Penley et al v. NPC International, Inc.

Filing 179

ORDER WITHDRAWING REFERRAL (D.E. 141 ) & GRANTING PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION (D.E. 138 ). Signed by Chief Judge J. Daniel Breen on 12/13/16. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TIFFNEY PENLEY, individually and
on behalf of others similarly situated, and
ASHLEY LEWIS, individually and
on behalf of others similarly situated,

Plaintiffs,
vs.

No. 13-1031

NPC INTERNATIONAL, INC.,
Defendant.

ORDER WITHDRAWING REFERRAL (D.E. 141)
& GRANTING PLAINTIFF’S MOTION FOR
CONDITIONAL CERTIFICATION (D.E. 138)

On January 29, 2013, Plaintiffs, Tiffney Penley and Ashley Lewis, filed a complaint on
behalf of themselves and others similarly situated against Defendant, NPC International, Inc.
(“NPC”), alleging that NPC violated the Fair Labor Standards Act (“FLSA”) by failing to
compensate her and others similarly situated as required by statute. (Docket Entry (“D.E.”) 1.)
Before the Court is Plaintiffs’ second motion for conditional certification.1

(D.E. 138.)

Defendant filed a response, (D.E. 173-1), to which Penley and Lewis filed a reply (D.E. 178).

1

Plaintiffs’ first motion for conditional certification, (D.E. 71), was dismissed without
prejudice after NPC appealed this Court’s order denying its motion to compel arbitration to the
Sixth Circuit Court of Appeals (D.E. 114).

This motion was previously referred to the magistrate judge, (D.E. 141), but that referral is
WITHDRAWN.
I. BACKGROUND
The procedural and factual background of this case, one of five related FLSA cases,2 is
substantial and has been thoroughly discussed by the Sixth Circuit Court of Appeals. See Gunn
v. NPC Int’l, Inc., 625 F. App’x 261, 263 (6th Cir. 2016). Briefly, NPC owns and operates 1,260
Pizza Hut restaurants in twenty-eight states. (D.E. 173-1 at PageID 2892.) Penley and Lewis
were employed by NPC as shift managers at its restaurant in Henderson, Tennessee. (D.E. 140-1
at PageID 2075.) Plaintiffs allege that Defendant violated the FLSA by requiring them and other
shift managers to perform work, undergo training sessions, and attend meetings off the clock
without compensation. (Id.)
Plaintiffs submit that decisions regarding compensation practices and other terms of
employment were made by centralized management at NPC’s headquarters in Overland Park,
Kansas. (D.E. 1.) They contend that NPC has “a uniform policy and practice of incentivizing”
general managers of its individual restaurants, as well as area managers, “to encourage, permit
and/or require” employees to perform off the clock work. (Id.) Since it was filed, more than
fifty opt-in plaintiffs have filed consents to join the lawsuit.
In support of the motion, Penley and Lewis have provided declarations from thirty-eight
current and former shift managers from various Pizza Hut locations. (See D.E. 138-6.) They are
representative of restaurants located in twelve states. (Id.) The statements provided echo the

2

See Harris v. NPC Int’l, No. 13-1033 (W.D. Tenn. filed Jan. 29, 2013) (“current and
former cooks”); Gunn v. NPC Int’l, No. 13-1035 (W.D. Tenn. filed Jan. 30, 2013) (“current and
former tipped employees”); Jowers v. NPC Int’l, No. 13-1036 (W.D. Tenn. filed Jan. 30, 2013)
(“current and former delivery drivers”); and Redmond v. NPC Int’l, No. 13-1037 (W.D. Tenn.
filed Jan. 30, 2013) (“current and former customer service representatives”).
2

allegations set forth by Plaintiffs in the complaint. Generally, these declarants allege that they
were required to work off the clock and attend mandatory training sessions and meetings off the
clock without compensation. Declarants aver that management directed them to perform this
off-the-clock work as a means to lower Defendant’s labor costs to acceptable corporate levels.
(Id.)
In the instant motion, Plaintiffs seek certification of a collective action and request that
NPC produce the names of and send notice to all current and former shift managers who were
subjected to Defendant’s alleged illegal policies at any time during the previous three years.3
(D.E. 138-1.)

NPC strenuously objects to conditional certification.

