Crosby v. Stage Stores, Inc.
Crosby v. Stage Stores, Inc.
Opinion of the Court
Pending before the Court in this action under the Fair Labor Standards Act ("FLSA"),
I. Factual Background
The two named plaintiffs, Maya Crosby and Deneen Patton ("Named Plaintiffs"), are former employees of Stage. (Doc. No. 1 at 1-2.) Stage is a retail clothing company that operates approximately 800 stores in 42 states under various brand names such as Stage, Peebles, Goody's, Bealls, and Palais Royal. (Id. ) In order to operate its stores, Stage employs a variety of hourly, non-exempt employees, including Sales Associates, Visual Associates, eCommerce Fulfillment Associates, Custodian Freight Associates, Counter Managers, Cosmetic Sales Managers, Beauty Advisors, and Assistant Store Managers ("Hourly Workers"). (Id. ) These Hourly Workers share similar job duties, including assisting customers, completing purchases, cleaning stores, organizing displays, and unloading merchandise. (Id. ) Named Plaintiffs, who were employed as Hourly Workers at Stage, first allege that Stage engaged in a practice of "time-shaving" whereby Hourly Workers who worked in excess of 40 hours a week (1) had their time logs altered to reflect that no excess hours were worked; or (2) were instructed not to record their excess hours. (Id. at 2.) Further, Named Plaintiffs allege that they were routinely required to perform "off the clock" work before, during, or after their scheduled shifts. (Id. at 6.) Accordingly, in the instant suit, Named Plaintiffs seek to represent a class consisting of:
All persons who at any time from May 30, 2015 through the date of final judgment in this matter have worked as hourly, non-exempt employees whose titles included without limitation Sales Associates, Visual Associates, eCommerce Fulfillment Associates, Custodian Freight Associates, Counter Managers, Cosmetic Sales Managers, Beauty Advisors, and Assistant Store Managers (collectively "Hourly Workers") in Defendant's United States locations that *746operate under the brand names Stage, Peebles, Goody's, Bealls, and Palais Royal.
(Doc. No. 30 at 1-2.)
On September 12, 2018, Named Plaintiffs filed the instant motion for conditional class certification. (Id. ) In support of the motion, Named Plaintiffs each filed their own declaration, and they also filed "representative" declarations from ten other Hourly Workers employed by Stage at 8 different store locations in 5 different states. (See Doc. Nos. 32-12, 32-13, 32-14, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22, 32-23.) Plaintiffs ask the Court to: (1) conditionally certify the proposed collective; (2) order Stage to produce a computer-readable data file containing the names, last known mailing addresses, last known telephone numbers, last known personal and work email addresses, social security numbers, and work locations for all FLSA collective members; (3) provide an opt-in notice to the FLSA collective members currently employed by Stage in their pay envelopes; and (4) approve the proposed notice distribution process. (Doc. No. 31 at 31.)
II. Conditional Certification of Plaintiffs' Claims
A. FLSA Certification Standard
The FLSA generally requires that employers pay employees specified hourly rates for up to 40 hours per week, and pay overtime compensation at one and one half times the regular rate for hours worked in excess of 40 hours in a week.
Lead plaintiffs bear the burden of showing that opt-in plaintiffs are similarly situated. Frye v. Baptist Mem'l Hosp., Inc.,
Where, as here, the request is made early in the case and prior to significant discovery, the standard is "fairly lenient," and requires only "a modest factual showing" that "typically results in conditional certification of a representative class." Comer v. Wal-Mart Stores, Inc.,
*747Morisky v. Pub. Serv. Elec. & Gas Co.,
B. Plaintiffs' Declarations
In support of the motion for conditional certification, Plaintiffs have submitted twelve total declarations from themselves and other former Stage Hourly Workers, each stating that they were forced to perform "off-the-clock" work without being compensated, whether by performing work before clocking in, after clocking out, during breaks, or having their hourly logs manipulated through time-shaving. (See Doc. Nos. 31 at 15, 32-12, 32-13, 32-14, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22, 32-23.) In Named Plaintiffs' two supporting declarations, they aver that Hourly Workers were not compensated for all work performed. (Doc. Nos. 32-12, 32-13.) The Named Plaintiffs' declarations both contain similar factual allegations-namely, that they routinely performed "off-the-clock" work. (Id. ) For example, Maya Crosby states that, while employed as an Hourly Worker, she was often required to perform work before she clocked in and after she clocked out, for which she was not paid. (Doc. No. 32-12 at 5-6.) Crosby further declares that her manager would go into the time system and change her hourly log to reflect that she did not work over 40 hours in a given week, even when she worked far in excess of 40 hours (i.e., shaving her time). (Id. at 6.)
