Crosby v. Stage Stores, Inc.

348 F.Supp.3d 742

Maya CROSBY and Deneen Patton, on Behalf of Themselves and All Those Similarly Situated, Plaintiffs,

v.STAGE STORES, INC., Defendant.

NO. 3:18-cv-00503

United States District Court, M.D. Tennessee, Nashville Division.

Filed December 5, 2018

Charles P. Yezbak, III, Yezbak Law Offices, Nashville, TN, Deirdre Anne Aaron, Elizabeth Stork, Molly Brooks, Outten & Golden LLP, New York, NY, Laura Iris Mattes, Outten & Golden LLP, San Francisco, CA, for Plaintiffs.

John H. Lassetter, Lyndsey M. Marcelino, Littler Mendelson, P.C., Minneapolis, MN, Roger D. Scruggs, Littler Mendelson, P.C., Nashville, TN, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Pending before the Court in this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. , is Plaintiffs' Motion For Court-Authorized Notice Pursuant to Section 216(b) of the FLSA. (Doc. No. 30.) Defendant Stage Stores, Inc. ("Stage") has responded in opposition (Doc. No. 42), to which Plaintiffs have replied (Doc. No. 45). For the reasons below, Plaintiffs' motion for conditional certification will be granted.

I. Factual Background

The two named plaintiffs, Maya Crosby and Deneen Patton ("Named Plaintiffs"), are former employees of Stage. (Doc. No. 1 at 1-2.) Stage is a retail clothing company that operates approximately 800 stores in 42 states under various brand names such as Stage, Peebles, Goody's, Bealls, and Palais Royal. (Id. ) In order to operate its stores, Stage employs a variety of hourly, non-exempt employees, including Sales Associates, Visual Associates, eCommerce Fulfillment Associates, Custodian Freight Associates, Counter Managers, Cosmetic Sales Managers, Beauty Advisors, and Assistant Store Managers ("Hourly Workers"). (Id. ) These Hourly Workers share similar job duties, including assisting customers, completing purchases, cleaning stores, organizing displays, and unloading merchandise. (Id. ) Named Plaintiffs, who were employed as Hourly Workers at Stage, first allege that Stage engaged in a practice of "time-shaving" whereby Hourly Workers who worked in excess of 40 hours a week (1) had their time logs altered to reflect that no excess hours were worked; or (2) were instructed not to record their excess hours. (Id. at 2.) Further, Named Plaintiffs allege that they were routinely required to perform "off the clock" work before, during, or after their scheduled shifts. (Id. at 6.) Accordingly, in the instant suit, Named Plaintiffs seek to represent a class consisting of:

All persons who at any time from May 30, 2015 through the date of final judgment in this matter have worked as hourly, non-exempt employees whose titles included without limitation Sales Associates, Visual Associates, eCommerce Fulfillment Associates, Custodian Freight Associates, Counter Managers, Cosmetic Sales Managers, Beauty Advisors, and Assistant Store Managers (collectively "Hourly Workers") in Defendant's United States locations that operate under the brand names Stage, Peebles, Goody's, Bealls, and Palais Royal.

(Doc. No. 30 at 1-2.)

On September 12, 2018, Named Plaintiffs filed the instant motion for conditional class certification. (Id. ) In support of the motion, Named Plaintiffs each filed their own declaration, and they also filed "representative" declarations from ten other Hourly Workers employed by Stage at 8 different store locations in 5 different states. (See Doc. Nos. 32-12, 32-13, 32-14, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22, 32-23.) Plaintiffs ask the Court to: (1) conditionally certify the proposed collective; (2) order Stage to produce a computer-readable data file containing the names, last known mailing addresses, last known telephone numbers, last known personal and work email addresses, social security numbers, and work locations for all FLSA collective members; (3) provide an opt-in notice to the FLSA collective members currently employed by Stage in their pay envelopes; and (4) approve the proposed notice distribution process. (Doc. No. 31 at 31.)

II. Conditional Certification of Plaintiffs' Claims

A. FLSA Certification Standard

The FLSA generally requires that employers pay employees specified hourly rates for up to 40 hours per week, and pay overtime compensation at one and one half times the regular rate for hours worked in excess of 40 hours in a week. 29 U.S.C. § 207. To enforce this provision, an aggrieved employee may bring a collective action on his own behalf, and on behalf of all those who are similarly situated and who opt in by giving consent in writing to become a party. 29 U.S.C. § 216(b).