Defendant avers that

Plaintiffs have not demonstrated that a similarly situated class of shift managers exists and
maintains that restaurant general managers are responsible for the violations asserted because
NPC’s company-wide policies comply with the FLSA. (D.E. 173-1 at PageID 2891.)
II. LEGAL STANDARD
Penley and Lewis seek to pursue this FLSA suit as a collective action. Section 216(b) of
the FLSA provides in pertinent part:
An action [under § 206] may be maintained against any employer . .
. in any Federal or State court of competent jurisdiction by any one
or more employees for and in behalf of himself or themselves and
other employees similarly situated. No employee shall be a party
plaintiff to any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in which
such action is brought.
29 U.S.C. § 216(b). Collective actions under the FLSA require putative class members to opt in
to the class. O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 583 (6th Cir. 2009). Also, in

3

Plaintiffs also request that this Court equitably toll the statute of limitations for opt-ins
who filed consents to join after Defendant’s motion to compel arbitration. However, this Court
resolved that issue in an order dated June 29, 2016. (D.E. 170.) 
3

contrast to Federal Rule of Civil Procedure 23 class actions, an FLSA collective action is not
subject to the traditional numerosity, commonality, typicality, and representativeness
requirements. Whalen v. United States, 85 Fed. Cl. 380, 383 (Fed. Cl. 2009).
In Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989), the United States Supreme
Court “made it clear that the collective action provisions of the FLSA authorize[] a trial court to
issue court-supervised notice to potential class members.” Belcher v. Shoney’s, Inc., 927 F.
Supp. 249, 250-51 (M.D. Tenn. 1996) (internal citation omitted). Court-supervised notice is
appropriate where lead plaintiffs demonstrate that they are “similarly situated” to employees in
the class they seek to certify. 29 U.S.C. § 216(b); O’Brien, 575 F.3d at 583. Courts typically
engage in a two-phase inquiry to determine whether the lead plaintiff has satisfied that showing.
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). “The first takes place at the
beginning of discovery. The second occurs after all of the opt-in forms have been received and
discovery has concluded.” Id. (internal quotation omitted). The present case is at the first phase
of the collective action where the Court must determine whether to “conditionally” certify the
proposed class. See id.
Although the FLSA does not define the meaning of “similarly situated,” the Sixth
Circuit’s O’Brien decision offered clarification of that term.

Despite declining “to create

comprehensive criteria for informing the similarly-situated analysis,” the O’Brien court did state
“that plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and
when proof of that policy or of conduct in conformity with that policy proves a violation as to all
the plaintiffs.” 575 F.3d at 585. “Showing a ‘unified policy’ of violations is not required,
though.” Id. at 584 (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir. 1996)).

4

Plaintiffs may also be similarly situated where “their claims [are] unified by common theories of
defendants’ statutory violations, even if the proofs of these theories are inevitably individualized
and distinct.” Id. at 585. Under the circumstances of O’Brien, “[t]he claims were unified so,
because plaintiffs articulated two common means by which they were allegedly cheated: forcing
employees to work off the clock and improperly editing time-sheets.” Id.
The parties disagree as to which standard this Court should apply to evaluate whether
members of the putative class are similarly situated to Penley and Lewis. Plaintiffs contend that
the traditional “modest” standard is appropriate, while Defendant urges the Court to apply a
more stringent “modest plus” standard.
Under the traditional standard, a plaintiff’s burden at this stage is “fairly lenient,” and the
lead plaintiff must make only a “modest factual showing” that she is similarly situated to
members of the prospective class she seeks to certify and send court-supervised notice. Comer,
454 F.3d at 547 (quoting Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 497
(D.N.J. 2000), and Pritchard v. Dent Wizard Int’l Corp., 210 F.R.D. 591, 596 (S.D. Ohio 2002)).
Because of the lenient standard, district courts typically grant conditional certification of
collective actions. Id. Thus,
[s]everal courts have recognized that the named plaintiff’s burden at this stage is
not a heavy one. White v. MPW Indus. Servs., 236 F.R.D. 363, 367 (E.D. Tenn.
2006); Swallows v. City of Brentwood, Tenn., 2007 U.S. Dist. LEXIS 61130, 2007
WL 2402735, at *2 (M.D. Tenn. Aug. 20, 2007). “[T]he burden of proof is
relatively slight at this stage of the case because the Court is not making a
substantive determination on the basis of all the evidence but simply adopting a
procedure which permits notice to be given to other potential class members.”
McDonald v. Madison Township Bd. of Township Trustees, 2007 U.S. Dist.
LEXIS 76450, at *6 (S.D. Ohio Oct. 5, 2007). At the notice stage, the plaintiff
must show that “his position is similar, not identical, to the positions held by the
putative class members.” Comer, 454 F.3d at 546-47 (quoting Pritchard v. Dent
Wizard Int’l Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002)).
5