Named Plaintiff Deneen Patton's declaration contains substantially similar statements. (See Doc. No. 37-13 at 4-6.) Patton explains that she would typically arrive one hour before the start of her opening shift and begin working upon arrival, but, at her manager's direction, she would not clock in for her shift until her scheduled start time. (Id. at 4.) Further, because Patton's managers told her she was not allowed to enter overtime hours, she entered hours corresponding to her scheduled shift, even though they did not accurately reflect the excess hours she worked. (Id. at 5.) Named Plaintiffs also offer ten other declarations from former Hourly Workers, stating that they too were subjected to "off-the-clock" work or time-shaving. (See Doc. Nos. 32-14, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22, 32-23.)
In response, Stage argues that Named Plaintiffs had dramatically different experiences from the other declarants, as the ways in which Named Plaintiffs and the other declarants were allegedly forced to perform "off the clock" work varied significantly. (Doc. No. 42 at 16-25.) Further, Stage filed declarations from twenty-five current employees, each stating that they had never been instructed to work off-the-clock and were unaware of any time-shaving *748activity. (Doc. Nos. 43-1 through 43-25.)
As to the inconsistencies between Named Plaintiffs and their declarants' different "off-the-clock" experiences, the Court reiterates that a "[s]howing a 'unified policy' of violations is not required [for certification]." O'Brien,
C. Whether the Prospective Collective Action Plaintiffs Are Similarly Situated
In totality, the twelve declarations adduced by Named Plaintiffs all allege that Stage's employment practices to control labor costs (through "off-the-clock" work and time-shaving) have denied Hourly Workers minimum wage and overtime compensation in violation of the FLSA. These declarations uniformly show (1) employment with Stage; (2) the job title for which certification is sought; (3) performance of similar job duties under the job title regardless of the Stage store at which they worked; (4) payment of wages; (5) work performed (a) for no wage, and/or (b) in excess of forty hours per week without overtime compensation by Stage; and (6) job duties and requirements that do not meet the requirements of any exemptions to the FLSA. (See Doc. Nos. 32-12, 32-13, 32-14, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22, 32-23.) The Court finds that, at bare minimum, Plaintiffs' claims are "unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct." O'Brien,
As noted, Stage raises a gamut of substantive arguments against certification. (Doc. No. 42 at 8-33.) Stage argues that (1) it has sweeping policies against "off-the-clock" work and time-shaving and has informed its employees of these policies through training and other informational postings; (2) it diligently investigates all reports of violations of this policy; (3) Named Plaintiffs had dramatically different experiences from the other declarants; and (4) Named Plaintiffs admit they had dramatically different experiences from Stage's declarants. (Id. ) Nonetheless, "[w]here, as here, plaintiffs have adduced sufficient evidence to meet step one's 'extremely lenient standard' for conditional certification, evidence offered by the defendant purporting to show plaintiffs are not similarly situated ... while significant after discovery and during the step-two analysis, does not compel denial of conditional certification." Gallagher v. Lackawanna Cnty., No. 3:CV-07-0912,
Briefly though, as to Stage's arguments regarding the differences between the declarants experiences, the Court does certainly note that "disparate factual and employment settings of the individual plaintiffs" are particular issues that are "appropriately examined under the second stage of the [certification] analysis" (i.e., in a motion for decertification), rather than at the motion for conditional certification stage. White,
D. Conclusion
For these reasons, the Court will grant the Plaintiffs' motion for conditional certification. See, e.g., Roberts,
In granting conditional certification, the Court finds that Plaintiffs' request for certification of a nationwide collective action that extends to all states in which Stage operates retail stores is appropriate and would serve the interests of justice and efficiency. The Court acknowledges that Plaintiffs have not adduced evidence from employees who have worked in every Stage store in every state in which Stage operates. Nonetheless, given the FLSA's broad prophylactic remedial purpose, the Court finds the nationwide class necessary and appropriate to achieve such purpose. See Bradford v. Logan's Roadhouse, Inc.,
III. Proposed Notice Protocol and Disclosure of Potential Plaintiffs
FLSA claims are governed by a two-year statute of limitations or, in the case of a "willful violation," a three-year statute of limitations.
