Pauli v. Ollie's Bargain Outlet, Inc.

Filing 129

MEMORANDUM-DECISION AND ORDER: It is ORDERED that Plaintiff's motion for class certification pursuant to Fed. R. Civ. P. 23 (Dkt #(100-1) is DENITED. Signed by U.S. District Judge Mae A. D'Agostino on 8/30/2024. (mmg).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JAMES PAULI, individually and on behalf of all
others similarly situated,
Plaintiff,
vs.

5:22-CV-00279
(MAD/ML)

OLLIE'S BARGAIN OUTLET, INC.,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

GATTUSO & CIOTOLI, PLLC
The White House
7030 East Genesee Street
Fayetteville, New York 13066
Attorneys for Plaintiff

FRANK S. GATTUSO, ESQ.

VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, New York 10004
Attorneys for Plaintiff

JAMES E. MURPHY, ESQ.
MICHELE A. MORENO, ESQ.
LADONNA LUSHER, ESQ.

FISHER & PHILLIPS
Two Logan Square, 12th Floor
100 North 18th Street
Philadelphia, Pennsylvania 19103
Attorneys for Defendant

HEATHER Z. STEELE, ESQ.

FISHER & PHILLIPS
430 Mountain Avenue
Suite 303
Murray Hill, New Jersey 07974
Attorneys for Defendant

KATHLEEN MCLEOD CAMINITI, ESQ.

Mae. A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER

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I. INTRODUCTION
On March 22, 2022, Plaintiff James Pauli ("Plaintiff"), individually and as representative
of the proposed Class, filed this putative class action against his former employer, Defendant
Ollie's Bargain Outlet, Inc. ("Defendant" or "Ollie's"), alleging violations of the Fair Labor
Standards Act ("FLSA") and New York Labor Law ("NYLL"). See Dkt. No. 1. Plaintiff
previously moved to conditionally certify a nationwide collective of people currently and
formerly employed by Defendant as Co-Team Leaders ("CTLs"), pursuant to 29 U.S.C. §
216(b), which the Court denied on November 15, 2023. See Dkt. Nos. 44, 93.
Now before the Court is Plaintiffs' motion pursuant to Rule 23 to certify a class of
current and former CTLs in Defendant's New York stores based on his second and third
causes of action for unpaid overtime "spread of hours" compensation and "wage notice and
pay statement violations" under the New York Labor Law, as well as Defendant's response in
opposition to class certification. Dkt. No. 1 at ¶¶ 39, 58-66; see also Dkt. Nos. 100, 111.
II. BACKGROUND
Defendant is a bargain retail chain offering "closeout merchandise and excess inventory"
that operates "approximately 431 stores in [twenty-nine] states," including "approximately
[twenty-eight] locations in New York[.]" Dkt. No. 1 at ¶ 11. The twenty-eight stores in New
York are allocated across four districts, each of which typically has its own District Team Leader
("DTL") who provides oversight and support to the Store Team Leaders ("STLs") and CTLs at
each store. See Dkt. No. 111 at 13. Each store is run by one STL, and one or more CTL, who is
second in command under the STL. See id. Each store also has at least one Assistant Team
Leader ("ATL"), a Freight Flow Supervisor ("FFS"), a Customer Service Supervisor ("CSS"), and
a number of Associates who are tasked with operating the register and manual labor. See Dkt.

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No. 100-1 at 10; see also Dkt. No. 100-4 at 19-20. "Defendant classifies all of its STLs and CTLs
as exempt from overtime, and all other positions, including ATLs and FFSs, as non-exempt." Id.
According to the complaint, "[i]n practice, the job duties of [CTLs] are indistinguishable
from the Customer Service Associates, Sales Associates, Sale Supervisor, [FFS] and [ATL]
positions for 95% of the workday." Dkt. No. 1 at ¶ 20. However, those positions are "classified
as non-exempt and paid overtime compensation" whereas CTLs are "misclassified as exempt and
not paid overtime." Id. at ¶ 20. Plaintiff claims that
STLs, CTLs and ATLs share the same primary responsibilities of
utilizing financial drivers for decision making, supervising associate
appearance and morale, engaging in daily communications with
associates and shift huddles, oversight of store recovery and store
programs, ensuring compliance with corporate redbook policies and
practices, implementing corporate sales and operations directives,
enforcing customer service policies and ensuring customer
satisfaction.
Dkt. No. 100-1 at 20.
Based on Defendant's job description, CTLs are responsible for
(1) assisting the STL with managing payroll budgets, expenses,
store banking, shrink reduction, and the timely completion of
related reports to ensure financial and operational goals are met; (2)
implementing successful strategies for merchandising; (3)
managing the Door to Floor ("DTF") process and ensuring that
merchandise is planned for and received properly; (4) ensuring that
all Associates are provided daily tasks and are being productive; (5)
ensuring that all merchandising standards and sales goals are met;
(6) ensuring that all customer service standards meet company
expectations; (7) developing and executing plans for coaching,
training, developing, evaluating, supervising, and scheduling store
Associates; (8) maintaining proper hiring, recruiting, interviewing,
selection, and onboarding of candidates to ensure the staffing needs
of the store are continually met; (9) ensuring proper scheduling and
staffing for business needs, including time keeper integrity; (10)
communicating Company directives and programs to Associates
and ensuring that all follow-up items are completed accurately and
timely.

