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Gervasio v. Wawa Inc.

United States District Court, D. New Jersey

January 11, 2018

ANTHONY GERVASIO, RICHARD BONGIOVANNI, MICHAEL DINSE, JAMES CLOUD, and CHRISTOPHER CARMANY, Individually and on Behalf of All Other Persons Similarly Situated Plaintiffs,
WAWA INC., Defendant.


          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on Plaintiffs Anthony Gervasio, Michael Dinse, James Cloud, and Christopher Carmany's (collectively, “Plaintiffs”) Motion to Conditionally Certify a Collective Action under Section 16(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b) (ECF No. 37), based on allegations that Defendant Wawa misclassified Plaintiffs and other assistant general managers (hereinafter, “AGM”) as “exempt” under the FLSA and failed to pay them overtime for hours worked in excess of 40 hours per week.


         On April 21, 2017, named plaintiffs filed their amended complaint, alleging they were “mislabeled” under the FLSA as managers when their duties reflected those of an hourly employee, and, therefore, are entitled to unpaid overtime wages. (Amended Compl. at ¶ 1). On December 28, 2015, Wawa re-classified AGMs as non-exempt employees under the FLSA; however, Plaintiffs now seek to recover backpay for unpaid overtime hours worked prior to the reclassification. Plaintiffs were all AGMs at Wawa, which operates a chain of more than 720 convenience stores in New Jersey, Pennsylvania, Maryland, Delaware, Virginia and Florida. (Id. at ¶ 22). Gervasio, a New Jersey resident, was employed by Wawa as an AGM from September 2006 to April 2016 at the Bensalem, Levittown, Yardley, and Fairless Hills, Pennsylvania locations. (Id. at ¶ 10). Dinse, a New Jersey resident, worked for Wawa from August 2009 to May 2014 as an AGM at Wawa's Tinton Falls, Wall Township, Farmingdale, and Shasta, New Jersey locations. (Id. at ¶ 14). Cloud, a Maryland resident, was in Wawa's employ, as an AGM, from November 2011 to March 2014 at their Glen Burnie, Annapolis, and Gambrills, Maryland locations. (Id. at ¶ 16). Finally, Carmany, a New Jersey resident, worked as an AGM for Wawa from December 2015 to March 2017 at their Galloway Township, Ventnor Heights, Northfield, and Absecon, New Jersey locations. (Id. at ¶ 18). Gervasio, Dinse, and Carmany all claim to have worked between 50 and 55 hours a week, during weeks when they worked five or more shifts, but did not receive payment for the hours worked in excess of 40. (Id. at. ¶¶ 50-51, 54). Similarly, Cloud claims to have worked between 55 and 60 hours a week, when he worked five or more shifts, and he did not receive payment for the hours worked beyond 40. (Id. at ¶ 53).

         Plaintiffs allege that they, and similarly situated employees, did not receive “overtime wages for hours worked above 40 in a workweek.” (Id. at ¶ 1). According to the Amended Complaint, the work performed “did not include managerial responsibilities” and did not require “the exercise of meaningful independent judgment and discretion concerning matters of significance.” (Id. at ¶¶ 58-59). Their primary job duties include: “working the cash registers, making deli sandwiches, stocking shelves, cleaning the store, assisting customers, unpacking merchandise, and other manual tasks.” (Id. at ¶ 61). Plaintiffs assert that their jobs did not include: “hiring, firing, disciplining, or directing the work of other employees, and exercising meaningful independent judgment and discretion, ” as a manager would. (Id. at ¶ 62). According to the Amended Complaint, Wawa's decision to classify all AGMs as exempt was part of a “centralized, company-wide policy, pattern and/or practice.” (Id. at ¶ 66).

         Plaintiffs also present a Wawa AGM Job Description, which generally describes the duties and responsibilities of AGMs. (ECF No. 46-12, “Job Description”). The Job Description categorizes an AGM's duties into “Principal Duties, ” “Essential Duties, ” and “Other Job Duties.” (Id.). Under “Essential Duties, ” Wawa identifies two key duties of AGMs: (1) Management and (2) Cash Register. (Id. at 1-2). Under Management, AGMs serve a general supervisory role, overseeing the overall operation of the store. (Id. at 1). As “Other Job Duties, ” AGMs are expected to: (1) handle the coffee area; (2) work the oven station; (3) and handle food service. (Id. at 2-4). Notably, the Job Description states that the position is “based on a 46.75 average hours work week.” (Id. at 5).

         At deposition, Plaintiffs asserted that they spent the majority of their days performing non-managerial work. Gervasio claimed that he spent 60 percent of his time working as a cashier, 30 in the deli, and the remaining 10 in the facilities area. (ECF. No. 44-2, “Gervasio Dep. Tr.” at 368-69). Similarly, Carmany explained that he did not serve a supervisory role as AGM, although he occasionally checked payroll, per his general manager's request. (ECF No. 44-5, “Carmany Dep. Tr.” at 129-34). However, when asked to breakdown how he spent his shifts, Carmany explained he spent 90-95 percent of his time cleaning, stocking, mopping, and handling the register. (Id. at 135-37). Similarly, Cloud denied performing any of the “Management-Essential Duties” and testified that 90 percent of his work involved working the cash register or performing “other job duties.” (ECF No. 44-4, “Cloud Dep. Tr.” at 167-68). Lastly, Dinse testified that his daily responsibilities as AGM entailed working as a cashier, cleaning, checking bathrooms, and stocking the cooler and coffee areas. (ECF No. 44-3, “Dinse Dep. Tr.” at 243-45). He explained that the bulk of his work involved serving as a cashier or stocking the cooler. (Id. at 244).

