Lindsey et al v. Tire Discounters, Inc.

Filing 99

ORDER granting 68 Defendant's Motion to Decertify ; denying 69 Plaintiffs' Motion to Certify Class; denying 79 Defendant's Motion for Summary Judgment; granting in part and denying in part 80 Plaintiffs' Motion for Partial Summary Judgment and denying 95 Plaintiffs' Motion for Leave to File a Supplemental Brief. Signed by Judge George C. Smith on 12/1/17. (sem)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JUSTIN LINDSEY, et al.,
Plaintiffs,
v.

Case No.: 2:15-cv-3065
JUDGE GEORGE C. SMITH
Magistrate Judge Kimberly A. Jolson

TIRE DISCOUNTERS, INC.,
Defendant.

OPINION AND ORDER
This matter is before the Court upon several motions: (1) Defendant Tire Discounters,
Inc.’s (“Tire Discounters”) Motion to Decertify the Conditional Collective Action (“Motion to
Decertify”) (Doc. 68); (2) Plaintiffs’ Motion for Class Certification under Federal Rule of Civil
Procedure 23(b)(3) (“Motion for Class Certification”) (Doc. 69); (3) Tire Discounters’ Motion
for Summary Judgment (“Motion for Summary Judgment”) (Doc. 79); (4) Plaintiffs’ Motion for
Partial Summary Judgment on the Method of Calculating Damages (“Motion for Partial
Summary Judgment”) (Doc. 80); and (5) Plaintiffs’ Motion for Leave to File a Supplemental
Brief in support of their positions on the Motion to Decertify and the Motion for Class
Certification (“Motion for Leave to File Supplemental Brief”) (Doc. 95). All five motions are
fully briefed and ripe for disposition. For the following reasons,
(1) Tire Discounters’ Motion to Decertify is GRANTED;
(2) Plaintiffs’ Motion for Class Certification is DENIED;
(3) Tire Discounters’ Motion for Summary Judgment is DENIED;

(4) Plaintiffs’ Motion for Partial Summary Judgment is GRANTED IN PART and
DENIED IN PART; and
(5) Plaintiffs’ Motion for Leave to File a Supplemental Brief is DENIED.
I.

FACTUAL BACKGROUND

This case arises out of Tire Discounters’ classification of its Service Manager position as
exempt from the overtime provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.
(“FLSA”) and the Ohio Minimum Fair Wage Standards Act, Ohio Revised Code Chapter 4111,
et seq. (“OMWA”). Named Plaintiffs Justin Lindsey and Matthew Titus worked as Service
Managers (“SMs”) at various Tire Discounters locations for all or part of the period of December
8, 2012 to October 31, 2016.

(Doc. 1, Compl.).

Plaintiffs claim that Tire Discounters

improperly classified them, and all other SMs employed by Tire Discounters around the country
during this time period, as exempt under the executive exemption provided by 29 C.F.R. §
541.100. (Id.).
Tire Discounters is a chain with over 100 stores throughout Ohio, Kentucky, Tennessee,
Georgia, and Indiana. (Doc. 68-1, Ward Aff. ¶ 3). For its first several decades in business, Tire
Discounters focused primarily on retail tire sales and simple services such as changing and
rotating tires. (Id. ¶ 8). During this period, each Tire Discounters location was staffed with a
General Manager (“GM”) who typically oversaw an Assistant Manager (“AM”) and several Tire
Technicians and Service Technicians. The AM position was not classified by Tire Discounters
as exempt from the FLSA’s overtime provisions. (Doc. 77-1, Ward Dep. at 8).
A.

Creation of the Service Manager position
In 2010, Tire Discounters decided to expand both its number of locations and the services

it offered to include work on brakes, shocks, struts, oil, fluid exchanges, and air conditioning.
(Id. ¶¶ 5–9). This expansion required Tire Discounters to restructure its staffing model. The

2

non-exempt AM position was eliminated in 2012 and, at the same time, two new positions were
created: a non-exempt Sales Associate position and an exempt SM position. (Doc. 77-1, Ward
Dep. at 7–9).
Tire Discounters determined the new SM position fell under the “executive exemption”
from the FLSA overtime regulations, which requires, inter alia, the employees in question to
receive a salary of at least $455 per week and have “management of the enterprise” as their
primary duty. (Id. at 274–75; 29 C.F.R. § 541.100). There is no dispute that all SMs received a
salary of at least $455 per week at all times.1 Tire Discounters’ written SM job description
emphasizes the management aspects of the position, stating that SMs are “primarily responsible
for developing, directing, and supervising a team of Service Technicians and Tire Technicians”
and listing the following “Key Accountabilities”:


Supervise service technician and tire technician staff.



Evaluate the performance of service technician and tire technician staff.



Assist in the hiring, discipline and termination of shop staff.



Monitor and manage the workflow in the bays and keep sales staff
informed on waiting times.



Enforce all safety policies ensuring all safety goggles are worn, proper
clothing is worn and all employees are working in a safe and clean
environment.



Ensure continuous and consistent enforcement of all Tire Discounters
policies and procedures.



Build and maintain a team effort consistent with the goals of the company.



Exercise strong, fair and consistent leadership with all employees.

1

Although named Plaintiff Lindsey recalled receiving only $450 per week, Tire Discounters’ records demonstrate
that he was in fact paid more than $455 per week during his entire tenure as an SM. (Doc. 68-4, Deposition of
Justin Lindsey at 45–48; Doc. 79-1, Pay Records).

3



Meet or exceed Tire Discounters Performance Standards for quality and
speed of service for our customers.



Ensure all diagnostic procedures are followed and appropriate
recommendations are given to the customers.



Enforce with all employees that the customer is our highest priority so that
our integrity will never be questioned.



Ensure every vehicle has been inspected for needed services.



Ensure customers are satisfied with the services performed.



Assist at the sales counter as needed.



Maintain cleanliness and care of every customer vehicle.

(Doc. 68-2, Service Manager Job Description). Tire Discounters also had the SMs undergo a
full-day training program to make sure the SMs had a uniform understanding that these “key
accountabilities” were their primary duties. (Doc. 68-1, Ward Aff. ¶ 30).
B.

Department of Labor investigation
In 2014, an SM employed by Tire Discounters in Louisville, Kentucky made a complaint

with the Department of Labor (“DOL”). This SM alleged that he had been improperly classified
as exempt and was entitled to unpaid overtime wages. (Doc.68-3, Compliance Action Report at
2).

The DOL investigated but was unable to substantiate the allegations of improper

classification. (Id.).
C.

Re-classification of Service Manager position as non-exempt
In 2016, the DOL announced a proposed change to dollar threshold of the weekly salary

required for the executive exemption. 81 FR 32391-01. The final rule was set to go into effect
on December 1, 2016, and would have raised the minimum weekly salary for exempt employees
to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census

4

Region. Id. at 32393. Thus, as of 2016, the final rule would have raised the weekly salary
requirement from $455 to $913. Id.
In anticipation of this rule change, Tire Discounters had the choice of either raising the
SM salary to meet the new exemption threshold (which, in many cases, would have meant
increasing SMs’ annual salaries by $15,000 or more), or re-classifying SMs as non-exempt from
the FLSA’s overtime provisions.

Tire Discounters opted for the latter and all SMs were

reclassified as non-exempt as of October 31, 2016.

(Doc. 77-1, Ward Dep. at 98).

Tire

Discounters did not implement any changes to SMs’ job duties in connection with the
reclassification. (Id. at 116).
II.

PROCEDURAL HISTORY

Plaintiffs filed their Complaint on December 8, 2015. Soon after, Plaintiffs sought, and
Tire Discounters did not contest, conditional certification of a collective action pursuant to the
FLSA’s provisions at 29 U.S.C. § 216(b). (Doc. 18). On March 1, 2016, the Court conditionally
certified the collective comprising “all current and former Service Managers (‘SMs’) who work
or worked for Defendant Tire Discounters, Inc. (‘Defendant’), within the United States at any
time since December 8, 2012 (the ‘Collective’).” (Doc. 21). Plaintiffs then distributed Courtapproved notice of the FLSA collective action to potential members of the Collective. The
FLSA notice period has closed, and a total of 98 SMs (including the two named Plaintiffs) who
worked for Tire Discounters around the country have filed consent forms to join the FLSA
collective action. (Docs. 2, 22–32, 34–42).
Contemporaneously, the parties conducted discovery regarding Rule 23 class certification
of an Ohio-only class, decertification of the nationwide collective action, and dispositive
motions. The parties agreed that Tire Discounters would be entitled to take the depositions of
the two named Plaintiffs as well as eight other opt-in plaintiffs who had consented to join the
5

FLSA collective action. (Doc. 46, Scheduling Order at 1). However, Tire Discounters chose to
depose only the two named Plaintiffs (Justin Lindsey and Matthew Titus) and three opt-in
plaintiffs (Scott Mustovich, Wesley Lowe, and Ronald Litton). (Docs. 68-4 through 68-8,
Deposition Transcripts). Lindsey, Titus, and Mustovich worked at various Tire Discounters
locations in Ohio; Lowe and Litton worked at locations in Kentucky. Tire Discounters’ written
discovery responses indicated that there are likely at least 124 current or former employees
falling within the definition of Plaintiff’s proposed Rule 23 Ohio-only class.

