Smith v. United States

Lisa Brevard, The Markham Law Firm, San Diego California. With her on the briefs are David R. Markham and Maggie Realin, The Markham Law Firm, San Diego California; Walt Pennington, Pennington Law Firm, San Diego, California; Stephen B. Morris, The Law Offices of Stephen B. Morris, San Diego, California.

Rafique O. Anderson, United States Department of Justice, Civil Division, Washington, D.C. for Defendant. With him on the briefs are Brian M. Boynton, Acting Assistant Attorney General, Civil Division; Martin A. Hockey, Jr., Acting Director, Commercial Litigation; Reginald T. Blades, Jr., Assistant Director, Commercial Litigation, Washington, D.C.

MEMORANDUM AND ORDER

ELENI M. ROUMEL Judge

Plaintiff Petrina Smith worked as an Assistant Canteen Chief at the Department of Veterans Affairs (VA) Veterans Canteen Services (VCS) in its Palo Alto and Menlo Park, California canteens. See Complaint (ECF No. 1) (Compl.) ¶ 2. She alleges that Defendant United States improperly classified her as "exempt" under the Fair Labor Standards Act (FLSA), preventing her from receiving overtime pay for hours worked beyond the 40-hour work week. Id. ¶¶ 2, 4-5. Plaintiff brings this suit on behalf of herself and other similarly situated current and former VCS employees. Id. ¶ 6. She seeks a declaratory judgment that recognizes the violation of her rights, and the rights of those similarly situated, an award of unpaid overtime compensation, liquidated damages, attorneys' fees and costs, and other available relief. Id.

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Plaintiff filed a motion for conditional certification under the FLSA, proposing a nationwide collective of exempt-classified Assistant Canteen Chiefs and/or Assistant Store Managers (Assistant Manager(s), Assistant Chief(s), or ACC(s)) employed at any time within the three years preceding the date when Plaintiff filed her complaint and consent to sue form. See Plaintiff's Motion for Conditional Certification and Notice (ECF No. 25) (Pl. Mot.) at 5.

As part of her motion, Plaintiff requests that Defendant provide, "in electronic format, the names, last known addresses, telephone numbers, job titles, and last known email addresses of all potential opt-in plaintiffs . . . ." Id. at 32. She also requests equitable tolling of the statute of limitations from April 13, 2020 (i.e., 30 days after Plaintiff initially requested contact information for prospective collective action members) until the deadline for collective action members to opt-in. Id. at 34-35.

While Defendant opposes a nationwide collective action, it does not oppose conditional certification of a collective action covering ACCs who worked at the Palo Alto and Menlo Park, California canteens. See Defendant's Response in Opposition to Plaintiff's Motion for Conditional Certification and Notice (ECF No. 26) (Def. Resp.) at 1-2, 39-41, 44. Defendant opposes Plaintiff's proposed notice and consent forms, proposed means of notice, and requested tolling of the statute of limitations. Def. Resp. at 41-44.

As stated in this Court's September 28, 2021 Order, more fully explained below, Plaintiff's Motion for Conditional Certification (ECF No. 25) is GRANTED in part and DENIED in part. Plaintiff's request for nationwide conditional certification is DENIED without prejudice. Plaintiff's alternative request for conditional certification of a collective action of all individuals employed by the VCS as ACCs in the Palo Alto and Menlo Park, California canteens during the

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last three years is GRANTED. Notice to potential collective members shall be limited to delivery by mail.^[1] Finally, Plaintiff's request for equitable tolling is DENIED.

I. Factual Background^[2]

Veterans Canteen Services is an organization within the Department of Veterans Affairs that provides food and retail services to veterans and their families. See Def. Resp. Ex. 1, Declaration of James G. Leahy (Leahy Decl.) (ECF No. 26-1) ¶ 5. The VA operates 211 canteens across all 50 states and Puerto Rico. Id. Canteens are ranked according to the variety of operations present at the location (retail, café, coffee, etc.) and are divided into 14 regions. Id. ¶¶ 7, 9. Each region contains between 10 and 20 canteens. Id. ¶¶ 8-9. Each canteen is managed by a Canteen Chief (CC), who reports to the regional manager. Id. Canteens may also employ a small number of ACCs depending on the size of the canteen. Id.

ACCs report directly to the CC and are assigned to manage either a department or a specific function within the canteen. Id. ¶ 9. All ACCs fall under a generalized job description. Pl. Mot. Ex. 8, Assistant Chief VCS Job Description (ECF No. 25-1) at 98-103. However, their precise duties may vary based upon which department they oversee, the size and location of their canteens,

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and the leadership style of their CCs. Leahy Decl. ¶¶ 7-11. All ACCs are classified as exempt from the overtime provisions of the FLSA. Compl. ¶ 19.

