Tyler v. Taco Bell of America, Inc. et al
Filing
89
ORDER denying 86 Motion for Revision of Interlocutory Order. Signed by Judge Jon Phipps McCalla on 6/3/2016. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DORIS TYLER, individually and
on behalf of all other persons
similarly situated,
Plaintiff,
v.
TACO BELL CORP., and TACO BELL
OF AMERICA, LLC,
Defendants.
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No. 2:15-cv-02084-JPM-cgc
Jury Demanded
ORDER DENYING PLAINTIFF’S MOTION FOR REVISION OF INTERLOCUTORY
ORDER
Before the Court is Plaintiff’s Motion for Revision of
Interlocutory Order, filed May 17, 2016.
(ECF No. 86.)
Defendants responded in opposition on May 25, 2016.
(ECF No.
88.)
For
the
following
reasons,
the
Court
DENIES
Plaintiff’s
Motion for Revision of Interlocutory Order.
I.
BACKGROUND
A.
Factual Background
This case involves allegations that Defendants
misclassified Assistant General Managers as “exempt” under the
Fair Labor Standards Act (“FLSA”) and did not pay them overtime
compensation.
(See Am. Compl., ECF No. 25.)
The Court’s May 3,
2016, Order granting in part and denying in part conditional
certification provides a comprehensive summary of the factual
background of this case.
B.
Procedural Background
Plaintiff filed her Complaint on February 4, 2015.
No. 1.)
(ECF
With leave of Court, Plaintiff filed an Amended
Complaint on May 15, 2015.
(ECF No. 25.)
Defendants filed
separate Answers to the Amended Complaint on May 29, 2015.
(ECF
Nos. 27, 28.)
On September 18, 2015, Plaintiff moved for conditional
class certification.
(ECF No. 41.)
opposition on October 19, 2015.
Defendants responded in
(ECF No. 52.)
a reply brief on November 2, 2015.
Plaintiff filed
(ECF No. 57.)
Defendants
filed a Notice of Supplemental Authority on December 28, 2015.
(ECF No. 70.)
Plaintiff filed a Notice of Supplemental
Authority on March 7, 2016.
(ECF No. 73.)
On March 8, 2016,
Defendants filed a Response to Plaintiff’s Notice of
Supplemental Authority.
(ECF No. 75.)
With leave of Court, on
March 11, 2016, Plaintiff filed a reply to Defendants’ Response.
(ECF No. 78.)
Plaintiff filed a second Notice of Supplemental
Authority on April 5, 2016.
on April 7, 2016.
(ECF No. 79.)
(ECF No. 80.)
Defendants responded
On May 3, 2016, the Court
granted in part Plaintiff’s motion for conditional certification
as to the two locations at which Plaintiff worked during the
2
relevant time period and denied in part Plaintiff’s motion as to
nationwide certification.
(ECF No. 81.)
On May 17, 2016, Plaintiff filed a motion for revision of
the interlocutory order, requesting that the Court grant
Plaintiff’s motion for conditional certification in its
entirety.
(ECF No. 86.)
May 25, 2016.
Defendants responded in opposition on
(ECF No. 88.)
The Court has stayed the issuance
of notice to potential class members pending resolution of the
instant motion.
II.
(Min. Entry, ECF No. 87.)
LEGAL STANDARD
A district court has the inherent power to reconsider,
rescind, or modify an interlocutory order before entry of a
final judgment.
Leelanau Wine Cellars, Ltd. v. Black & Red,
Inc., 118 F. App’x 942, 945-46 (6th Cir. 2004) (citing Mallory
v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)).
Pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure, “any
[interlocutory] order or other decision . . . may be revised at
any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.”
Fed. R.
Civ. P. 54(b); see also Rodriguez v. Tenn. Laborers Health &
Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004) (“District
courts have authority both under common law and Rule 54(b) to
reconsider interlocutory orders and to reopen any part of a case
before entry of final judgment.”).
3
“Traditionally, courts will
find justification for reconsidering interlocutory orders when
there is (1) an intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error or
prevent manifest injustice.”
Rodriguez, 89 F. App’x at 959.
Parties may not use a motion for revision to “repeat any oral or
written argument made by the movant in support of or in
opposition to the interlocutory order that the party seeks to
have revised.”
LR 7.3(c).