(Doc. 69-2,

Legando Decl. ¶ 6).
A.

Pending Motions
On March 1, 2017, Tire Discounters filed its Motion to Decertify the FLSA collective

action. (Doc. 68). The same day, Plaintiffs filed their Motion for Class Certification of the
OMWA claims under Federal Rule of Civil Procedure 23(b)(3) on behalf of those SMs who had
worked for Tire Discounters in Ohio. While those motions remained pending, both parties filed
motions for summary judgment per the Court’s scheduling order on April 24, 2017: Tire
Discounters sought summary judgment on liability as to all issues and all plaintiffs (Doc. 79),
and Plaintiffs sought partial summary judgment as to the method of calculating damages (Doc.
80).
Finally, after briefing was complete on both summary judgment motions, Plaintiffs filed a
motion on June 14, 2017, for Leave to file a Supplemental Brief in support of their Motion for
Class Certification and in opposition to Tire Discounters’ Motion to Decertify. (Doc. 95). In
this motion, Plaintiffs sought leave to address the positions taken by Tire Discounters in its
summary judgment briefing, which they assert shed additional light on the class issues central to
the Motion to Decertify and Motion for Class Certification. (Id. at 2).

6

B.

Contents of the record
Along with authenticated documentary evidence, the parties have submitted the

deposition transcripts of James Ward, Tire Discounters’ President (Doc. 77-1), the two named
Plaintiffs (Lindsey and Titus, Docs. 68-4 and 68-5), and three opt-in plaintiffs (Mustovich,
Litton, and Lowe, Docs. 68-6 through 68-8). Plaintiff also submitted declarations of 11 other
opt-in plaintiffs (Allen, Funke, Jarrells, Jenks, Kozusko, Mahoney, Moffett, Orlett, Page, Seifert,
and Wyatt, Docs. 71-9 through 71-19) in opposition to the Motion to Decertify, in support of the
Motion for Class Certification, and in opposition to Tire Discounters’ Motion for Summary
Judgment. Three of these declarants (Funke, Jenks, and Moffett) and two of the deponents
(Litton and Lowe) worked as SMs only in Kentucky. Therefore, the testimony of these five
individuals will not be considered on Plaintiffs’ Motion for Class Certification, which deals with
an Ohio-only proposed class.
As part of their briefing on the Motion for Class Certification and Tire Discounters’
Motion for Summary Judgment, Plaintiffs submitted declarations of five additional SMs who
worked for Tire Discounters in Ohio during the relevant period but who did not opt in to the
FLSA collective action (Downey, Edmonds, Frey, McManus, and Mishler, Docs. 69-9 through
69-11; 69-15 through 69-16). The Court finds it appropriate to consider the declarations of these
five SMs in determining all of the pending motions. Even though they did not opt in to the
collective action, they have relevant knowledge of their job duties as SMs and the alleged
uniform policy to which SMs were subject. See Johnson v. Big Lots Stores, Inc., No. CIV.A.043201, 2008 WL 2191305, at *3 (E.D. La. Feb. 20, 2008); Campanelli v. Hershey Co., 765 F.
Supp. 2d 1185, 1188 n.8 (N.D. Cal. 2011).
Finally, in opposition to Plaintiffs’ Motion for Class Certification, Tire Discounters
submitted declarations of two SMs who currently work for Tire Discounters in Ohio (Zolnowski
7

and Roth, Docs. 76-3 and 76-4). Plaintiffs argue these declarations should be given little weight
because “form affidavits gathered by an employer from its current employees are of limited
evidentiary value in the FLSA context because of the potential for coercion.” Myers v. Marietta

Mem’l Hosp., 201 F. Supp. 3d 884, 892 (S.D. Ohio 2016) (Marbley, J.).

Moreover, the

declarations are undated and do not indicate whether Zolnowksi and Roth were SMs during the
relevant period. The Court therefore finds that these declarations have little, if any, significance
to any of the pending motions.
III.

DISCUSSION

Although filed last out of the five pending motions, the Court will address Plaintiff’s
Motion for Leave to File Supplemental Brief first because it bears on the record to be considered
in deciding the Motion to Decertify and Motion for Class Certification. The Court will then
consider Tire Discounters’ Motion to Decertify, Plaintiffs’ Motion for Class Certification, Tire
Discounters’ Motion for Summary Judgment, and Plaintiffs’ Motion for Partial Summary
Judgment in turn.
IV.

PLAINTIFF’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF
This Court’s Local Rules provide only for memoranda in support of a motion,

memoranda in opposition, and reply memoranda in the normal course. S.D. Ohio Civ. R. 7.2(a).
Any further memoranda require leave of court based on a showing of good cause. Id. “Although
Rule 7.2(a) does not define what constitutes good cause for filing any additional memoranda,
such as a surreply, this Court has consistently held that in order for a party to be given
permission to file a sur-reply, the reply brief must raise new grounds that were not presented as
part of the movant’s initial motion.” Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., No.
207-cv-1190, 2010 WL 4117552, at *4 (S.D. Ohio Oct. 19, 2010) (Kemp, M.J.) (citing Power
Marketing Direct v. Moy, No. 2:08-cv-826, 2008 WL 4849289 (S.D. Ohio November 6, 2008)
8

(Frost, J.) and White v. Honda of America Mfg., Inc., 191 F.Supp.2d 933, 944 (S.D. Ohio 2002)
(Sargus, J.) (holding that the mere fact that a sur-reply might be “helpful” is not enough to justify
its filing)).
Here, Plaintiffs argue a supplemental brief is necessary to highlight the inconsistency
between Tire Discounters’ opposition to class treatment (according to Tire Discounters, each
SM’s duties would need to be individually evaluated to determine whether that SM was properly
exempt) and its request for summary judgment against named Plaintiffs, all opt-in plaintiffs, and
all putative Rule 23 class members (according to Tire Discounters, the evidence demonstrates
that all SMs were properly exempt). (Doc. 95, Mot. for Leave at 2). But the argument Tire
Discounters asserts in its summary judgment briefing—that all SMs are properly exempt—
appeared multiple times in Tire Discounters’ briefs in support of decertification and in
opposition to class certification. Indeed, Plaintiffs complained that by making these arguments,
Tire Discounters was prematurely arguing the merits of the case instead of focusing on class
issues. (Doc. 71, Pls.’ Mem. in Opp. to Mot. to Decertify at 16–17; Doc. 78, Pls.’ Reply in Supp.
of Mot. for Class Certification at 2).
Thus, Plaintiffs were clearly aware of Tire Discounters’ summary judgment position
while briefing the class-related motions and could have raised any inconsistency arguments at
that time—and, in fact, they did. (Doc. 71, Pls.’ Mem. in Opp. to Mot. to Decertify at 15 (“[T]o
the extent Defendant suggests the results of the DOL’s investigation of one SM are applicable to
all SMs company-wide, it would be hard pressed to argue that the 98 SMs at issue should not be
treated collectively.”)).

Plaintiffs have therefore not shown good cause for filing their

supplemental brief, and their motion to do so is DENIED.

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V.

TIRE DISCOUNTERS’ MOTION TO DECERTIFY

Tire Discounters seeks to decertify the FLSA collective action because it asserts that the
opt-in plaintiffs are not “similarly situated” as required by 29 U.S.C. § 216(b). For the following
reasons, the Court agrees.
A.

Standard for decertification
The lead Plaintiffs bear the burden of showing that the opt-in plaintiffs are similarly

situated to the lead Plaintiffs. O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 584 (6th
Cir. 2009). The FLSA does not define the term “similarly situated,” but the Sixth Circuit has
instructed the lower courts analyzing decertification motions to consider:
(1)

the factual and employment settings of the individual plaintiffs,

(2)

the different defenses to which the plaintiffs may be subject on an individual
basis, and

(3)

the degree of fairness and procedural impact of certifying the action as a
collective action.

Id.
While conditional certification at the outset of a putative collective action requires only a
minimal showing that the collective is similarly situated, plaintiffs must meet a higher standard
at the decertification stage that accounts for the facts learned in discovery. Monroe v. FTS USA,
LLC, 860 F.3d 389, 402 (6th Cir. 2017). Plaintiffs generally must produce “more than just
allegations and affidavits” demonstrating similarity in order to achieve final certification. Frye v.
Baptist Mem’l Hosp., Inc., 495 F. App’x 669, 671–72 (6th Cir. 2012) (quoting Morgan v. Family
Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008)). However, the Sixth Circuit has also
cautioned that the FLSA’s “similarly situated” standard “is less stringent” than the
“predominance of common questions” inquiry applicable to class certification under Federal
Rule of Civil Procedure 23(b)(3). O’Brien, 575 F.3d at 584.
10

Employees who “suffer from a single, FLSA-violating policy” or whose “claims [are]
unified by common theories of defendants’ statutory violations, even if the proofs of these
theories are inevitably individualized and distinct,” are similarly situated. Monroe, 860 F.3d at
402, quoting O’Brien, 575 at 584–85. “Where Defendants have demonstrated a formal policy to
comply with the law and compensate employees for all time worked, Plaintiffs may satisfy their
burden by producing substantial evidence of a de facto policy of circumventing the law.”
Cornell v. World Wide Bus. Servs. Corp., No. 2:14-cv-27, 2015 WL 6662919, at *3 (S.D. Ohio
Nov. 2, 2015) (Deavers, M.J.).
Should the Court determine that, after the more rigorous and fact-intensive analysis at the
decertification stage, the claimants are similarly situated, “the district court allows the
representative action to proceed to trial. If the claimants are not similarly situated, the district
court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.” Waggoner
v. U.S. Bancorp, 110 F. Supp. 3d 759, 765 (N.D. Ohio 2015), quoting Douglas v. GE Energy
Reuter Stokes, No. 1:07-cv-077, 2007 WL 1341779, at *4 (N.D. Ohio Apr. 30, 2007).
B.