         Wawa's Rule 30(b)(6) witnesses also discussed the commonality of AGM duties throughout the nation. At deposition, Rebecca Altemus, a Wawa area manager, explained that the AGM Job Description would have been the same nationwide, regardless of size or region. (ECF. No. 46-10, “Altemus Dep. Tr.” at 50). She also testified that Wawa has an employee handbook, which sets forth various policies and procedures, that employees, including AGMs, are expected to follow. (Id. at 53, 66, 117). Regardless of whether hired as an AGM or promoted to one, Wawa expects AGMs to have completed “brand fundamental” training, which included register training, sandwich making training, and shelve stock training. (Id. at 130-32). Similarly, Melanie Hoffman, a Wawa Compensation and Retirement Plans Manager, testified at deposition about how AGMs were paid. (ECF. 46-9, “Hoffman Dep. Tr.”). Hoffman explained that on December 28, 2015, Wawa re-classified AGMs as non-exempt employees. (Id. at 19-20). However, prior to the re-classification, all AGMs, regardless of the state, region, or size of the store, were exempt employees under the FLSA and paid on salary. (Id. at 20-23, 34).

         Plaintiffs allege Wawa's failure to pay overtime is in violation of the FLSA, 29 U.S.C. § 201 et seq., as well as state-law provisions under the New Jersey Wage and Hour Law (“NJWHL”), N.J.S.A. §§ 34:11-56a to -56a38; Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa. Cons. Stat. § 333.104(c); Maryland Wage and Hour Law (“MWHL”), Md. Code Ann. Lab. & Empl. §§ 3-401 to -428; and Maryland Wage Payment and Collection law (“MWPCL”), Md. Code Ann. Lab. & Empl. §§ 3-501 to -509. Plaintiffs seek to bring this action on behalf of themselves and similarly situated employees in New Jersey, Pennsylvania, and Maryland.

         Legal Standard

         The FLSA “was designed ‘to aid the unprotected, unorganized and lowest paid of the nation's working population; that is, those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.'” Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 192 (3d Cir. 2011), rev'd on other grounds, Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66 (2013) (Symczyk II). Unless exempt as a bona fide executive, “[t]he FLSA requires employers to pay overtime compensation for an employee's work that is in excess of forty hours per week.” Essex v. Children's Place, Inc., No. 15-5621, 2016 U.S. Dist. LEXIS 108853, at *9 (D.N.J. Aug. 16, 2016). In order to fall within the “executive exemption, ” an employee must meet the following criteria: “(1) the employee receive compensation on a salary basis, (2) [his or] her primary duty is management of a recognized department, (3) [he or] she customarily and regularly directs the work of two or more employees, and (4) [he or] she has authority to hire or fire employees.” Id. at *9-10 (citing 29 C.F.R. § 541.100). “An employee's primary duty is ‘the principal, main, major or most important duty that the employee performs.'” Id. at *10 (citing 29 C.F.R. § 541.700).

         “Under Section 16(b) of the FLSA, an employee may bring an action against his employer individually, on his own behalf, and collectively, on behalf of other ‘similarly situated' employees.” Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 242 (3d Cir. 2013); 29 U.S.C. § 216(b). Although not defined in the FLSA, “similarly situated” has been understood to mean “that a plaintiff must ‘produce some evidence, beyond pure speculation, of a factual nexus between the manner in which the employer's alleged policy affected her and the manner in which it affected other employees.'” Essex, 2016 U.S. Dist. LEXIS 108853, at *12 (quoting Symczyk, 656 F.3d at 193). However, unlike class actions under Federal Rule of Civil Procedure 23, the FLSA requires employees to actively “opt-in” to an FLSA collective action suit. See 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought”).

         The Third Circuit follows “a two-step process for deciding whether an action may properly proceed as a collective action under the FLSA.” Camesi, 729 F.3d at 243 (citing Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 535 (3d Cir. 2012)). At step one, the court must make a “preliminary determination as to whether the named plaintiffs have made a ‘modest factual showing' that the employees identified in their complaint are ‘similarly situated.'” Id. “If the plaintiffs have satisfied their burden, the court will ‘conditionally certify' the collective action for the purpose of facilitating notice to potential opt-in plaintiffs and conducting pre-trial discovery.” Id. “The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court.” Symcyzk II, 569 U.S. at 75 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171-72 (1989)).

         At step two, “with the benefit of discovery, ‘a court following this approach then makes a conclusive determination as to whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff.'” Camesi, 729 F.3d at 243 (quoting Symcyzk, 656 F.3d at 193). At this step, courts employ a “stricter standard, ” which requires the court to “consider[] all the relevant factors and make[] a factual determination on a case-by-case basis.” Zavala, 691 F.3d at 536. “While case specific, the relevant factors may include whether employees have the same job description, are subject to the same compensation plan, received the same training, or whether they advance similar claims and seek substantially the same form of relief.” Essex, 2016 U.S. Dist. LEXIS 108853, at *15. “This step may be triggered by the plaintiffs' motion for ‘final certification, ...

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