There remains the question of Notice and Consent Forms and how they are to be disseminated. First, Stage argues that Named Plaintiffs' proposed Notice and Consent Form (Doc. No. 32-24) inaccurately provides notice to individuals who worked for Stage going back three years from the date this action was filed, rather than three years from the date of the Court's class certification order, as required by the FLSA's statute of limitations. (Doc. No. 42 at 33.) Plaintiffs, in their reply, do not dispute that the proposed notice should issue to Hourly Workers who worked for Stage in the three years prior to the date of the Court's class certification order. (Doc. No. 45 at 13.) Beyond this change, the parties have set forth no additional arguments regarding the language of the proposed Notice and Consent Form.
After review, the Court confirms that the proposed Notice and Consent Form is not atypical of those have issued in the past. Nevertheless, courts commonly require the parties to confer about the language to be included in the Notice and Consent Form, with the goal being to reach an agreement. See Patton v. ServiceSource Delaware, Inc., No. 3:15-01013,
Second, Plaintiffs request that the Court order Stage to produce to Plaintiffs' counsel the names, last known mailing addresses, last known telephone numbers, last known personal and work email addresses, and work locations for all putative collective members, and the last four digits of social security numbers for those members whose notices are returned as undeliverable. (Doc. No. 31 at 27-28.) Defendant makes no argument as to the scope of the requested information, but, rather, argues that a third-party administrator, not Plaintiffs' counsel, should provide any notice in the case so as to protect the integrity of the process and the confidential information of potential opt-in plaintiffs. (Doc. No. 42 at 34.) Neither approach strikes the Court as correct.
In regards to whether a third-party administrator, rather than Plaintiffs' counsel, should provide notice and protect the potential plaintiffs' confidential information, the Court finds that employment of a third party administrator is unnecessary. See Wysincavage v. Penn Nat'l Gaming, Inc., No. 16-Civ-1063,
As to the means of dissemination, Plaintiffs request that the Notice be sent via first class mail and email, posted on a website, and that it also be enclosed with the regularly scheduled paycheck for members of the putative collective. (Doc. No. 31 at 29-30.) Plaintiffs propose a 60-day notice period, with a reminder postcard and email to be sent halfway through the notice period to all eligible Hourly Workers who have not opted-in. (Id. at 30.) Stage requests that the proposed notice not be included in employee paychecks and that the Court reject Plaintiffs' request for the reminder notices. (Doc. No. 42 at 35.)
Although support can be found for each parties' position, "courts within the Sixth Circuit have routinely approved dual notification through regular mail and email."
*752Evans v. Caregivers, Inc., No. 3:17-cv-0402,
IV. Conclusion
On the basis of the foregoing, the Court will conditionally certify this matter as a collective action, and Stage will be required to furnish Plaintiffs with a list of the putative class members that includes last known physical and email addresses. The parties will be provided with an opportunity to reach agreement as to the Notice and Consent Form.
An appropriate Order will enter.
The Court also notes that, although Crosby admitted in her declaration that she engaged in time-shaving at the direction of her manager when her manager was absent, these actions do not create a conflict between Crosby and the putative collective. Crosby's limited actions, performed at her manager's direction while the manager was absent, simply do not raise a sufficient conflict of interest, especially considering that Crosby was also forced to alter her own time. (See Doc. No. 43-18 at 3.)
Reference
- Full Case Name
- Maya CROSBY and Deneen Patton, on Behalf of Themselves and All Those Similarly Situated v. STAGE STORES, INC.
- Cited By
- 21 cases
- Status
- Published