Decertification analysis
1.

The executive exemption

The primary dispute in this case is whether SMs qualify for the executive exemption from
the FLSA’s overtime provisions. The Court must therefore determine whether SMs are similarly
situated to each other with respect to the elements of the executive exemption. The exemption
applies to any employee:
(1) Compensated on a salary basis at a rate of not less than $455 per week . . .;
(2) Whose primary duty is management of the enterprise in which the employee is
employed or of a customarily recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or more other
employees; and
11

(4) Who has the authority to hire or fire other employees or whose suggestions
and recommendations as to the hiring, firing, advancement, promotion or any
other change of status of other employees are given particular weight.
29 C.F.R. § 541.100.
While Plaintiffs need not show at the decertification stage that all opt-in plaintiffs were
improperly classified as exempt, Plaintiffs can carry their burden by showing that “the proposed
class ‘suffer[s] from a single, FLSA-violating policy,’ and that ‘proof of that policy or of conduct
in conformity with that policy proves a violation as to all the plaintiffs.’” Myers, 201 F. Supp. 3d
at 895 (quoting O’Brien, 575 F.3d at 585).
At the outset, it is important to distinguish between the duties of the SM position as
envisioned by Tire Discounters’ senior executives and the duties of the SM position in practice.
Tire Discounters created a uniform SM job description and has its SMs undergo uniform training
in an effort to create consistency among its one-hundred-plus locations across five states. (Doc.
68-2, Service Manager Job Description; Doc. 68-1, Ward Aff. ¶ 30). In theory, therefore, the
primary duties of all SMs should be uniformly focused on supervising, evaluating, and managing
the workflow of service technicians and tire technicians as set forth in the SM job description.
(Doc. 68-2). Plaintiffs rely on the uniform job description and training programs, along with
SMs’ uniform classification as exempt and then re-classification as non-exempt, as evidence that
the SMs are subject to a “single, FLSA-violating policy.” (Doc. 71, Pls.’ Mem. in Opp. to Mot.
to Decertify at 20).
In support, Plaintiffs cite a number of cases from around the country that, Plaintiffs
assert, stand for the proposition that where employees are uniformly classified as exempt, those
employees are similarly situated. (Doc. 71, Pls.’ Mem. in Opp. to Mot. to Decertify at 27–28).
But many of these cases in fact demonstrate that reliance on blanket exemptions is insufficient
and that an examination of employees’ actual job duties is necessary. E.g., Morgan, 551 F.3d at
12

1264 n.46 (“Just because a business classifies all employees in a particular job category as
exempt does not mean that those employees are necessarily ‘similarly situated’ for purposes of a
29 U.S.C. § 216(b) collective action. Rather, it is necessary to review the actual job duties of
those in that job category to determine whether they are similarly situated and whether the
exemption defense can be collectively litigated.”); Long v. Epic Sys. Corp., No. 15-cv-81-BBC,
2016 WL 4625497, at *6 (W.D. Wis. Sept. 6, 2016) (same, citing Morgan); Judkins v.
Southerncare, Inc., 74 F. Supp. 3d 1007, 1012 (S.D. Iowa 2015) (noting that “a blanket
exemption for a particular group of employees does not eliminate the need to make a factual
determination as to whether class members are actually performing similar duties.”); Rivet v.
Office Depot, Inc., 207 F. Supp. 3d 417, 424 (D.N.J. 2016) (acknowledging that even where
uniform policies were in place, the court must examine “the actual work performed by
[employees] on a daily basis” to determine whether they were similarly situated); Venegas v.
Glob. Aircraft Serv., Inc., 159 F. Supp. 3d 93, 107 (D. Me. 2016) (examining actual business
operations to determine whether propriety of classification could be determined with collective
proof). See also Schaefer v. Indiana Michigan Power Co., 358 F.3d 394, 400 (6th Cir. 2004) (in
determining whether an employee’s job duties fall within an FLSA exemption, courts “focus on
evidence regarding the actual day-to-day activities of the employee rather than more general job
descriptions contained in resumes, position descriptions, and performance evaluations.”).
Indeed, such inquiries into actual employee functions are necessary because of cases like
this one. Plaintiffs gloss over the deposition and declaration testimony establishing that in many
cases, SMs’ job duties (and the SMs’ understanding of their job duties) did not match up with the
official job description. (E.g., Doc. 68-4, Lindsey Dep. at 140–41). According to the lead
Plaintiffs, SMs are no more than glorified salespeople or mechanics that exercise no meaningful

13

authority over the technicians that are nominally under their direction. (Doc. 68-4, Lindsey Dep.
at 68–69; Doc. 68-5, Titus Dep. at 82–83). Lead Plaintiff Titus testified that “[r]egardless of
what they wrote down in this job description, reality did not speak to that” and “[the job
description is] not an accurate description of what most service managers that [I] ever had
conversations with did.” (Doc. 68-5, Titus Dep.at 84, 136). The heart of Plaintiffs’ claim is that,
although treated as “executives” for the purposes of their job description and exemption from
overtime wages, SMs are in practice non-exempt employees who do not have management as
their primary duty. Plaintiffs therefore cannot rely on Tire Discounters’ uniform job description
and training as evidence of a single FLSA-violating policy applicable to all SMs, because their
claims rest on the irrelevance of that policy to SMs’ actual employment.
Additionally, the 2016 re-classification of the SM position as non-exempt does not assist
the Court’s analysis of SMs’ actual job duties. The undisputed testimony of Tire Discounters’
President establishes that the re-classification was made in response to the Department of
Labor’s proposed increase in the salary required to qualify for exemption and was completely
unrelated to the substantive job duties of SMs. (Doc. 77-1, Ward Dep. at 98, 116).
As a result, the Court must look to the depositions and declarations of SMs to determine
whether they are similarly situated with regard to their de facto job duties, irrespective of their
official title, job description, and exempt classification, as filtered through the lens of the
executive exemption.
2.

Factual and employment settings of the individual plaintiffs

The first factor in the decertification analysis, the factual and employment settings of the
individual SMs, considers, “to the extent they are relevant to the case, the plaintiffs’ job duties,
geographic locations, employer supervision, and compensation.” Monroe, 860 F.3d at 402. The
Court has already determined that SMs are similarly situated as to the salary basis test requiring
14

exempt employees to be paid a salary of at least $455 per week. Employees’ factual and
employment settings are therefore relevant to this case insofar as they shed light on the job-dutyrelated elements of the executive exemption: (1) the employee’s primary duty is management;
(2) the employee directs the work of two or more other employees; and (3) the employee’s
recommendations as to hiring, promotion, and discipline are given particular weight. 29 C.F.R.
§ 541.100.
a.

Management as primary duty

The FLSA regulations define “management” of the enterprise or of a customarily
recognized department generally as including, but not limited to:
interviewing, selecting, and training of employees; setting and adjusting their
rates of pay and hours of work; directing the work of employees; maintaining
production or sales records for use in supervision or control; appraising
employees’ productivity and efficiency for the purpose of recommending
promotions or other changes in status; handling employee complaints and
grievances; disciplining employees; planning the work; determining the
techniques to be used; apportioning the work among the employees; determining
the type of materials, supplies, machinery, equipment or tools to be used or
merchandise to be bought, stocked and sold; controlling the flow and distribution
of materials or merchandise and supplies; providing for the safety and security of
the employees or the property; planning and controlling the budget; and
monitoring or implementing legal compliance measures.
29 C.F.R. § 541.102. Thus, the Court will examine each of these factors to determine if the
SMs’ duties, in the aggregate, primarily constitute management duties.
Further, the factors considered in determining whether management constitutes an
employee’s “primary duty” include:
the relative importance of the exempt duties as compared with other types of
duties; the amount of time spent performing exempt work; the employee’s relative
freedom from direct supervision; and the relationship between the employee’s
salary and the wages paid to other employees for the kind of nonexempt work
performed by the employee.