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Dkt. No. 111 at 14-15.
Plaintiff is attempting to certify a class of CTLs who were or are employed at Ollie's
stores in New York. See Dkt. No. 100-1 at 8. Plaintiff alleges that he, and the proposed class
members, either did not perform the duties enumerated in the CTL job description related to
managerial work, or that those managerial duties occupied a very small percent of the work
performed as a CTL. See id. at 18; see also Dkt. No. 100-17 at 13. Plaintiff claims that the vast
majority of his duties, and those of other CTLs, coincided with the responsibilities of hourly
employees. See Dkt. No. 100-1 at 21; see also Dkt. No. 100-17 at 13. Plaintiff alleges that the
CTLs consistently worked over forty hours per week, typically working between fifty and sixty
hours a week, but did not receive additional compensation for that time because they were
classified as exempt from the overtime provisions of the NYLL. See Dkt. No. 100-1 at 8; see also
Dkt. No. 100-2 at ¶ 7.
Plaintiff worked as a CTL at an Ollie's store in Cicero, New York, from November 2013
through September 2022. See Dkt. No. 53-25 at 16:22-25, 17:2-3. Plaintiff alleges that he
consistently worked fifty-to-sixty hours per week, except during holidays when he worked more
hours, but that his pay stubs reflect that he worked forty hours a week. See Dkt. No. 1 at ¶¶ 2223, 26. Plaintiff was paid a flat weekly salary of $940 regardless of how many hours he worked.
See id. at ¶ 25. Plaintiff does not contest that, as a CTL, he "interviewed, recommended and
counseled employees, prepared performance appraisals, or signed off on onboarding paperwork,"
but avers that he did so with ATLs, who were not classified as exempt, and that the manner in
which he did those tasks did not require "independent discretion or judgment," and therefore do
not satisfy the requirements for classifying him as an exempt employee. Dkt. No. 100-1 at 18. In

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Plaintiff's deposition, he testified that other employees in the store "were all hourly and [he] was
not hourly, but [ ] was doing the same work as they were, [and] found [him]self doing probably . .
. all that same work ninety, ninety-five percent of the time[.]" Dkt. No. 100-17 at 13. Plaintiff
also testified that he "provide[d] leadership" by working "alongside . . . hourly associates" and
giving "them tips [on] how to do things really quick." Id. at 13-14.
Plaintiff has one proposed opt-in Plaintiff: Bob Swain. See Dkt. No. 85-1. Swain worked
as a CTL for Defendant in New Hartford, New York, and in Dewitt, New York. See Dkt. No.
100-18 at 15, 33. Swain testified that he "worked a lot of hours," id. at 33, but received a salary
of $870.54 a week regardless of how many hours he worked. See id. at 22-23. Swain also
testified that he would participate in conference calls with store team leaders when the STL was
absent from the store in Hartford. See id. at 27-28, 33.
III. DISCUSSION
A.

Legal Standards
"A district court enjoys broad discretion when it comes to resolving questions of class

certification because it 'is often in the best position to assess the propriety of the class and has the
ability . . . to alter or modify the class, create subclasses, and decertify the class whenever
warranted.'" V.W. by and through Williams v. Conway, 236 F. Supp. 3d 554, 572 (N.D.N.Y.
2017) (quoting Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d
Cir. 2001) (collecting cases)). "'In evaluating a motion for class certification, the district court is
required to make a "definitive assessment of Rule 23 requirements, notwithstanding their overlap
with merits issues," and must resolve material factual disputes relevant to each Rule 23
requirement.'" Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010) (quoting In re Initial Pub.
Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006)).