Frye v. Baptist Mem’l Hosp., Inc., No. 07-2708, 2008 WL 6653632, at *4 (W.D. Tenn. Sept. 16,
2008) (footnote omitted).
In contrast to this lenient standard, some courts apply a slightly elevated “modest plus”
standard where discovery has been conducted during the pre-certification stage. In conducting
an analysis under this standard,
th[e] Court will compare Plaintiffs’ allegations set forth in their Complaint with
the factual record assembled through discovery . . . to determine whether
Plaintiffs have made [a] sufficient showing beyond their original allegations that
would tend to make it more likely that a class of similarly situated employees
exist. In other words, the Court will review whether Plaintiffs have advanced the
ball down the field—showing that it is more likely that a group of similarly
situated individuals may be uncovered by soliciting opt-in plaintiffs.
Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 827 (N.D. Ohio 2011).
In this case, however, Defendant acknowledges that Plaintiffs sought and received a
protective order authorizing them not to respond to discovery. Even so, NPC claims “the more
stringent ‘modest plus’ standard should still apply because much time that [sic] passed between
when Plaintiffs filed the lawsuit and ultimately moved for conditional certification and NPC
attempted to engage in discovery.” (D.E. 173-1 at PageID 2900 n.5.) This argument is inapt
given the rationale courts have provided when employing the modest plus standard. See, e.g.,
Potts v. Nashville Limo & Transp., LLC, No. 3:14-cv-1412, 2015 WL 4198793, at *5 (M.D.
Tenn. July 10, 2015) (stating that when at least some discovery has taken place, “[i]t seems
sensible for a court at least to consider additional information following limited discovery, and
courts can evaluate the weight to assign to that information on a case-by-case basis”). In this
case, discovery has not taken place; thus, there is no additional information to consider.
Moreover, Defendant’s argument regarding the age of this matter is dubious given that it has
been largely responsible for the case’s slow progression. See Gunn v. NPC Intern., Inc., 625 F.
6

App’x 261, 265 (6th Cir. 2015) (agreeing with this Court’s earlier conclusion that Defendant had
employed dilatory tactics); see also (D.E. 170 at PageID 2872) (“The Defendant’s actions have
delayed this case such that the Court now considers the motion for equitable tolling over three
years after the initial filing.”). Accordingly, the Court finds that the modest plus standard is not
appropriate for this case, and the more lenient standard applies.
III. ANALYSIS
Penley and Lewis ask this Court to conditionally certify a nationwide collective action
based on Defendant’s “common plan, policy and practice” of requiring shift managers to perform
work, attend meetings, and undergo training off the clock. (D.E. 138-1 at PageID 1824.)
Defendant maintains that conditional certification is inappropriate for a variety of reasons.
Alternatively, NPC asks that, if the Court does conditionally certify a class, it be limited to the
Memphis and Nashville Regions, where between fifty-two and sixty eight percent of individuals
who have already opted in were employed.

Finally, assuming conditional certification is

granted, Defendant has filed a separate document objecting to Plaintiffs’ proposed notice.
A. Defendant’s Objections to Conditional Certification
1. NPC’s company-wide policies
First, Defendant insists that its company-wide policies comply with the FLSA. NPC
insists that the allegations in the complaint and declarations differ from the company’s stated
policies and procedures. Additionally, Defendant claims that employees are responsible for
ensuring they are paid correctly and that they are required to review their paychecks and inform a
manager of any discrepancies. Finally, NPC contends that Plaintiffs have not demonstrated a
unified policy or practice that violated the FLSA.

