Given et al v. Love's Travel Stops & Country Stores, Inc.

Filing 68

ORDER granting motion for conditional certification 34 , noting ct will approve issuance of notice which inc. following description of prop class.. (see Para 2 for specifics), & noting provision of SS numbers & telephone numbers unnecessary to accom plish effective notice... will not require posting of collective action notice in employee-only spaces... - subject to these limitations & w/ pltfs' draft notice 33 -7 as foundation for discussions parties directed to meet & confer to finalize content & form of notice in acc w/ this order & submit a joint proposal by 3/1/18. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 2/16/18. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ZACHARY GIVEN, KRISTOPHER
LAWSON, VINCENT MCCLEERY,
and SEAN MCMURRAN, individually
and on behalf of other persons
similarly situated,
Plaintiffs
v.
LOVE’S TRAVEL STOPS &
COUNTRY STORES, INC.,
Defendant

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CIVIL ACTION NO. 1:17-CV-1266
(Chief Judge Conner)

ORDER
AND NOW, this 16th day of February, 2018, upon consideration of plaintiffs’
motion (Doc. 34) for conditional certification pursuant to the Fair Labor Standards
Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., wherein plaintiffs seek the court’s
conditional certification of an FLSA collective action consisting of all operations
managers employed by defendant on or after July 18, 2014, (Doc. 33 at 14-17; Doc.
33-17 at 1), and court-authorized notice of the collective action to said operations
managers, (Doc. 33 at 17-18; Doc. 33-17 at 1-7), and further upon consideration of
defendant’s opposition (Doc. 44), wherein defendant responds that plaintiffs have
not met their burden for conditional certification of a nationwide FLSA collective
action, (id. at 14-29), and that conditional certification of and required notice to
more than 1,900 operations managers would cause defendant substantial harm, (id.
at 29-31), and following oral argument on February 15, 2018 with counsel of record
in the above-captioned case, and it appearing that certification of a plaintiff’s

collective action on behalf of “other employees similarly situated” pursuant to 29
U.S.C. § 216(b), proceeds in two steps: (1) conditional certification and (2) final
certification, Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 535-36 (3d Cir. 2012), and
that at step one, plaintiffs must make a “modest factual showing” that the putative
opt-in employees may be provisionally categorized as similarly situated to the
named plaintiffs, id. at 536 n.4 (quoting Symczyk v. Genesis HealthCare Corp., 656
F.3d 189, 192-93 (3d Cir. 2011), rev’d on other grounds, 569 U.S. 66 (2013)); see also
Rocha v. Gateway Funding Diversified Mortg. Servs., L.P., No. 15-482, 2016 WL
3077936, at *3 (E.D. Pa. Jun. 1, 2016), for the purpose of “facilitat[ing] the sending of
notice to potential class members” and the conducting of pretrial discovery, id. at
536 (quoting Symczyk, 656 F.3d at 194), and it further appearing that the court may
set the parameters of such notice to putative opt-in collective action members,
Hodzic v. Fedex Package Sys., Inc., No. 15-956, 2016 WL 6248078, at *9 (W.D. Pa.
Oct. 26, 2016); see also Hoffmann-La Roche v. Sperling, 493 U.S. 165, 172 (1989), and
the court observing that plaintiffs’ step one burden is a “fairly lenient standard,”1
1

Defendant entreats the court to apply a “more searching standard of
review” because some discovery occurred prior to the filing of plaintiffs’ motion
(Doc. 34) for conditional certification. (See Doc. 44 at 21-22). Defendant relies
primarily on Sloane v. Gulf Interstate Field Services, Inc., No. 4:16-CV-01571, 2017
WL 1105236, (M.D. Pa. Mar. 24, 2017), for this proposition. Assuming arguendo that
the Third Circuit would endorse such an intermediate standard, the posture of
Sloane is distinguishable from the instant case. In Sloane, plaintiffs engaged in
significant discovery for three years spanning two related civil actions. Id. at *7-10;
see also Wang v. Chapei LLC, No. 15-2950, 2017 WL 3584199, at *2 (D.N.J. Aug. 18,
2017) (Plaintiffs moved a second time for conditional certification near the close of
fact discovery.). Plaintiffs’ motion (Doc. 34) was filed less than three months after
commencement of this case before any meaningful discovery took place and further
discovery has been stayed since January 26, 2018. (See Docs. 34, 55). Hence, we
find application of a higher step-one burden to be inappropriate in this case.
2

Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013) (quoting
Zavala, 691 F.3d at 536 & n.4), requiring the production of “some evidence, beyond
pure speculation, of a factual nexus between the manner in which the employer’s
alleged policy” affected the named plaintiffs and those asserted to be similarly
situated, Zavala, 691 F.3d at 536 n.4 (quoting Symczyk, 656 F.3d at 193 (citations and
quotations omitted)), and the court finding that the plaintiffs have produced
sufficient evidence that the putative opt-in employees may be similarly situated to
justify granting conditional certification, to wit: (1) the existence of a company-wide
store operations manual which subjects all operations managers to uniform policies
and procedures, training protocols, and pay practices, (see Doc. 33-14); (2) the
uniformly applicable job description of an operations manager detailing the
supervisory and managerial responsibilities purportedly assigned to said operations
managers,2 (see Doc. 33-15); (3) declarations by twelve operations managers,
including plaintiffs, who aver that approximately 90 percent of their work consisted
of manual labor tasks rather than managerial or supervisory activity,3 (see Docs.
2

