KEITH P. ELLISON, District Judge.
Pending before the Court is Plaintiffs' Motion to Conditionally Certify Collective Action and to Approve and Facilitate Notice to Similarly Situated Employees (the "Certification Motion.") (Doc. No. 42.) Plaintiffs ask the Court to conditionally certify a nationwide class and allow for notice to be distributed to the potential opt-ins in the present lawsuit. Defendant asks the Court to deny the Certification Motion.
Plaintiffs brought this Fair Labor Standards Act ("FLSA") case as a putative class action on behalf of themselves and other employees of Defendant Stage Stores, Inc. or Specialty Retailers, Inc. d/b/a Peebles ("Defendant.")
Defendant argues that the Court should deny the Certification Motion. Defendant claims that nationwide certification is inappropriate because many issues would need to be individually determined, and the only company-wide policy applicable to Plaintiffs is an official policy which is legal. (Doc. No. 44 at 25.) Defendant supports its position by comparing the declarations and depositions of Plaintiffs with the deposition of current Store Manager Holly Watts and the declarations of eleven current Store Managers. (Doc. No. 80 at 7.)
Defendant also opposes notification of some potential class members on the basis that they may be bound to individually arbitrate their claim:;. (Doc. No. 44 at 17.) Defendant states that 16 members of the proposed putative class have arbitration agreements. Id. Plaintiffs do not challenge the validity of these arbitration agreements, but rather argue that arbitration concerns should not be addressed at this stage of litigation. (Doc. No. 51 at 8.)
The Fair Labor Standards Act allows employees to sue an employer for violations of the Act's overtime provisions. Suits to recover overtime pay "may be maintained against any employer . . . by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b).
To determine whether employees are "similarly situated" under§ 216(b), courts in the Fifth Circuit look to the two-step Lusardi approach. See e.g., Walker v. Hongua Am., LLC, 870 F.Supp.2d 462, 465 (S.D. Tex. 2012). At the first step of the Lusardi approach, courts must decide whether notice of the action should be given to potential class members. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). The court's decision at this stage is made using a "fairly lenient standard, [which] typically results in `conditional certification' of a representative class." Id. at 1214; see also Tolentino v. C & J Spec-Rent Servs. Inc., 716 F.Supp.2d 642, 647 (S.D. Tex. 2010) ("The remedial nature of the FLSA and § 216 militate strongly in favor of allowing cases to proceed collectively."). A plaintiff may proceed collectively only if the challenged conduct is a generally applicable rule, policy, or practice. McKnight v. D. Houston, Inc., 756 F.Supp.2d 794, 801 (S.D. Tex. 2010) (quoting England v. New Century Fin. Corp., 370 F.Supp.2d 504, 507 (M.D. La. 2005)). Therefore, conditional certification should be denied when the action arises from circumstances purely personal to the plaintiff. Id.
In order to obtain conditional certification, the plaintiff must make a "minimal showing" that: (1) there is a reasonable basis for crediting the assertions that aggrieved individuals exist, (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted. Aguirre v. SBC Commc's, Inc., No. H-05-3198, 2006 WL 964554, at *6 (S.D. Tex. April 11, 2006). With regard to the second factor, "the relevant inquiry is whether the potential class members performed the same basic tasks and were subject to the same pay practices." Tice v. AOC Senior Home Health Corp., 826 F.Supp.2d 990, 995-96 (E.D. Tex. 2011). In making this assessment, "the court need not find uniformity in each and every aspect of employment to determine that a class of employees is similarly situated." Jones v. SuperMedia Inc., 281 F.R.D. 282, 288 (N.D. Tex. 2012).
The Fifth Circuit has held that in a FLSA class action, where an employee has entered into a valid arbitration agreement, "it is error for a district court to order notice to be sent to that employee as part of any sort of certification." In re JP Morgan Chase & Co., 916 F.3d 494, 503 (5th Cir. 2019).
Defendant urges the Court to deny the Certification Motion, relying heavily on the disparities between the declarations and depositions submitted by Plaintiffs and those submitted by current Store Managers. However, while Defendant's declarations and Holly Watts' deposition paint a very different picture of Store Manager responsibilities from the evidence submitted by Plaintiffs, these statements are classic examples of "happy camper" declarations. To the extent that these declarations are probative, they speak to a merits-based defense that Defendant's compensation policy does not violate the FLSA. While Defendant's evidence contradicts the story told by the depositions of current Plaintiffs as to the duties of Store Managers, they do not show that the experiences of the Plaintiffs themselves varied so widely that their concerns are primarily personal or that the Court would be unable to manage a class.
Plaintiffs have met their burden in showing that aggrieved individuals exist and are similarly situated under the "lenient" Lusardi standard. Plaintiffs in this case have submitted declarations of five putative class members. These members worked at eight different stores across four states. When deposed by Plaintiffs, Defendant's Corporate Representative stated that store managers were considered exempt regardless of the duties they performed. Thus, there is no dispute that Plaintiffs were subject to a common policy that exempted them from overtime pay; rather, there is a dispute about whether this policy was a violation of the FLSA. The legality of Defendant's policy is a question better resolved once the parties have had the opportunity to conduct full discovery. The Court need not find total uniformity, and here it is clear that Plaintiffs were all subject to the same pay practice and job requirements.
However, the Court finds that, under Fifth Circuit precedent, Defendant is correct that notice to potential class members who have signed arbitration agreements with Defendant is inappropriate at this time. Notice should therefore be distributed only to individuals who are not subject to arbitration agreements.
For the reasons discussed above, the Court