BOULANGE v. FLOWERS FOODS, INC. et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 1/9/17. 1/27/17 ENTERED AND COPIES EMAILED.(rf, ) Modified on 1/27/2017 (md).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MATTHEW CARR, TERRY CARR,
DAVID TUMBLIN, and GREGORY
BROWN, individually and on behalf
of all similarly situated individuals,
FLOWERS FOODS, INC. and
FLOWERS BAKING CO. OF
LUKE BOULANGE, on behalf of
himself and all others similarly
FLOWERS FOODS, INC. and
FLOWERS BAKING CO. OF
January 9, 201 7
The plaintiffs in this employment case have filed a Motion for Conditional Certification
pursuant to the Fair Labor Standards Act. They allege that the defendants, Flower Foods, Inc.
and Flower Baking Co. of Oxford, LLC, misclassified their bakery distributor drivers as
independent contractors, thereby depriving them of the overtime pay to which they are entitled
under the FLSA. I find that the plaintiffs have shown, by a preponderance of the evidence, that
the group for which they seek conditional certification contains similarly situated individuals. I
will therefore grant the plaintiffs' motion for conditional certification.
FACTUAL BACKGROUND 1
Defendant Flower Foods is a corporation that develops and markets bakery products for
national sale and distribution through its network of subsidiaries. Defendant Flower Baking Co.
of Oxford bakes products for distribution in a certain geographic region and operates as Flower
Foods' local sales and distribution force.
The plaintiffs are bakery distributors who pick up baked goods from one of the Oxford
warehouses and deliver them to retailers and restaurants. As distributors, the plaintiffs
"purchase" the right to distribute certain bakery and snack food products to the defendants'
customers in a defined territory, pursuant to the terms of a "Distributor Agreement" that all
distributors must sign. The plaintiffs assert that these agreements are substantially similar in all
respects, and that, even though under these agreements the distributors are classified as
independent contractors, in practice their adherence to the terms of the distributor agreements
renders them employees for purposes of the overtime pay protections of the Fair Labor Standards
The plaintiffs seek conditional certification pursuant to the Fair Labor Standards Act, 29
U.S.C. § 216(b). Section 216(b) provides that an employee may bring a suit regarding
minimum-wage, maximum-hour, and overtime violations against the employer individually, or,
The factual background for this Memorandum is based on the plaintiffs' amended
complaint as well as the briefs the parties filed in connection with the plaintiffs' motion for
collectively on behalf of other "similarly situated" employees. 2 Genesis Healthcare Corp. v.
Symczyk, 133 S. Ct. 1523, 1527 (2013). Those employees must affirmatively opt in to a
collective action by filing written consent with the court if they wish to become parties to a
collective action. Id.
The Third Circuit Court of Appeals has adopted a two-step process for deciding whether
an action may properly proceed as a collective action under FLSA. Camsei v. University of
Pittsburgh Medical Center, 729 F.3d 239 (3d Cir. 2013) (citing and quoting Zavala v. Wal Mart
Stores, Inc., 691 F.3d 527 (3d Cir. 2012)). At the first step, the plaintiffs have the burden to
show, by a preponderance of the evidence, that the parties are "similarly situated." The district
court will make a finding of fact regarding whether the members are "similarly situated" and, if
the plaintiffs meet their burden, the court will conditionally certify the collective action for
purposes of facilitating notice to potential opt-in plaintiffs and conducting pre-trial discovery.
Zavala, 691 F.3d at 534; Camesi, 729 F.3d at 243. "At the second stage, with the benefit of
discovery, 'a court following this approach then makes a conclusive determination as to whether
each plaintiff who has opted in to the collective action is in fact similarly situated to the named
plaintiff.'" Camesi, 729 F.3d at 243 (quoting Symczyk v. Genesis Healthcare Corp., 656 F.3d
189, 193 (3d Cir. 2011 ), rev 'don other grounds, Symczyk, 133 S. Ct. 1523, 1526 (2013)).
Courts apply a "fairly lenient standard" in making a preliminary determination about
whether the named plaintiffs have made a "modest factual showing" that the employees
identified in the complaint are "similarly situated." Camesi, 729 F.3d at 243 (quoting Zavala,
691 F.3d at 535-36, 536 n.4). Relevant factors regarding the "similarly situated" analysis
include, but are not limited to, whether the plaintiffs (1) are employed in the same department,
Specifically,§ 216(b) states that "[a]n action to recover the liability prescribed ... may
be maintained ... by any one or more employees for and in behalf of himself or themselves and
other employees similarly situated."
division, and location; (2) advance similar claims; (3) seek substantially the same form of relief;
and/or (4) have similar salaries and circumstances of employment. Zavala, 691 F.3d at 536-37.
