Engel et al v. Burlington Coat Factory Direct Corporation et al
Filing
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ORDER granting 18 Motion to Certify Class to the extent that it seeks conditional certification of a class of Area Managers in the Ohio and Kentucky retail stores; Once a revised Notice and Consent is filed, the Court will order defendants to provide Plaintiffs' counsel with the names, last know addresses, and telephone numbers of this narrower group of former Area Managers. Signed by Judge Michael R. Barrett on 6/3/13. (ba1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Karen Susan Engel, et al.,
Plaintiffs,
Case No. 1:11cv759
v.
Judge Michael R. Barrett
Burlington Coat Factory
Direct Corporation, et al.
Defendants.
ORDER & OPINION
This matter is before the Court upon Plaintiffs’ Motion for Conditional
Certification. (Doc. 18). Defendants filed a Memorandum in Opposition (Doc. 24) and
Plaintiffs filed a Reply (Doc. 26). Defendants also filed a Supplemental Memorandum in
Opposition (Doc. 31), to which Plaintiffs filed a Response (Doc. 32). Plaintiffs have filed
a Notice of Supplemental Authority (Doc. 33), to which Defendants filed a Response
(Doc. 34). Defendants, likewise, have filed a Notice of Supplemental Authority (Doc.
35), to which Plaintiffs filed a Response (Doc. 36).
I.
BACKGROUND
Plaintiffs have filed a complaint alleging that they and other similarly situated
Area Managers were misclassified as exempt by Defendants and denied the payment of
overtime required by the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a). (Doc.
2).
Defendants Burlington Coat Factory Direct Corporation, Burlington Coat Factory
Warehouse Corporation, Burlington Coat Factory Investment Holding, Inc., and
Burlington Coat Factory, Holdings, Inc. employed Plaintiffs Karen Susan Engel and
Jennifer M. Jones as Area Managers until the position was eliminated in June of 2011.
(Doc. 2, at 5-6). Until June of 2011, Burlington employed between two and six Area
Managers per store, depending on volume. (Doc. 18-1, at 5). Burlington prepared and
distributed standardized job descriptions for all of its positions, including the Area
Manager position. (Id. at 6). The job description for Area Manager included the duties
of hiring and training staff, supervising other employees, implementing corporate
marketing initiatives, maintaining inventory, engaging in customer service, and
preparing merchandise displays. (Id. at 7; Doc. 24, at 12). Plaintiffs allege that their
actual duties largely involved the same duties as hourly associates – stocking
merchandise, maintaining the sales floor, and providing customer service – and that
managerial duties were limited. (Doc. 18-1, at 7). Plaintiffs’ Complaint alleges that Area
Managers often worked in excess of forty hours per week, but received no overtime
because they were wrongly classified as exempt employees. (Doc. 2, at 5-7).
During settlement discussions in July 2012, the parties entered into a Tolling
Agreement which stopped the running of the statute of limitations for a 76-day period
between May 7, 2012 and July 22, 2012. (Doc. 18-1, at 2).
Pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), Plaintiffs
move for conditional certification of the following group of employees:
All former Area Managers employed at a Burlington Coat Factory retail
store (except for retail stores located in California and Georgia) at any
time from [date 3 years less 76 days from the date of issuance of a
decision] until June 11, 2011 when the position was eliminated.
Plaintiffs also request that the Court approve the form and content of the
proposed Notice of Collective Action Overtime Pay Lawsuit and Consent. Plaintiffs
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further request that the Court order Defendants to provide Plaintiffs’ counsel with the
names, last known addresses, and telephone numbers of the individuals within the
proposed group of employees.
In their Notice of Supplemental Authority (Doc. 33), Plaintiffs bring to the Court’s
attention the decision in Goodman v. Burlington Coat Factory Warehouse, No. 11-CV4395, 2012 U.S. Dist. LEXIS 166910 (D. N.J. Nov. 20, 2012).
The district court
conditionally certified a nationwide unit of all current and former Assistant Store
Managers (“ASMs”) employed by Burlington Coat Factory. Id. at *27. This is a position
one rung above the Area Manager position. The court in Goodman found that the
named plaintiff made a “‘modest factual showing’ of a factual nexus between the
manner in which Burlington’s alleged policy affected him and the manner in which it
affected other Burlington ASMs.” Id. at *23. Plaintiffs assert that Goodman supports
conditional certification of Area Managers, as Plaintiffs have provided evidence of a
common pay practice and common job description among all Area Managers, as well as
testimony from two plaintiffs, a former Assistant Manager, and two opt-in plaintiffs
indicating that the majority of the Area Managers’ time was spent performing nonexempt work. (Doc. 33, at 2-3).
