United States District Court, D. New Jersey
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.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
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).
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).
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
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).
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,
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.
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).
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
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)).
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,