Ultimately, under this "modest factual showing" standard, "a plaintiff must produce some
evidence, beyond pure speculation, of a factual nexus between the manner in which the
employer's alleged policy affected him/her and the manner in which it affected other
employees." Zavala, 691 F.3d at 536 n.4 (quoting Symczyk, 656 F.3d at 193) (additional
citation and quotation marks omitted). The Third Circuit has noted that "[b ]eing similarly
situated does not mean simply sharing a common status, like being an illegal immigrant. Rather,
it means that one is subjected to some common employer practice that, if proved, would help
demonstrate a violation of the FLSA." Zavala, 691 F.3d at 538.
I will first address whether the proposed class of opt-in plaintiffs are similarly situated,
and then address the proposed form of notice that the plaintiffs requested.
A. The Proposed Class
The plaintiffs' proposed class consists of the following members:
All persons who are or have performed work as "Distributors" for
either Defendant under a "Distributor Agreement" or a similar
written contract with Defendant Oxford Baking Co. that they
entered into during the period commencing three years prior to the
commencement of this action through the close of the Courtdetermined opt-in period and who file a consent to join this action
pursuant to 29 U.S.C. § 216(b).
(Pls.' Mem. Supp. Mot. Conditional Certification 3.)
According to the plaintiffs, as distributors they (1) share the same job title,
responsibilities, training, and performance standards; (2) are subject to detailed sales contracts
for every grocery chain and food service account, such that the defendants control every aspect
of the distribution process (price, quantity, service levels, sales, advertisements, promotions,
marketing, stale product handling, delivery procedures, discipline, customer service, etc.); (3)
routinely work more than 40 hours per week; (4) are classified as independent contractors; and
(5) were not paid overtime for hours worked in excess of 40 hours per week. (See Pls.' Mem.
Supp. Mot. Conditional Certification 14; Pls.' Reply 3-12.) The plaintiffs further assert that the
distributor agreements are uniform and identical in all material respects, and that therefore the
distributors all "adhere to and are the victim of [the defendants'] single decision, policy or plan
manifested in the terms of the Distributor Agreements and the Field Orientation Manual," and
are also subject to discipline or termination for failure to comply with those standards. (Pls.'
Mem. Supp. Mot. Conditional Certification 14-15.) Having reviewed the plaintiffs' briefs and
exhibits, and having heard the arguments of plaintiffs' counsel, I am satisfied that the plaintiffs
have made a modest factual showing that they are similarly situated. 3 I will therefore grant the
plaintiffs' motion for conditional certification.
B. Proposed Form of Notice
With respect to the form of notice to potential plaintiffs, "[d]istrict courts retain the
discretion to facilitate the notice process." Drummond v. Herr Foods Inc., No. Civ.A. 13-5991,
2015 WL 894329, at *5 (E.D. Pa. Mar. 2, 2015) (citing Hoffmann-La Roche v. Sperling, 493
U.S. 165, 169, (1989)). I will impose certain conditions on the time limits and provision of the
I have also reviewed and considered the arguments against conditional certification that
were set forth in the defendants' briefing and presented by the defendants' .counsel at oral
argument. The issues that the defendants raise are more appropriate for consideration at the
second step of the conditional certification process, when I must consider "whether each plaintiff
who has opted in to the collective action is in fact similarly situated to the named plaintiff."
Camesi, 729 F.3d at 243 (internal citation and quotation marks omitted). Accordingly, I do not
address those issues in this Memorandum.
notice as outlined in the Order accompanying this Memorandum. 4 I will also order the parties to
meet and confer regarding the appropriate form and content of the notice.
In light of the foregoing, I find that the plaintiffs have made a modest factual showing
that the proposed group of opt-in plaintiffs contains similarly-situated individuals. The
plaintiffs' motion for conditional certification is therefore granted.
An appropriate Order follows.
The defendants argue that notice should be limited to the locations where the named or
opt-in plaintiffs who have already submitted declarations operate. (Defs.' Resp. Opp'n to Mot.
Conditional Certification 42.) At this stage, based on the distributor agreements, declarations,
and other exhibits submitted thus far, as well as the fact that the distributors who will receive
notice all work as distributors for the same Flower Foods subsidiary, I decline to impose the
defendants' proposed limitations with respect to the locations that will receive notice.
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