Lead plaintiffs bear the burden of showing that opt-in plaintiffs are similarly situated. Frye v. Baptist Mem'l Hosp., Inc., 495 F. App'x 669, 671 (6th Cir. 2012). The FLSA does not define the term "similarly situated." The Sixth Circuit has noted that courts have considered the " ‘factual and employment settings of the individual[ ] plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, [and] the degree of fairness and procedural impact of certifying the action as a collective action.’ " O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds, Campbell-Ewald Co. v. Gomez, ––– U.S. ––––, 136 S.Ct. 663, 670, 193 L.Ed.2d 571 (2016). "[I]t is clear 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." Id. at 585. But employees may also be similarly situated if their claims are merely "unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct." Id. Indeed, "[s]howing a ‘unified policy’ of violations is not required [for certification]." Id. at 584. For example, in O'Brien, the Sixth Circuit stated that even a requirement that employees' "causes of action under the FLSA accrued at about the time and place in the approximate manner of the named plaintiff" would be "more demanding than what the [FLSA] requires." Id. at 585.

Where, as here, the request is made early in the case and prior to significant discovery, the standard is "fairly lenient," and requires only "a modest factual showing" that "typically results in conditional certification of a representative class." Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir. 2006) (quoting Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 594 (S.D. Ohio 2002) ; Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 497 (D. N.J. 2000) ). In meeting this burden, substantial allegations supported by declarations are "all that is required." White v. MPW Indus. Servs., Inc., 236 F.R.D. 363, 373 (E.D. Tenn. 2006). At this first stage of conditional certification, the court "does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations." Roberts v. Corr. Corp. of Am., No. 3:14-cv-2009, 2015 WL 3905088, at *10 (M.D. Tenn. Jun. 25, 2015) (citing Brasfield v. Source Broadband Servs., LLC, 257 F.R.D. 641, 642 (W.D. Tenn. 2009) ). If the named plaintiffs show that employees in the proposed class are similarly situated, "[t]he district court may use its discretion to authorize notification of similarly situated employees to allow them to opt into the lawsuit." Comer, 454 F.3d at 546. "At the second stage, following discovery, trial courts examine more closely the question of whether particular members of the class are, in fact, similarly situated" because "the court has much more information on which to base its decision and, as a result, [it] employs a stricter standard." Id. (quoting Morisky, 111 F.Supp.2d at 497 ).

B. Plaintiffs' Declarations

In support of the motion for conditional certification, Plaintiffs have submitted twelve total declarations from themselves and other former Stage Hourly Workers, each stating that they were forced to perform "off-the-clock" work without being compensated, whether by performing work before clocking in, after clocking out, during breaks, or having their hourly logs manipulated through time-shaving. (See Doc. Nos. 31 at 15, 32-12, 32-13, 32-14, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22, 32-23.) In Named Plaintiffs' two supporting declarations, they aver that Hourly Workers were not compensated for all work performed. (Doc. Nos. 32-12, 32-13.) The Named Plaintiffs' declarations both contain similar factual allegations—namely, that they routinely performed "off-the-clock" work. (Id. ) For example, Maya Crosby states that, while employed as an Hourly Worker, she was often required to perform work before she clocked in and after she clocked out, for which she was not paid. (Doc. No. 32-12 at 5-6.) Crosby further declares that her manager would go into the time system and change her hourly log to reflect that she did not work over 40 hours in a given week, even when she worked far in excess of 40 hours (i.e., shaving her time). (Id. at 6.)

Named Plaintiff Deneen Patton's declaration contains substantially similar statements. (See Doc. No. 37-13 at 4-6.) Patton explains that she would typically arrive one hour before the start of her opening shift and begin working upon arrival, but, at her manager's direction, she would not clock in for her shift until her scheduled start time. (Id. at 4.) Further, because Patton's managers told her she was not allowed to enter overtime hours, she entered hours corresponding to her scheduled shift, even though they did not accurately reflect the excess hours she worked. (Id. at 5.) Named Plaintiffs also offer ten other declarations from former Hourly Workers, stating that they too were subjected to "off-the-clock" work or time-shaving. (See Doc. Nos. 32-14, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22, 32-23.)

In response, Stage argues that Named...