Plaintiff was employed as an ACC at Canteen locations in Palo Alto and Menlo Park, California from September 2012 until February 2019. Compl. ¶ 2. Plaintiff alleges that she and other similarly situated ACCs were improperly classified as exempt from the FLSA overtime provisions because most of their work involved non-exempt manual, rather than managerial, tasks. Id. ¶¶ 21-22. Specifically, Plaintiff alleges that she spent 90 percent of her time conducting manual tasks in the food service, retail store, and coffee products and services components of the store. Id. ¶¶ 22-23. She alleges that this labor extended well beyond the normal 40-hour work week without the added benefit of any overtime pay. Id. ¶¶ 26-28. In addition to often working 14 to 16 hour days, she alleges that she would often be called into work on her off days. Id. Plaintiff complained about these practices to her Regional Manager, Human Resources, and her CCs, but she says she was told that "she was salaried and that she had to stay until her work was complete." Id. ¶ 29.

In support of her motion, Plaintiff submitted 24 exhibits and her own declaration. See generally Pl. Mot., Appendix of Exhibits, Part 1 (ECF No. 25-1); Pl. Mot., Appendix of Exhibits, Part 2 (ECF No. 25-2); Declaration of Plaintiff Petrina Smith in Support of Plaintiff's Motion for Conditional Certification (ECF No. 25-3) (Pl. Decl.); Pl. Reply, Plaintiff's Supplemental Appendix of Exhibits (ECF No. 28-2). In addition to her declaration, Plaintiff's exhibits include, inter alia, depositions from Defendant's 30(b)(6) witness (Ex. 2) and Defendant's percipient witness (Ex. 3), VCS policies (Exs. 1, 4-5, 9, 13-14, 17), ACC job descriptions and postings (Exs. 6-8, 10-12), and Plaintiff's own employee information (Exs. 15, 18).

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II. Procedural History

On September 4, 2019, Plaintiff filed her complaint and consent to sue form. Compl. ¶¶ 51-58; Compl. Exhibit 1 (ECF No. 1-1). Following the pleading stage, the parties submitted their joint preliminary status report proposing limited discovery on whether ACCs are similarly situated such that conditional certification would be proper. See Joint Preliminary Status Report (ECF No. 10) at 5-6.

Plaintiff served a set of interrogatories and requests for production of documents on Defendant. See Pl. Mot. at 8. After multiple continuances due to delays caused by the COVID-19 pandemic and Defendant's counsel's difficulties in obtaining the requested discovery information from the VA, ^[3] Defendant produced over 4, 600 documents including all VCS operational policies, daily and hourly time and attendance documents for 71 ACCs for a three-year period, and employee personnel documents. Id. at 8; see also Def. Resp. at 16-17. Plaintiff subsequently deposed Abner Martinez, a VA Human Resources Manager and Defendant's percipient witness, and Joseph R. Tober, Defendant's 30(b)(6) witness, regarding the topics of employee classification, job descriptions, and canteen operational policies and procedures. See Pl. Mot. at 8; see also Def. Resp. at 8.

Following discovery on the issue of whether all ACCs are similarly situated, Plaintiff moved for conditional certification on June 4, 2021. See Pl. Mot. Defendant filed its response on July 2, 2021, and Plaintiff filed her reply on July 16, 2021. See Def. Resp.; Pl. Reply.

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On September 28, 2021, the Court conducted oral argument on Plaintiff's motion. As the parties indicated that they would prefer to receive a ruling on the record, the Court provided the parties an explanation of its ruling during oral argument and issued an Order reflecting the essential terms of its ruling, noting that it would more fully explain its reasoning in a forthcoming opinion. See September 28, 2021 Order; September 28, 2021 Oral Argument Transcript (ECF No. 31) (Tr.) at 46:3-48:20.

DISCUSSION

Consistent with this Court's September 28, 2021 Order, this Memorandum and Order provides more detailed explanations for the Court's decision to grant in part and dismiss in part Plaintiff's Motion for Conditional Certification. The Court declines to conditionally certify a nationwide collective of ACCs because Plaintiff has not shown that ACCs across the country are similarly situated to herself. However, Plaintiff has established, and Defendant concedes, that it is appropriate to authorize a more limited collective action comprising ACCs employed in the Palo Alto and Menlo Park, California canteens. Second, as explained further below, Plaintiff did not establish a need for authorizing the more expansive means of notification that it requested. Accordingly, the notice-once this Court approves its form and contents-will be sent to potential members of the collective via mail. Finally, this Court applies equitable tolling sparingly. Plaintiff has not shown that a defective pleading was filed...