Neitzke v. NZR Retail of Toledo, Inc.

Filing 19

Memorandum Opinion and Order denying 14 Motion for class certification. Neitzke may be right that she was misclassified and wrongly denied overtime pay, but she fails to make even a modest showing that others like her exist. As a result, she will have to proceed alone. Judge Jack Zouhary on 12/16/2015. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Jessica Neitzke,
Individually and on behalf of a Class,

Case No. 3:15 CV 508
MEMORANDUM OPINION
AND ORDER DENYING
CONDITIONAL CLASS CERTIFICATION

Plaintiff,
-vs-

JUDGE JACK ZOUHARY
NZR Retail of Toledo, Inc.,
Defendant.

INTRODUCTION
Jessica Neitzke sues her former employer, NZR Retail of Toledo (“NZR”), alleging that NZR
wrongly categorized her as an exempted employee under the Fair Labor Standards Act (“FLSA”).
Though she held the title of manager, Neitzke claims she spent most of her time working as a cashier
and thus should have received overtime pay. Neitzke purports to bring this action on behalf of
similarly situated NZR managers. She now moves for conditional certification of a collective action
under 29 U.S.C. § 216(b) (Doc. 14). NZR opposes (Doc. 15). For the reasons discussed below, the
Motion is denied.
BACKGROUND
Neitzke began working for NZR, a gas station operator, as a cashier entitled to hourly wages
and overtime pay (Doc. 14-3, Neitzke Aff. at ¶¶ 5, 11). She soon received a promotion to store
manager, which brought a salary and classification as an exempted employee (id. at ¶¶ 6, 10). But

the promotion did not bring an increase in responsibilities -- at least according to Neitzke. She says
she regularly worked fifty hours a week, but spent most of her time “performing manual work
identical to the cashiers” (id. at ¶¶ 8, 12). Neitzke also claims other NZR managers had largely
similar responsibilities “based on the observations of other Managers [she] worked with and through
discussions with them” (id. at ¶ 16).
Neitzke alleges NZR misclassified her and her fellow managers and thus wrongly denied them
overtime pay. She now moves for conditional certification of a class of managers “who worked for
[NZR] at any time during the time period beginning from 3 years preceding a ruling on this Motion
through the date of trial and who were classified as salaried or exempt and not paid overtime” (Doc.
14 at 3). Neitzke also wants NZR to provide the names and contact information of potential class
members and this Court to approve her proposed notice to class members. This Court previously gave
the parties the opportunity to conduct limited discovery before briefing conditional certification.
STANDARD OF REVIEW
The FLSA allows “one or more employees” to sue an employer “for and in behalf of himself
or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Collective actions
brought by employees under the FLSA require would-be class members to opt-in to the action (or,
generally termed, the “class”). See id. (“No employee shall be a party plaintiff to any such action
unless he gives his consent in writing to become such a party and such consent is filed in the court
in which such action is brought.”). A FLSA collective action requires that all opt-in plaintiffs are
“similarly situated.” Id. Though plaintiffs need not be identical, they must “suffer from a single,
FLSA-violating policy.” O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009).
The Sixth Circuit uses a two-stage approach to decide whether a proposed group of plaintiffs
is “similarly situated.” The first takes place at the beginning of discovery with a focus on determining
2

whether there are plausible grounds for plaintiffs’ claims. If so, plaintiffs are permitted to solicit
opt-in notices, under court supervision, to potential plaintiffs such as current and former employees
of defendant. The first stage is “fairly lenient,” requiring only a modest showing that a class of
similarly situated plaintiffs exists. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006)
(internal quotation marks and citation omitted). The second stage occurs after “all of the opt-in forms
have been received and discovery has concluded.” Id. at 546. At this point, the court considers all
the evidence, in conjunction with the demographic data of the putative opt-in plaintiffs, to decide
whether the assembled class is sufficiently “similarly situated” to continue as a collective action or
whether the putative class should be “decertified,” leaving plaintiffs free to pursue their claims on an
individualized basis. Id. at 547.
When, as here, the parties have been permitted to conduct some limited discovery to determine
whether a class of similarly situated plaintiffs may exist, courts (including this one) have required a
slightly more rigorous, modest “plus” showing. See, e.g., Creely v. HCR ManorCare, Inc., 789 F.
Supp. 2d 819, 823–28 (N.D. Ohio 2011) (“Plaintiffs need not have moved the ball far down the field,
but they need to have shown some progress as a result of the discovery as measured against the
original allegations and defenses.”). This “prevent[s] the absurd result of granting the parties time
to do discovery on the conditional certification question but subsequently imposing no incremental
hurdle in determining whether Plaintiffs may send opt-in notices.” Id. at 827.
ANALYSIS
Neitzke alleges NZR wrongly classified her and her fellow managers as exempted employees.
She contends NZR’s managers are essentially glorified cashiers who are asked to work more than
forty hours a week performing non-exempt tasks without receiving overtime pay. Neitzke argues
three facts weigh in favor of certification: (1) her observation of other managers she says are similarly
3

situated; (2) NZR’s use of a single common job description for all managers; and (3) NZR’s decision
to classify all managers as exempted employees.
NZR argues certification is inappropriate here because Neitzke was an outlier among its
managers. In her deposition, Neitzke confirmed she did not supervise, hire, or discipline employees,
schedule shifts, or take primary responsibility for lottery reporting (Doc. 15-3 at 21–23, 25–26, 28).
Though Neitzke claims this was true of other NZR managers, NZR attached to its Opposition thirtytwo affidavits from current and former managers swearing they performed all these tasks and more
(see generally Doc. 15-4).
All Neitzke offers in response is a vague allegation that other managers performed similar
tasks “based on the observations of other Managers [she] worked with and through discussions with
them” (Neitzke Aff. at ¶ 16). She does not say who these managers are, approximately how many
there are, or where and when they worked for NZR. See H & R Block, Ltd. v. Housden, 186 F.R.D.
399, 400 (E.D. Tex. 1999) (denying certification at first stage where “[a]ll movants have done is
submit affidavits . . . which simply state that they believe other workers were discriminated against
in similar ways”). Courts have sometimes conditionally certified FLSA classes on the basis of a lone
affidavit, but only where it included names and an estimated number of similar employees. See, e.g.,
Wraga v. Marble Lite, Inc., 2006 WL 2443554, at *2 (E.D.N.Y. 2006). NZR argues Neitzke cannot
meet the modest “plus” standard, but in reality she cannot meet even the more lenient standard. She
“may meet this [more lenient] burden, which is not heavy, by making substantial allegations of
class-wide discrimination, that is, detailed allegations supported by affidavits which ‘successfully
engage defendants’ affidavits to the contrary.’” Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th
Cir. 1996) (quoting Sperling v. Hoffman-LaRoche, 118 F.R.D. 392, 406 (D.N.J. 1988)). Neitzke’s
allegations do not “successfully engage” NZR’s affidavits.
4

NZR’s common job description and exemption classification do nothing to change the result.
See Costello v. Kohl’s Illinois, Inc., No. 1:13-CV-1359-GHW, 2014 WL 4377931, at *4 (S.D.N.Y.
2014) (“Indeed, if 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.”).
CONCLUSION
Neitzke may be right that she was misclassified and wrongly denied overtime pay, but she fails
to make even a modest showing that others like her exist. As a result, she will have to proceed alone.
The Motion for Conditional Certification and Additional Relief (Doc. 14) is denied.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
December 16, 2015

5