WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Plaintiff Ayotunda Lovett's ("Plaintiff" or "Lovett") Motion for Reconsideration [143] of the Court's June 23, 2015, Order [142]. Also before the Court is Plaintiff's Motion to Supplement the Record on Conditional Certification [145] ("Motion to Supplement"), and Defendants' "Motion to Exclude or in the Alternative Motion to Strike the July 17, 2015, Declaration of Jonathan Rodriguez" [148] ("Motion to Exclude").
This was a putative collective action brought by Plaintiff against Defendants, who own and operate various Zaxby's fast-food restaurants in the Atlanta, Georgia, area. Plaintiff claims that Defendants misclassified its Assistant Managers, including Plaintiff, as "exempt" employees, and, as a result, failed to pay overtime compensation to Plaintiff for hours worked in excess of forty (40) hours per week, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201,
On April 3, 2014, Plaintiff filed her Complaint [1]. On September 11, 2014, Plaintiff filed her Motion for Conditional Class Certification [14]. Plaintiff requested that the Court conditionally certify the class as "all current or former `assistant managers' or former `managers' (not `General Manager') [sic] whom Defendants classified as exempt, over the past three years." (Pl's Reply [29] at 11).
On March 23, 2015, Magistrate Judge Anand issued his Report and Recommendation ("R&R"), recommending that the Court conditionally certify a class of all Assistant Managers who work or worked for Defendants during the last three (3) years. (March 23rd R&R [103]).
On March 27, 2015, Defendants filed their "Motion for Reconsideration of the Report and Recommendation on Motion for Conditional Class Certification, or, in the Alternative, Motion to Decertify Class" [107].
On April 28, 2015, the Magistrate Judge (i) denied Defendants' Motion for Reconsideration, and (ii) recommended that Defendants' Motion to Decertify be denied without prejudice. (April 28th R&R [118]).
On May 12, 2015, Defendants filed their Objections [128] to the March 23rd and April 28th R&Rs. Defendants argued that the Magistrate Judge erred in recommending that the Court conditionally certify a class of all Assistant Managers who work or worked for Defendants during the last three (3) years. Defendants argued further that, even if conditional certification was appropriate at the time Plaintiff filed her motion, the Magistrate Judge nevertheless should have granted Defendants' Motion to Decertify because discovery is now complete and Plaintiff is not similarly situated to the putative class members.
On June 23, 2015, the Court sustained Defendants' Objections to the Magistrate Judge's recommendation that Plaintiff be found similarly situated to other Assistant Managers and that a class of Assistant Managers be conditionally certified. The Court, having conducted a de novo review of the record, concluded that Plaintiff is not similarly situated to the class of current and former Assistant Managers whom she sought to represent. The Court found that, although Plaintiff, opt-in plaintiff Tishunda Norman ("Norman"), and the Current Assistant Managers share the same job title, are paid a salary, and, for at least some portion of their workday, perform non-managerial duties, these general statements, without more, are insufficient to support Plaintiff's assertion that she and the proposed class members are similarly situated. The evidence, rather, was that the job duties Assistant Managers actually perform, and the time spent performing managerial versus non-managerial duties, varied throughout the proposed class and, more persuasively, was different than the duties Plaintiff and Norman claim they performed. The Court found that, although Plaintiff and Norman may be similarly situated to each other, there is no evidence to support that they are similarly situated to the Current Assistant Managers. The Court denied Plaintiff's Motion for Conditional Certification, and denied as moot Defendants' Motion to Decertify.
On July 3, 2015, Plaintiff moved for reconsideration of the Court's June 23rd Order. Plaintiff argues that the Court erred in conducting a de novo review of whether Plaintiff is similarly situated to the class of current and former Assistant Managers she seeks to represent. Plaintiff argues further that, "[s]ince the Court's review should have been limited to assessing whether the Magistrate committed clear legal error when he concluded that Defendants' declarations had a low probative value, the Court's holding in this regard was in error and warrants reconsideration as well." ([143.1] at 3-4).