7

Penley and Lewis theorize that NPC’s centralized management incentivizes local
managers to disregard its written, FLSA-compliant policies with a goal of reducing labor costs.
Therefore, considering Defendant’s policies would require a substantive analysis of Plaintiffs’
allegations, which is inappropriate at this stage. See Hamric v. True North Holdings, Inc., No.
1:16-cv-01216, 2016 WL 3912482, at *2 (N.D. Ohio July 20, 2016) (noting that defendant could
not defeat certification “merely by pointing to a written policy” that complied with the FLSA);
Lindberg v. UHS of Lakeside, LLC, 761 F. Supp. 2d 752, 759-60 (W.D. Tenn. 2011)
(conditionally certifying class where plaintiffs asserted that defendant routinely ignored FLSAcompliant written policy on automatic meal-break deductions); see also Winfield v. Citibank,
N.A., 843 F. Supp. 2d 397, 408 (S.D.N.Y. 2012) (rejecting defendant’s reliance on its written
policy requiring payment for overtime where plaintiffs presented evidence that the policy was
violated in practice); Burkhart-Deal v. Citifinancial, Inc., No. 07-1747, 2010 WL 457127, at *3
(W.D. Pa. Feb. 4, 2010) (noting that defendant’s arguments that its policies complied with the
FLSA “skirt[ed] the merits” of plaintiff’s claim, making them inappropriate to consider at
conditional certification stage). At this stage, the Court is tasked only with evaluating whether
Plaintiffs have alleged an FLSA-violating policy and shown that members of the putative class
are similarly situated with respect to these violations. See O’Brien, 575 F.3d at 585.
Likewise, Defendant’s arguments that employees were responsible for reporting
violations of company policy to general managers miss the mark. “The law is clear that it is the
employer’s responsibility, not its employees’, to ensure compensation for work ‘suffered or
permitted.’” Camesi v. Univ. of Pittsburgh Med. Ctr., Civil Action No. 09-85J, 2009 WL
1361265, at *4 (W.D. Pa. May 14, 2009), recons. denied (June 10, 2009).

8

Defendant also maintains that the declarants’ “conclusory, isolated and piecemeal
allegations” fail to show a unified policy of labor violations. (D.E. 173-1 at PageID 2905.)
According to NPC, “despite many months of opportunity to conduct discovery, Plaintiffs have
failed to provide any factual evidence of a ‘policy of violations’ . . . .” (Id. at PageID 2906.)
This position is puzzling given that Defendant admitted elsewhere in its response that discovery
did not actually take place because Plaintiffs obtained a protective order. (See id. at PageID
2900 n.5.) Furthermore, the O’Brien Court was careful to note that it did “not mean to require
that all collective actions under § 216(b) be unified by common theories of defendants’ statutory
violations . . . .” O’Brien, 575 F.3d at 585. In other words, although showing a unified policy
that violates the FLSA is one way to prove members of the putative class are similarly situated, it
is not the only way. The Sixth Circuit recently reaffirmed O’Brien’s conclusion in this respect,
stating that “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 v. FTS USA,
LLC, 815 F.3d 1000, 1009 (6th Cir. 2016) (emphasis added) (alteration in original) (quoting
O’Brien, 575 F.3d at 584-85).
2. Declarations in support of Penley and Lewis’s motion
Next, NPC asserts that Plaintiffs have not met their evidentiary burden to justify
certification. Defendant characterizes the declarations filed as conclusory and “cookie-cutter.”
(D.E. 173-1 at PageID 2908.) NPC states that although fifty-six opt-in plaintiffs filed consents to
join, only forty-two filed declarations. Defendant has cited no authority that would require
Penley and Lewis to file a declaration from each opt-in plaintiff at the conditional certification