II.
ANALYSIS
The Fair Labor Standards Act provides a private cause of action against an
employer “by any one or more employees for and in behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. § 216(b).
Similarly situated persons are permitted to “opt into” the suit, which is called a
“collective action.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).
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This is distinguished from the opt-out approach utilized in class actions under Fed. R.
Civ. P. 23. Id. The district court may use its discretion to authorize notification of
similarly situated employees to allow them to opt into the lawsuit. Id. (citing Hoffman-La
Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
In suits filed under 29 U.S.C. § 216(b), courts typically use a two-phase inquiry to
examine whether the proposed co-plaintiffs are “similarly situated” for the purposes of
the statute’s requirements. Id. The first phase occurs at the beginning of discovery,
and employs a fairly lenient standard that results in conditional certification of a
representative class. Id. at 547 (quoting Morisky v. Public Serv. Elec & Gas Co., 111
F.Supp.2d 493, 497 (D. N.J. 2000)). The second phase occurs following discovery, and
employs a stricter standard, since the court has much more information on which to
base its decision. Id. (quoting Morisky, 111 F.Supp.2d at 497).
Plaintiffs and Defendants dispute whether this suit is in the first or second phase
of inquiry. Defendants argue that this case is fully discovered, as the parties have
produced more than 3,500 documents, served multiple sets of interrogatories and
requests for production, and have taken six depositions. (Doc. 24, at 23). Plaintiffs filed
their motion for conditional certification eight months after discovery opened, and five
months before discovery closed on March 29, 2013. (Id.). Plaintiffs argue that because
no discovery was permissible prior to the February 13, 2012 26(f) conference, and the
parties agreed to postpone discovery pending mediation in July 2012, discovery had
occurred less than three months before their motion for conditional certification was
filed.
(Doc. 26, at 8).
Before Plaintiffs’ motion was filed in October, only three
depositions had been taken. (Id.)
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This Court finds that this suit is in the first phase of inquiry. Discovery closed on
March 29, 2013, and Plaintiffs’ motion was filed in October 2012. Thus, discovery had
not completed by the time Plaintiffs’ motion was filed. Moreover, as Plaintiffs correctly
point out, only three out of eight total months of discovery took place before their motion
was filed.
In ruling on Plaintiff’s motion, the Court’s analysis will employ the first phase of
inquiry. At this stage, the plaintiffs must show only that “[their] position is similar, not
identical, to the positions held by the putative class members.” Comer v. Wal-Mart
Stores, Inc., 454 F.3d at 546-47 (quoting Pritchard v. Dent Wizard Int’l., 210 F.R.D. 591,
595 (S.D. Ohio 2002) (quoting Viciedo v. New Horizons Computer, No. 2:01-CV-250,
slip. op. (S.D. Ohio Dec. 4, 2001) and Allen v. Marshall Field & Co., 93 F.R.D. 438, 443
(N.D. Ill. 1982)). The merits of the claims, factual disputes, and credibility will not be
evaluated. Snelling v. ATC Healthcare Services, No. 2:11-CV-00983, 2012 U.S. Dist.
LEXIS 172052, at *8 (S.D. Ohio Dec. 4, 2012) (citing Swigart v. Fifth Third Bank, 276
F.R.D. 210, 214 (S.D. Ohio 2011)).
The Court will consider “whether potential plaintiffs were identified; whether
affidavits of potential plaintiffs were submitted; whether evidence of a widespread
discriminatory plan was submitted, and whether as a matter of sound class
management, a manageable class exists.” Id. at *9 (quoting Lewis v. Huntington Nat.
Bank, 789 F.Supp.2d 863, 868 (S.D. Ohio 2011)). One example of an appropriate
FLSA collective action is where the potential plaintiffs are “unified by common theories
of defendants’ statutory violations, even if the proofs of these theories are inevitably
individualized and distinct.” Id. (quoting O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d
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567, 585 (6th Cir. 2009)). However, a showing of a “unified policy” of violations is not
required. Id. (quoting O’Brien, 575 F.3d at 584).
In their Notice of Supplemental Authority (Doc. 35), Defendants submit a court
order granting summary judgment in a case pending in the United States District Court
for the Northern District of Georgia: Carew v. Burlington Coat Factory Warehouse Corp.
et al., No. 1:11-cv-03986-JOF (N.D. Ga. March 5, 2013).