On July 28, 2015, Plaintiff filed her Motion to Supplement. Plaintiff requests that the Court, in deciding her Motion for Reconsideration, consider the July 16, 2015, Declaration of Jonathan Rodriguez ("Second Rodriguez Declaration") [145.1]. Rodriguez is one of the Current Assistant Managers whose July 1, 2014, declaration ("First Rodriguez Declaration") [20.1 at 64-67] was submitted by Defendants in opposition to conditional certification. Rodriguez now claims that "[t]here are a number of inaccurate statements included in [his First D]eclaration," that when he signed it, he "did not understand everything that was going on," and that he had "the firm impression that [he] had no choice but to sign the [First D]eclaration . . . whether [he] agreed with its contents or not." (Second Decl. ¶¶ 16-18). Plaintiff argues that, based on the Second Rodriquez Declaration, "the rest of Defendants' declarations are so inherently unreliable that they do not warrant the Court's consideration." (Mot. to Suppl. at 6).
On August 3, 2015, Defendants filed their Motion to Exclude the Second Rodriguez Declaration. Defendants also seek to recover their attorneys' fees and costs, under 28 U.S.C. § 1927, based on Plaintiff's counsel's conduct in obtaining the Second Rodriguez Declaration and filing the Motion to Supplement.
A district court has discretion to revise or reconsider interlocutory orders at any time before final judgment has been entered.
Plaintiff argues that reconsideration is necessary because the Court erred in conducting a de novo review of whether Plaintiff is similarly situated to the class of current and former Assistant Managers whom she sought to represent. In her Response to Defendants' Objections to the R&Rs, Plaintiff argued that, because the R&Rs consider non-dispositive motions, the Court "may only modify the holdings of the Magistrate Judge, to the extent that Defendants can demonstrate that the Magistrate's conclusions were `clearly erroneous' or `contrary to law.'" (Pl's Resp. [133] at 1-2, 5-7). In its June 23rd Order, the Court stated:
(June 23rd Order at 22 n.6).
In her Motion for Reconsideration, Plaintiff again argues that, because her Motion for Conditional Certification was a non-dispositive, pre-trial issue, the Court was required to review Magistrate Judge Anand's R&Rs under the "clearly erroneous or contrary to law" standard. This argument was considered, and rejected, in the Court's June 23rd Order, and it is not a proper basis for reconsideration.
Even if it was a proper basis for reconsideration, Plaintiff, for the second time, fails to provide any authority to support that the Court was required to conduct only a plain error review. That it may have been within his authority to decide Plaintiff's Motion for Conditional Certification does not change that, in this case, Magistrate Judge Anand chose to issue an R&R rather than an order, and thus the Court was required to conduct a de novo review of Defendants' objections to the R&R.
Plaintiff's argument that the Court is precluded from exercising its discretion to conduct a de novo review of a matter referred to a magistrate judge is simply illogical. In
H.R. Report No. 1609, 94th Cong., 2nd Sess. 9-11 (emphasis added);
Plaintiff next requests, under the guise of a "Motion to Supplement the Record on Conditional Certification," that the Court reconsider its June 23rd Order in view of the "newly discovered" Second Rodriguez Declaration.
