JOHN MICHAEL VAZQUEZ, District Judge.
This matter comes before the Court on the Motion for Notice Pursuant to Section 16(b) of the Fair Labor Standards Act ("FLSA") filed by named Plaintiffs Angela R. Essex and Gabriela Maradiaga, and eight "opt-in" Plaintiffs (collectively "Plaintiffs"). Plaintiffs, former store managers ("SMs") at Defendant The Children's Place, Inc. ("Children's Place" or "Defendant"), request the Court to conditionally certify and provide notice to a class of SMs who were allegedly misclassified as exempt employees and not paid overtime wages as required by the FLSA. D.E. 63. Defendant filed a brief in opposition to Plaintiffs' motion (D.E. 65) to which Plaintiffs' replied (D.E. 70). The Court reviewed all submissions made in support and in opposition to the motion, and considered the motion without oral argument pursuant to L. Civ. R. 78.1(b). For the reasons stated below, Plaintiffs' motion for notice is
The named Plaintiffs filed their complaint on July 17, 2015, alleging that they were misclassified as exempt under the FLSA, and therefore, are entitled to unpaid overtime wages.
On November 30, 2015, Judge Falk entered a scheduling order that provided for two phases of discovery — the first of which was focused on "whether Plaintiffs' FLSA claims can be conditionally certified as a collective action for notice purpose." D.E. 46. Pursuant to this Order, the parties engaged in limited discovery, which included two Federal Rule of Civil Procedure 30(b)(6) depositions of Children's Place representatives, the depositions of both named Plaintiffs and three opt-in Plaintiffs, and the exchange of more than 12,000 pages of documents. Plfs' Br. at 2 (D.E. 63-2), DePs Br. at 4 (D.E. 65). After the completion of phase one discovery, Plaintiffs filed this motion arguing that a class should be conditionally certified because they meet "their lenient burden to demonstrate a modest factual showing that Children's Place SMs are similarly situated." Plfs' Br. at 1 (internal quotation marks omitted). Plaintiffs argue that notice should be sent to all SMs who worked at Children's Place within the last three years (except for SMs in California) and that Children's Place should be ordered to provide a list with the names and contact information for all eligible employees to facilitate notice. Id. at 16-20. Children's Place argues that there is not enough evidence to establish that Plaintiffs are similarly situated, and maintains that SMs "satisf[y] the executive exemption to the FLSA's overtime requirement, as set forth in 29 U.S.C. § 213(a)." Def's Br. at 4, 26.
Plaintiffs were SMs at Children's Place stores in Colorado, Illinois, Maryland, Missouri, New Jersey, New York, and Texas. See Deposition of Gabriela Maradiaga ("Maradiaga Dep.") 27:10-13 Deposition of Angela Essex ("Essex Dep.") 29:20-25, 31:24-32:2, Deposition of Karen Vance ("Vance Dep.") 9:25-10:3; Deposition of Rachel Joseph ("Joseph Dep.") 25:2-24; Deposition of Tammy Brooks ("Brooks Dep.") 109:2-12; Declaration of John Estrada ("Estrada Decl.") ¶ 2; Declaration of Tinda Kilo ("Kilo Decl.") ¶ 2; Declaration of Tiffany Murabito ("Murabito Decl.") ¶ 2; Declaration of Jessica Shelby ("Shelby Decl.") ¶ 2; Declaration of Rafael Vasquez ("Vasquez Decl.") ¶ 2.
Plaintiffs testified that they consistently worked more than forty hours a week. Maradiaga Dep. 216:17-19 (worked an average 50 to 55 hours per week); Essex Dep. 33:19-24 (worked 60 to 70 hours per week); Vance Dep. 235:10-14 (worked an average of 55 to 60 hours per week); Joseph Dep. 23:15-24 (worked 50 to 60 hours per week). Plaintiffs also testified that for a majority of the hours worked, they did not perform managerial tasks. Maradiaga Dep. 235:22-237:10 (ninety percent of day was spent on non-managerial tasks); Essex Dep. 261:9-263:2 (ninety-five to ninety-eight percent of work was on non-managerial tasks); Vance Dep. 235:15-237:18 (ninetyfive percent of time was devoted to non-managerial tasks); Joseph Dep. 118:2-8, 121:22-122:1 (majority of day was spent performing same non-managerial tasks as associates); Brooks Dep. 196:10-197:23 (eighty-five percent of time was devoted to non-managerial tasks). Plaintiffs testified that they performed the same non-managerial tasks as salaried employees, which included operating the cash register, cleaning, unpacking and moving merchandise onto the sales floor, and folding clothes.
