt v. Rite Aid Corp., 333 F.Supp.2d 1265, 1271
(M.D. Ala. 2004)). Also as here, the only evidence in Bramble
offered to show that the named plaintiffs were similarly situated
to the putative class was the four named plaintiffs’ deposition
testimony stating that the actual work they performed was nonexempt. Id. at *5 & n.6. The Bramble court “examine[d] all the
relevant evidence” at stage one of the conditional certification
analysis and determined that the four named plaintiffs failed to
“provide even modest evidence beyond their own speculation that
‘the evidence of the Plaintiff[s’] job duties is [not] merely
anecdotal evidence specific to them [and] can be more broadly
applied.’” Id. at *6 (quoting Holt, 333 F.Supp.2d at 1272).
Finally, this action shares with Bramble and Holt the fact that
the plaintiff’s allegation regarding the amount of time spent
performing non-exempt, non-managerial tasks is directly
contradicted by declarations from other managers stating that
they did perform managerial tasks that would classify them as
exempt, having the effect that at the second stage of the
certification analysis, the court would have to inquire “as to
the daily tasks of each putative collective action member to
determine whether they are similarly situated,” an
“individualized inquiry” disfavored by the collective action
mechanism. Id. at *7. Thus, the Bramble and Holt courts both
denied conditional certification at the first stage of the
inquiry; the evidence here, of a single plaintiff, is even less
substantial than that offered and rejected by multiple plaintiffs
in those cases.
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insofar as the action “turns on the alleged discrepancy between
the job on paper and the job in practice” but the evidence fails
to show how the plaintiff and others were “similarly subjected to
an improper compensation practice” by the defendant.
Tahir v.
Avis Budget Grp., Inc., No. 09-3495, 2011 WL 1327861, at *3-4
(D.N.J. Apr. 6, 2011) (denying certification where plaintiff
“proffered only general similarities between himself and other
[managers] and made conclusory, unsupported statements that all
[managers] spend the majority of their time performing . . .
manual, non-exempt labor”).
Ultimately establishing an FLSA
violation under Plaintiff’s theory of the case will require an
examination of each individual OAM’s work experiences.
Opp’n at 7-10.)
(Def.
See Tahir, 2011 WL 1327861, at *4; see also
Rogers, 2011 WL 6887154, at *4-5; Evancho, 2007 WL 4546100, at
*2-3 (denying conditional certification where defendants’
declarations indicated that actual job responsibilities “may vary
among plaintiffs and potential collective action members”).
We therefore find that the evidence now before the Court
supports Defendant’s contention that “Plaintiff’s claimed work
experiences differ significantly not only from the corporate
documents Plaintiff points to as common to the OAM position, but
also from the work experiences of other OAMs.”
11.)
(Def. Opp’n at
Plaintiff has not met his burden of establishing a factual
nexus between his alleged situation and that of other employees
sufficient to determine that he is similarly situated to the
15
putative class, and “any court-facilitated notice to a nationwide
opt-in class would constitute little more than solicitation on
behalf of Plaintiff’s cause.”
Burkhart-Deal v. Citifinancial,
Inc., No. 07-1747, 2010 WL 457127, at *5 (W.D. Pa. Feb. 4, 2010).
CONCLUSION
The Court, for the reasons stated supra, will deny the
motion for conditional collective action certification.
The
Court will issue an appropriate Order.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: July 13, 2012
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