United States District Court, D. New Jersey
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.
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”). 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). 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
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.
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.
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.
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. ¶¶
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; 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.
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