15

29 C.F.R. § 541.700. While the amount of time spent performing a duty is relevant to
determining whether the duty is primary, “[e]mployees who do not spend more than 50 percent
of their time performing exempt duties may nonetheless meet the primary duty requirement if the
other factors support such a conclusion.” Id. Determination of an employee’s primary duty must
be based on all the facts in a particular case, with the major emphasis on the character of the
employee's job as a whole. Id.
Of those listed in the “management” definition, the following duties are addressed in the
record:
i.

Interviewing, selecting, and training of employees

James Ward, Tire Discounters’ President, testified that General Managers (GMs) and
SMs would work together to assess potential hiring candidates, that interviews would be
conducted by SMs and/or GMs, and that an SM would need the approval of his GM to hire a
candidate. (Doc. 77-1 at 174–78). The SM deponents reported a range of involvement with
interviewing and hiring:


Lowe reported no involvement in interviewing or hiring recommendations
whatsoever. (Doc. 68-8 at 77–78).



Titus stated that he “didn’t hire people” but that he may have interviewed
candidates once or twice at the request of his GM. (Doc. 68-5 at 78, 132–33).



Litton sat in on at least half of the interviews for technician positions, but rarely
asked questions; he also made recommendations to his GM as to hiring. (Doc.
68-7 at 131–34).



Lindsey testified that his GM would ask him to have “conversations” with
applicants and report back to the GM, and that his GM sometimes hired people he
recommended, but sometimes not. (Doc. 68-4 at 107–09).



Mustovich reported a greater level of involvement in selecting new employees,
stating that he evaluated written applications, made recommendations to his GM
as to which applicants to bring in for interviews, and conducted the interviews of
approximately half the individuals hired during his time as SM, but that only
16

some of his hiring recommendations were followed by his GM. (Doc. 68-6 at
116–20).
The sixteen declarations by other SMs contain identical statements that the declarants
“did not have the authority to make the final decision to hire or fire employees,” and four
declarants also mentioned that they at least sometimes sat in on interviews. (Docs. 69-11, 69-14,
69-18, 69-20, Decls. of Frey, Mahoney, Page, and Wyatt). The remaining 11 declarants did not
participate in interviewing or selecting candidates.
As to training, all SM deponents reported that senior technicians completed much, if not
all, of the actual hands-on training for new technicians. (Doc. 68-4 at 76–77; Doc. 68-5 at 86–
87; Doc. 68-6 at 113; Doc. 68-7 at 126–27, 136; Doc. 68-8 at 79). However, some SMs also
provided hands-on training themselves. (Doc. 68-4, Lindsey Dep. at 76–77; Doc. 68-5, Titus
Dep. at 86–87; Doc. 68-6, Mustovich at 113–14). Some SMs were also responsible for signing
off on training certifications after a technician demonstrated a particular capability. (Doc. 68-6
at 111; Doc. 68-7 at 124–25; Deps. of Mustovich and Litton). The sixteen SM declarants did not
speak to training in their declarations.
Taken together, the Court finds these SM experiences too varied to be “similarly
situated” with respect to interviewing, selecting, and training of employees. Some SMs report no
involvement whatsoever with interviewing and training; others report significant involvement.
Those with significant involvement appear to possess responsibilities consistent with SMs’
written job description (Doc. 68-2, describing SMs as responsible for “developing” a team of
technicians and assisting in their hiring) and with Tire Discounters’ President’s testimony as to
SMs’ duties (Doc. 77-1 at 174–78, describing hiring as a collaborative effort between SMs and
GMs, with GMs having the final authority over hiring). But as stated above, Plaintiffs’ claims
rest on the inconsistencies between the official SM job description and SMs’ actual duties. The
17

deposition and declaration testimony demonstrates those disparities for a non-trivial portion of
the Collective. Because there appears to be no consistency among SMs as to their actual
interviewing, selecting, and training of employees, SMs are not similarly situated for this aspect
of the management definition.
ii.

Setting and adjusting employees’ rates of pay and hours of
work

Nothing in the record indicates that SMs have any involvement in setting the rates of pay
for other Tire Discounters employees; SMs are therefore similarly situated in that respect.
However, SMs’ involvement in scheduling the hours of service and tire technicians again varied
widely:


Lindsey, Titus, Lowe, and nine of the sixteen SM declarants stated they had no
involvement in scheduling at all. (Doc. 68-4 at 70–71, 83; Doc. 68-5 at 126; Doc.
68-8 at 86; Doc. 69-8; Docs. 69-12 through 69-15; Docs. 69-18 and 69-19; Doc.
71-12; Doc. 71-15).



Litton testified that he created proposed schedules for the technicians, but his GM
would accept it, reject it, or just make his own; Litton “can’t say for the most
part” that his GM followed his proposed schedule. (Doc. 68-7 at 157–58).



Two SM declarants stated that they occasionally created a draft schedule at their
GM’s direction that was subject to finalization by the GM. (Doc. 69-20; Doc. 7110).



Mustovich and five of the SM declarants regularly created proposed schedules
that were subject to finalization by the GM. (Doc. 68-6 at 136; Docs. 69-9
through 69-11; Docs. 69-16 and 69-17). In Mustovich’s case, his GM would only
very briefly look over the draft schedule (perhaps for five minutes) after
Mustovich had spent 45–60 minutes creating it. (Doc. 68-6 at 136).

Again, the Court finds no consistency among SMs’ responsibilities for scheduling to
support a finding that they are similarly situated for this prong of the management definition.
iii.

Directing the work of employees

The SM declarants did not speak to directing the work of technicians. When questioned
about directing the work of service and tire technicians, the five SM deponents again gave a
18

broad range of answers. Lindsey reported that he and the technicians “all supervised each other”
and that they all reported directly to the GM. (Doc. 68-4 at 68–69, 116). Lindsey might
occasionally “request” that a particular technician do a particular job, but could not “force” the
technician to do so. (Id. at 121, 123). Titus similarly noted that even on the GM’s day off,
“most of the time we worked it, again as a team. Everyone knew their job. Everyone did their
job.” (Doc. 68-5 at 97–98). Titus would not direct technicians to do a particular service job; the
technicians would simply handle the service tickets in the order they came in. (Id. at 106).
In contrast, Mustovich stated that he “in some sense” supervises technicians and manages
the workflow of the shop. (Doc. 68-6 at 82, 88). Mustovich would also correct technicians if
they made mistakes, and if technicians spotted a problem with a vehicle, they would bring it to
Mustovich’s attention. (Id. at 90–97). Further, Mustovich would redistribute work among the
technicians if necessary to meet time commitments to customers. (Id. at 157).
Lowe similarly would divide up the work among the technicians to maximize efficiency.
(Doc. 68-8 at 41). Lowe would also assign jobs to technicians on days when the GM was not
there or when the GM was otherwise occupied. (Id. at 67–68). Lowe also observed the
performance of technicians who had been paired to work together, and would offer feedback on
the pairings to his GM. (Id. at 88–89).
Finally, Litton also made decisions about which technicians would perform each service
job to maximize efficiency, directed the timing of technician breaks, and was responsible at
times for making sure store opening and closing procedures are followed. (Doc. 68-7 at 112–13,
152, 178). Litton also reported that his GM frequently left for the day several hours prior to
closing, such that Litton was the only manager in the store for upwards of 24 hours each week.
(Id. at 187–88).

19

Because some SMs denied directing the work of any other employees, while others
routinely made decisions about the technicians’ work, the Court finds that SMs are not similarly
situated with regard to this aspect of the management definition.
iv.

Appraising employees and recommending promotions or other
changes in status

The record is similarly inconsistent as to SMs’ roles in recommending promotions.
Lindsey, Mustovich, and Litton stated they at least occasionally evaluated and reported back to
their GM on technicians’ performance. (Doc. 68-4 at 116–17; Doc. 68-6 at 159–60; Doc. 68-7 at
61–62).

Additionally, Mustovich, Litton, and Lowe made recommendations regarding

promotions to their GMs. (Doc. 68-6 at 146–47; Doc. 68-7 at 145–46; Doc. 68-8 at 125). Titus
did not make recommendations to his GM regarding technicians’ performance. (Doc. 68-5 at
136–37).
All sixteen SM declarants stated that they “did not have authority to promote employees,”
but none state whether they had a role short of final authority in recommending promotions.
Seven declarants stated they never participated in performance evaluations (Docs. 69-9 through
69-12; Docs. 69-15 and 69-16; and Doc. 71-12), while the remaining nine did not speak to
performance evaluations one way or another.
Based on this range of testimony, the Court is not persuaded that SMs are similarly
situated as to recommending promotions or other changes in status.
v.

