Vasser v. Mapco Express, LLC

546 F.Supp.3d 694

Joy VASSER and Amy Lusane, individually and on behalf of a collective of others similarly situated, Plaintiffs,

v.MAPCO EXPRESS, LLC, Defendant.

No. 3:20-cv-00665

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

Filed June 29, 2021

Charles Gershbaum, David A. Roth, Marc S. Hepworth, Rebecca S. Predovan, Hepworth Gershbaum & Roth, PLLC, New York, NY, David W. Garrison, Joshua A. Frank, Barrett Johnston Martin & Garrison, LLC, Nashville, TN, for Plaintiffs.

Allan G. King, Littler Mendelson, P.C., Austin, TX, J. Christopher Anderson, Littler Mendelson, P.C., Nashville, TN, Patricia J. Martin, Littler Mendelson, P.C., Saint Louis, MO, for Defendant.

MEMORANDUM OPINION AND ORDER

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

Joy Vasser and Amy Lusane, two female convenience store managers, brought this single count individual and collective action claim under the Equal Pay Act, claiming that they were paid less than similarly situated male store managers by Defendant Mapco Express, LLC ("Mapco"). Pending before the Court is Mapco's fully briefed Motion to Dismiss (Doc. Nos. 39, 40, 43, 44). Also pending before the Court is Plaintiffs’ Motion to Certify Class (Doc. No. 52). For the following reasons, Mapco's Motion will be denied and Plaintiffs’ Motion will be granted.

I. FACTUAL ALLEGATIONS¹

Mapco is a large gas station and convenience store chain with locations throughout the Southeastern United States. (Am. Compl. ¶¶ 1–13, 16–18). Vasser managed Mapco stores near Memphis while Lusane managed stores near Montgomery, Alabama. (Id. ¶¶ 2–3). Plaintiffs filed a Collective Action Complaint (which has since been superseded by the Amended Complaint) seeking relief under the Equal Pay Act of 1963, 29 U.S.C. § 206(d) et seq. ("EPA"), alleging that Mapco systematically underpaid female store managers ("SMs") despite equal work. (Id. ¶¶ 72–81). They argue Mapco had a "policy, pattern or practice" of "systemic gender discrimination" by paying female SMs less than similarly situated male ones. (Id. ¶¶ 33-34, 61–62). Plaintiffs allege Mapco's pay disparities were due "exclusively to sex" rather than "seniority, merit, quantity or quality of production." (Id. ¶ 77).

Plaintiffs further claim their job responsibilities were the same as all other SMs, including: "working the cash register; stocking shelves; gas and cigarette surveys; cleaning and straightening the store and gas pumps; assisting customers; filling in for hourly employees including at other stores; organizing the store according to detailed corporate directives; counting the safe; performing inventory[;] checking in vendors and any other tasks required to ensure the profitable operation of her assigned store." (Id. ¶¶ 37, 50). Despite having identical responsibilities, Plaintiffs allege they received information confirming their suspicion that "less qualified male SMs were earning more for the same work." (Doc. No. 43 at 1; see also Am. Compl. ¶¶ 34–37, 48–50).

Plaintiffs also seek to send notice to EPA collective members under the FLSA, 29 U.S.C. § 216(b). (Id. ¶ 55). Mapco has now moved to dismiss under Fed. R. Civ. P. 12(b)(6). (See Doc. No. 40 at 2).

II. LEGAL STANDARD

Mapco's motion must clear a high hurdle because to survive a motion to dismiss under Rule 12(b)(6), "the complaint must include a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’ " Ryan v. Blackwell, 979 F.3d 519, 524 (6th Cir. 2020) (quoting Fed. R. Civ. P. 8(a)(2) ). When determining whether the complaint meets this standard, the Court must accept all of the complaint's factual allegations as true, draw all reasonable inferences in the plaintiff's favor, and "take all of those facts and inferences and determine whether they plausibly give rise to an entitlement to relief." Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) ; see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Moreover, the Court must determine only whether "the claimant is entitled to offer evidence to support the claims," not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ). But "[w]hile the complaint ‘does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.’ " Blackwell, 979 F.3d at 524 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

III. ANALYSIS

The lone count of Plaintiffs’ action alleges individual and collective violations of the Fair Labor Standards Act ("FLSA"), as amended by the EPA, for denial of equal pay for equal work. (Am. Compl. at 11–12). As it is a threshold issue, the Court will turn first to whether Plaintiffs have adequately pled such a claim before determining whether to conditionally certify the class.

