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Roberts v. The Tjx Companies Inc.

United States District Court, D. Massachusetts

March 31, 2017

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,
v.
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

         In this 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'[1] 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.

         I. BACKGROUND

         The 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.

         This 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.

         On July 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].

         II. PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION a. Legal Standard

         The 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).

         Neither 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.

         Using 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 representative.

         Here, 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.

         b. Analysis

         Plaintiffs 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.

         Defendants 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 ...


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