The FLSA requires employers to pay overtime compensation for an employee's work that is in excess of forty hours per week. 29 U.S.C. § 207(a). Employees who work in a bona fide executive capacity, however, are exempt from FLSA overtime requirements. 29 U.S.C. § 213(a)(1). To qualify under the executive exemption, an employee must satisfy the criteria set forth in 29 C.F.R. § 541.100, which requires that (1) the employee receive compensation on a salary basis, (2) her primary duty is management of a recognized department, (3) she customarily and regularly directs the work of two or more employees, and (4) she has authority to hire or fire employees. 29 C.F.R. § 541.100. An employee's primary duty is "the principal, main, major or most important duty that the employee performs." 29 C.F.R. § 541.700(a).
The FLSA provides employees with a private right of action to bring a collective suit against an employer to recover unpaid wages. Pursuant to 29 U.S.C. § 216(b), an employee and additional "similarly situated" employees can file a collective action suit against an employer to recover unpaid overtime compensation required by Section 207.
The Third Circuit follows a two-step process for deciding whether a case may proceed as an FLSA collective action. Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013). In the first step, a court must determine whether plaintiffs make "`a modest factual showing' that the employees identified in their complaint are `similarly situated.'" Id. (quoting Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 536 & n.4 (3d Cir. 2012)). If plaintiffs satisfy this burden, "the court will `conditionally certify' the collective action for the purpose of facilitating notice to potential opt-in plaintiffs and conducting pre-trial discovery." Maddy v. Gen. Elec. Co., 59 F.Supp.3d 675, 681 (D.N.J. 2014) (quoting Zavala, 691 F.3d at 536). A court usually considers conditional certification after the parties have engaged in limited discovery. See, e.g., Goodman v. Burlington Coat Factoly, No. 11-4395, 2012 WL 5944000, at *1-2 (D.N.J. Nov. 20, 2012).
The term conditional certification is actually a misnomer. Conditional certification of an FLSA matter does not produce a class with independent legal status and is not necessary "for the existence of a representative action under the FLSA." symczyk I, 656 F.3d at 194. Rather, "[t]he sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." Symcyk II, 133 S. Ct. at 1530 (internal quotations omitted).
There is no express provision in the FLSA pertaining to court-facilitated notice to potential opt-in plaintiffs. In Hoffman-La Roche Inc. v. Sperling, the Supreme Court concluded that district courts have discretion, in appropriate Section 216(b) cases, to authorize and facilitate notice to potential class members. 493 U.S. 165, 171 (1989).
For the second step, which usually occurs after the close of full discovery, courts apply a "stricter standard" to determine whether the plaintiffs are, in fact, similarly situated. Zavala, 691 F.3d at 535-36. To make this determination, courts "consider[] all the relevant factors and make[] a determination on a case-by-case basis." Id. at 536. While case specific, the relevant factors may include whether employees have the same job description, are subject to the same compensation plan, received the same training, or whether they advance similar claims and seek substantially the same form of relief. Id. at 536-37. Plaintiffs have the burden of proof. Therefore, Plaintiffs must establish by a preponderance of the evidence that they are similarly situated. Id. at 537. In addition, just because a class was conditionally certified at the first step does not mean that the class will also be certified at the second step. See, e.g., Adand v. Cardo Windows, Inc., No. 12-2804, 2016 WL 1241798, at *5-11 (D.N.J. Mar. 30, 2016) (decertifying class at second step because plaintiff failed to establish that he was similarly situated to other employees). If plaintiffs satisfy their burden at the second step, "the case may proceed to trial as a collective action." Symczyk I, 656 F.3d at 193.
Under the first step as set forth by the Third Circuit, Plaintiffs here seek to conditionally certify a class of SMs employed by the Children's Place within the last three years. During the first step, courts apply "a fairly lenient standard" to determine whether the employees are "similarly situated." Maddy, 59 F. Supp. 3d at 681. It is sufficient if Plaintiffs establish that they "bring the same claims and seek the same form of relief." Id. Plaintiffs are not required to show that their positions are identical to the position of other potential class members. Rather, as noted, Plaintiffs must "produce some evidence, beyond pure speculation, of a factual nexus between the manner in which the employer's alleged policy affected them and the manner in which it affected other employees." Id. (internal bracket omitted) (quoting Symc:.-yk I, 656 F.3d at 193). In considering whether to conditionally certify a class, courts should consider "all relevant factors and make a factual determination on a case-by-case basis." Id. Courts, however, should not assess the merits of either a plaintiff's claims or a defendant's defenses during the conditional certification stage. See Goodman, 2012 WL 5944000, at *5-6.