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Rule 23 sets forth four requirements for class certification:
(1) the class is so numerous that joinder of all members is
impracticable, (2) questions of law and fact are common to the
class, (3) the claims or defenses of the representative parties are
typical of the claims of defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests
of the class.
FED. R. CIV. P. 23(a). "A party seeking class certification must affirmatively demonstrate [its]
compliance with the Rule." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) ("Rule 23
does not set forth a mere pleading standard"). "The party seeking class certification bears the
burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has
been met." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (citing Amchem Prods., Inc.
v. Windsor, 521 U.S. 591 (1997); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier
Inc., 546 F.3d 196, 202-03 (2d Cir. 2008)). Accordingly, the Court may not "rely on the
pleadings alone to decide Plaintiff['s] motion" but must instead look "beyond the pleadings to
consider the parties' evidentiary submissions and make factual findings where those submissions
conflict[ ]." Jacob v. Duane Reade, Inc., 602 Fed. Appx. 3, 5 (2d Cir. 2015).
Additionally, courts have added an "'implied requirement' into the Rule: a party seeking
certification must demonstrate that the proposed class is 'ascertainable.'" V.W., 236 F. Supp. 3d at
573 (quoting Sykes v. Mel Harris & Assocs., LLC, 285 F.R.D. 279, 287 (S.D.N.Y. 2012)).
"Under this additional element, '[a]n identifiable class exists if its members can be ascertained by
reference to objective criteria.'" Id. (quoting Stinson v. City of N.Y., 282 F.R.D. 360, 367
(S.D.N.Y. 2012)). "In sum, '[c]lass certification is appropriate where the proposed class meets, by
a preponderance of the evidence following a court's "rigorous analysis," the requirements of Rule
23(a) and the proposed class constitutes one of the types of classes enumerated in Rule 23(b).'"

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Id. (quoting Stinson, 282 F.R.D. at 367).
"Before certifying a putative class, a district court must decide that it satisfies not only
Rule 23(a)'s prerequisites of numerosity, commonality, typicality, and adequacy of representation,
but also one of the three criteria of Rule 23(b)." Royal Park Invs. v. Wells Fargo Bank, No. 14CV-9764, 2018 WL 1831850, *4 (S.D.N.Y. Apr. 17, 2018). In this case, Plaintiff claims that he
has met the requirements of Rule 23(b)(3) for the purposes of money damages. See Dkt. No. 1001 at 22. A Rule 23(b)(3) class may be certified if "the questions of law or fact common to class
members predominate over any questions affecting only individual members, and . . . a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy." FED. R. CIV. P. 23(b)(3). "Where a plaintiff seeks both declaratory and monetary
relief, the court may separately certify a damages-seeking class under Rule 23(b)(3), and an
injunction-seeking class under Rule 23(b)(2)." Mazzanti v. Gen. Elec. Co., No. 13-CV-1799,
2017 WL 923905, *3 (D. Conn. Mar. 7, 2017).
In a motion for class certification, a plaintiff must establish the Rule 23 requirements by a
preponderance of the evidence. See Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258,
276 (2014) ("[P]laintiffs wishing to proceed through a class action must actually prove—not
simply plead—that their proposed class satisfies each requirement of Rule 23, including (if
applicable) the predominance requirement of Rule 23(b)(3)"). The determination of whether the
plaintiff has satisfied his or her burden "may sometimes overlap with merits issues, though the
determination as to a Rule 23 requirement is not binding on the trier of fact in its determination of
the merits." Johnson v. Nextel Commc'ns Inc., 780 F.3d 128, 138 (2d Cir. 2015); see also Amgen
Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013) ("Merits questions may be

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considered to the extent—but only to the extent—that they are relevant to determining whether
the Rule 23 prerequisites for class certification are satisfied").
B.

Class Certification
1. Numerosity
The first element of certification under Rule 23 requires Plaintiff to demonstrate that "the

class is so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). This
inquiry is "not strictly mathematical" but rather requires a court to consider the context of the
instant case in light of the following factors: "(i) judicial economy, (ii) geographic dispersion, (iii)
the financial resources of class members, (iv) their ability to sue separately, and (v) requests for
injunctive relief that would involve future class members." Pa. Pub. Sch. Emps.' Ret. Sys. v.
Morgan Stanley & Co., Inc., 772 F.3d 111, 120 (2d Cir. 2014) (citing Robidoux v. Celani, 987
F.2d 931, 936 (2d Cir. 1993)). In other words, "[t]he numerosity requirement in Rule 23(a)(1)
does not mandate that joinder of all parties be impossible—only that the difficulty or
inconvenience of joining all members of the class make use of the class action appropriate."
Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco Managed Care, LLC, 504
F.3d 229, 244–45 (2d Cir. 2007). A plaintiff need only "show some evidence of or reasonably
estimate the number of class members" and "need not show the exact number." Robidoux, 987
F.2d at 935. "Numerosity is typically presumed if the class stretches to include forty members."
Raymond v. New York State Dep't of Corr. & Cmty. Supervision, 579 F. Supp. 3d 327, 336
(N.D.N.Y. 2022) (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.
1995)).
Here, Plaintiff claims that the proposed class includes approximately 110 CTLs employed
in New York stores. See Dkt. No. 103-15. Additionally, some of the proposed class members