9

stage. The declarations that were filed make allegations similar to those made by Plaintiffs.
Defendant says that these statements are generic and without factual support or evidence. The
Court disagrees. The declarations relate the experiences of other shift managers at Pizza Hut
locations in twelve states. For example, Nathan Holton stated that he “worked off the clock
without pay at the direction, encouragement, and expectation of [his] general manager in order to
help management reduce NPC’s labor costs to acceptable corporate levels.” (D.E. 138-6 at
PageID 1865.) Julie Mugge averred that “management required [her] to undergo mandatory job
training off the clock without pay as a means to reduce NPC’s labor costs to acceptable corporate
levels.” (Id. at PageID 1869.) According to Shawna Morris, she was required to work off the
clock without compensation and “to attend mandatory meetings off the clock without pay . . . .”
(Id. at PageID 1875.) The remaining declarations mirror these statements.
Defendant contends that these statements are inadequate because the declarants should
have indicated how much time they spent working or attending meetings and training sessions
off the clock. However, that level of detail is not necessary at this initial stage. See Monroe v.
FTS USA, LLC, 257 F.R.D. 634, 639 (W.D. Tenn. 2009) (rejecting similar argument and
pointing out that imposing more stringent evidentiary standards at conditional certification stage
would “defeat the purpose of the two-stage analysis”); McNelley v. ALDI, Inc., No. 1:09 CV
1868, 2009 WL 7630236, at *4 (N.D. Ohio Nov. 17, 2009) (rejecting similar argument and
stating that “potential opt-in plaintiffs are not required to make a lengthy detailed declaration in
their own words or without the assistance of counsel”). Additionally, NPC takes issue with the
“identical” allegations “from declaration to declaration.” (D.E. 173-1 at PageID 2909.) But, this
“point cuts both ways: the fact that the [declarants] have had identical experiences as [shift

10

managers] . . . strongly supports a finding that the [employees] are substantially similar to each
other.” Watson v. Advanced Distrib. Servs., LLC, 298 F.R.D. 558, 564 (M.D. Tenn. 2014).
According to Defendant, conditional certification is also inappropriate because the declarations
filed demonstrate that claims contained therein are “disparate.” (D.E. 173-1 at PageID 2910.)
NPC made a chart to point out differences in the declarations and asserts that these differences
show the proposed class is not similarly situated. However, at the conditional certification stage,
identical claims are not required. See Bradford v. Logan’s Roadhouse, Inc., 137 F. Supp. 3d
1064, 1073 (M.D. Tenn. 2015) (certifying class of servers where declarations contained similar
factual allegations even though not every declarant included the exact same claims as plaintiffs).
Defendant further argues that some of the individuals who have opted in to this lawsuit
“held different positions and worked under different pay arrangements,” thus, their claims are
“divergent.” (D.E. 173-1 at PageID 2911.) For instance, NPC states that some individuals held
positions as cooks, drivers, servers, and customer service representatives. (Id. at PageID 2912.)
This argument is unconvincing. None of the individuals who have opted in are seeking to
redress wage violations in this lawsuit that occurred while they were employed in other positions
with NPC. In this case, all of the individuals who filed declarations claim that they suffered
FLSA violations while employed as shift managers. The fact that they might have worked in
other positions is immaterial at this time. See Murton v. Measurecomp, LLC, No. 1:07CV3127,
2008 WL 5725631, at *4 (N.D. Ohio June 9, 2008) (“Generally, courts have left assessment of
disparate factual and employment settings of individual class members to the second stage of the
analysis.”). In sum, these arguments are better suited for the decertification stage.

11

3. Conflicts of interest among class members
Next, Defendant objects that Penley and Lewis are not similarly situated to members of
the putative class because they have a conflict of interest with some of the proposed class
members. This, NPC avers, creates “intra-class tension and [a] conflict of interest” which
weighs against conditional certification. (D.E. 173-1 at PageID 2913.) Defendant says that three
of the opt-in plaintiffs “may have worked as Cooks, Drivers, Servers, or Customer Service
Representatives at the same restaurants where other members of the putative class worked as
Shift Managers at the same time.” (Id.) (emphasis added). NPC also reasons that “[d]eclarants’
reliance on the term ‘management’ indicates that, as the lowest level of management on-site at
the restaurant, they may have contributed to their fellow purported class members in other cases’
alleged failure to receive proper wages under the FLSA.” (Id.)
NPC’s argument in this respect appears to be based solely on conjecture. Defendant
assumes, without pointing to any evidence, that use of the word “management” necessarily
includes shift managers. However, although several declarations specifically referred to general
managers, none of the declarants attributed the FLSA violations to shift managers.

Also,

Defendant has provided nothing more than its unsupported belief that some of the opt-ins “may
have” worked as cooks, drivers, servers, or customer service representatives at the same
restaurants during the same time as other shift managers who have opted in. If NPC finds
evidentiary support for this in the course of discovery and believes that decertification is proper
on that ground, it is free to raise the issue at the appropriate time. However, these unsupported
allegations do not provide a basis for denying conditional certification.