Defendant attempts to draw the court into a merits review by advancing
arguments as to the proper application of FLSA exemptions. (See Doc. 44 at 15-16).
Consideration of the merits of plaintiffs’ claims is reserved for the step-two inquiry.
Cambridge v. Sheetz, Inc., No 1:17-CV-1649, Doc. 41 at 5-6 (M.D. Pa. Feb. 13, 2018);
Waltz v. Aveda Transportation & Energy Servs. Inc., No. 4:16-CV-00469, 2016 WL
7440267, at *4 n.39 (M.D. Pa. Dec. 27, 2016) (citing Neal v. Air Drilling Assoc., Inc.,
No. 3:14-CV-1104, 2015 WL 225432, at *3 (M.D. Pa. Jan. 16, 2015)).
3

Defendant proffers the declarations of 28 operations managers to refute
plaintiffs’ claims in support of conditional certification. (Doc. 42-3 at 42-124; Doc.
42-4 at 1-96). Plaintiffs correctly note that a detailed analysis of whether each
operations manager (particularly current managers handpicked by defendant) is
similarly situated should not be undertaken at the conditional certification stage.
Depalma v. Scotts Co. LLC, No. 13-CV-7740, 2016 WL 7206151, at *3 (D.N.J. Mar. 31,
3

33-2 through 33-13); (4) declarations stating that operations managers were
classified as exempt under the FLSA, paid a salary, regularly worked 60 hours or
more per week, and received no overtime pay for hours worked in excess of 40 per
workweek,4 (see Docs. 33-2 through 33-13); (5) declarations stating that defendant
treats all operations managers similarly across stores with regard to pay structure,
exempt classification, and job function,5 (see, e.g., Docs. 33-2 through 33-13), and the
court concluding that the evidence presented by plaintiffs, including twelve
declarants across 10 states and twenty-five stores, is sufficient to warrant
conditional certification of a nationwide collective action, see Cambridge, Doc. 41
at 4-6, it is hereby ORDERED that:

2016) (citing Goodman v. Burlington Coat Factory, No. 11-4395, 2012 WL 5944000, at
*6 (D.N.J. Nov. 20, 2012)); see also Jacob v. Duane Reade, Inc., No. 11-CV-0160, 2012
WL 260230, at *7 (S.D.N.Y. Jan. 27, 2012). Defendant also avers that plaintiffs are
poor representatives of the collective action because they exhibit “character flaws”
and may be subject to impeachment at trial. (See Doc. 44 at 4-6, 31-32; see Doc. 59-1
at 3). These credibility determinations fall outside the scope of relevant evidence at
the conditional certification stage. Goldstein v. Children’s Hosp. of Phila., No. 101190, 2013 WL 664174, at *4 (E.D. Pa. Feb. 25, 2013) (citation omitted).
4

Defendant does not dispute that plaintiffs were not paid overtime
compensation and classified as exempt. (Doc. 23 at 19 ¶¶ 1-3).
5

Defendant contends that the twelve declarants lack firsthand knowledge of
operations managers apart from the stores in which they worked. (Doc. 44 at 22-23).
Several declarants state that their knowledge derives from discussions with other
operations managers on phone calls, at company meetings, and during visits to
other stores. (See, e.g., Doc. 33-3 ¶ 7; Doc. 33-4 ¶ 6; Doc. 33-5 ¶ 7; Doc. 33-6 ¶ 7).
Moreover, the twelve declarants represent 10 states and have worked in 25 stores.
(See Docs. 33-2 through 33-13). We find this breadth of representation sufficient to
warrant conditionally certifying a nationwide collective action. See Meals v. Keane
Frac GP LLC, No. CV 16-1674, 2017 WL 2445199, at *5 (W.D. Pa. June 6, 2017)
(quoting Rocha, 2016 WL 3077936, at *8).
4

1.

The motion (Doc. 34) for conditional certification is GRANTED.

2.

The court will approve the issuance of a notice which includes the
following description of the proposed class:
All individuals who (1) were employed as operations
managers by Love’s Travel Stops & Country Stores, Inc.
at any location within the United States at any time
dating three years back from the date of this order6;
(2) were classified as exempt employees and did not
receive overtime compensation for hours worked in
excess of 40 per workweek; (3) and worked more than 40
hours per workweek during that timeframe.

3.

The court notes that the provision of social security numbers and
telephone numbers is unnecessary to accomplish effective notice to
potential opt-in plaintiffs. The court will not require the posting of the
collective action notice in employee-only spaces such as breakrooms or
the inclusion of said notice in employees’ pay envelopes.7 Subject to
these limitations, and with plaintiffs’ draft notice (Doc. 33-17) as the
foundation for discussions, the parties are DIRECTED to meet and
confer to finalize the content and form of the notice in accordance with
this order. The parties shall submit a joint proposal on or before
Thursday, March 1, 2018.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

6

See Gervasio v. Wawa Inc., No. 17-CV-245, 2018 WL 385189, at *5 & n.1
(D.N.J. Jan. 11, 2018) (citing 29 U.S.C. §§ 255(a), 256(b)).
7

See Cambridge, Doc. 41 at 6-7 (quoting Vargas v. Gen. Nutrition Centers,
Inc., No. 2:10-CV-867, 2012 WL 5336166, at *13 (W.D. Pa. Oct. 26, 2012)).