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appear to be located in the Albany, New York area, whereas others appear to reside in Dunkirk,
New York, Oswego, New York, and other locations across the state. See id. Therefore, the
geographic dispersion and number of the proposed class members weighs in favor of a finding of
numerosity.
Defendant does not challenge Plaintiff's contention that the putative statewide class of
Ollie's CTLs would be large enough to satisfy the numerosity requirement of Rule 23(a)(1).
Defendant does, however, challenge Plaintiff's showing with respect to the "commonality,"
"typicality," and "adequate representation" requirements of Rule 23(a), as well as the
"predominance" and "superiority" requirements of Rule 23(b)(3). See Dkt. No. 111 at 30-41.
Accordingly, the Court is satisfied that Plaintiff has established numerosity.
2. Commonality
The second element of certification under Rule 23 requires Plaintiff to demonstrate that
there "are questions of law or fact common to the class." FED. R. CIV. P. 23(a)(2). This element
"does not require all questions of law or fact to be common," and "even a single common question
will suffice." Sykes, 285 F.R.D. at 286; see also Wal-Mart, 564 U.S. at 349-50 (explaining that
class members' claims "must depend upon a common contention . . . of such a nature that it is
capable of class wide resolution—which means that the determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke").
"Plaintiffs may satisfy the commonality requirement with 'significant proof' that a general
policy or practice caused the alleged violations of class members' rights." J.B. v. Onondaga
Cnty., 401 F. Supp. 3d 320, 331 (N.D.N.Y. 2019) (quoting Wal-Mart, 564 U.S. at 353). "'Where
the same conduct or practice by the same defendant gives rise to the same kind of claims from all
class members, there is a common question.'" Johnson v. Nextel Commc'ns Inc., 780 F.3d 128,

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137-38 (2d Cir. 2015) (quoting Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir.
2014)). "As relevant to the commonality requirement, the [Supreme Court] clarified that the
existence of a 'common contention' is not sufficient; rather, '[t]hat common contention, moreover,
must be of such a nature that it is capable of classwide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity of each one
of the claims in one stroke.'" Callari v. Blackman Plumbing Supply, Inc., 307 F.R.D. 67, 75
(E.D.N.Y. 2015) (quoting Wal-Mart, 564 U.S. at 350).
"'In determining the propriety of a class action, the question is not whether the plaintiff or
plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the
requirements of Rule 23 are met.'" Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)
(quotation omitted). "Furthermore, in order to certify a class, the proponent of class certification
need not show that the common questions 'will be answered, on the merits, in favor of the class.'"
Johnson, 780 F.3d at 138 (quoting Amgen Inc., 568 U.S. at 459).
To certify a company-wide class action, the employees "must show
either (i) an express company policy that violated the employeeplaintiffs' rights; or (ii) a practice that had sufficiently pervaded the
company that it had become a de facto policy, which the plaintiffs
can show by, among other things, anecdotal evidence that reaches a
certain critical mass or comprehensive statistical analysis."
Khalid v. DJ Shirley 1 Inc., No. 15-CV-5926, 2018 WL 9963873, *6 (E.D.N.Y. June 26, 2018)
(quoting Mendez v. U.S. Nonwovens Corp., 312 F.R.D. 81, 92 (E.D.N.Y. 2014)).
Plaintiff contends that his claim regarding the legality of Defendant's corporate policy
classifying CTLs as exempt from the NYLL's overtime requirements and regularly scheduling
them to work more than fifty hours per week presents questions of fact and law common to the
class, arising from the same course of events, and subject to the same legal arguments as would be

10

made on behalf of all CTLs working at Defendant's New York stores. See Dkt. No. 100-1 at 25.
Plaintiff claims that there is a common question "whether putative class members were properly
classified as exempt under the administrative or executive exemptions." Id. at 26. In opposition,
Defendant argues that, to the extent Plaintiff or any other CTL in New York has a claim for
overtime, that claim does not arise from a discrepancy between the CTL job description and the
corporate policy of uniformly classifying CTLs as non-exempt, but from the facts and
circumstances necessary to determine whether or not each CTL's individual experience in the
CTL position fulfills the requirements for exempt status. See Dkt. No. 111 at 31-35. Defendant
argues that Plaintiff cannot establish that there are common questions of fact because the
individual experiences of the CTLs in performing their managerial responsibilities varies widely.1
See id.
Defendant's job description indicates that CTLs spend the majority of their time managing
the store and performing exempt tasks, including "assisting the STL with managing payroll
budgets, expenses, store banking, shrink reduction, and the timely completion of related reports;"
merchandising the store; managing the process of receiving merchandise and moving it from the
delivery bay to the sales floor within twenty-four hours of its arrival; ensuring that associate
employees are given daily tasks and remain productive; "developing and executing plans for
coaching, training, developing, evaluating, supervising, and scheduling store Associates;"
recruiting, interviewing, hiring, and onboarding new associates; "ensuring proper scheduling and
staffing for business needs, including time keeper integrity;" and "communicating Company