Disciplining employees

A comparatively clearer picture emerges of SMs’ involvement in disciplining employees.
All SM deponents, as well as Tire Discounters’ COO, confirmed that all discipline had to go
through Tire Discounters’ human resources department and even a GM would need human
resources approval prior to issuing discipline. Additionally, Lindsey and Litton reported no
20

involvement with formal discipline or terminations. (Doc. 86-4 at 106; Doc. 68-7 at 124). Titus
stated he did not have authority to terminate employees. (Doc. 68-5 at 99, 133–34). Mustovich
recommended write ups and corrective action to his GM, and filled out termination paperwork
for his GM’s signature. (Doc. 68-6 at 100, 107). Lowe never participated in formal discipline,
but did issue verbal corrections to technicians for mistakes and made recommendations regarding
discipline that were “sometimes followed” by his GM. (Doc. 68-8 at 85–86, 104–05, 125).
The sixteen SM declarants did not speak to this prong other than to uniformly state that
they had “no independent authority” to discipline employees and “no final authority” to fire
employees.
While the deponents and declarants still report a range of involvement with discipline, the
range is much narrower than with other items such as interviewing and scheduling. The Court is
satisfied that, as SMs and even GMs uniformly had to involve human resources before issuing
discipline, SMs are similarly situated for this prong of the management definition.
vi.

Determining the techniques to be used

All deponents confirmed that the techniques to be used in servicing vehicles (e.g., for
installing winter tires or changing oil) and operating the store locations (e.g., for opening and
closing the store) are prescribed by a number of detailed, step-by-step policies that are uniform
company-wide. (Doc. 77-1, Ward Dep. at 209; Doc. 68-6, Mustovich Dep. at 93; Doc. 68-5,
Titus Dep. at 92–93; Doc. 68-6, Litton Dep. at 105–06; Doc. 68-8, Lowe Dep. at 125). While the
SM declarants did not speak to these specific policies, neither do they suggest their testimony on
this topic would differ from the deponents. The Court therefore finds that SMs are similarly
situated with regard to this prong of the management definition.

21

vii.

Determining the type of merchandise to be bought, stocked,
and sold

With regard to store inventory, some deponents were responsible for keeping parts in
stock or special ordering parts for customers. (Doc. 68-6, Mustovich Dep. at 124–31; Doc. 68-7,
Litton Dep. at 109–10, 169–70; Doc. 68-8, Lowe Dep. at 56, 91–92). Other deponents reported
having no responsibility for inventory, or only reporting on what was needed to the GM. (Doc.
68-5, Titus Dep. at 122–23; Doc. 68-4, Lindsey Dep. at 95–97). The sixteen SM declarants did
not speak to this issue.
Again, roughly half of the SMs engaged in this duty while roughly half did not. The
Court therefore finds that SMs are not similarly situated with regard to this aspect of the
management definition.
viii.

Providing for the safety and security of the employees

The only safety policy discussed in the deposition testimony is ensuring that technicians
were wearing their safety goggles. Four deponents (Lindsey, Titus, Mustovich, and Lowe)
confirmed that they would instruct technicians to put on safety goggles if they observed the
technicians working without them. (Doc. 68-4 at 119; Doc. 68-5 at 143; Doc. 68-6 at 152; Doc.
68-8 at 94–95). The sixteen SM deponents did not speak to enforcement of safety policies one
way or another. In contrast, Litton claimed that he did not enforce safety requirements because it
was a “company-wide habit” that safety “wasn’t considered really important.” (Doc. 68-7 at
139). But as this claim is refuted by all others who testified on the issue, the Court is satisfied
that SMs were similarly situated in terms of providing for the safety of employees.
In sum, SMs are similarly situated for certain aspects of the FLSA’s management
definition. However, SMs’ experiences varied widely in terms of interviewing, scheduling,
directing technicians’ work, performance evaluation, and determining the parts to be stocked and
22

sold. After weighing all of these factors, the Court concludes that SMs are not similarly situated
for the purpose of determining whether they have management as a primary duty.
b.

Directing the work of two or more other employees

The next factor of the executive exemption is whether the employee in question directs
the work of two or more other employees. With the exception of Lindsey, all deponents
confirmed that there were at least two technicians working in the shop who were (at least
nominally) under the SMs’ supervision at all times. (Doc. 68-5 at 77–78; Doc. 68-6 at 79–80;
Doc. 68-7 at 89; Doc. 68-8 at 59). Lindsey stated there were times when fewer than two
technicians were tasked with covering the six service bays at his location, but could not say how
often this minimal staffing arrangement occurred. (Doc. 68-4 at 70, 92). The sixteen SM
declarants did not speak to the number of technicians working in the shop. Given the uncertainty
of Lindsey’s testimony on this point in the face of the deponents’ otherwise uniform testimony,
the Court finds that SMs were similarly situated in regards to the number of employees they
oversaw.
However, as discussed supra, SMs are not similarly situated as to whether they actually
“direct[ed] the work” of the two or more employees they nominally oversaw.

The Court

therefore concludes that SMs are not similarly situated for this prong of the executive exemption.
c.

Recommendations for hiring, promotion, or discipline given
particular weight

The final prong of the executive exemption is whether the employees’ recommendations
for hiring, promotion, or discipline were given particular weight. To determine whether an
employee’s suggestions and recommendations are given “particular weight,” factors to be
considered include, but are not limited to, whether


it is part of the employee’s job duties to make such suggestions and
recommendations;
23



the frequency with which such suggestions and recommendations are made or
requested; and



the frequency with which the employee’s suggestions and recommendations
are relied upon.

29 C.F.R. § 541.105.

The regulations also note that “[a]n employee’s suggestions and

recommendations may still be deemed to have ‘particular weight’ even if a higher level
manager’s recommendation has more importance and even if the employee does not have
authority to make the ultimate decision as to the employee’s change in status.” Id.
As discussed supra, SMs’ participation varied as to the hiring process and recommending
promotions.

While SMs are similarly situated with regard to their recommendations for

discipline, the Court finds that overall, SMs are not similarly situated with regard to the weight
given their recommendations for hiring, promotion, or discipline.
All told, the Court’s analysis of the three duty-based prongs of the executive exemption
(management as a primary duty, directing the work of two other employees, and particular
weight given to recommendations as to hiring, promotion, and discipline) paints a picture of
disparate and inconsistent job duties across SMs. The factual and employment settings of the
SMs therefore weigh in favor of decertification.
3.

Different defenses to which the plaintiffs may be subject on an individual
basis

The second factor of the decertification analysis is whether the plaintiffs may be subject
to different defenses on an individual basis. O’Brien, 575 F.3d at 584. In this case, the second
factor merges with the first (factual and employment settings of the individual plaintiffs) because
Plaintiffs’ claims turn on the applicability of the executive exemption defense in the first
instance. As the Court has determined that the factual and employment settings relevant to the

24

executive exemption vary widely among SMs, this second factor also weighs in favor of
decertification.
4.

Fairness and procedural impact of certifying the action as a collective action

The FLSA is a remedial statute that “must not be interpreted or applied in a narrow,
grudging manner.” Dunlop v. Carriage Carpet Co., 548 F.2d 139, 144 (6th Cir. 1977). Thus,
when evaluating the third factor of the decertification analysis, courts consider whether
continuing the collective action comports with “the policy behind FLSA collective actions and
Congress’s remedial intent by consolidating many small, related claims of employees for which
proceeding individually would be too costly to be practical.” Monroe, 860 F.3d at 405. But “the
remedial nature of the FLSA, standing alone, does not justify allowing a case to proceed
collectively.” Cornell, 2015 WL 6662919 at *4, quoting Crawford v. Lexington-Fayette Urban
Cty. Gov’t, No. CIV.A. 06-299-JBC, 2008 WL 2885230, at *11 (E.D. Ky. July 22, 2008).
Courts must “balance the cost alleviation enjoyed by individual plaintiffs and any increase in
judicial efficiency against the potential harm to defendants and any potential judicial
inefficiency.” Id.
While it is true that individuals need not be identically situated in order to proceed in a
collective action, there must be some cohesiveness among the employees that would allow for
economies of collective treatment. “Where opt-in plaintiffs have shown that they are similarly
situated,” decertification deprives plaintiffs “of the benefit of pooling their resources and judicial
economy is reduced.” White v. Baptist Mem’l Health Care Corp., No. 08-cv-2478, 2011 WL
1883959, at *14 (W.D. Tenn. May 17, 2011), aff’d, 699 F.3d 869 (6th Cir. 2012). But when
Plaintiffs are unable to demonstrate that employees are similarly situated, “there is no judicial
economy to be gained by allowing their claims to proceed collectively. The only possible results
are unfairness to [the employer] and manageability problems for the Court.” Id.
25

This case presents the latter scenario.

The facts and circumstances of the SMs’

employment, as it relates to the components of the executive exemption, are so varied that no
judicial economy would be gained by proceeding as a collective action. Therefore, as all three
components of the decertification standard weigh in Tire Discounters’ favor, the Court
GRANTS Tire Discounters’ Motion to Decertify.
VI.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

In addition to seeking to proceed as a collective action for their claims under the FLSA,
Plaintiffs also seek to certify their claims under the Ohio Minimum Fair Wage Standards Act
(“OMWA”) for class treatment under Federal Rule of Civil Procedure 23(b)(3). Plaintiffs seek
to represent the following class of OMWA claimants:
All Tire Discounters Service Managers who were classified as exempt from
overtime, and who worked in Ohio for at least one workweek at any time since
December 8, 2013.
(Doc. 69, Pls.’ Mot. for Class Cert. at 1).

