United States District Court, D. Massachusetts
CELINA ROBERTS, ANTHONY SCIOTTO, ERIC BURNS, KERI DICKEY, ANGELA RAMIREZ, DIANA SANTILLAN, CAMILLE GHANEM, ARNOLD WILLIAMS, OLUWATOSIN BABALOLA, TOMMY ZAHTILA, TODD JUSTICE, GIANFRANCO PIROLO, MICHAEL O'GRADY, AND JASON FOSTER, individually, and on behalf of other persons similarly situated, Plaintiffs,
THE TJX COMPANIES, INC., a Delaware Corporation; MARSHALLS OF MA, INC., a Massachusetts Corporation; MARMAXX OPERATING CORP., a Delaware Corporation, d/b/a MARSHALLS HOMEGOODS, d/b/a MARSHALLS, d/b/a T.J. MAXX HOMEGOODS; HOMEGOODS, INC., a Delaware Corporation; Defendants.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE
putative class and collective action, the plaintiffs allege
that their employers, the TJX Companies, Inc.; Marshalls of
MA, Inc.; Marmaxx Operating Corp.; and HomeGoods, Inc.
(together, the “Defendants”) misclassified them
as exempt from the overtime requirements of the Fair Labor
Standards Act (the “FLSA”) and the New York Labor
Law (the “NYLL”), and then failed to pay them
overtime as required by the FLSA and the NYLL. Presently
before the Court are Plaintiffs' Motion for Conditional
Certification under FLSA [ECF No. 124], and Plaintiffs'
Motion for Equitable Tolling [ECF No. 161]. For the reasons
set forth herein, the Motion for Conditional Certification is
GRANTED, and the Motion for Equitable Tolling is
DENIED without prejudice.
plaintiffs in this case, who all worked as Assistant Store
Managers (“ASMs”) at Marshalls, HomeGoods, or
T.J. Maxx stores in various states (excluding California),
alleged that the Defendants misclassified them as exempt from
the overtime requirements of the FLSA and the NYLL (1) during
the period when Plaintiffs participated in a formal
“ASM Training Program” sponsored by their
employer (the “ASM Training Claims”); and (2)
during their subsequent employment as ASMs (the “ASM
Misclassification Claims”). Defendant TJX Companies,
Inc. is the parent company of Defendants HomeGoods, Inc. and
Marshalls of MA, Inc. See [ECF No. 63 at
¶¶ 42-43 (cited as “Answer”)]. There
are more than 1300 HomeGoods or Marshalls retail stores in
the United States. Answer ¶ 1. The Plaintiffs seeking
conditional certification under the FLSA in the pending
motion [ECF No. 124] have all worked as Merchandise ASMs in a
Marshalls or HomeGoods store.
case originally stems from three separate putative class and
collective actions filed between December 2013 and May 2014:
Roberts v. TJX Companies, Inc., 1:13-cv-13142;
Burns v. TJX Companies, Inc., 1:14-cv-10306; and
Ghanem v. TJX Companies, Inc., 1:14-cv-12104. The
three cases were consolidated on August 8, 2014, when the
plaintiffs filed their Second Amended Complaint in the
above-captioned action. [ECF No. 60]. After several months of
negotiations, the ASM Training Plaintiffs and the Defendants
reached a settlement on the ASM Training Claims. [ECF No. 82
(the “Settlement Agreement”)]. On March 25, 2015,
the plaintiffs filed a Third Amended Complaint that reflected
the Settlement Agreement. [ECF No. 89]. On May 6, 2015, this
Court issued an order preliminarily approving the Settlement
Agreement with revisions to the Settlement Notice and
Proposed Order. [ECF Nos. 111, 112]. On September 30, 2016,
the Court entered a final approval order on the Settlement.
[ECF No. 171]. Therefore, what remains at issue and before
this Court are the ASM Misclassification Claims.