1

Defendant also argues at length that the time CTLs spend performing non-exempt activities does
not alter their exemption status. However, this is the type of free-ranging merits argument that
courts have cautioned against considering at the class certification stage. See Amgen Inc., 568
U.S. at 465-66; see also Wal-Mart, 564 U.S. at 350-51.
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directives and programs to Associates and ensuring that all follow-up items are completed
accurately and timely." Dkt. No. 111 at 14-15; see also Dkt. No. 111-2 at 8-9.
Plaintiff has shown that Defendant uniformly classifies all CTLs as exempt from NYLL
overtime provisions without an individualized determination and regardless of the size of store,
number of employees, sales volume, experience, training, duties, tasks, responsibilities, shift, or
management style of the store's STL or DTL. See Dkt. No. 44-16 at 25:9-25, 26:1-24; Dkt. No.
122 at 9. Plaintiff has also shown that he and the proposed opt-in Plaintiff were subject to this
policy as CTLs employed at Defendant's stores in New York. See Dkt. No. 44-6 at ¶¶ 3-11; Dkt.
No. 1 at ¶¶ 21-26.
Plaintiff does not argue that Defendant's policy of the responsibilities assigned to CTLs
describes a position that is clearly non-exempt. Instead, Plaintiff asserts that Defendant treated
him, and other CTLs in New York stores, a certain way, that is, requiring them to perform
predominantly the same tasks as non-exempt workers, including the ATLs. As such, Plaintiff's
declarations and testimony appear to not attack the express company policy, but rather its
implementation, suggesting that there was a de facto policy of requiring CTLs to perform nonexempt work.
In the absence of evidence of an explicit policy requiring CTLs to perform work "virtually
identical to non-exempt employees, to circumvent the FLSA and the NYLL and avoid paying the
[CTLs] overtime," Dkt. No. 1 at ¶ 18, Plaintiff must "produce significant anecdotal evidence from
which the Court can infer a de facto policy." Mendez, 312 F.R.D. at 96 (citing Wal-Mart, 564
U.S. at 358). Conclusory statements of anecdotal individual violations "lack the kind of precision
and detail from which the Court might infer a uniform policy on the part of the Individual
Defendants to deny compensation to their employees." Mendez, 312 F.R.D. at 97; see also

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Fernandez v. Wells Fargo Bank, N.A., Nos. 12-CV-7193, 12-CV-7194, 2013 WL 4540521, *8
(S.D.N.Y. Aug. 28, 2013) (noting that declarations may "constitute relevant evidence of a policy
to require off-the-clock work and to limit overtime. However, their value as proof of a common
policy is limited because of the lack of detail concerning the underlying communications").
Upon review of the material submitted, the Court finds that Plaintiff has failed to provide
evidence sufficient to support an inference that there was a company-wide policy of requiring
CTLs to perform work that would classify them as non-exempt. There are meaningful differences
between what Plaintiff and Swain describe in the record as the work they performed as CTLs, and
Defendant's advertised CTL job description. For example, the CTL job descriptions Defendant
advertised state, inter alia, that a CTL "is required to provide leadership for the successful
operation of the entire sales floor and receiving area. The CTL creates and leads a sales team . . . .
Responsibilities include all aspects of merchandising, Associate development, customer service,
and financial oversight." Dkt. No. 111 at 14; see also Dkt. No. 44-8. By contrast, Plaintiff
alleges that he and other CTLs "engage[d] in very little management duties and have no
meaningful discretion in the operation of Defendant's retail stores." Dkt. No. 100-2 at ¶ 8.
Plaintiff tries to establish that all CTLs are required to perform primarily non-exempt
work based on the number of payroll hours assigned to each store and the amount of freight that
Defendant requires to be unloaded in a twenty-four-hour period. See Dkt. No. 100-1 at 13-14.
Plaintiff claims that "Defendant's policy and practice of allocating insufficient payroll hours
places the burden on CTLs to make up for labor shortages by performing non-exempt work." Id.
at 16. In contrast, Defendant contends that each store's CTL, and sometimes STL, decides how to
divide the budgeted labor hours, and that "CTLs regularly request and receive additional hours
beyond those budgeted if there is a legitimate reason." Dkt. No. 111 at 20.

