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Freeman v. Sam's East Inc.

United States District Court, D. New Jersey

November 8, 2018

TERRENCE FREEMAN and BRADLEY WARD, individually and on behalf of all other persons similarly situated, Plaintiffs,
SAM'S EAST INC., et al., Defendants.


          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff Bradley Ward brings this putative wage and hour class and collective action, on behalf of himself and all other Fresh Assistant Managers similarly situated who were employed by Defendants since March 16, 2014, against Defendants Sam's East Inc., Sam's West, Inc., Sam's Club, an operating segment of Wal-Mart Stores, Inc., and Wal-Mart Stores, Inc. (collectively, “Defendants” or “Sam's Club”).[1] Plaintiff alleges Defendants' failure to pay overtime wages violates the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., and now moves for conditional certification of the FLSA claims as a collective action under 29 U.S.C. § 216(b).[2] The Court has jurisdiction under 28 U.S.C. § 1331 and decides the matter without oral argument. Fed.R.Civ.P. 78(b). For the following reasons, Plaintiff's motion for conditional certification of the FLSA collective action will be DENIED without prejudice.

         I. BACKGROUND

         Sam's Club is the eighth largest retailer in the United States, currently operating almost 600 Sam's Club locations nationwide. Cert. of Kristine J. Feher, Ex. 10, Deposition of John Engel, Apr. 24, 2018, 55:11-17, ECF No. 63-1. Named Plaintiff Bradley Ward (“Plaintiff”), and opt-in plaintiffs Rupinder Nahal and Steven Hoggard (the “Opt-Ins”) all worked as Fresh Assistant Managers (“FAMs”) at Sam's Club. Plaintiff's length of employment covers less than two weeks of the collective period he seeks to certify. Decl. of Marc Hepworth (“Hepworth Decl.”), Ex. A, Deposition of Bradley Ward, May 8, 2018, 174:14-178:11, ECF No. 60-1.

         Plaintiff alleges that during the collective action period, he and other FAMs were non-exempt employees entitled to overtime compensation under the FLSA for performing more than forty hours of work per week. Compl. ¶¶ 1, 13, 73. Plaintiff further alleges that Defendants improperly categorized FAMs as exempt employees to avoid paying overtime wages. Id. ¶ 85. In sum, Plaintiff alleges that Defendants implemented and used corporate policies in violation of the FLSA by:

1. Willfully misclassifying its FAMs as exempt from the FLSA's overtime requirements;
2. Willfully failing to pay its FAMs overtime wages for hours worked in excess of forty hours per week;
3. Willfully failing to provide enough money in each Sam's Club's labor budgets for its non-exempt employees to perform their job duties and responsibilities, forcing its FAMs to perform such non-exempt tasks.

Id. ¶ 98.

         The parties have engaged in limited discovery to determine whether Plaintiff is similarly situated to those in the proposed collective and if the FLSA claims can be certified as a collective action. See ECF Nos. 19, 27, 29, 41. This limited, first-phase discovery took almost a year to complete. Plaintiff now moves for conditional certification of a nationwide FLSA collective action. ECF No. 60. Defendants oppose, arguing that Plaintiff has failed to demonstrate the existence of a definable collective of potential plaintiffs. See Defs.' Opp'n Br. 1-2, ECF No. 63.

         In support of the motion for conditional certification, Plaintiff submitted: (1) Plaintiff's and the Opt-Ins' deposition testimonies; (2) Defendants' corporate policies and procedures; (3) an excerpt of Defendants' SEC Form 10-K filing; and (4) two Rule 30(b)(6) depositions of Sam's Club corporate representatives. See Pl.'s Br., ECF No. 60-2; Hepworth Decl. ¶¶ 5-27.

         Defendants respond that the paucity of Plaintiff's proof prohibits granting conditional certification of a nationwide collective action. Defs.' Opp'n Br. at 1. Defendants; argue that: (1) Plaintiff and the Opt-Ins are not even similarly situated to one another-much less a putative collective of thousands of FAMs, id. at 26-27, 30-32; (2) its classification of FAMs as exempt is insufficient to show how they are together victims of a common policy or plan that violated the law, id. at 27-28; (3) even if Defendants used a common job description, that adds little in answering if other FAMs performed non-exempt duties not listed in the job description, id. at 28-30;[3] and (4) courts have rejected the notion that uniform corporate policies and procedures are enough to pass the “similarly situated” threshold, id. at 29. Defendants also urge that if the Court finds it appropriate to issue notice to individuals wishing to join the action, then the notice should be geographically and temporally limited. Id. at 36. Plaintiff filed a reply, mainly reiterating his previous points, adding that Defendants made merits-based arguments which are beyond the scope of consideration at this conditional certification stage. Pl.'s Reply Br. at 2-4, 10-12.


         The FLSA allows employees to bring a “collective action” on behalf of themselves and similarly situated employees for alleged violations of its federal minimum-wage, maximum-hour, and overtime guarantees. See 29 U.S.C. § 216(b). Courts use a two-step approach to decide FLSA collective action certifications. Camesi v. Univ. of Pitt. Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013). In step one, courts decide whether to grant “conditional certification” - the type of certification at issue here. Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 193 (3d. Cir. 2011), rev'd on other grounds by133 S.Ct. 1523 (2013).‘“[C]onditional certification' is not really certification, ” since it involves the court using its “discretionary power . . . to facilitate the sending of notice to potential ...

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