United States District Court, E.D. Virginia, Norfolk Division
For Marina LaFleur, Plaintiff: Stephen Edward Heretick, LEAD ATTORNEY, Law Office of Stephen E Heretick, Portsmouth, VA; Dennis George Pantazis, Jr., PRO HAC VICE, Wiggins Childs Quinn & Pantazis LLC, Birmingham, AL; Kathleen Currie Chavez, PRO HAC VICE, Chavez Law Firm P.C., St. Charles, IL; Kenneth M. Willner, PRO HAC VICE, Paul Hastings Janofsky & Walker LLP, Washington, DC; Matthew J. Herman, Robert M. Foote, PRO HAC VICE, Foote, Meyers, Mielke & Flowers, LLC, St. Charles, IL; Peter Lawrence Currie, PRO HAC VICE, The Law Firm of Peter L. Currie, P.C., Chicago, IL.
For Theresa Croy, individually and on behalf of all others similarly situated, Plaintiff: Stephen Edward Heretick, LEAD ATTORNEY, Law Office of Stephen E Heretick, Portsmouth, VA; Dennis George Pantazis, Jr., PRO HAC VICE, Wiggins Childs Quinn & Pantazis LLC, Birmingham, AL; Kathleen Currie Chavez, PRO HAC VICE, Chavez Law Firm P.C., St. Charles, IL; Kenneth M. Willner, Paul Hastings Janofsky & Walker LLP, Washington, DC; Matthew J. Herman, Robert M. Foote, PRO HAC VICE, Foote, Meyers, Mielke & Flowers, LLC, St. Charles, IL; Peter Lawrence Currie, PRO HAC VICE, The Law Firm of Peter L. Currie, P.C., Chicago, IL.
For Dollar Tree Stores, Inc., doing business as Dollar Tree, doing business as Deals, Defendant: Beth Hirsch Berman, LEAD ATTORNEY, Williams Mullen Hofheimer Nusbaum, Norfolk, VA; Barbara Berish Brown, PRO HAC VICE, Paul Hastings LLP, Washington, DC; Carson Hobbs Sullivan, Kenneth M. Willner, Paul Hastings Janofsky & Walker LLP, Washington, DC.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United States District Judge.
Before the Court is Dollar Tree Stores, Inc.'s (" Defendant" or " Dollar Tree" ) Motion
to Decertify the Collective Action. Defendant filed its Motion to Decertify (ECF No. 405) on September 13, 2013 and its Corrected Memorandum in Support of the Motion (ECF No. 407) on September 16, 2013. Plaintiff Theresa Croy, individually and on behalf of other opt-in plaintiffs (" Plaintiffs" ), filed a Response in Opposition to Defendant's Motion to Decertify (ECF No. 415) on September 24, 2013. Defendant then filed its Reply (ECF No. 420) supporting decertification on September 30, 2013. The matter having been fully briefed and oral argument having been heard, this matter is now ripe for disposition. For the reasons stated herein, Defendant's Motion to Decertify is DENIED. Plaintiffs' Motion to Order a Settlement Conference (ECF No. 423) is GRANTED.
I. FACTUAL & PROCEDURAL HISTORY
Plaintiffs are current and former Dollar Tree hourly sales associates. Dollar Tree is a publicly-traded corporation headquartered in Chesapeake, Virginia with retail stores in the continental United States. Compl. ¶ ¶ 13-17. Dollar Tree stores are corporately-owned and operated with operating policies and procedures that apply to all stores. Compl. ¶ ¶ 16, 19.
Plaintiffs Marina LaFleur and Theresa Croy brought their claims against Dollar Tree on behalf of themselves and all current and former " Hourly Associates" and " Assistant Store Managers." Compl. ¶ 1. Plaintiffs claim that Defendant violated wage laws in forty-eight states and the District of Columbia by engaging in practices that required or permitted employees to work " off-the-clock" and overtime without compensation. Compl. ¶ 2. Plaintiffs allege that these " standard and uniform human resource and employment policies and practices, including policies and practices governing wages and compensation," applied to all Dollar Tree employees nationwide and facilitated a company-wide procedure of allowing employees to perform overtime work without pay. Compl. ¶ 20. These allegations specifically claim that putative class members are paid on an hourly basis and are required to work off-the-clock (1) when making bank deposits, (2) during interrupted meal periods, and (3) at miscellaneous other times performing activities such as unloading trucks, stocking inventory and aisles, retrieving carts and boxes, cleaning, and waiting for other employees to start the next shift. Compl. ¶ ¶ 21, 24-34; Def.'s Supp. Mot. to Decertify 22. As a result of the practice of allowing unpaid off-the-clock work, Plaintiffs worked outside of their scheduled work period and Defendant failed to compensate them for associated overtime. Accordingly, Plaintiffs claim Defendant violated federal and state laws prohibiting unpaid overtime and payment of wages below the minimum wage. Compl. ¶ ¶ 24, 35, 37-38, 43-44, 53.
Plaintiffs LaFleur and Croy filed their Complaint in this case on November 28, 2011 before the United States District Court for the Northern District of Illinois. Compl. (ECF No. 1). The Complaint articulates the aforementioned allegations and brought causes of action for alleged violations of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 201 et seq. , the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. , the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. , and similar state wage and hour laws applicable to putative class members. Compl. ¶ 2. On June 18, 2012, United States District Judge Marvin E. Aspen issued a memorandum opinion and order directing the case to be transferred to the Eastern District of Virginia. Mem. Op. Order 1, June 18, 2012 (ECF No. 58).