12

B. Whether Members of the Putative Class are Similarly Situated
Having considered NPC’s objections to Plaintiffs’ motion, the Court now turns to address
the ultimate issue: whether Penley and Lewis have demonstrated that there is a class of shift
managers who are similarly situated. In their complaint, Plaintiffs theorized that NPC had a
policy and practice of incentivizing general managers to implement FLSA-violating policies as a
means to lower labor costs. As an exhibit to the instant motion, Penley and Lewis included
declarations detailing their claims against Defendant. Penley averred that she worked as a shift
manager at a Pizza Hut restaurant in Henderson, Tennessee. According to her, the work she
performed was the same work that shift managers at other locations performed. She stated that
she worked off the clock without pay at the direction, encouragement, and expectation of her
general manager. She said that she was required to attend mandatory monthly meetings without
being clocked in. Penley asserted that management also required her to undergo mandatory job
training off the clock. According to her, these practices were a means to reduce labor costs to
acceptable corporate levels. Lewis also worked at the Henderson, Tennessee location, and her
declaration asserted essentially the same claims. She averred that she performed job duties off
the clock and attended mandatory meetings and job training without compensation at the
direction of her general manager. Like Penley, she stated that the goal of requiring her to
perform off-the-clock work was reducing labor costs.
In further support of their motion, Penley and Lewis included declarations from thirtyeight current and former NPC shift managers who allege similar violations. These declarants
assert that they were required to perform work, attend mandatory meetings, and/or complete

13

training sessions off the clock and without compensation. Each declaration alleges some or all of
these violations and attributes them to a corporate goal of reducing labor costs.
Overall, Plaintiffs’ evidence amounts to a “modest factual showing” that NPC
implemented a common policy or practice that violated the FLSA and that they are similarly
situated to shift managers at other Pizza Hut restaurants. The fact that numerous shift managers
from restaurants located in multiple locations made similar allegations tends to show that these
violations were not the result of “rogue managers” but rather were the result of centralized
decision-making. Further, although the declarations are not identical, the claims therein rely
upon “common theories of [NPC’s] statutory violations, even if the proofs of these theories are
inevitably individualized and distinct.” O’Brien, 575 F.3d at 585; see also Murton, 2008 WL
5725631, at *4 (noting that many courts will deny certification “only if the action arises from
circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy,
or practice”) (citing cases).

Thus, the Court concludes that conditional certification is

appropriate.
C. Scope of the Class
Finally, Defendant insists that, if this Court grants conditional certification, the class
should be limited to the Tennessee and Memphis regions, where between fifty-three and sixtytwo percent4 of the opt-in plaintiffs were employed. In support, NPC cites Roberts v. Corr.
Corp. of Am., No. 3:14-CV-2009, 2015 WL 3905088, at *14 (M.D. Tenn. June 25, 2015) and
Tyler v. Taco Bell Corp. & Taco Bell of Am., LLC, No. 2:15-cv-02084-JPM-cgc, 2016 WL

4

Defendant’s response is inconsistent in this respect, stating in several instances that
fifty-three percent of NPC-employed opt-in plaintiffs work in the Memphis and Nashville
regions, see (D.E. 173-1 at PageID 2892, 2915 & 2919), and at another point reporting that
number to be sixty-two percent, (D.E. 173-1 at PageID 2903).
14

2344229 (W.D. Tenn. May 3, 2016). Defendant argues that, as was true in Roberts and Tyler,
the record in the present case is “devoid of evidence of practices beyond the location where the
named Plaintiff[s] worked.” (D.E. 173-1 at PageID 2916.)
In Roberts, the district court denied conditional certification where no opt-in plaintiffs
had worked in facilities outside Tennessee. 2015 WL 3905088, at *11-12. The only evidence in
Roberts that plaintiff’s complaints were part of a nationwide policy was a declaration from an
employee in Mississippi, who was not an opt-in plaintiff in the Tennessee case but was instead a
participant in a similar case in Mississippi.

Id. at *12.