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Plaintiff also tries to establish that Defendant has a de facto policy of drastically underallocating labor hours to unload freight and therefore requiring CTLs to perform the non-exempt
work. Plaintiff relies on "Schedulers" and "Recaps" from the store's policy of unloading freight to
support this argument. See Dkt. No. 100-1 at 14. However, Defendant points to several
inconsistencies between Plaintiff's claims and the supporting exhibits. See Dkt. No. 111 at 21-22.
For example, Defendant states that
Plaintiff alleges that Store #75 needed 116 labor hours to unload
freight arriving in a September 10, 2021 freight delivery, but only
53 were scheduled. According to the Truck Notes, however, Store
#75 had 53 hours scheduled for September 10th, 45 hours scheduled
for the following day (Saturday) and 20 hours scheduled "for
Sunday," totaling 118 hours "to finish up" the freight process.
Plaintiff alleges that Store #112 needed 81 labor hours to unload
freight arriving July 14, 2016, but only 67.5 were scheduled.
According to the Truck Notes, however, Store #112 planned 67.5
hours for July 14th, and also scheduled three (3) employees
Wednesday and Friday to "complete [the] truck." See [Dkt. No.]
100-19. If anything, Ollie's planned and scheduled more than
enough hours to handle the anticipated freight delivery.
Id. (quoting Dkt. No. 103-8 at 1, 52). The Court also finds that records Plaintiff submits of stores
unloading freight from the truck to the store show significant variances between the number and
type of employees involved in the process, the shift hours, whether the scheduled total hours are
significantly below the number of associate hours needed, the detail of notes recorded, and
whether workers are scheduled to work on the weekend to finish unloading. See Dkt. No. 103-8.
For example, Store eighty-five did not list any CSSs working and included notes on an employee
who was late one day and a "no show" another day. Id. at 30, 31. The records for Store seventyfive on September 30, 2021, show a CSS, STL, an unscheduled CTL, and an FFS scheduled, and
do not indicate a goal or the actual time to unload the freight. See id. at 3. The record does not

14

support Plaintiff's argument that Defendant has a uniform policy of under allocating labor hours
and requiring CTLs to function as non-exempt workers by spending most of their time on manual
labor. If anything, the record suggests that that some stores have more detailed reporting or
management styles than others, and some stores scheduled CTLs for unloading the freight, see id.
at 1, 16, 27, 29, whereas others do not. See id. at 30-38.
The Court also finds that Plaintiff's reliance on the freight unloading policy test project in
two Pennsylvania stores is not relevant to this matter because here Plaintiff is trying to certify a
class of CTLs in New York stores. See Dkt. No. 103-7. Additionally, as Defendant points out,
the PowerPoint explicitly states that employees should "NEVER under schedule your truck,"
which weighs against finding that Defendant has an overarching policy of encouraging CTLs to
under-schedule labor hours. Id. at 27; see also Dkt. No. 111 at 21.
As additional support for his argument that Defendant has a de facto policy, Plaintiff
submits an email from Brent Moody, a district team leader for Syracuse, New York, in which
Moody critiques CTLs for "managing from the office" and "doing 'Paper Work' or working on
plans" instead of "assist[ing] with truck unload," and instructs them that "[p]lanning out a
manifest should take someone no longer than [thirty] minutes to [one] hour." Dkt. No. 103-9 at 3.
Contrary to Defendant's assertions, this does not support the conclusion that CTLs were following
company policy by "managing from the office, rather than overseeing the freight process,"
however it is also not clear that this supports Plaintiff's claim that there were policies of
encouraging CTLs to spend minimal time on management tasks, since Moody still refers to the
need for CTLs to "build morale" and manage the team, and because unloading trucks was not a
daily task. Id.; Dkt. No. 111 at 22.

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On July 1, 2024, Plaintiff submitted a declaration from Colette Forjone, a CTL at the
Auburn, New York store. See Dkt. No. 128. Forjone stated that she works "at least [fifty] hours
per week" and sometimes "up to [fifty-five] hours," that her typical tasks are "identical to those of
the hourly employees," including cleaning, stocking the shelves and unloading freight. Id. at ¶¶
4-6. She also stated that, since around October 2023, she has been working closer to twenty or
twenty-five hours per week because she was injured while unloading a truck at work and is now
medically restricted to only perform light work. See id. at ¶ 9. Forjone declared that she has not
completed any performance counseling independently, has only been involved in the hiring
process for four employees, and is required to send her District team leader pictures to verify that
tasks, such as displaying the product, are done correctly. See id. at ¶¶ 11-12, 17. Because of her
injury, the tasks Forjone completes and the time she spends on them is clearly unique. Therefore,
the same questions of fact that would resolve the question of whether Forjone was misclassified
as exempt would not resolve the inquiry into whether Plaintiff or other CTLs in New York were
also misclassified.
In support of the argument CTLs duties vary from store to store, Defendant submits
testimony from Scott Osborne, Defendant's Vice President of Operations. Dkt. No. 44-16.
Osborne testified that, although there is an opening checklist for stores nationwide, "what the
decision-maker needs to do with that checklist is very different from each one of [Defendant's]
stores." Id. at 72:3-10. Osborne also testified that a "CTL can do different things based on the
sales volume and the unique footprint of [the] store[]. Each Ollie's is very different." Id. at
14:13-16.
Defendant also relies on numerous declarations from current and former CTLs to show
that there are meaningful differences in the tasks that CTLs engage in, and therefore that an

