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Guillen v. Marshalls of MA

November 16, 2010

MARTIN GUILLEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
MARSHALLS OF MA, INC., A DELAWARE CORPORATION; MARMAXX OPERATING CORPORATION, D/B/A MARMAXX GROUP, A DELAWARE CORPORATION; THE TJX COMPANIES INC., A DELAWARE CORPORATION, AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

Martin Guillen has sued Marshalls of MA, Inc., Marmaxx Operating Corporation d/b/a Marmaxx Group, and the TJX Companies Inc. (collectively "Marshalls") on the ground that Marshalls failed to pay him overtime wages in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., while he was employed as an Assistant Store Manager ("ASM"). Guillen now moves to have this case conditionally approved as a collective action with notice being sent to all ASMs at Marshalls stores nationwide. For the reasons discussed below, Guillen's motion is denied without prejudice to an application seeking notification with respect to ASMs at a more limited number of Marshalls stores.

I. BACKGROUND

Marshalls is one of the largest retailers in the world. See Defendants' Opposition to Plaintiff's Motion for Conditional Certification and Facilitation of Notice Pursuant to 29 U.S.C. § 216(b), filed July 9, 2010 (Docket # 21) ("Def. Motion") at 36. There are 820 Marshalls stores in the United States, which are divided into separate geographic zones, regions, and districts. Affidavit of Maryann Parizo, filed July 9, 2010 (Docket # 22) ("Parizo Aff.") ¶¶ 3-4. Each Marshalls store has a store manager, at least two ASMs, and a number of coordinators and associates. Id. ¶ 9. Marshalls employs two types of ASMs: Operations ASMs and Merchandise ASMs. Id. ¶ 11. Marshalls classifies both Merchandise and Operations ASMs as exempt from the FLSA's overtime provisions. See Marshalls Assistant Store Manager - Exempt - Job Description (annexed as Ex. 2 to Parizo Aff.) ("Job Description") at *TJX4; Affidavit of Martin Guillen in Support of Plaintiff's Motion for Conditional Certification (annexed as Ex. 1 to Affirmation of Marc S. Hepworth in Support of Plaintiff's Motion for Conditional Certification, filed June 4, 2010 (Docket # 18) ("Hepworth Aff.")) ("Guillen Aff.") ¶ 3. Coordinators and associates are classified as non-exempt employees eligible for overtime. See Parizo Aff. ¶¶ 13, 14; Job Description at *TJX4.

Guillen was employed by Marshalls as a Merchandise ASM from approximately September 2007 until September 2008. Guillen Aff. ¶ 2. He worked at two New York Marshalls stores: one located in Hartsdale and the other in the Bronx. Id. Guillen estimates that he worked approximately 60 to 70 hours a week and he asserts that he was not paid overtime for any hours worked over 40 hours a week. Guillen Aff. ¶¶ 3-4.

According to the ASM job description, Marshalls ASMs are "[r]esponsible for assisting the Store Manager in managing the day-to-day operation of the store and customer service within the store...." Job Description at *TJX4. Merchandise ASMs are required to "[m]anage[] in-store operations...[,] [o]versee[] the efficient operation of merchandising standards and presentation, operational functions and key areas such as frontline, layaway and cash office...[,] [and] [a]ssist[] in managing key areas such as maintenance and back room functions." Guide to Store Management's and Coordinators' Duties & Responsibilities (annexed as Ex. 3 to Parizo Aff.) ("Guide to Store Management") at *TJX249. Operations ASMs are also required to "[m]anage[] in-store operations." These ASMs "[o]versee[] the efficient operation of key areas such as cash office, maintenance and backroom functions... [,] [and] [a]ssist[] in managing merchandising standards and presentations." Id. at *TJX250.