Tire Discounters’ written discovery responses

indicated that there are likely at least 124 current or former employees falling within the
definition of Plaintiff’s proposed Rule 23 Ohio-only class. (Doc. 69-2, Legando Decl. ¶ 6).
A.

Standard for class certification
Federal Rule of Civil Procedure 23(a) provides that class action lawsuits may be certified

if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

26

Fed. R. Civ. P. 23(a)(1)–(4). In addition to the four requirements set forth in Rule 23(a), the
party seeking certification must also demonstrate that it satisfies at least one of the subcategories
of Rule 23(b). Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013); In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Here, Plaintiffs have moved for certification pursuant
to Rule 23(b)(3), which dictates that a class action may proceed when “the court finds that the
questions of law or fact common to class members predominate over any questions affecting
only individual members, and that a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
District courts have broad discretion in certifying class actions so as long as they exercise
such discretion within the framework of Rule 23. Coleman v. Gen. Motors Acceptance Corp.,
296 F.3d 443, 446 (6th Cir. 2002). However, a class “may only be certified if the trial court is
satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen.
Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Sprague v. Gen. Motors Corp., 133 F.3d
388, 397 (6th Cir. 1998). While the plaintiff’s likelihood of ultimate success of his or her claims
on the merits is not one of the elements of the “rigorous analysis,” “[m]erits questions may be
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.” Amgen Inc. v. Connecticut Ret.
Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
B.

Class certification analysis
Because Plaintiffs must satisfy all criteria of Rule 23(a) and Rule 23(b)(3), the failure of

any one factor is fatal to Plaintiffs’ Motion for Class Certification. It is clear following the
Court’s determination that the SMs around the country are not “similarly situated” that Plaintiffs
also cannot satisfy the more stringent predominance requirement of Rule 23(b)(3), nor the
typicality requirement of Rule 23(a)(3).
27

1.

Predominance of common questions

The predominance requirement “tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 594
(1997). “To meet the predominance requirement, a plaintiff must establish that issues subject to
generalized proof and applicable to the class as a whole predominate over those issues that are
subject to only individualized proof.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 544 (6th
Cir. 2012) (quoting Randleman v. Fid. Nat. Title Ins. Co., 646 F.3d 347, 352–53 (6th Cir. 2011)).
“Plaintiffs need not prove that every element can be established by classwide proof.” Sandusky
Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 468 (6th Cir. 2017) (citing
Bridging Communities Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2016), cert.
denied, No. 16-1336, 2017 WL 1807143 (Oct. 2, 2017)). But the key is to “identify[ ] the
substantive issues that will control the outcome”; in other words, courts should “consider how a
trial on the merits would be conducted if a class were certified.” Sandusky Wellness Ctr., 863
F.3d at 468, (quoting Gene & Gene, LLC v. BioPay, LLC, 541 F.3d 318, 326 (5th Cir. 2008)).
Plaintiffs’ claims under the OMWA mirror those under the FLSA, because the OMWA
incorporates the FLSA’s protections for overtime wages. Ohio Rev. Code § 4111.03; 29 U.S.C.
§ 213(a)(1). Thus, just as with their claims under the FLSA, Plaintiffs will need to establish on a
class basis that Ohio SMs were not properly classified as executives exempt from the payment of
overtime. But as discussed supra, SMs varied so widely in their job duties that determining
whether putative class members qualified for the executive exemption would inevitably require
the “myriad mini-trials that Rule 23(b)(3) seeks to prevent.” Sandusky Wellness Ctr., 863 F.3d at
470. See also Hughes v. Gulf Interstate Field Servs., Inc., No. 2:14-cv-000432, 2015 WL
4112312, at *5 (S.D. Ohio July 7, 2015) (Sargus, C.J.) (holding that “individualized factual
inquiries into whether each putative class member is exempt from overtime compensation
28

requirements forecloses [satisfaction of the less stringent commonality standard of Rule
23(a)(4)]”). Even when removing from consideration the two SM deponents and the three SM
declarants who worked for Tire Discounters outside Ohio, significant differences exist among
the Ohio SMs’ job duties, precluding the predominance of common questions over individual
inquiries.
2.

Typicality

Because of the wide variation among SM job duties, Lindsey and Titus also cannot serve
as typical class representatives as required by Rule 23(a)(3). “A claim is typical if it arises from
the same event or practice or course of conduct that gives rise to the claims of the other class
members, and if his or her claims are based on the same legal theory.” Beattie v. CenturyTel,
Inc., 511 F.3d 554, 561 (6th Cir. 2007). In other words, typicality is satisfied if the class
members’ claims are “fairly encompassed by the named plaintiffs’ claims.” Sprague v. Gen.
Motors Corp., 133 F.3d 388, 399 (6th Cir.1998) (en banc) (quoting Am. Med. Sys., 75 F.3d at
1082). “This requirement insures that the representatives’ interests are aligned with the interests
of the represented class members so that, by pursuing their own interests, the class
representatives also advocate the interests of the class members.” In re Whirlpool Corp. FrontLoading Washer Prod. Liab. Litig., 722 F.3d 838, 852–53 (6th Cir. 2013).
Again, because of the wide range of job duties reported by Ohio SMs, Lindsey’s and
Titus’s claims do not appear to be typical of those of the proposed class. For instance:


Lindsey was the only SM deponent to deny overseeing at least two technicians at all
times. (Doc. 68-4 at 70, 92).



Lindsey and Titus both denied ever being involved in scheduling, in contrast to
Mustovich and five Ohio SM declarants who reported regularly creating a proposed
schedule for the GM’s approval. (Doc. 68-4 at 70–71, 83; Doc. 68-5 at 126; Doc. 686 at 136; Docs. 69-9 through 69-11; Docs. 69-16 and 69-17).

29



Lindsey and Titus both occasionally sat in on interviews (or had “conversations”)
with job applicants, as did Mustovich and four Ohio SM declarants; but eight Ohio
SM declarants reported no involvement with interviews or candidate selection. (Doc.
68-4 at 107–09; Doc. 68-5 at 78, 132–33; Doc. 68-6 at 116–20; Docs. 69-11 through
69-20).



Titus did not make recommendations to his GM regarding technicians’ performance,
whereas Lindsey and Mustovich stated they at least occasionally evaluated and
reported back to their GM on technicians’ performance. (Doc. 68-5 at 136–37; Doc.
68-4 at 116–17; Doc. 68-6 at 159–60).

Evaluation of these job duties will be critical to determining whether SMs were properly
classified as exempt. As Lindsey’s and Titus’s job duties are not typical of other Ohio SMs,
their claims cannot be said to be typical of the claims of the class. Fed. R. Civ. P. 23(a)(3).
Because Plaintiffs cannot satisfy the predominance or typicality requirements of Rule 23,
the Court need not determine whether the other Rule 23 requirements are satisfied. The Court
therefore DENIES Plaintiffs’ Motion for Class Certification.
VII.

TIRE DISCOUNTERS’ MOTION FOR SUMMARY JUDGMENT

Tire Discounters seeks summary judgment as to the lead Plaintiffs, as well as the opt-in
plaintiffs in the FLSA collective action and the members of the putative Ohio-only Rule 23 class.
(Doc. 79, Mot. for Summ. J. at 1). Because the FLSA collective action has been decertified, and
the OMWA claims cannot be certified for class treatment, the only remaining claims before the
Court are those of lead Plaintiffs Lindsey and Titus.
A.

Standard for summary judgment
Tire Discounters moves for summary judgment pursuant to Rule 56 of the Federal Rules

of Civil Procedure. Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716–17 (6th Cir. 2012). The
Court’s purpose in considering a summary judgment motion is not “to weigh the evidence and

30

determine the truth of the matter” but to “determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the
Court finds a jury could return a verdict, based on “sufficient evidence,” in favor of the
nonmoving party; evidence that is “merely colorable” or “not significantly probative,” however,
is not enough to defeat summary judgment. Id. at 249–50.
The party seeking summary judgment shoulders the initial burden of presenting the court
with law and argument in support of its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant
must “produce evidence that results in a conflict of material fact to be resolved by a jury”).
In considering the factual allegations and evidence presented in a motion for summary
judgment, the Court “views factual evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of
fact sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F.
Supp. 2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence
to support [the non-moving party’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251.

31

B.

Summary judgment analysis
To decide Tire Discounters’ summary judgment motion, the Court must again examine

the components of the executive exemption as they apply to both Lindsey and Titus. Tire
Discounters is entitled to summary judgment only if it can show, when construing disputed facts
in favor of Plaintiffs, that Lindsey’s and Titus’s salary and job duties qualified for the executive
exemption from the FLSA’s and OMWA’s overtime provisions. Specifically, Tire Discounters
must demonstrate that both Lindsey and Titus
(1) were compensated on a salary basis at a rate of not less than $455 per week;
(2) had, as their primary duty, management of the enterprise in which the
employee was employed or of a customarily recognized department or
subdivision thereof;
(3) customarily and regularly directed the work of two or more other employees;
and
(4) had the authority to hire or fire other employees or their suggestions and
recommendations as to the hiring, firing, advancement, promotion or any
other change of status of other employees were given particular weight.
29 C.F.R. § 541.100. In evaluating the executive exemption, the Court may not rely on Tire
Discounters’ official SM job description, but must examine the actual facts and circumstances of
Plaintiffs’ employment. Schaefer, 358 F.3d at 400. For the following reasons, the Court finds
that issues of disputed fact as to Lindsey’s and Titus’s job duties preclude summary judgment.
1.