Likewise, in Tyler, the plaintiff

“presented no evidence that any other [assistant general manager] at a corporate-owned Taco
Bell restaurant” was similarly situated within the meaning of the FLSA. 2016 WL 2344229, at
*5 (emphasis added). In contrast, Penley and Lewis have presented declarations from thirtyeight shift managers in twelve states, all alleging violations of the FLSA similar to those made
by Plaintiffs. (D.E. 138-6.) Also, by NPC’s own admission, at least thirty-eight and up to fortyseven percent of the opt-in plaintiffs do not come from the Memphis or Nashville regions.
Accordingly, NPC’s argument that conditional certification should be limited to those two
regions is unconvincing.
Whether nationwide certification is appropriate is a closer call, and NPC’s organizational
structure complicates the Court’s analysis in this respect. According to NPC, it operates 1,260
restaurants in twenty-eight states, which are divided into three territories: East, West, and South.
Each of these territories is then divided into regions.5 Due to this divisional structure, some

5

There are five regions in the East (Memphis, Nashville, St. Louis, Virginia, and
Winston-Salem), six regions in the West (Ozark, Rocky Mountain, Northwest, Midwest,
Dakotas, and Iowa), and six regions in the South (Little Rock, Georgia, Tallahassee, Mobile,
South Florida, and Birmingham). (D.E. 173-1 at PageID 2893-94.) 
15

individual states have areas that fall into different territories and regions. For example, the East
Territory includes the Nashville region, which encompasses locations in Huntsville, Alabama.
However, one of the South Territory’s regions is Birmingham, Alabama.6 Therefore, although
declarations have been submitted by employees from twelve states, they are actually
representative of more than one territory and numerous regions.7
Consequently, Plaintiffs have met their modest burden in demonstrating that the practices
they allege violate the FLSA are not limited to one particular territory or region but are
widespread and systemic. In other words, they have shown that there are likely other similarlysituated shift managers at NPC-operated Pizza Hut restaurants across the country. Accordingly,
the Court concludes that Penley and Lewis have made a sufficient showing that nationwide
certification would serve the interests of justice and economy. See Bradford, 137 F. Supp. 3d at
1078-79 (certifying nationwide class and noting that the FLSA’s “broad remedial purpose” did
not require a showing that employees from every restaurant in each state where defendant
operated had opted in to the lawsuit at conditional certification stage); Smith v. Pizza Hut, Inc.,
No. 09-cv-01632-CMA-BNB, 2012 WL 1414325, at *6 (D. Colo. Apr. 21, 2012) (rejecting
defendant’s request to limit class geographically where only six of forty-two regions were
represented at time of conditional certification because “[t]he fact that [employees] from every
region have not yet opted into [the] action does not mean that a nationwide class cannot exist”).

6

For further example, East Arkansas is part of the Memphis region within the East
Territory. However, there is a “Little Rock” region in the South Territory.
7

Without more detailed information regarding regions and store locations, the Court
cannot determine the exact number of territories and regions represented at this time. However,
by comparing NPC’s description of its organizational structure to the addresses provided by
Declarants, it appears that employees from at least two territories and multiple regions allege
similar FLSA violations.
16

D. NPC’s Objections to Plaintiffs’ Proposed Notice
Defendant also objects to Penley and Lewis’s proposed notice. NPC asks that the Court
direct the parties to confer and file an agreed-upon notice with the Court.

Alternatively,

Defendant lodges specific objections to Plaintiffs’ proposed notice and requests that the Court
amend the notice accordingly. The Court agrees that the parties should meet to discuss and draft
a mutually acceptable notice. However, in an effort to facilitate that process, the Court will
address some of NPC’s objections to the proposed notice.
Defendant avers that the proposed one-hundred-twenty day-period for returning opt-in
forms is too long, and argues in favor of a forty-five day-period instead. Other district courts in
this Circuit facing similar objections have shortened the requested period.

See Knispel v.