Guillen asserts that, despite this job description, he in fact performed a number of non-exempt tasks, including "operating the cashier [sic], stocking, cleaning, rolling the racks from the stock room to the floor, displaying clothes in departments, unloading trucks, signage (displaying the tags on the merchandise), running merchandise and restocking clothes in the departments." Guillen Aff. ¶ 6. He "was also required to organize the store floors by... sweeping, mopping and removing garbage." Id. He states that he "cleaned windows, painted doors, painted walls, cleaned bathrooms[,]... erected display stands[,]... stocked shelves, cleaned the stock room, helped customers and checked prices." Id.; accord Complaint, filed Nov. 18, 2009 (Docket # 1) ¶ 20. Guillen asserts that "[t]he majority of [his] time as an Assistant Store Manager was spent performing non-exempt tasks." Guillen Aff. ¶ 7.

Guillen has also submitted the affidavits of Nicole Archibald, Zobeyda Morales, and Ellen Ogaian, former ASMs at Marshalls, and of Lady Diana Santillian, currently employed as an ASM at Marshalls. See Affidavit of Nicole Archibald in Support of Plaintiff's Motion for Conditional Certification (annexed as Ex. 2 to Hepworth Aff.) ("Archibald Aff."); Affidavit of Zobeyda Morales in Support of Plaintiff's Motion for Conditional Certification (annexed as Ex. 3 to Hepworth Aff.) ("Morales Aff."); Affidavit of Ellen Ogaian in Support of Plaintiff's Motion for Conditional Certification (annexed as Ex. 4 to Hepworth Aff.) ("Ogaian Aff."); Affidavit of Lady Diana Santillian in Support of Plaintiff's Motion for Conditional Certification (annexed as Ex. 5 to Hepworth Aff.) ("Santillian Aff."). Over the course of their careers at Marshalls, Archibald, Morales, and Ogaian were employed at five Marshalls retail stores located in the New York metropolitan area: three in the Bronx and one each in Port Chester and Hartsdale. See Archibald Aff. ¶ 2; Morales Aff. ¶ 2; Ogaian Aff. ¶ 2. The Hartsdale store is the same store at which Guillen worked. See Guillen Aff. ¶ 2; Ogaian Aff. ¶ 2. Santillian was employed at two New York Marshalls stores, one in Nanuet and one in Port Chester; she is currently employed at a Marshalls store in Bedford, New York. See Santillian Aff. ¶ 2.

Each of these ASMs state that they were required to perform many of the same non-exempt tasks that Guillen performed. See Archibald Aff. ¶ 6; Morales Aff. ¶ 6; Ogaian Aff. ¶ 6; Santillian Aff. ¶ 6. In addition, they state that "the majority of [their] time was spent performing non-exempt tasks," Archibald Aff. ¶ 7; see Morales Aff. ¶ 7; Ogaian Aff. ¶ 7; Santillian Aff. ¶ 7, and that they were not paid overtime, see Archibald Aff. ¶ 3; Morales Aff. ¶ 3; Ogaian Aff. ¶ 3; Santillian Aff. ¶ 3. Guillen and these other ASMs assert that most managerial responsibilities were handled by a store, district, or regional manager or other corporate employee, see Guillen Aff. ¶ 9; Archibald Aff. ¶¶ 9-10; Morales Aff. ¶ 9; Ogaian Aff. ¶ 9; Santillian Aff. ¶ 9, and that their own duties "were substantially similar to the duties and responsibilities of the hourly employees who received overtime compensation," Guillen Aff. ¶ 8; Archibald Aff. ¶ 8; see also Morales Aff. ¶ 8; Ogaian Aff. ¶ 8; Santillian Aff. ¶ 8.