Salary basis test

Before review of Plaintiffs’ job duties, the executive exemption requires that such
employees be paid a salary of at least $455 per week. Titus testified that his annual salary as an
SM was $35,000 per year (which equates to $673.08 per week). (Doc. 68-5 at 63). Lindsey
recalled his initial SM salary as $450 per week (Doc. 68-4 at 46), but Tire Discounters’ records
demonstrate that he was in fact paid at least $535 per week during his entire tenure as an SM.

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(Doc. 79-1, Pay Records). Lindsey further stated that if Tire Discounters’ records showed a
salary higher than what he recalled, he wouldn’t have any basis to dispute the records. (Doc. 684 at 46–47). The salary basis test is therefore met for both Lindsey and Titus.
2.

Management as primary duty

As discussed supra, the FLSA regulations set forth a number of factors relevant to
whether an employee has management as a primary duty. Of those factors, Lindsey and Titus
both stated they occasionally interviewed (or had “conversations” with) job applicants; they both
enforced safety policies in terms of making sure technicians were wearing protective goggles;
and Lindsey at least occasionally evaluated and reported on technicians’ performance. (Doc. 684 at 107–09, 116–17, 119; Doc. 68-5 at 132–33, 143).

However, the remaining factors

demonstrate that there are genuine issues of fact as to Plaintiffs’ management duties.
Neither Lindsey nor Titus had any involvement in setting the rates of pay or schedules for
other Tire Discounters employees. (Doc. 68-4 at 70–71, 83; Doc. 68-5 at 126). Titus did not
make recommendations to his GM regarding technicians’ performance or participate in hiring,
and even when Lindsey made hiring recommendations, his GM would only sometimes follow
them. (Doc. 68-5 at 78, 136–37; Doc. 68-4 at 107–09). Titus reported having no responsibility
whatsoever for deciding which parts to stock or sell, and Lindsey only reported what parts or
tires were needed to the GM. (Doc. 68-5 at 122–23; Doc. 68-4 at 95–97). Neither determined
the techniques to be used in servicing vehicles (e.g., for installing winter tires or changing oil)
and operating the store locations (e.g., for opening and closing the store), which were prescribed
by a number of detailed, step-by-step policies that are uniform company-wide. (Doc. 77-1, Ward
Dep. at 209; Doc. 68-5, Titus Dep. at 92–93). Further, as with all SMs, neither Lindsey nor Titus
could issue discipline without obtaining approval from human resources, and neither reported
involvement with formal discipline. (Doc. 86-4 at 106; Doc. 68-5 at 99, 133–34).
33

Notably, both Lindsey and Titus denied acting as a supervisor or manager to the shop
technicians.

Lindsey reported that he “felt like [he] had no supervisory responsibilities

whatsoever” and that he and the technicians all reported directly to the GM. (Doc. 68-4 at 68–
69, 116). Lindsey might occasionally “request” that a particular technician do a particular job,
but could not “force” the technician to do so. (Id. at 121, 123). Titus similarly noted that even
on the GM’s day off, “most of the time we worked it, again as a team. Everyone knew their job.
Everyone did their job.” (Doc. 68-5 at 97–98). Titus would not direct technicians to do a
particular service job; the technicians would simply handle the service tickets in the order they
came in. (Id. at 106).
The work experience described by Lindsey and Titus does not rise to the level of
employees engaged in management as their primary duty.

As the Court must credit their

testimony at the summary judgment stage, Plaintiffs have demonstrated a triable issue of fact.
3.

Directing the work of two or more employees

The next factor of the executive exemption is whether the employee in question directs
the work of two or more other employees.

Titus confirmed that there were at least two

technicians working in the shop who were (at least nominally) under his supervision at all times.
(Doc. 68-5 at 77–78). Lindsey stated there were times when fewer than two technicians were
tasked with covering the six service bays at his location, but could not say how often this
minimal staffing arrangement occurred. (Doc. 68-4 at 70, 92). But the precise number of
technicians working at any given time is irrelevant if Lindsey and Titus did not direct the
technicians’ work. And, as just summarized, they did not. (Doc. 68-4 at 68–69, 116, 121, 123;
Doc. 68-5 at 97–98, 106). Tire Discounters has therefore failed to carry its burden on this
component of the executive exemption.

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4.

Recommendations for hiring, promotion, or discipline given particular
weight

Finally, the Court must determine whether Plaintiffs’ recommendations for hiring,
promotion, or discipline given particular weight. Based on the Plaintiffs’ testimony, the Court
answers this inquiry in the negative.
Lindsey stated he occasionally had conversations with job applicants and reported to his
GM regarding technicians’ performance; but his recommendations to his GM were only
sometimes followed. (Doc. 68-4 at 107–09, 116–17). Titus did not make recommendations to
his GM regarding technicians’ performance or participate in hiring. (Doc. 68-5 at 78, 132–33,
136–37). Further, as with all SMs, neither Lindsey nor Titus could issue discipline without
obtaining approval from human resources, and neither reported involvement with formal
discipline. (Doc. 86-4 at 106; Doc. 68-5 at 99, 133–34).
In sum, while Tire Discounters has demonstrated with uncontroverted fact that both
Lindsey and Titus met the salary basis test of the executive exemption, there are numerous
disputed facts as to their relevant job duties. The Court thus cannot conclude that Lindsey and
Titus were properly classified as exempt from the overtime provisions of the FLSA and OMWA.
Tire Discounters’ Motion for Summary Judgment is accordingly DENIED.
VIII. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Should Plaintiffs prevail on their misclassification claims, they will be entitled to unpaid
overtime wages. The FLSA generally requires employers to pay “overtime compensation for
hours of work exceeding 40 hours in a workweek at a rate of one and one-half times an
employee’s regular rate of pay.” Lewis v. Huntington Nat’l Bank, 838 F.Supp.2d 703 (S.D. Ohio
2012) (citing 29 U.S.C. §§ 206(a), 207(a)(1)).

The OMWA contains the same general

requirement for payment of overtime. Ohio Rev. Code § 4111.03(A).
35

Plaintiffs move for partial summary judgment on two issues related to the calculation of
damages, should Plaintiffs prevail on liability. First, Plaintiffs seek a ruling that they should be
awarded unpaid overtime at a rate of time-and-a-half their regular hourly rates for each hour
worked in excess of 40 hours each work week (as opposed to the “fluctuating work week
method” advanced by Tire Discounters). (Doc. 80, Pls.’ Mot. for Partial Summ. J. at 1–2).
Second, Plaintiffs seek a ruling that their regular hourly rates should be determined by dividing
their weekly, non-discretionary compensation by the number of hours they expected to be
regularly scheduled to work each week, which Plaintiffs assert was 52 (versus 54 as argued by
Tire Discounters). (Id. at 1, 11).2
A.

Standard for partial summary judgment
The standard applicable to motions for full summary judgment described supra also

applies to motions for partial summary judgment. Fed. R. Civ. P. 56(a). The Court will
therefore determine whether any genuine issues of material fact exist as to the two damages
issues, and, if not, whether Plaintiffs are entitled to judgment as a matter of law.
B.

Partial summary judgment analysis
1.

Method of damages calculation

The parties offer conflicting methods of calculating unpaid overtime wages for
employees improperly classified as exempt.

Plaintiffs argue, consistent with the FLSA’s

language, that such employees are entitled to unpaid overtime at time-and-a-half (that is, 150%
of an employee’s regular hourly rate) for all hours in excess of 40 worked in a work week. 29
U.S.C. § 207(a).

Tire Discounters, in contrasts, argues that Plaintiffs’ damages should be

2

Plaintiffs assert that SMs were generally scheduled to work 48.5 hours per week beginning in October 2015.
However, only Lindsey’s and Titus’s claims remain before the Court, and both left their SM positions prior to
October 2015.