Goodman v. Burlington Coat Factory is an illustrative case of the stage one, conditional certification analysis. Much like this matter, Goodman involved the conditional certification of a national class of assistant store managers ("ASMs") at Burlington Coat Factory, a retail department store chain. Plaintiffs in Goodman alleged that despite their managerial job title and description, they largely performed non-managerial tasks. Id. at * 1. Plaintiffs also alleged that they worked more than forty hours a week but did not receive overtime compensation because they were misclassified as exempt from FLSA overtime requirements. Id. After considering the relevant evidence, the court determined that plaintiffs "made a modest factual showing of a factual nexus between the manner in which Burlington's alleged policy affected him and the manner in which it affected other Burlington ASMs." Id. at *5. The Goodman court determined that ASMs were subject to the same job description, training, regulations, and compensation, and that plaintiffs produced enough evidence at the conditional certification stage to establish that similarly situated employees existed. Id. (quoting Zavala, 691 F.3d at 536 n.4). Because it was only the first step, the court did not evaluate the merits of plaintiffs' claim that Burlington Coat Factory misclassified ASMs as exempt. Moreover, the court in Goodman refused to consider thirty-eight declarations submitted by Burlington Coat Factory "to show individual differences among the ASMs' actual duties" because "this inquiry necessarily addresses the merits of Plaintiffs' claim." Id. at *5-6.
In this instance, the Court concludes that Plaintiffs have made "a modest factual showing of a factual nexus" between Defendant's alleged misclassification of their status as exempt and the manner in which it affected other SMs. See Goodman, 2012 WL 5944000, at *5. Plaintiffs establish that SMs nationwide are subject to a uniform job description and must adhere to SOPs and corporate policies, many of which direct them how to perform non-managerial tasks.
Of note, Plaintiffs also argue that the corporate policies alone are sufficient to establish that they are similarly situated and the evidence establishing that they performed similar nonmanagerial duties is not relevant. Plfs' Reply at 5 (D.E. 70) ("Children's Place actually acknowledges that the relevant standards are met when it admits that all store managers are exempt, receive a salary, have the same job description, are classified as exempt, and are expected to follow the same lawful policies and procedures.") (internal quotations omitted). The Court disagrees. If Plaintiffs' argument was correct, a nationwide policy that on its face does not violate the FLSA, coupled with allegations of a sole plaintiff, would be sufficient to show that other employees are sufficiently situated as to the improper conduct. The Court agrees with other District Courts who have rejected this argument. See, e.g., Harriel v. Wal-Mart Stores, Inc., No. 11-2510, 2012 WL 2878078, at *5 (D.N.J. July 13, 2012) (refusing to conditionally certify class where plaintiff" offers not a scintilla of evidence beyond his own unsubstantiated allegations that the [] position included only minimal managerial tasks"); Jenkins v. TJX Cos, Inc., 853 F.Supp.2d 317, 323 (E.D.N.Y. 2012) ("[T]he mere classification of a group of employees—even a large or nationwide group— as exempt under the FLSA is not by itself sufficient to constitute the necessary evidence of a common policy, plan, or practice that renders all putative class members as `similarly situated' for § 216(b) purposes."). Here, the SM job description is facially valid under the FLSA because it addresses solely managerial duties. This is not sufficient evidence, standing alone, to demonstrate that Plaintiffs were similarly situated, although it may be considered in the similarly situated analysis. However, here, evidence from SMs in seven states regarding the type and amount of non-managerial duties that they performed permits the Court to conclude that Plaintiffs have met their modest burden. The SOPs, which Defendant admits apply to SMs, likewise bolsters Plaintiffs argument that they largely performed non-managerial tasks. Cf. Guillen v. Marshalls of MA, Inc., 750 F.Supp.2d 469, 476 (S.D.N.Y. 2010).