A. Pleading Pay Discrimination Under the Equal Pay Act

Under the EPA, employers are prohibited from "paying wages to employees in [an] establishment at a rate less than the rate [paid] to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility." 29 U.S.C. § 206(d)(1) ; see also Moazzaz v. MetLife, Inc., No. 19-CV-10531 (JPO), 2021 WL 827648, at *4 (S.D.N.Y. Mar. 4, 2021). Although few courts within the Sixth Circuit have weighed in on the appropriate pleading standard for such claims at the motion to dismiss stage, other federal courts have done so in a manner that is persuasive. To plead an EPA violation, "a plaintiff must allege that she (1) was paid less than male employees, (2) within an establishment, (3) for work "requir[ing] equal skill, effort, and responsibility, and which [is] performed under similar working conditions." 29 U.S.C. § 206(d)(1) ; see also Moazzaz, 2021 WL 827648, at *4 ; Finefrock v. Five Guys Operations, LLC, No. 1:16-cv-1221, 2017 WL 1196509, at *2 (M.D. Pa. Mar. 31, 2017) (internal citations omitted).

Federal regulations refer to an "establishment" as "a distinct physical place of business rather than to an entire business." 29 C.F.R. § 1620.9(a) ; see also Balding-Margolis v. Cleveland Arcade, 352 F. App'x 35, 42 n. 7 (6th Cir. 2009). However, "unusual circumstances may call for two or more distinct physical portions of a business enterprise being treated as a single establishment." Id. § 1620.9(b). For example, "a single establishment may encompass multiple offices ‘when a central administrative unit ... hire[s] all employees, sets wages, and assign[s] the location of employment’ and ‘employees’ duties are ‘performed under similar working conditions.’ " Id.; see also Balding-Margolis, 352 F. App'x at 42 n. 7 (noting that multiple physical locations may be treated "as one establishment in cases where, for example, they are operationally indistinguishable").

Here, Defendants rely on two primary arguments in their Motion to Dismiss, namely that: 1) Plaintiffs have failed to adequately plead that Mapco's 346 gas and convenience store locations are a "single establishment" under the EPA; and (2) Plaintiffs have failed to adequately plead sufficient facts relating to the skill, effort, responsibility, or working conditions of SMs. (Doc. No. 40 at 6–15). But "courts have been loath" to weigh in on these types of arguments at the motion to dismiss stage because of their "fact-intensive" nature. Moazzaz, 2021 WL 827648, at *5 (citing Barrett v. Forest Laboratories, Inc., No. 12-cv-5224, 2015 WL 5155692, at *8 (S.D.N.Y. Sept. 2, 2015) ); see also Finefrock, 2017 WL 1196509, at *3. After all, the central tenet of pleading is "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), that gives a defendant fair notice about what the plaintiff seeks and why the plaintiff is entitled to that relief. See Fishon v. Mars Petcare US, Inc., 501 F. Supp. 3d 555, 568 (M.D. Tenn. 2020) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).

Having reviewed the Amended Complaint's factual allegations in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have met their relatively light pleading burden at this early stage of the litigation. First, Plaintiffs each allege they were paid less than similarly situated male employees. (See Am. Compl. ¶¶ 1, 13, 27–29, 41–43). Second, Plaintiffs allege their respective locations, along with others, constitute a single establishment under the EPA. "Whether an employer maintains centralized control is the most critical question to be answered in determining whether multiple physical locations or branches of the employer should be considered a single establishment for purposes of an [EPA] claim." Finefrock, 2017 WL 1196509, at *3 (citing Mulhall v. Advance Sec., Inc., 19 F.3d 586, 592 (11th Cir. 1994) ). Here, Plaintiffs allege that Mapco has "a rigid top down, hierarchical corporate structure," with a "top down wage policy." (Am. Compl. ¶¶ 18, 20, 22–24). These allegations are sufficient for an initial finding of a "single establishment" at the motion to dismiss stage. See Finefrock, 2017 WL 1196509, at *3 (finding that Plaintiffs’ allegations of a "strict top down hierarchical structure, with centralized control over its employees" is enough to plead an EPA claim under the "single establishment" theory).

And third, Plaintiffs have adequately pled comparable work under similar working conditions. 29 U.S.C. § 206(d)(1). "A plaintiff need not [even] show that her job was ‘identical’ to that held by a higher-paid comparator"; rather, "a plaintiff must establish that the jobs compared entail common duties or content ...." Moazzaz, 2021 WL 827648, at *6 (internal citations omitted). Indeed, Plaintiffs allege...