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inquiry into whether any particular CTL was misclassified as exempt would not necessarily apply
to other CTLs in New York stores. See Dkt. No. 111 at 23-28. Defendant contends that the
declarations it submits from twenty-three CTLs in New York stores and twenty-one STLs, nine of
whom had previously worked as CTLs, support its argument that there are "wide variations
among CTLs in their management responsibilities, for example with regard to scheduling,
merchandising, overseeing the freight process, ensuring profitability of the stores, and supervision
of store employees, including hiring, firing and discipling non-exempt associates." Dkt. No. 111
at 31. Defendant claims that the record shows that the different experiences of CTLs in different
stores in New York "necessitate an employee-by-employee assessment and preclude class
certification." Id.
As an initial matter, the Court notes that, when determining whether to grant FLSA
conditional certification, "declarations submitted by employers of current employees are regularly
disregarded in the context of conditional certification of a collective action, both because of the
chance for coercion by the employer, but also because the evidentiary burden is relatively low."
Benavides v. Serenity Spa NY Inc., No. 15-CV-9189, 2017 WL 3835880, *5 (S.D.N.Y. Sept. 1,
2017) (citing Amador v. Morgan Stanley & Co. LLC, No. 11-CV-4326, 2013 WL 494020, *8
(S.D.N.Y. Feb. 7, 2013)) (other citations omitted). Although the Court currently addresses class
action certification, not FLSA conditional certification, similar policy concerns apply. However,
unlike other cases where courts have found that declarations were "in all material respects
identical [to] one another" and appear to be "obviously crafted to describe a position" that
counters the other side's argument, the many declarations Defendant submits here vary in their
contents, such as whether they address the number of hours they worked weekly, and sometimes
offer statements which may support Plaintiff's arguments about the nature of the CTLs' work.

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Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 159 (S.D.N.Y. 2008) (disregarding depositions
when considering the application of Rule 23 requirements because the declarations have nearly
identical language and the court found them to be not credible in light of other deposition
testimony). The Court will consider the declarations Defendant submits in the context of the
entire record before it, although the Court is mindful of the policy concerns Plaintiff addressed.
See Dkt. No. 122 at 19.
The declarations Defendant submits show that there are meaningful differences in CTLs
management responsibilities. See Dkt. No. 111 at 31. For example, Vanessa Baird, a CTL at the
New Hartford, New York store, declared that she works fifty hours a week, opens and closes the
store, oversees hiring, managing supervisors, and handling customer and employee complaints.
See Dkt. No. 116-4 at 1:2-4, 5:26. She stated that she has "final say on who gets hired" and is
"primarily responsible for all hiring decisions." Id. at 2:9, 2:11. By contrast, Sherry Hopper, an
STL and former CTL at the Kingston, New York store, declared that while she has been working
as a STL, the CTL she works with conducts the first interview, she conducts the second interview,
and then she and the CTL discuss whether "the applicant is a good fit for the store[.]" Id. at 75:2,
75:8. Baird also stated that she performs the same work as hourly workers, including "cleaning,
sweeping, stocking shelves, and helping out with the cash register," but that she does "more
planning, strategizing, merchandising, focusing on what needs to be done to hit [the store's] sale
goals, and executing plans." Id. at 4:24. Baird described the "three-step disciplinary process,"
where she gives a verbal warning, and if she does not see a significant improvement, then does "a
write up" which is submitted to Human Resources after the person being disciplined signs the
warning. Id. at 3:17-4:19. If the behavior continues, then the employee's employment is
terminated. See id.