In this district, motions for revision of interlocutory
orders are governed by Local Rule 7.3, which provides that “any
party may move, pursuant to Fed. R. Civ. P. 54(b), for the
revision of any interlocutory order made by that Court on any
ground set forth in subsection (b) of this rule.
Motions to
reconsider interlocutory orders are not otherwise permitted.”
LR 7.3(a).
Reconsideration of an interlocutory order is only
appropriate when the movant specifically shows:
(1) a material difference in fact or law from that
which was presented to the Court before entry of the
interlocutory order for which revision is sought, and
that in the exercise of reasonable diligence the party
applying for revision did not know such fact or law at
the time of the interlocutory order; or (2) the
occurrence of new material facts or a change of law
occurring after the time of such order; or (3) a
manifest failure by the Court to consider material
facts or dispositive legal arguments that were
presented to the Court before such interlocutory
order.
LR 7.3(b).
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III. ANALYSIS
A.
Request for Revision
Plaintiff argues that “this Court’s denial of conditional
nationwide certification misapplied the appropriate law by
imposing a threshold legal requirement for conditionally
certifying a nationwide class that is contrary to FLSA
jurisprudence.”
(ECF No. 86 at 4.)
Defendants argue that
Plaintiff’s motion does not identify a ground for revision set
forth in Local Rule 7.3, and regardless, that Plaintiff is not
entitled to revision.
(ECF No. 88 at 4-14.)
As an initial matter, Defendants correctly observe that
Plaintiff does not demonstrate, or even identify, the existence
of any of the grounds for revision of an interlocutory order set
forth in Local Rule 7.3.
Plaintiff does argue that there is a
material difference in law or fact from that presented to the
Court before the Court entered its order on conditional
certification that Plaintiff was unaware of at that time.
Plaintiff also does not argue that there has been a change in
law or that new facts have arisen since the entry of the Court’s
order.
Additionally, although Plaintiff asserts that the Court
misapplied the legal standard for class certification, Plaintiff
does not identify material facts or legal theories that were
presented to the Court but that the Court failed to consider.
Accordingly, Plaintiff is not entitled to reconsideration of the
5
Court’s order granting in part and denying in part conditional
certification.
The Court, nevertheless, considers the arguments set forth
in Plaintiff’s motion.
As Plaintiff correctly observes, the
review at the conditional certification stage is “fairly
lenient,” White v. Baptist Mem’l Health Care Corp., 699 F.3d
869, 877 (6th Cir. 2012), and requires only a “modest factual
showing,” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th
Cir. 2006).
A plaintiff seeking class certification need only
establish a “colorable basis for their claim that the putative
class of similarly situated plaintiffs exist.”
Thompson v. RGT
Mgmt., Inc., No. 2:11-cv-02573-AJT-dkv, 2012 WL 3261059, at *3
(W.D. Tenn. June 8, 2012) (quoting Pritchard v. Dent Wizard
Int’l Corp., 210 F.R.D. 591, 596 (S.D Ohio 2002)).
“[W]here
some discovery has taken place, the court may require a proposed
class of plaintiffs to make a ‘modest plus’ factual showing that
they are similarly situated to the named plaintiffs.”
Creely v.
HCR ManorCare, Inc., 920 F. Supp. 2d 846, 851 (N.D. Ohio 2013).
Particularly where some discovery has taken place, a
plaintiff’s allegations alone cannot be enough to satisfy this
standard. 1
If it were, any plaintiff could obtain conditional
1
There is disagreement among lower courts in this Circuit as to the
factual showing that must be made by a plaintiff at this stage to show the
existence of other employees who are “similarly situated.” See, e.g., White
v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 368 (E.D. Tenn. 2006); Belcher v.
Shoney’s, Inc., 927 F. Supp. 249, 251 (M.D. Tenn. 1996).
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certification merely by making particular allegations in his or
her complaint, regardless of whether the allegations were based
in fact.
This would render the first stage of the certification
process a mere “rubberstamp” of the complaint and eliminate the
need for judicial review before issuing notice to potential
class members.
In the instant case, the Court imposed a low burden on
Plaintiff to show the existence of other employees who may be
similarly situated.
Plaintiff, however, has no personal
knowledge of the duties of any other assistant general manager
(“AGM”).
(See Tyler Dep. 19:4-8, 23:2-13, ECF No. 42-10.)
Taco
Bell’s corporate documents do not reflect that AGMs at any other
locations may have been similarly misclassified.
ECF Nos. 42-5, 42-7, 42-9.)