On October 2, 2012, this Court conditionally certified the case, allowing Plaintiffs to send notice to potential opt-in plaintiffs. Mem. Op. Order, Oct. 2, 2012 (ECF No. 82). This Court also dismissed state law claims and pendant claims for Plaintiffs who worked solely as Assistant Store Managers, including named plaintiff LaFleur. Id. On November 13, 2012, the Court approved the parties' proposed joint discovery plan. Subsequently, Plaintiffs sent notices to approximately 275,000 former and current Dollar Tree employees, 6,276 of which opted-in as plaintiffs in the lawsuit. Def.'s Supp. Mot. 6. At the time the Motion to Decertify was filed, out of 6,276 opt-in plaintiffs, 184 opt-in plaintiffs had been dismissed, leaving 6,092 Plaintiffs. Id.
On January 3, 2014, the Court granted Plaintiffs leave to amend their Complaint to add Dee Crouch and Kimberly Cruz as named plaintiffs in this action. Mem. Op. Order, Jan. 3, 2014 (ECF No. 433). The Court also dismissed opt-in plaintiffs whose claims were time-barred pursuant to the applicable statute of limitations, who filed bankruptcy claims without acknowledging claims against Dollar Tree and who failed to respond to Defendant's written discovery requests. Id. Lastly, the Court deferred disposition of the Motion to Decertify until after the parties were able to present oral arguments. Id. The Court conducted a hearing on the issue of decertification on February 26, 2014. At the time of the hearing, Defense counsel represented to the Court that approximately 4,000 individuals remained as opt-in plaintiffs of the conditionally certified class.
II. LEGAL STANDARD
The FLSA, enacted in 1938, " embodies a federal legislative scheme to protect covered employees from prohibited employer conduct." Houston v. URS Corp., 591 F.Supp.2d 827, 831 (E.D. Va. 2008). Pursuant to Section 216(b) of the FLSA, an action may be maintained against an employer in federal court " by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). The collective action mechanism allows for the efficient adjudication of similar claims so that " similarly situated" employees, whose claims are often small and not likely to be brought on an individual basis, may join together and pool their resources to prosecute claims of misconduct by their employers. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
District courts within the United States Court of Appeals for the Fourth Circuit (" Fourth Circuit" ) have uniformly employed a two-step inquiry in deciding whether to certify a collective action under the FLSA:
First, upon a minimal evidentiary showing that a plaintiff can meet the substantive requirements of 29 U.S.C. § 216(b), the plaintiff may proceed with a collective action on a provisional basis. Second, following discovery, the court engages in a more stringent inquiry to determine whether the plaintiff class is " similarly situated" in accordance with the requirements of § 216, and renders a final decision regarding the propriety of proceeding as a collective action.
Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007) (internal citations omitted). The second phase of collective action certification under the FLSA is often prompted by a defendant's filing of a motion to decertify, and the court undertakes a more " stringent" factual determination as to whether members of the collective class are, in fact, similarly situated.
See Romero v. Mountaire Farms, Inc., 796 F.Supp.2d 700, 705 (E.D. N.C. 2011) (citing Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)); Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D. Md. 2010). If, after discovery, it is apparent that plaintiffs are not similarly situated, the court may decertify the collective action and dismiss the claims of the opt-in plaintiffs without prejudice. Romero, 796 F.Supp.2d at 706.
The FLSA does not define " similarly situated" and the Fourth Circuit has yet to apply a standard for determining when plaintiffs are similarly situated in the context of a FLSA collective action. Choimol v. Fairfield Resorts, Inc., 475 F.Supp.2d 557, 562 (E.D. Va. 2006). However, courts have determined if potential class members are similarly situated by assessing the existence of " issues common to the proposed class that are central to the disposition of the FLSA claims and that such common issues can be substantially adjudicated without consideration of facts unique or particularized as to each class member." Houston, 591 F.Supp.2d at 831. The situations need not be identical. The court explained the standard as follows:
That is not to say that there can be no differences among class members or that an individualized inquiry may not be necessary in connection with fashioning the specific relief or damages to be awarded to each class member. Rather, the inquiry is whether the presence of common issues allows the class-wide claims to be addressed without becoming bogged down by individual differences among class members.
Id. Insubstantial differences in job duties, hours worked and wages due that do not materially affect whether a group of employees may be properly classified are not significant to the " similarly situated" determination. See Romero, 796 F.Supp.2d at 705 (citing de Luna-Guerrero v. N.C. Grower's Assoc., 338 F.Supp.2d 649, 654 (E.D. N.C. 2004)). In considering a motion to decertify alleging dissimilarity of the conditionally certified class, " [d]istrict courts have typically applied three factors to aid in this determination: (1) the disparate factual and employment settings of the individual plaintiffs; (2) defenses which appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Sharer v. Tandberg, Inc., 1:06CV626 (JCC), 2007 WL 676220, at *2 (E.D. Va. Feb. 27, 2007).
Plaintiffs bear the burden of showing by a preponderance of the evidence that their claims are " similarly situated." Hipp, 252 F.3d at 1217; Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 537 (3d Cir. 2012). " Upon a determination that the plaintiffs establish the burden of proving they are 'similarly situated[,]' the collective action proceeds to trial." Houston, 591 F.Supp.2d at 832. By contrast, " if the court determines that the plaintiffs are in fact, not 'similarly situated[,]' ...