Children's Place argues that a class should not be conditionally certified because Plaintiffs have not meet their modest burden of establishing that they are similarly situated. The cases cited by Defendant to support its argument, however, are readily distinguishable or inapposite. See Defs Br. at 26-35. The courts refused to conditionally certify classes in Jenkins, 853 F. Supp. 2d at 324-25, Moore v. PNC Bank, N.A., No. 12-1135, 2013 WL 2338251, at *6 (W.D. Pa. May 29, 2013), and Harriet, 2012 WL 2878078, at *5 because each case was brought by a single plaintiff who provided no corroborating testimony from any allegedly similarly situated employee. Here, the evidence establishes that SMs from seven different states performed similar non-managerial duties for a majority of the time they spent working, worked more than forty hours per week, and did not receive overtime compensation. See supra Section IL Courts frequently conclude that plaintiffs meet their modest factual burden and conditionally certify classes based on evidence similar to that provided by Plaintiffs here. See, e.g., Goodman, 2012 WL 5944000, at *3 (concluding that plaintiff "produced the modest evidence required to show a factual nexus" by providing job descriptions, several uniform corporate policies and procedures, and deposition testimony from a Rule 30(b)(6) witness, a former district manager, and the named and two opt-in plaintiffs) (internal quotation marks omitted); Stillman, 2008 WL 1843998, at *4 & n.1 (concluding that "plaintiff has presented sufficient evidence ... to show that he is similarly situated to other employees who held or hold the job title Sales Managers while employed at Staples" based on documents, deposition testimony from two Rule 30(b)(6) witnesses and deposition testimony andlor declarations from eleven opt-in plaintiffs who worked at different locations nationwide).
Further, in Guillen v. Marshal's of MA, Inc., the court refused to conditionally certify a national class of assistant store managers because the evidence only consisted of deposition testimony and affidavits from employees in the metropolitan New York area. See 841 F.Supp.2d 797, 800 (S.D.N.Y. 2012); 750 F.Supp.2d 469, 477 (S.D.N.Y. 2010). In contrast, Plaintiffs here worked at stores in seven different states. See supra Section II. This is more than sufficient to conditionally certify a national class of SMs. See, e.g., Puglisi v. TD Bank, N.A., 998 F.Supp.2d 95, 98, 100 (E.D.N.Y. 2014) (certifying national class based on affidavits from thirteen assistant store managers "who worked in various branches throughout seven states"); Pippins v. KPMG LLP, No. 11-377, 2012 WL 19379, at *9 (S.D.N.Y. Jan. 3, 2012) (conditionally certifying class of audit associates based on declarations from opts-ins located in six different states). In fact, courts have certified national classes based on allegations and deposition testimony from a single plaintiff. Ferreira v. Modell's Sporting Goods, Inc., No. 11-2395, 2012 WL 2952922, at *3 (S.D.N.Y. July 16, 2012) (conditionally certifying class of assistant store managers in part based on testimony from plaintiff regarding violations at the seven stores where he worked).
Plaintiffs argue that if the Court grants their motion, to facilitate notice, it should order Children's Place to produce a list of all individuals employed as SMs within the last three years. Plaintiffs also request that the Court order Children's Place to provide contact information, dates of employment, locations of employment, and social security numbers for these SMs. Plfs' Br. at 20. In FLSA collective action cases, courts routinely order employers to produce a list of potential class members to plaintiffs. See, e.g., Pearsall-Dineen v. Freedom Mortg. Corp., 27 F.Supp.3d 567, 574 (D.N.J. 2014); Stillman, 2008 WL 1843998, at *6. Consequently, the Court will grant Plaintiffs' request for a list of all SMs employed by Children's Place within the last three years. Children's Place is required to provide a list of all SMs (excluding those employed in California), date(s) and location(s) of employment, and last known contact information, including all known telephone number(s) and email address(es). To the extent the information exists in an electronic format, it should be provided in such a format. Defendant does not have to produce social security numbers.
Although Plaintiffs provided a proposed form of notice and consent form (Lesser Decl. Ex. Y), Children's Place did not address the proposed notice. Therefore, the parties are also required to meet and confer regarding the proposed notice and consent form, and submit the proposed notice, with any objections, to the Court for review and approval within thirty days.
For the foregoing reasons, Plaintiffs' motion for notice pursuant to Section 16(b) of the Fair Labor Standards Act is granted. In addition, within thirty days, Defendant shall provide a list of all SMs (excluding those employed in California) who worked at Children's Place within three years from the date of this order, their date(s) and location(s) of employment and their last known contact information, including all telephone number(s) and email address(es). Last, the parties are ordered to meet and confer regarding the proposed notice and consent form, and must submit the proposed notice to the Court for review and approval within thirty days. An appropriate form of order accompanies this opinion.