23, 2015, Plaintiffs moved to conditionally certify a class
under the FLSA for purposes of notice. [ECF No. 124]. They
filed a memorandum [ECF No. 125 (cited as
“P.Brief”)] and a declaration [ECF Nos. 126, 132]
in support of the motion. Defendants opposed the motion for
conditional certification [ECF No. 147 (cited as
“D.Brief”)], and submitted an affidavit with
exhibits in opposition [ECF No. 148, 151]. On October 14,
2015, Plaintiffs filed a reply in further support of their
motion for conditional certification. [ECF No. 156]. On June
3, 2016, Plaintiffs filed a motion to equitably toll the
statute of limitations for putative collective action members
until ten days after the Court issues an order on the motion
for conditional certification [ECF Nos. 161, 162]. Defendants
opposed the motion for equitable tolling [ECF No. 163], and
filed an affidavit with an attached exhibit in opposition
[ECF No. 164]. The parties stipulated to the tolling of the
statute of limitations for the remaining ASM claims from
February 23, 2015 until the filing of Plaintiffs' Motion
for Conditional Certification on July 23, 2015. See
Seth R. Lesser Declaration (“Lesser Decl.”) [ECF
No. 126 at ¶ 5].
PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION a. Legal
FLSA allows employees to sue on behalf of themselves and
“other employees similarly situated.” 29 U.S.C.
§ 216(b). The FLSA, however, also provides that
“[n]o 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.” Id. Thus, in a FLSA
collective action, unlike in a Rule 23 class action,
potential plaintiffs are required to affirmatively opt in.
See Garcia v. E.J. Amusements of N.H., Inc., 98
F.Supp.3d 277, 289 (D. Mass. 2015), appeal
dismissed, 15-8011 (1st Cir. Nov. 10, 2015). In order to
facilitate the FLSA's collective action mechanism,
district courts have the discretion to authorize that notice
be sent in “appropriate cases” to putative
plaintiffs informing them of “the pendency of the
action and of their opportunity to opt-in as represented
plaintiffs.” Myers v. Hertz Corp., 624 F.3d
537, 554 (2d Cir. 2010) (citing Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 169 (1989)). “[N]othing in
FLSA in fact requires certification, it is instead a
recognized case management tool for district courts to employ
in appropriate cases to facilitate the sending of notice to
potential class members.” Heitzenrater v.
OfficeMax, Inc., 2014 WL 448502, at *1 (W.D.N.Y. Feb. 4,
2014) (citing Myers, 624 F.3d at 555 n.10). To be
conditionally certified for purpose of notice under the FLSA,
“the putative class members [must be] ‘similarly
situated' with the named plaintiffs.”
O'Donnell v. Robert Half Int'l, Inc., 429
F.Supp.2d 246, 249 (D. Mass. 2006).
the FLSA nor the First Circuit has established a standard
that district courts must apply in determining whether
potential plaintiffs are “similarly situated, ”
but courts in this Circuit have predominantly applied a
two-tier approach. See Trezvant v. Fid. Emp'r. Servs.
Corp., 434 F.Supp.2d 40 (D. Mass. 2006) (“the
majority of courts addressing this issue in the First Circuit
have adopted the two-tier approach”); see also
Torrezani v. VIP Auto Detailing, Inc., No. 16-40009,
2017 WL 888309, at *6 (D. Mass. Mar. 6, 2017) (applying
two-tier approach and allowing conditional class
certification even though discovery had completed); Lapan
v. Dick's Sporting Goods, Inc., No. 13-11390, 2014
WL 4206212, at *1 (D. Mass. Aug. 20, 2014) (“After
careful consideration, the court sees no reason to blaze new
trails or to revisit the two-tier approach laid out by Judge
Young in Trezvant. . . .”); Perez v. Prime
Steak Rest. Corp., 959 F.Supp.2d 227, 230 (D.P.R. 2013);
Johnson v. VCG Holding Corp., 802 F.Supp.2d 227, 233
(D. Me. 2011); O'Donnell, 429 F.Supp.2d at 246.
Courts in other circuits have likewise applied a two-tier
approach. See Myers, 624 F.3d at 554-55 (explaining
that courts in the Second Circuit have utilized a
“two-step method” to determine whether to
exercise the discretion to implement § 216(b)); see
also In re HCR Manorcare, Inc., 2011 U.S. App. LEXIS
26241, at *3 (6th Cir. Sept. 29, 2011) (“[w]e have . .
. implicitly upheld” the two-step approach);
Symczyk v. Genesis Healthcare Corp., 656 F.3d 189,
192 (3d Cir. 2011) (finding that courts in the Third Circuit
“typically employ a two-tiered analysis” in
“deciding whether a suit brough under § 216(b) may
move forward as a collective action”); Morgan v.
Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th
Cir. 2008). Accordingly, this Court will apply the two-tier
approach generally accepted in this Circuit to the pending
motion for conditional certification under the FLSA.
this approach, a court, first, makes a preliminary
determination of whether the potential plaintiffs are
“similarly situated” (tier one) and then
“makes a final ‘similarly situated'
determination” after discovery (tier two). See
Trezvant, 434 F.Supp.2d at 42-43 (quoting Kane v.
Gage Merch. Servs., Inc., 138 F.Supp.2d 212, 214 (D.
Mass. 2001)). The first stage or tier, often referred to as
the “notice stage, ” ordinarily happens before
discovery when plaintiffs move for conditional certification.
See O'Donnell, 429 F.Supp.2d at 249. The second
stage or tier is triggered after discovery if the defendants
move for de-certification based on the contention that the
plaintiffs that have opted in are not in fact similarly
situated. Id. If the Court finds that the plaintiffs
are not “similarly situated” at the second stage,
it can then de-certify the class and dismiss the opt-in
plaintiffs without prejudice. Kane, 138 F.Supp.2d at
214. “At that [second] stage, courts consider factors
such as: 1) the disparate factual and employment
settings-e.g. whether plaintiffs were employed in the same
corporate department, division, and location; 2) the various
defenses available to defendant which appear to be individual
to each plaintiff; and 3) fairness and procedural
considerations.” Trezvant, 434 F.Supp.2d at 45
(quoting Melendez Cintron v. Hershey P.R., Inc., 363
F.Supp.2d 10, 16 (D.P.R. 2005)). Thus, the two-stage process
allows the Court to have the benefit of knowing who has opted
in when determining whether the plaintiffs are actually
similarly situated and if the named plaintiffs are
at the first stage, the Court need only make a
“preliminary finding” as to whether the named
plaintiffs are similarly situated as to other potential
plaintiffs. See id. at 43 (citing Melendez Cintron,
363 F.Supp.2d at 16). The standard for the preliminary
showing is lenient, and “[a]t this stage, courts do not
need to make any findings of fact with respect to
contradictory evidence presented by the parties or make any
credibility determinations with respect to the evidence
presented.” Id. (internal quotation marks
omitted) (citing Kalish v. High Tech Inst., No.
04-1440, 2005 WL 1073645, at *2 (D. Minn. Apr. 22, 2005)).
“[A] modest factual showing or asserting
substantial allegations that ‘the putative
class members were together the victims of a single decision,
policy, or plan that violated the law'” is
sufficient. Id. (quoting Thiessen v. Gen. Elec.
Capital, 267 F.3d 1095, 1102 (10th Cir. 2001)). The
Second Circuit has explained that, in a FLSA case, this
burden is met when the plaintiffs “mak[e] some showing
that ‘there are other employees . . . who are similarly
situated with respect to their job requirements and with
regard to their pay provisions, ' on which the criteria
for many FLSA exemptions are based, who are classified as
exempt pursuant to a common policy or scheme.” Myers,
624 F.3d at 555 (alterations in original) (quoting Family
Dollar, 551 F.3d at 1259). It is overall a “low
standard of proof.” Id.
seek conditional class certification under the FLSA for all
Merchandise ASMs who have worked at Marshalls and HomeGoods
since February 23, 2012. P.Brief at 1. Conditional
certification would allow them to issue notice to an
estimated 3000 putative class members. In support of
conditional certification, Plaintiffs have provided: (1) the
deposition testimony of eight plaintiffs who worked at over
30 Marshalls and HomeGoods stores in eight different states
(Florida, Indiana, Maryland, Massachusetts, New York, Texas,
and Virginia); (2) the deposition testimony of
Defendants' Corporate Representatives; and (3) internal
company documents obtained during preliminary discovery.
Plaintiffs do not argue that the company policy of exempting
Merchandise ASMs was facially invalid; rather, they assert
that, in practice and based on their work responsibilities,
Merchandise ASMs should not have been exempt from the
overtime requirements of the FLSA and thus that exempting
them was a de facto violation of the law.
oppose conditional certification, arguing that Plaintiffs
have not met their burden at this stage. In their view,
Plaintiffs must, but have not, shown that there was a
“common policy or plan that violated the law,
” and “provide evidence sufficient for the Court
to reasonably infer that thousands of ...