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Nick Aquilino, et al v. Opinion Home Depot

February 15, 2011


The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.


This matter comes before the Court on a motion to decertify a conditional collective action, filed by Home Depot U.S.A., Inc. (hereinafter Home Depot or "Defendant"). Edward Novak and Ahmed Elmaghraby (collectively "Plaintiffs") are former assistant store managers for Home Depot, who allege that they and other merchandising assistant store managers (MASMs) were misclassified as exempt from the overtime requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. Plaintiffs were granted conditional collective action certification on September 6, 2006. Defendant now moves to decertify the conditional collective action, arguing that Plaintiffs cannot meet the burden of establishing that they are similarly situated to the proposed class, as required to obtain their final collective action certification. For the following reasons, the Court grants Defendant's motion to decertify the conditional collective action and declines to create certified subclasses for declaratory relief or training period overtime claims.


On August 25, 2004, Plaintiff Novak initiated this action, alleging that Defendant violated the FLSA, New Jersey law, and the state laws of twenty-four other states. Shortly thereafter, in October 2004, Plaintiff Novak's case was consolidated with Aquilino v. Home Depot, Inc., which was filed on the same day as Novak.*fn1

On April 1, 2005, Plaintiffs moved under § 216(b) of the FLSA for conditional certification of a nationwide opt-in collective action, consisting of "all similarly situated former and current Merchandising Assistant Store Managers." In October 2005, Magistrate Judge Ronald Hedges granted Plaintiffs' request for conditional collective action certification, and on September 6, 2006, this Court affirmed the conditional certification. Aquilino v. The Home Depot, Inc., No. 04-4100, 2006 U.S. Dist. LEXIS 66084 (D.N.J. Sept. 6, 2006). In affirming, this Court explained that it was utilizing a "less stringent" standard for certification because it was the "early phase" of the proposed collective action. Id. at *5. However, this Court expressly stated that conditional certification "may be revisited (by a motion for decertification), if it later appears, after appropriate discovery, that the additional plaintiffs who opt in the law suit are not similarly situated." Id. In November 2006, Plaintiffs sent notice of the collective action to approximately 12,728 current and former Home Depot MASMs. Initially, 1747 Opt-In Plaintiffs (Opt-Ins) joined in the litigation; however, only 1502 Opt-Ins remain due to either dismissal for failure to comply with discovery orders or voluntary withdrawal of claims.

Concurrently, in December 2005, Plaintiffs moved for class certification under Fed. Rule Civ. P. 23(b)(3) and requested creation of a separate state class for each of the twenty-five state law claims. On July 17, 2006, this Court denied class certification under Rule 23(b)(3), concluding that the state law claims predominated over the federal law claims. Aquilino v. Home Depot U.S.A., Inc., No. 04-4100, 2006 U.S. Dist. LEXIS 48554 (D.N.J. July 17, 2006).

Plaintiff Novak filed his New Jersey class claims in New Jersey state court on August 17, 2006, and then removed the action to federal court on October 10, 2006. He moved, under Rule 23(b)(2) and (3) for class certification of current and former MASMs that worked in Home Depot stores in New Jersey. This Court denied Plaintiff Novak's request for certification of a class of New Jersey MASMs on August 27, 2009. See Novak v. Home Depot U.S.A., Inc., 259 F.R.D. 106 (D.N.J. 2009) ("Novak II"). Defendants now seek to decertify the conditional collective action certification, which was granted pursuant to § 216(b) of the FLSA.


Defendant Home Depot is a national retail store that sells home improvement products and services. Home Depot has created the position of MASM. MASMs are the second-highest ranking employee in a Home Depot, subordinate to only the store manager. Each store employs between one and seven MASMs.

At the heart of this case is whether MASMs were misclassified as exempt from the FLSA; thus, it is necessary to review the responsibilities and duties of a MASM that would be considered when deciding whether a position could qualify as exempt. Looking to the deposition testimony of the Opt-Ins it is apparent that MASM testimony about job responsibilities and duties varies from MASM to MASM. Variations are evident in the type of exempt work that the Opt-Ins performed, the extent of the Opt-In MASMs' authority over subordinate employees, and the amount of time that the Opt-Ins spent performing exempt work.

