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John Gromek, Individually and On Behalf of All Others Similarly v. Big Lots

December 17, 2010

JOHN GROMEK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
BIG LOTS, INC., DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff John Gromek, individually and on behalf of other similarly situated employees, moves for conditional class certification and an order that judicial notice be sent to all putative collective class members. Plaintiff filed this lawsuit on June 30, 2010 to recover unpaid overtime wages allegedly owed to Assistant Store Managers ("ASMs") who were employed by Defendant Big Lots Stores, Inc. ("Defendant" or "Big Lots") during the relevant statutory time period. For the following reasons, Plaintiff's motion is denied.

I. BACKGROUND

Plaintiff Gromek seeks conditional class certification of his claims against Defendant pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act ("FLSA"). FLSA requires payment of overtime compensation to all non-exempt employees who work in excess of forty hours per week. 29 U.S.C. § 207(a); 29 C.F.R. § 778.101. However, employers do not have to pay overtime to individual employees "employed in a bona fide executive, administrative, or professional capacity." Id. § 213(a)(1). The FLSA does not itself define what it means for an employee to fall within a "white-collar" exemption.

Plaintiff alleges that after Defendant's global reclassification of the ASM position as exempt, putative class members were required or permitted to regularly work in excess of forty hours per week, but never compensated for such hours. Additionally, ASMs did not regularly perform managerial functions, but spent much of their time performing non-managerial and non-exempt functions. This was in violation of the FLSA.

Plaintiff states that he and all of the opt-in Plaintiffs worked as ASMs for Big Lots during the past three years. All ASMs had the same uniform job description. The Plaintiff, opt-in Plaintiffs, and the proposed putative class members were regularly required to perform non-managerial and non-exempt duties such as unloading trucks, stocking merchandise, placing price-tags on merchandise and processing paperwork. The ASMs were paid a salary with no overtime compensation when they worked more than forty hours per week. Plaintiff also alleges that ASMs exercised little to no discretion concerning hiring, firing, rates of pay, job performance, or disciplinary matters. Instead, such functions were handled by upper management. Plaintiff and the opt-in Plaintiffs believe that all ASMs performed the same or similar activities on a regular basis and were subjected to the same practices, procedures and well-established guidelines.

The named Plaintiff is joined by thirty-four opt-in Plaintiffs representing fifteen different states. Plaintiff defines the potential class members as "all current and former ASMs who were employed by Big Lots Stores, Inc., anywhere in the United States (excluding California and New York) at any time during the past three years." Plaintiff alleges that he, and a similarly situated group of misclassified and reclassified individuals, was uniformly denied overtime pay as a result of a single corporate policy to classify them all as exempt employees, regardless of the store size, geographic location, region, district, or any other factors.

II. STANDARD OF REVIEW

The FLSAs "collective action" provision allows one or more employees to bring an action for overtime compensation on "behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). To meet this burden, the plaintiff must make a "modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Mielke v. Laidlaw Transit, Inc., 313 F.Supp.2d 759, 762 (N.D. Ill. 2004). District courts have broad discretion to allow a party asserting FLSA claims on behalf of others to notify potential plaintiffs that they may choose to "opt-in" to the suit. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989).

Courts apply a two-step approach to determine whether plaintiffs are "similarly situated." The first step requires plaintiffs to "show there are similarly situated employees who are potential claimants." Collazo v. Forefront Educ., Inc., No. 08 C 5987, 2010 WL 335327, at *2 (N.D. Ill. Jan 28, 2010). Plaintiffs meet this burden by making "a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Id. The second step follows the completion of the opt-in process and further discovery where "the defendant may ask the Court to reevaluate the conditional certification to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Russell v. Ill. Bell Tel. Co, 575 F.Supp.2d 930, 933 (N.D.Ill. 2008). The standard for collective action notice is lenient. Id. "It is considerably 'less stringent' than the proof required pursuant to Fed. R. Civ. P. 20(a) for joinder or Fed. R. Civ. P. 23 for class certification." Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). "[A] plaintiff need only demonstrate a factual nexus that binds potential members of a collective action together." Ervin v. OS Rest. Serv., Inc., 2009 WL 1904544, at *3 (N.D. Ill. July 1, 2009).

III. DISCUSSION

At the conditional certification stage, the court requires only a showing that the putative class members were victims of "a single decision, policy, or plan." Anyere v. Wells Fargo, Co., Inc., No. 09 C 2769, 2010 WL 1542180, at *2 (N.D. Ill. April 12, 2010) (citing Mielke v. Laidlaw Transit, Inc., 313 F.Supp.2d 759, 762 (N.D. Ill. 2004). Proof can be provided through affidavits of potential plaintiffs, identification of potential plaintiffs, and/or evidence of a widespread plan. Id. Here, Plaintiff has attached 15 declarations to show that the practice of improperly compensating ASMs is widespread and ongoing. Plaintiff argues that conditional certification is proper because all of the individuals to whom he seeks to provide notice had the same job title, duties and compensation. Likewise, these individuals were all misclassified and denied overtime pay as a result of a single corporate policy to classify them as exempt employees. Given the lenient standard for collective action notice, it seems that Plaintiff has met his burden of showing that there are similarly situated employees who are potential claimants.

This, however, is not the end of the inquiry. In Johnson, et al. v. Big Lots Stores, Judge Vance decertified an almost identical class after extensive discovery and a bench trial because there was "significant variation among ASMs in terms of the duties that they perform and the hours they spend at work," rendering the matter unfit for "adjudication as a nationwide collective action." 561 F.Supp.2d 567, 568 (E.D. La. June 20, 2008). Defendant Big Lots argues that Judge Vance's opinion precludes conditional certification here because such a class cannot ultimately be certified.

The Johnson complaint was filed on November 23, 2004 and alleged that all Big Lots ASMs worked in excess of forty hours per week and were denied overtime compensation as a result of being misclassified as "exempt" employees under the FLSA. The Johnson plaintiffs alleged that "although their formal job descriptions include managerial responsibilities, their actual managerial duties were de minimis and did not meet the criteria for exempt executive employees." Id. at 569. Similarly, Plaintiff here contends that Big Lots improperly classified ASMs as "executive employees" who were exempt from the overtime provisions of the FLSA, even though such employees did not possess the authority to carry out managerial functions and spent in excess of 90 percent of their time performing non-exempt work. The Johnson court conditionally certified the case as a nationwide collective action on July ...


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