(See, e.g.,
Moreover, the declaration of AGM
Sara Smith is consistent with Taco Bell’s description of an
AGM’s duties and responsibilities.
42-11.)
(See Smith Decl., ECF No.
There is simply no evidence from which to find a
“colorable claim” that anyone other than Plaintiff may have been
misclassified as an exempt employee.
According to Daryel Jackson, the Area Coach for the Taco
Bell locations at which Tyler worked,
[o]ne of an AGM’s core duties is to “role model”
the proper way to perform tasks, so that employees
understand the Company’s standards. When AGMs are on
the floor assisting with food preparation or customer
service, they are not just performing the same
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functions as hourly employees. AGMs are expect to
actively observe, coach, and lead by example at all
times while on the floor, making sure that employees
are performing up to standards and correcting any
performance problems as they arise, to ensure a
quality product and satisfied customers.
(Jackson Decl. ¶ 13, ECF No. 52-2.)
Jackson’s statement is supported by Taco Bell’s corporate
documents.
For example, the Taco Bell document describing the
“Assistant Manager Role” provides that one of the duties of an
AGM is to “[e]ffectively role model the [Manager-in-Charge]
Success Routine and ensure responsibilities under People,
Customer and Service are completed.”
Foust Dep. 24:16-26:18, ECF No. 42-4.)
(ECF No. 42-5; see also
Taco Bell’s job posting
for the AGM position also provides that an AGM is responsible
for, inter alia, “ensuring compliance with company standards in
all areas of operation, including product preparation and
delivery.”
(ECF No. 42-7; see also Foust Dep. 26:19-29:19.)
Another corporate document explains that the scope of the AGM
position includes “[o]ccasionally perform[ing] hands-on
operational work to train employees, respond to customer service
needs, or otherwise role model appropriate skills and behaviors
in the restaurant.”
37:12.)
(ECF No. 42-9; see also Foust Dep. 35:13-
Even Tyler agreed that while performing a manual task
such as “expediting,” she could observe other employees on “the
line.”
(Tyler Dep. 194:8-25.)
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Thus, although Smith states that she “performed many of the
activities performed by hourly employees who did receive
overtime,” such as “bussing tables; cleaning the restaurant;
checking to make sure that supplies were properly shelved;
checking inventory; cashiering; cooking; working ‘on the line’;
and helping customers,” the performance of these tasks is not
inconsistent with Taco Bell’s description of an AGM.
Decl. ¶¶ 5-6, ECF No. 42-11.)
(See Smith
Smith does not indicate that
these tasks were her primary duties, that she was not able to
perform her managerial responsibilities as a result, or that she
was otherwise required to perform duties different from those
set forth in the Taco Bell policies.
Moreover, although Smith
identifies several tasks that she did not or could not perform
as an AGM, these particular tasks have no bearing on whether
Smith was properly classified as an exempt employee.
Smith
specifically states that she did not or could not decide what
menu items to sell, determine the store layout, decide the
prices for menu items, set store hours, establish the payroll
budget, set the rate of pay for employees or determine pay
raises for employees, establish the employee dress code, or
determine the types of supplies to order, the vendors to order
such supplies from, or the types of equipment used in preparing
food.
(Smith Decl. ¶¶ 7-14.)
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Whether an employee satisfies the “executive capacity”
exemption, however, involves consideration of a plaintiff’s
primary duties, whether the individual customarily and regularly
directs the work of two or more employees, and whether the
individual has authority to hire or fire employees or whether
his or her suggestions and recommendations as to the hiring,
firing, advancement, promotion, or other change of status of
employees are given particular weight.
29 C.F.R. § 541.100(a).
Smith’s declaration does not address any of these elements, and
as a result, the Court cannot infer that she may have been
misclassified as exempt under the FLSA.
Considering the facts that Tyler had no personal knowledge
of the duties and responsibilities of any other AGM, Taco Bell’s
corporate documents reflect that AGMs were properly classified
as non-exempt employees, and Smith’s declaration failed to state
any facts showing that she may have been misclassified, the
Court determined that there was no factual support to show a
colorable claim that any employee at a Taco Bell location other
than those where Plaintiff worked may have been misclassified as
an exempt employee.
Accordingly, the Court determined that
national conditional certification was not appropriate, despite
the “fairly lenient” standard and “modest factual showing”
requirement at this stage.
The Court finds no reason to revise
its earlier determination.