In Carew, two plaintiffs
formerly employed at an Austell, Georgia, Burlington Coat Factory location filed suit
alleging that Burlington failed to pay them and a putative class of assistant managers
and associates overtime in violation of the FLSA. The court previously denied the
plaintiffs’ motion for conditional certification, based on differences between the different
levels of management and between associates and managers. In weighing the merits
of the two plaintiffs’ claims, the court concluded that their own testimony conclusively
established that they were exempt employees, and it dismissed their claim, with
prejudice, against Burlington.
Defendants argue that because this decision depended on the actual duties
expected and performed by each plaintiff, “the same is true with respect to the
allegations made on behalf of other ‘similarly situated’ Area Managers in this case.”
(Doc. 35, at 2). Because each individual Area Manager would need to come forward
with evidence of actual job duties, “there is no conceivable way that this case could be
tried on a representational basis.” (Id. at 3).
However, as Plaintiffs correctly point out in their Response, individual differences
between Area Managers will be considered at the second phase of certification, not at
this initial inquiry phase. Because the merits of Plaintiffs’ claims will not be weighed at
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this phase, Carew is not relevant.
Moreover, Area Managers from Georgia are
excluded from Plaintiffs’ proposed group of conditionally certified former Area
Managers.
In this case, the Court finds that Plaintiffs have made a modest showing that they
and other Area Managers in Ohio performed similar job duties and were subject to
similar pay practices. Ronald Johnson, a former Area Manager of a Burlington store in
Columbus, Ohio, testified that when Burlington was reorganized and the Area Manager
position as eliminated, his manager told him that as a Merchandising Team Associate,
he would be doing the same thing he was currently doing as an Area Manager:
“bringing stuff out of the back, bringing stuff to the floor, putting stuff on the racks,” with
a cut in pay.
(Johnson Dep. 163:13-17, Oct. 25, 2012). Another Columbus, Ohio
former Area Manager, John Hamelers, submitted a declaration stating that most of the
activities he engaged in were the same as hourly associates, and that his primary
responsibilities were “getting merchandise onto the floor and customer service.”
(Hamelers Decl. ¶ 11). Edna Brunck, a former Operations Manager and Assistant Store
Manager, stated that Area Managers spent 90% of their time performing the same job
duties as associates and had limited managerial responsibilities. (Doc. 18-3, Brunck
Decl. ¶¶ 3, 12). Plaintiff Karen Susan Engel, a former Cincinnati Area Manager, and
Plaintiff Jennifer Jones, a former Area Manager in Dayton, Ohio, both state in the
Complaint that the majority of their duties were devoted to non-managerial work. (Doc.
2, at 5-6). The testimony of Lisa Chambrelli-Hine, Vice President of Human Resources,
shows that all Area Managers (outside of California) were salaried, exempt employees.
(Chambrelli Dep. 26-29, Sept. 6, 2012).
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Plaintiffs submitted little evidence to support a conditional class outside Ohio. No
potential plaintiffs outside of Ohio were identified, and no affidavits of potential plaintiffs
outside of Ohio were submitted. The only evidence of potential similarity outside of
Ohio is based upon Edna Brunck’s experience in the grand opening and clean-up of the
store in Lexington, Kentucky. (Doc. 31-1, Brunck Dep. at 69). Brunck testified that she
observed the Area Managers in the Lexington, Kentucky store doing the same work at
the Area Managers in her store in Cincinnati, Ohio. (Id.) Although Plaintiffs submitted
evidence showing that the former Area Manager position was uniformly exempt (outside
of California) and had a standardized job description consisting of both exempt and nonexempt duties, the Court cannot conclude that every single former Area Manager
outside of California and Georgia was similarly situated in performing mostly nonexempt duties. Therefore, the Court concludes that Plaintiffs have only established a
conditional class consisting of the Area Managers in the Ohio and Kentucky retail
stores.
The Court notes that Plaintiffs may renew their motion for conditional
certification if discovery reveals support for expanding the conditional class.
See
Brasfield v. Source Broadband Servs., LLC, 257 F.R.D. 641, 644 (W.D. Tenn. 2009).
Based on the foregoing, Plaintiffs’ Motion for Conditional Certification (Doc. 18) is
GRANTED to the extent that it seeks conditional certification of a class of Area
Managers in the Ohio and Kentucky retail stores.
Plaintiffs shall file a revised Notice and Consent to include former Area Managers
employed at Burlington Coat Factory retail stores in Ohio and Kentucky at any point
from [three years prior to issuance of a decision less 76 days] until June 11, 2011, when
the position was eliminated. Once a revised Notice and Consent is filed, the Court will
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order Defendants to provide Plaintiffs’ counsel with the names, last known addresses,
and telephone numbers of this narrower group of former Area Managers.
IT IS SO ORDERED.
/s/ Michael R. Barett
JUDGE MICHAEL R. BARRETT
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