With respect to whether ASMs perform non-exempt tasks at Marshalls stores other than those at which they were or currently are employed, Guillen, Archibald, Morales, Ogaian, and Santillian have provided the Court with identical statements in their respective affidavits. They assert that it is their "understanding" that all ASMs for all Marshalls locations were required to perform "substantially the same duties and responsibilities." Guillen Aff. ¶ 5; Archibald Aff. ¶ 5; Morales Aff. ¶ 5; Ogaian Aff. ¶ 5; Santillian Aff. ¶ 5. They base their understanding on the fact that "Marshalls employed a high degree of standardized operational practices at [its] store[s]...." Guillen Aff. ¶ 5; Archibald Aff. ¶ 5; Morales Aff. ¶ 5; Ogaian Aff. ¶ 5; Santillian Aff. ¶ 5. In addition, each states that "as an Assistant Store Manager, I often interacted with other Assistant Store Managers from different districts and regions in New York State... Based upon my personal observations and [these] discussions..., I believe the duties and responsibilities of Assistant Store Managers are substantially similar from store to store." Guillen Aff. ¶ 5; Archibald Aff. ¶ 5; Morales Aff. ¶ 5; Ogaian Aff. ¶ 5; Santillian Aff. ¶ 5.

For its part, Marshalls has provided the Court with affidavits from five ASMs currently employed at four Marshalls' stores in New York. See Declaration of Johnny Nunez (annexed as Ex. B to Affidavit of Lisa A. Schreter in Support of Defendants' Opposition, filed July 9, 2010 (Docket # 23) ("Schreter Aff.")) ("Nunez Decl.") ¶ 4; Declaration of Luis Cepa (annexed as Ex. C to Schreter Aff.) ("Cepa Decl.") ¶ 3; Declaration of Sal Farruggia (annexed as Ex. D to Schreter Aff.) ("Farruggia Decl.") ¶ 3; Declaration of Mary Marciniak (annexed as Ex. E to Schreter Aff.) ("Marciniak Aff.") ¶ 2; Declaration of Bernard Gucciardo (annexed as Ex. F to Schreter Aff.) ("Gucciardo Decl.") ¶ 3. Two of these ASMs were also formerly employed at seven other Marshalls stores, also in New York. Farruggia Decl. ¶¶ 3-4; Gucciardo Decl. ¶ 3. These ASMs describe in detail various managerial functions that they perform, including hiring and promoting, training, evaluating, and disciplining non-exempt employees. See Nunez Decl. ¶¶ 34-64; Cepa Decl. ¶¶ 27-33; Farruggia Decl. ¶¶ 8-36; Marciniak Decl. ¶¶ 5-26; Gucciardo Decl. ¶¶ 11-39. Additionally, two non-exempt coordinators, Alejandra Cano and Jodiann McKoy, have submitted affidavits attesting that ASMs in their stores perform supervisory and managerial functions. See Declaration of Alejandra Cano (annexed as Ex. H to Schreter Aff.) ¶¶ 4-11; Declaration of Jodiann McKoy (annexed as Ex. J to Schreter Aff.) ¶¶ 5-11.

Guillen seeks an order allowing this case to proceed as a collective action with the proposed class of persons to be notified consisting of all ASMs employed at all Marshalls stores nationwide. See Plaintiff's Motion for Conditional Certification of a Collective Action, filed June 4, 2010 (Docket # 17) ("Pl. Motion"); Hepworth Aff.; Plaintiff's Reply in Support of Motion for Conditional Certification of a Collective Action, filed July 30, 2010 (Docket # 25) ("Pl. Reply Motion"); Supplemental Affirmation of Marc S. Hepworth in Support of Plaintiff's Motion for Conditional Certification, filed July 30, 2010 (Docket # 26). Marshalls opposes this motion. See Def. Motion; Schreter Aff.; Parizo Aff.

II. APPLICABLE LEGAL PRINCIPLES

The FLSA was enacted to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers...." 29 U.S.C. § 202(a). "The purpose of the FLSA... was to 'guarantee [] compensation for all work or employment engaged in by employees covered by the Act.'" Reich v. N.Y. City Transit Auth., 45 F.3d 646, 648-49 (2d Cir. 1995) ...


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