Chrysler Group LLC, No. 11-11886, 2012 WL 553722, at *8 (E.D. Mich. Feb. 21, 2012)
(shortening period from ninety to forty-five days at defendant’s request); Miller v. Jackson,
Tenn. Hosp. Co., LLC, No. 3:10-1078, 2011 WL 2197694, at *3 (M.D. Tenn. June 6, 2011)
(“splitting the difference” and setting a period of seventy-five days, where plaintiff proposed
ninety and defendant sixty). These decisions appear to have been fairly arbitrary and made with
little or no analysis, with the Knispel court noting only that the forty-five day period suggested
by the defendant was sufficient “especially considering the statute of limitations concerns raised
by [p]laintiff’s counsel,” despite plaintiff’s position favoring the longer period. Knispel, 2012
WL 553722, at *8. Considering the age of the present case, the Court concludes that the opt-in
period should be sixty days. That should allow ample time for interested individuals to join the
lawsuit while also moving the case forward. The sixty-day opt-in period shall begin to run upon
receipt of the opt-in plaintiffs’ contact information, as provided below.

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NPC further objects to some of the proposed means of providing notice, as well as
Plaintiffs’ request for employees’ personal information, as unnecessary and unduly burdensome.
Mailing of notice to putative class members at Penley and Lewis’s expense should, in its view,
be sufficient. “Courts routinely approve requests to post notice on employee bulletin boards and
in other common areas, even where potential members will also be notified by mail.”
D’Antuono v. C&G of Groton, Inc., No. 3:11cv33 (MRK), 2011 WL 5878045, at *6 (D. Conn.
Nov. 23, 2011); Rosario v. Valentine Ave. Disc. Store, Co., Inc., 828 F. Supp. 2d 508, 521
(E.D.N.Y. 2011). Thus, Plaintiffs’ request for this type of notice appears reasonable and is
granted. However, the Court finds the additional requirement of attaching notice to employees’
paychecks to be duplicative and, therefore, an unnecessary expense to impose on Defendant. See
Calderon v. Geico Gen. Ins. Co., No. RWT 10cv1958, 2011 WL 98197, at *8 (D. Md. Jan. 12,
2011) (finding no reason to impose upon defendant costs associated with providing what would
be largely duplicative notice to potential opt-in plaintiffs in the form of paycheck attachments).
As to the production of employee telephone numbers, the Court notes that “[t]his type of
discovery request is routinely granted in collective actions.” Dallas v. Alcatel-Lucent, USA, Inc.,
No. 09-14596, 2012 WL 424878, at *8 (E.D. Mich. Feb. 9, 2012); see also Miller v. Jackson,
Tenn. Hosp. Co.,LLC, No. 3:10-1078, 2011 WL 1060737, at *8 (M.D. Tenn. Mar. 21, 2011)
(finding nothing “alarming” about plaintiff’s request for employee telephone numbers).
However, the production of social security numbers, last known email addresses, and dates of
employment are not warranted at this juncture. See Motley v. W.M. Barr & Co., No. 12-cv-2447
JDB/tmp, 2013 WL 1966444, at *9 (W.D. Tenn. Mar. 7, 2013), report and recommendation

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adopted in part, rejected in part, No. 1:12-cv-02447-JDB-egb, 2013 WL 1966442 (W.D. Tenn.
May 10, 2013).
Therefore, notification to putative class members will be by mail at Plaintiffs’ expense,
and Defendant will post notice in conspicuous places at its restaurants. The employer will not be
required to attach notice to employees’ paychecks. To facilitate notification by mail, Defendant
will also provide a list of names, last known addresses, and last known telephone numbers for all
present and former shift managers of NPC within the last three years.

The deadlines for

providing names and posting notice will be determined after the parties submit the agreed-upon
notice.
Finally, the Defendant takes issue with Plaintiffs’ request that consent forms be deemed
filed on the date they are postmarked. NPC has cited one case from a district court in the Fifth
Circuit in support of this objection, see Diaz v. Applied Mach. Corp., Civil Action Nos. H-141282 & H-15-2674, 2016 WL 3568087, at *12 (S.D. Tex. June 24, 2016), but courts in other
FLSA collective cases in this Circuit have permitted such filing. See Parr v. Hico Concrete,
Inc., No. 3:10-1091, 2011 WL 5512239, at *2 (M.D. Tenn. Nov. 10, 2011); Snide, 2011 WL
5434016, at *8. Consequently, the Court finds the Defendant’s objection unpersuasive.
IV. CONCLUSION
For the reasons set forth above, Plaintiffs’ motion for conditional certification is
GRANTED. The parties are hereby DIRECTED to confer and file a mutually acceptable notice
in accordance with this Court’s order within fourteen days of its entry.
IT IS SO ORDERED this 13th day of December 2016.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
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