36

calculated according to the fluctuating work week (“FWW”) method. (Doc. 88, Mem. in Opp. to
Mot. for Partial Summ. J. at 1).
The FWW provides a compensation scheme that employers may use to calculate
overtime pay for nonexempt employees. Snodgrass v. Bob Evans Farms, LLC, No. 2:12-cv-768,
2015 WL 1246640, at *6 (S.D. Ohio Mar. 18, 2015) (Economus, J.). The FWW method was
first explained by the Supreme Court in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572
(1942), and later codified in the FLSA’s regulations. 29 C.F.R. § 778.114. To take advantage of
this alternative overtime compensation scheme, an employer must establish the following
elements:
(1) the employee’s hours must fluctuate from week to week;
(2) the employee must receive a fixed salary that does not vary with the
number of hours worked during the week (excluding overtime premiums);
(3) the fixed amount must be sufficient to provide compensation every week
at a regular rate that is at least equal to the minimum wage; and
(4) the employer and employee must share a “clear mutual understanding”
that the employer will pay that fixed salary (apart from overtime
premiums) regardless of the number of hours worked.
Id.; Snodgrass, 2015 WL 1246640 at *9. The Sixth Circuit has determined that the FWW does
not violate the FLSA so long as these requirements are met. See Highlander v. K.F.C. Nat.
Mgmt. Co., 805 F.2d 644, 647 (6th Cir. 1986).
If the FWW method is used, the employee’s regular hourly rate is calculated each week
by dividing the fixed weekly salary by the number of hours actually worked that week. Id. at *6.
The employee then receives a premium on top of the fixed salary representing 50% of the regular
hourly rate for all hours worked that week in excess of 40. Id. The regulations provide a helpful
illustration:

37

The application of the principles above stated may be illustrated by the case of an
employee whose hours of work do not customarily follow a regular schedule but
vary from week to week, whose total weekly hours of work never exceed 50
hours in a workweek, and whose salary of $600 a week is paid with the
understanding that it constitutes the employee's compensation, except for
overtime premiums, for whatever hours are worked in the workweek. If during the
course of 4 weeks this employee works 40, 37.5, 50, and 48 hours, the regular
hourly rate of pay in each of these weeks is $15.00, $16.00, $12.00, and $12.50,
respectively. Since the employee has already received straight-time compensation
on a salary basis for all hours worked, only additional half-time pay is due. For
the first week the employee is entitled to be paid $600; for the second week
$600.00; for the third week $660 ($600 plus 10 hours at $6.00 or 40 hours at
$12.00 plus 10 hours at $18.00); for the fourth week $650 ($600 plus 8 hours at
$6.25, or 40 hours at $12.50 plus 8 hours at $18.75).
29 C.F.R. § 778.114(b).
Both Missel and § 778.114 consider FWW in the context of contemporaneous payment of
overtime wages and are silent on the application of the FWW method to retroactively calculate
overtime damages in a misclassification case. Nor has the Sixth Circuit considered the issue.
However, Judge Economus of this District recently delivered a thorough and well-reasoned
opinion rejecting the use of the FWW method in misclassification cases in Snodgrass v. Bob
Evans Farms, LLC.
Snodgrass presented the same two competing methods of calculating damages for
improper exempt classification: time-and-a-half versus FWW. The Snodgrass court reviewed
the origins of the FWW in Missel and the Code of Federal Regulations, and collected numerous
cases from this Circuit and around the country holding that the FWW method cannot be used to
calculate damages in a misclassification case. 2015 WL 1246640 at *7. While recognizing that
the FWW method may be agreed to between the employer and employee to calculate wages on a
forward-looking basis, the Snodgrass court determined that its retroactive application in
misclassification cases is inappropriate as a matter of law. Id. at *8.

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Neither exempt employees, nor their employers, expect those employees to receive
overtime wages; therefore, there can be no required “clear mutual understanding” that overtime
wages would be calculated with the FWW method. Indeed, the FWW method sets forth a
framework for calculating compensation for non-exempt employees. 29 C.F.R. § 778.114. “If
[Tire Discounters] believed that [Plaintiffs were] exempt from section 207(a), such that [they
were] entitled to no overtime compensation, then it was not possible for it to have had a clear
mutual understanding with [Plaintiffs] that [they were] subject to a calculation method applicable
only to non-exempt employees who are entitled to overtime compensation.” Cowan v. Treetop
Enterprises, 163 F. Supp. 2d 930, 942 (M.D. Tenn. 2001) (quoting Rainey v. Am. Forest &
Paper Ass’n, Inc., 26 F. Supp. 2d 82, 102 (D.D.C. 1998). Thus, the FWW requirements codified
at § 778.114 “can never be satisfied in a misclassification case.” Snodgrass, 2015 WL 1246640
at *9.
The Court agrees with Judge Economus’s analysis in Snodgrass, and therefore holds that
the FWW method may not be used to retroactively calculate damages for unpaid overtime wages
in a misclassification case. To that extent, Plaintiffs’ Motion for Partial Summary Judgment is
GRANTED.
2.

Divisor for calculating Plaintiffs’ regular hourly rate

Because the FWW method cannot be used to calculated unpaid overtime wages, should
Plaintiffs prevail on their misclassification claims, they will be entitled to overtime wages
calculated with the following function: R x 1.5 x H = OT, where R = regular hourly rate of pay,
H = hours worked in a week over 40, and OT = overtime. 3 Snodgrass, 2015 WL 1246640 at *5.

3

Tire Discounters briefly argues that the overtime premium should be applicable only to hours worked in excess of
Plaintiffs’ regularly scheduled hours (according to Tire Discounters, 54 per week), rather than all hours worked in
excess of 40 per week. While Tire Discounters is correct that this was the calculation employed in Cowan, 163 F.
Supp. 2d at 939, this was clear error by the Cowan court—the FLSA statute and regulations, as well as the OMWA,

39

In order to determine the regular hourly rate of pay, “the Court divides the total compensation in
any given pay period by the total hours of work for which the payment is made, consistent with
the language of 29 C.F.R. § 778.308.” Id. at 15 (quoting Cook v. Carestar, Inc., No. 2:11-cv00691, 2013 WL 5477148, at *11 (S.D. Ohio Sept. 16, 2013) (Marbley, J.)).
Both parties agree that, in the event the FWW method is not used, the appropriate divisor
of Plaintiffs’ weekly compensation to determine their regularly hourly rate is the number of
hours Plaintiffs expected to work. (Doc. 80, Pls.’ Mot. for Summ. J. at 1; Doc. 88, Tire
Discounters’ Mem. in Opp. to Pls.’ Mot. for Partial Summ. J. at 4). See also Cook v. Carestar,
Inc., No. 2:11-cv-00691, 2013 WL 5477148, at *11 (S.D. Ohio Sept. 16, 2013) (Marbley, J.)
(calculating unpaid overtime wages in a misclassification case by dividing the total
compensation in any given pay period by “the number of hours per week plaintiff was aware he
would be working”) (citing Fegley v. Higgins, 19 F.3d 1126, 1129–30 (6th Cir. 1994)).
The parties disagree, however, on the number of hours that Plaintiffs expected to work.
Plaintiffs assert, based on Tire Discounters’ President’s deposition testimony, that SMs were
“generally” scheduled to work 52 hours per week. (Doc. 90, Pls.’ Reply in Supp. of Partial
Summ. J. at 6) (quoting Doc. 77-1, Ward Dep. at 180–81). Tire Discounters asserts that SMs
were in fact generally expected to work 54 hours per week, citing the offer letters issued to
Litton and Lowe that stated their weekly salary was “based on a scheduled 54 hour work week.”
(Doc. 88, Tire Discounters’ Mem. in Opp. at 2; Doc. 68-7, Ex. 6; Doc. 68-8, Ex. 2).
The Court is unable to resolve the precise number of hours that Lindsey and Titus
expected to work each week at the summary judgment stage. Because of the procedural posture
make it clear that overtime must be paid on all hours worked per week over 40. 29 U.S.C. § 207(a); 29 C.F.R.
§ 778.101; Ohio Rev. Code § 4111.03(A). As pointed out by Plaintiff, employees cannot agree to waive their right
to overtime pay even when they understand their base salary to compensate for more than 40 hours per week.
Snodgrass, 2015 WL 1246640 at *12. Accordingly, overtime must be paid on all hours worked in excess of 40 per
week.

40

of the case at the time Plaintiffs filed their Motion for Partial Summary Judgment, both parties
briefed this issue on the assumption that the Court would be deciding how many hours SMs were
generally scheduled to work on a collective basis. However, only Lindsey’s and Titus’s claims
are currently before the Court, and no party has presented evidence as to the number of hours
these two individuals expected to work. And because SMs are not similarly situated, the Court is
not persuaded that evidence of SMs’ schedules “generally” will be accurate as to Lindsey and
Titus.
Accordingly, to the extent Plaintiffs seek a determination of the particular number of
hours to be used as the divisor of Lindsey’s and Titus’s weekly compensation to determine their
regular hourly rate, Plaintiffs’ Motion for Partial Summary Judgment is DENIED.
IX.

CONCLUSION

For the foregoing reasons,
(1) Tire Discounters’ Motion to Decertify is GRANTED. The claims of all opt-in
plaintiffs, excluding lead Plaintiffs Lindsey and Titus, are DISMISSED WITHOUT
PREJUDICE;
(2) Plaintiffs’ Motion for Class Certification is DENIED;
(3) Tire Discounters’ Motion for Summary Judgment is DENIED;
(4) Plaintiffs’ Motion for Partial Summary Judgment is GRANTED IN PART and
DENIED IN PART; and
(5) Plaintiffs’ Motion for Leave to File a Supplemental Brief is DENIED.
The Court further recommends that the parties engage in mediation to resolve the claims
of Lindsey and Titus.

If the parties wish to participate in mediation, they may contact Judge

Jolson’s chambers at [phone] to schedule a mediation through the Court.
The Clerk shall remove Documents 68, 69, 79, 80, and 95 from the Court’s pending
motions list.

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IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

42