Even if the Second Rodriguez Declaration could be considered "newly discovered" evidence, a close reading of the First and Second Rodriguez Declarations shows that they are not inconsistent in any manner material to the Court's findings and conclusions in its June 23rd Order. In its June 23rd Order, the Court considered the Current Assistant Managers' declarations and found that the job duties they actually perform, and the time spent performing managerial versus non-managerial duties, at least vary throughout the proposed class and, more importantly, are different from the duties Plaintiff and Norman claim they performed. In their declarations, Plaintiff and Norman assert that their "primary duties" were to prepare and cook the food, serve customers, and keep the restaurant clean, and that they were not authorized to hire or fire employees. They state further that the duties they performed were governed by the policies and procedures contained in Defendants' manuals, and that they lacked discretion to vary from these policies and procedures. (
The Current Assistant Managers' declarations showed that, while Assistant Managers perform Crew Member tasks such as cooking, serving customers and cleaning, they do so in their own discretion, for varying lengths of time, as means of managing, training and directing Crew Members, or when the restaurant is experiencing high volume or to ensure Crew members are performing their duties in accordance with the Restaurant's policies and procedures. They also issue disciplinary warnings, make hiring and firing recommendations, and use their experience, judgment and discretion to create and manage Crew Members' schedules, and assign and direct Crew Members in performance of their duties. (
Based on these declarations, the Court found that Plaintiff, Norman, and the Current Assistant Managers share the same job title, are paid a salary, and, for at least some portion of their workday, perform non-managerial duties such as cooking, cleaning, and serving customers. The Court concluded, however, that the job duties Assistant Managers actually perform, and the time spent performing managerial versus non-managerial duties, at least vary throughout the proposed class and, more persuasively, are different than the duties Plaintiff and Norman claim they performed, including because the Current Assistant Managers exercise significant discretion in determining Crew Members' work schedules, assigning Crew Members to specific workstations, and deciding when they themselves need to perform Crew Member duties as part of their broader managerial responsibilities. The Court concluded:
(
In his Second Declaration, Rodriguez now claims, over a year later,
In his First Declaration, Rodriguez also states that his "duties primarily concern running the daily operations of [the] store," that he "give[s] Crew Members direction throughout [his] shifts," and that he "enjoy[s] discretion in placing Crew Members at the posts where [he] believe[s] they should be placed." (First Decl. ¶ 3). In his Second Declaration, Rodriguez now claims that he is "partly responsible for making sure that the customers are satisfied with their food and service," but his "primary duties are to cook and serve the food and to make sure that the restaurant is clean." (Second Decl. ¶ 19) Rodriguez also states that, although he performs some administrative tasks, they take less than an hour to complete. (
The First and Second Rodriguez Declaration support that the tasks Assistant Managers perform, and time spent doing so, vary from store to store, and from Assistant Manager to Assistant Manager. Simply put, nothing in the Second Rodriguez Declaration impacts the Court's finding that "although Plaintiff and Norman may be similarly situated to each other, there is no evidence to support that they are similarly situated to the Current Assistant Managers." (June 23rd Order at 37). The Second Rodriguez Declaration does not provide a basis for the Court to reconsider its June 23rd Order. Plaintiff's Motion to Supplement, and her Motion for Reconsideration, are denied.
Having denied Plaintiff's Motion to Reconsideration and Motion to Supplement, the Court does not reach the merits of Defendants' argument that the Second Rodriguez Declaration is a sham affidavit, and Defendants' "Motion to Exclude the Second Rodriguez Declaration is denied as moot.
In their Motion to Exclude, Defendants also seek an award of attorneys' fees and costs, under 28 U.S.C. § 1927, against Plaintiff's counsel for filing the Motion to Supplement. 28 U.S.C. § 1927 authorizes an award of "excess costs, expenses and attorneys' fees reasonably incurred because of" conduct that "so multiplies the proceedings in any case unreasonably and vexatiously." 28 U.S.C. § 1927. "[A]n attorney multiples proceedings unreasonably and vexatiously within the meaning of [§ 1927] only when the attorney's conduct is so egregious that it is tantamount to bad faith."
Here, Plaintiff's counsel failed to interview Rodriguez during the discovery period and did not show why they waited until July 17, 2015, to obtain the Second Rodriguez Declaration. It is troubling that, more than three (3) weeks after the Court issued its June 23rd Order, Plaintiff's counsel procured the Second Rodriguez Declaration, solely in the hope that it would cast doubt on the other twelve (12) declarations and cause the Court to reconsider its denial of conditional certification.
For the foregoing reasons,
(
(Second Decl. ¶ 23) (emphasis added). That Rodriguez does not have authority to hire employees at the College Park Restaurant is consistent with another Current Assistant Manager's statement that she did not have authority to hire employees at the College Park Restaurant. (
(June 23rd Order at 30 n.10). That the Court declined to conditionally certify this as a collective action does not affect the ability of an employee to prosecute, in their own name, claimed FLSA violations. Plaintiff's counsel's argument that, because one of the thirteen (13) Current Assistant Managers now claims that his First Declaration contains "inaccurate statements" and he felt "pressured" to sign it, "the rest of Defendant's declarations are so inherently unreliable" that the Court should disregard them and grant conditional certification, shows counsel's myopic view of this litigation and supports that their focus consistently has been expanding this case into a collective action, rather than prosecuting Plaintiff's relatively straightforward claims.