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Tori Barbaglia, a CTL at the Oswego, New York store, declared that she works fifty-tosixty hours a week, opens and closes the store, makes hiring decisions and recommends associates
for promotions, and is responsible for the store's operations, including overseeing the merchandise
and freight. See id. at 6:1-6. In contrast to Baird, Barbaglia stated that she has "the authority to
discipline associates" but that when she does "write ups for performance [she] usually need[s] to
have HR approve it first." Id. at 6:12. Barbaglia stated that the DTL sends a budget once a week,
the STL writes the team leader schedule for the month, and that she uses that "as a guide to write
everyone else's schedule." Id. at 8:14. Barbaglia declared that she performs some of the same
tasks as the hourly employees, including assisting with freight, stocking shelves, and working the
cash register, but unlike an hourly employee, she has "very limited supervision," and "ninety
percent of [her] day consit[s] of supervising [her] team." Id. at 8:17-18.
Rebecca Carlsson declared that she worked as a CTL at Ollie's store in Greece, New York,
for approximately three years before she transferred to the Webster, New York store, where she
continues to work as a CTL. See id. at 31:2. Carlsson stated that the "duties [she] handled as a
CTL varied greatly depending on the STL," because some STLs required her "to handle almost all
of the office responsibilities at the Store, while others handed many of those responsibilities on
their own." Id. at 31:3. At the Webster store she collaborates "on most decisions relating to
operation of the Store" with the STL, and works with him to handle the interviews. Id.; see also
id. at 32:5. Carlsson stated that she has "sole responsibility for creating both the employee and
manager schedules for the Store." Id. at 33:10. On the other hand, Nicole Moore, an STL and
former CTL at the Hudson, New York store, declared that the STL handles scheduling for the
STL, CTL, FFS, and ATL positions at the store. See id. at 120:10. Carlsson described her role in
disciplining associates as verbally counseling them when they are not meeting expectations,

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issuing written warnings "relating to attendance," being "involved in termination meetings with
the Loss Prevention Manager and/or the STL," and filing the paperwork to terminate employees
for no show terminations. Id. at 33:9.
Francine Jaeschke, a CTL at the Middletown, New York store, declared that her "primary
job duties include overseeing merchandising, making sure the floor looks good, and ensuring the
Associates are being productive" and that she works "hand-in-hand with [her] [STL] to make sure
the Store is running smoothly." Id. at 80:5. Jaeschke stated that she leads a daily huddle to go
over sales and operations for the day. See id. at 81:9. She coaches associates if they are not
meeting expectations and has previously written-up associates for attendance issues, but her
involvement with hiring, firing, and interviewing was much more limited when she worked with
some STLs than others. See id. at 81:10-11, 83:21. She also stated that she "occasionally stock[s]
shelves or work[s] the register to help out," but those tasks take less than twenty percent of her
day. Id. at 83:19.
Allen LaClair, a CTL at the Massena, New York, store, declared that his "primary job
duties are overseeing the operations of freight processing, merchandising decisions, scheduling
and hiring, and HR-oriented tasks." Id. at 90:4. Tina Ules, a CTL at the Greece, New York store,
stated that department supervisors are responsible for merchandising decisions, such as how to
arrange merchandise and product placement. See id. at 185:11. LaClair stated that he would
interview applicants before the STL conducted a second interview, and the STL has so far made
hiring decisions in accordance with his recommendations. See id. at 90:5. LaClair also stated that
he is "responsible for supervising the associates in the store," including by formulating and
communicating a freight plan, and walking around the store to check on associates. Id. at 91:8-9.
He submits the schedule for non-managerial positions to the STL for final approval, is "in charge

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of the overall store's layout," "overseeing the freight process," and "opening and closing the
store." Id. at 93:12-13, 94:15, 95:18. He declared that he generally works forty-five hours a
week. See id. at 96:23.
The declarations Defendant submitted from CTLs and STLs at New York stores show that
potential members who could choose to opt-in to the proposed class have different processes for,
and levels of involvement in, hiring, interviewing, disciplining and terminating associates, as well
as discrepancies in their level of autonomy and supervision from the STL and how much time is
spent assisting with the cash-register, moving freight, shelving, and other tasks primarily assigned
to the hourly employees, merchandising, scheduling, and varying average weekly hours. Plaintiff,
the proposed opt-in Plaintiff, Plaintiff's declarant Colette Forjone, and Defendant's job description
for CTLs also present different accounts of the level of management CTLs have.
Even without considering the declarations Defendant submits, there are meaningful
differences between Plaintiff's testimony, proposed opt-in Plaintiff Swain's testimony, Plaintiff's
declaration from Colette Forjone, and the advertised description of the CTL position, that would
require the Court to conduct individualized inquiries to determine whether the exemption
provisions would apply. Accordingly, the Court finds that Plaintiff has failed to show that his
state law claims share common facts with, or arise from the same course of events as, the claims
of each putative class member. Rather, the record before the Court strongly suggests that
resolution of the issue whether Plaintiff or any Ollie's CTLs in New York State were ever entitled
to overtime wages under the NYLL would necessarily entail an analysis of each CTL's individual
job experiences to determine his or her qualification for exempt status.

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Having found that Plaintiff has failed to satisfy the commonality prerequisite of Rule
23(a)(2) and (3), the Court need not consider whether the remaining requirements of Rule 23 have
been met.
IV. CONCLUSION
Accordingly, after carefully reviewing the entire record in this matter, the parties'
submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for class certification pursuant to FED. R. CIV. P. 23 (Dkt.
No. 100-1) is DENIED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 30, 2024
Albany, New York

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