A. MASM Performance of Exempt Work

The MASMs have differing descriptions of how they directed and supervised employees, planned work for employees, ordered inventory, and ensured safety, security, and legal compliance within Home Depot stores.

There is wide variation in how MASMs directed and supervised employees. There is no uniformity in how often MASMs directed the work of subordinate employees. Jason Yount delegated on a daily basis, whereas Angela Ashworth delegated tasks "every day or once a week," depending on the "actual need of the department." Frederick Carter noted that when a department head was absent, he may have to "show" the subordinate employees how to complete the work and "do it with them." As for supervising employees, Andrew Goldring summarized that his supervision was "relative to the person and relative to traffic, it's relative to different departments of what has to get done." Connie Healy's supervisory responsibilities depended on "a lot of situational things," and would increase and expand if she was in charge of more departments. In contrast, Christopher Akeret admitted that he "never really watched associates."

MASMs apparently had discretion to determine how to plan or delegate the work within their departments. A portion of MASMs utilized work lists to plan the work within their departments, but it does not appear that this was done in a consistent way by each MASM. Some MASMs prepared the work lists themselves, while others delegated the job of creating work lists to department supervisors. The work lists also did not cover a uniform time period in that some were created daily and some were created weekly. There was also no uniformity over MASMs conducting staff meetings to plan and delegate work assignments -- MASM Jerry Walls conducted store meetings two to three mornings per week; Alan A'Neals and Ashworth conducted weekly staff meetings; GregBeyroutey held department meetings once every two to three months; and Dina Dixon held both weekly staff meetings, as well as biweekly meetings with her department heads.

The MASM testimony bears out that MASM ordering authority was inconsistent. Joel Weinstein explained that to discern the authority that MASMs had to order, it would be necessary to go store to store and speak to each MASM individually. Such testimony is indicative of the spectrum of authority given to MASMs to order products. At one end of the spectrum are MASMs who acknowledged that they played an active role in ordering the products for their departments. Then, there are MASMs who played a more minimal role in ordering because the store managers monitored and controlled all of the ordering for the store. Finally, there are MASMs who maintain that Inventory Management Associates and Operations Assistant Store Managers retained primary control over the entire ordering process.

Deposition testimony also reveals discrepancies in how MASMs approached resolving employee concerns and grievances and effectuating safety and security within the Home Depot stores. The handling of employee grievances was a regular responsibility for some MASMs. However, a portion of MASMs testified that they had no role in addressing employee grievances. When it came to safety and security, there were MASMs that self-described a high level of ownership and responsibility for safety and security within their respective stores -- Healy constantly monitored the store for safety hazards; Dixon conducted opening and closing safety walks, provided safety reminders at opening and closing meetings, and monitored possible theft situations on a daily basis; Amanda Adamson developed a hazmat compliance program for disposing of waste in the paint department; and Araceli Mendoza utilized a safety checklist when opening and closing the store. Conversely, Elmaghraby did not express an enhanced responsibility for safety and security in the store due to his position as a MASM; he explained that "every associate in the building [was] responsible for safety."

MASMs described their role in ensuring that store employees abided by store policies and legal requirements to differing extents and in different ways. William Boyce would observe workers on the floor to ensure that they were not violating Home Depot's sexual harassment policy, antidiscrimination policy, or the code of conduct. Dixon explained her efforts towards ensuring legal compliance by explaining that she would walk the sales floor to see if there was any improper conduct and to ensure that no one was harassed or discriminated against. Healy acknowledged that she was responsible for ensuring that employees did not engage in harassment or discrimination, but she also had a practice of referring potential legal issues to human resources. Yet, Davis's expression of his responsibility for guaranteeing that no harassment or discrimination took place is altogether ...

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