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B.
Plaintiff’s Request for Section 1292(b) Certification
Plaintiff also requests that, in the event that the Court
denies her motion for revision, the Court grant certification
under 28 U.S.C. § 1292(b) to the Court of Appeals for the Sixth
Circuit “of the question of what is the appropriate standard for
notice and conditional certification in a FLSA misclassification
case so that a more definitive standard can be determined.”
(ECF No. 86 at 6 n.3.)
Defendants argue that Plaintiff has not
satisfied the standard for certification because “there is no
‘difference of opinion’ as to the ‘appropriate standard’ in the
case.”
(ECF No. 88 at 15 (quoting 28 U.S.C. § 1292(b)).)
The
Court agrees with Defendants.
Under 28 U.S.C. § 1292(b), when, in making an order, a
district court finds that “there is substantial ground for
difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the
litigation,” the court may certify an interlocutory appeal of
that order.
28 U.S.C. § 1292(b).
There is no substantial ground for difference of opinion as
to the appropriate standard for notice and conditional
certification in a FLSA misclassification.
The Sixth Circuit
has explained that plaintiffs seeking conditional certification
are subject to a “modest factual showing.”
454 F.3d at 547.
See, e.g., Comer,
Although some district courts have not
11
required plaintiff’s to present additional factual support
beyond his or her own allegations at the conditional
certification stage, the Court finds that there is no
“substantial ground” for this difference of opinion.
The
requirement of a “modest factual showing” necessarily requires
some factual showing.
See id.
Axiomatically, allegations do
not meet the definition of a “showing.”
Because the standard is
“fairly lenient,” these cases “typically result[] in
‘conditional certification’ of a representative class.”
Id.
(quoting Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d
493, 497 (D.N.J. 2000)).
They do not, however, always result in
conditional certification, as they would if the allegations in
the complaint were sufficient without any additional factual
support.
As discussed above, this would render a district
court’s review at this stage wholly superfluous.
See supra p.
6-7.
Considering the Sixth Circuit’s explicit guidance as to the
standard for FLSA notice and conditional certification, there is
not a substantial ground for difference of opinion as to the
appropriate standard at this stage.
Accordingly, Plaintiff’s
request for certification of an interlocutory appeal of the
order granting in part and denying in part conditional
certification is denied.
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C.
Taco Bell’s Request for Costs and Fees
Defendants argue that because Plaintiff has failed to raise
a ground for revision under Local Rule 7.3(b), and because
Plaintiff merely repeats the arguments made in her original
motion in violation of Local Rule 7.3(c), they should be awarded
attorneys’ fees and expenses incurred to respond to Tyler’s
motion.
(ECF No. 88 at 14-15.)
Local Rule 7.3(c) provides that
[n]o motion for revision may repeat any oral or
written argument made by the movant in support of or
in opposition to the interlocutory order that the
party seeks to have revised. Any party or counsel who
violates
this
restriction
shall
be
subject
to
appropriate sanctions, including, but not limited to,
striking the filing.
LR 7.3(c).
Although this Rule does not explicitly provide for
attorney’s fees, a district court has the inherent power to
assess attorney’s fees in certain circumstances.
Chambers v.
NASCO, Inc., 501 U.S. 32, 44-45 (1991); First Bank of Marietta
and Hartford Underwriters Ins. Co., 307 F.3d 501, 510-16 (6th
Cir. 2002).
In the instant case, although Plaintiff failed to comply
with the Local Rules in identifying a ground for revision under
Local Rule 7.3(b) and did, in essence, repeat the arguments made
in her motion for conditional certification, it does not appear
that Plaintiff did so intentionally or in bad faith.
Moreover,
Local Rule 7.3(c) does not contemplate the assessment of
13
attorney’s fees as a sanction for non-egregious noncompliance
with the Rule.
Accordingly, the Court finds that it would be
inappropriate to award attorney’s fees and costs in relation to
the instant motion.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Revision
of Interlocutory Order is DENIED.
At the telephonic hearing on
May 20, 2016, the parties indicated that they had reached
agreement as to the language of the proposed notice.
The
parties are ORDERED to submit the revised proposed notice by
4:30 p.m. on Friday, June 10, 2016.
IT IS SO ORDERED, this 3rd day of June, 2016.
/s/ Jon P. McCalla
JON P. McCALLA
U.S. DISTRICT COURT JUDGE
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