The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Martin Guillen has sued Marshalls of MA, Inc., Marmaxx Operating
Corporation d/b/a Marmaxx Group, and the TJX Companies Inc.
(collectively "Marshalls") alleging 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"). See Complaint, filed Nov. 18, 2009 (Docket # 1).
Guillen had previously moved to have this case conditionally approved
as a nationwide collective action -- a motion that we denied without
prejudice in Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469
(S.D.N.Y. 2010) ("Guillen I"). Guillen now moves once again to have
this case conditionally approved as a collective action.*fn1
As was true on the previous motion, he seeks to include in
action all ASMs at Marshalls stores nationwide except for those in
California. For the reasons stated below, the motion is denied.
Marshalls is a retailer of apparel and home fashions in the United States. See TJX: The TJX Companies (annexed as Ex. A to Hepworth Decl.). As of 2010 there were 830 Marshalls stores in the United States. Id. Marshalls classifies ASMs as exempt from FLSA's overtime requirements because they "perform managerial duties," Def. Mem. of Law at 2, and thus are "employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). To qualify for this exemption, the employee's "primary duty" must include the "exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200(a)(3).
In Guillen I, this Court held that Guillen could not obtain conditional approval of a nationwide class because Guillen had not shown that he was similarly situated to ASMs nationwide with respect to the central allegation in his complaint: that he spent most of his time performing non-managerial tasks and thus that Marshalls was required to pay him overtime compensation. 750 F. Supp. 2d at 479. The Court noted that Guillen's presentation on the question of whether he was similarly situated to ASMs nationwide was "extremely thin," consisting essentially of proof that Marshalls had a single job description for the ASM position and affidavits from five ASMs who experienced the allegedly illegal activities at nine stores in the New York City area out of all the Marshalls stores nationwide. Id. at 477. Guillen I concluded that "that there is virtually no basis on which to conclude that ASMs nationwide are similarly situated to Guillen with respect to his allegation that he spent the majority of his time performing non-managerial tasks." Id. at 479.
Since his first motion for conditional approval, Guillen has conducted more discovery, including the depositions of six Marshalls witnesses. See Pl. Mem. of Law at 1. According to Marshalls' corporate witnesses, Marshalls has instituted responsibilities and duties for its ASMs that are meant to ensure uniformity across all stores. See Deposition of Gregory Griffin, dated Jan. 18, 2011 (annexed as Ex. C to Hepworth Decl.) ("Griffin Dep.") at 64. All Marshalls ASMs are trained in a uniform manner to ensure consistency throughout Marshalls stores. See Deposition of Jeffrey Misialek, dated Jan. 18, 2011 (annexed as Ex. L to Hepworth Decl.) at 26. There is a single written job description for all ASMs. See Griffin Dep. at 176-78; Uniform ASM Job Description (annexed as Ex. M to Hepworth Decl.); Guide to Store Management's and Coordinators' Duties and Responsibilities (annexed as Ex. O to Hepworth Decl.) ("Uniform Guide"). Additionally, all Marshalls stores operate according to a "BEST Methods program" under which Marshalls has established standards for how "some of the tasks in the stores get accomplished." See Deposition of Robert A. Borek, Jr., dated Jan. 26, 2011 (annexed as Ex. J to Hepworth Decl.) at 16. The ASMs are subject to the same training and the same work rules. See Pl. Mem. of Law at 9-11. Except for ASMs in California, all ASMs are classified as exempt from FLSA overtime requirements. Griffin Dep. at 122-24.
Despite the purported uniform corporate policy on ASM's, Guillen and several other ASMs in the New York City area who have joined the action as plaintiffs have testified that they perform a variety of non-exempt duties such as "cleaning, sweeping, bagging products, hanging store signs, taking out the garbage, working the register, door to floor, recovery, and unloading the delivery truck." Pl. Mem. of Law at 5; accord Deposition of Martin Guillen, dated June 8, 2010 (annexed as Ex. D to Hepworth Decl.) at 362, 371, 373, 403; Deposition of Nicole Archibald, dated June 2, 2010 (annexed as Ex. E to Hepworth Decl.) ("Archibald Dep.") at 225, 361, 366, 368, 369; Deposition of Tanya Mack, dated May 25, 2011 (annexed as Ex. G to Hepworth Decl.) at 87, 123, 373, 377, 378, 379. Plaintiffs acknowledge that some of these non-exempt duties were not in their official job descriptions, see, e.g., Archibald Dep. at 361, but state that they were trained to do some non-exempt tasks, see, e.g., Deposition of Ellen Ogaian, dated June 3, 2010 (annexed as Ex. F to Hepworth Decl.) at 257. None of them, however, has pointed to evidence suggesting that Marshalls instituted a corporate policy, applicable nationwide, under which ASMs were expected to spend the majority of their time on non-exempt duties.
The legal principles applicable to Guillen's motion were set forth in Guillen I, 750 F. Supp. 2d at 474-76, and will not be repeated at length here. In brief, the FLSA has long been construed to grant authority to a district court to mandate that notice be sent to potential plaintiffs informing them of the option to join an FLSA suit. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989) ("[D]istrict courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs."). "The threshold issue in deciding whether to authorize class notice in an FLSA action is whether plaintiffs have demonstrated that potential class members are 'similarly situated.'" Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (quoting 29 U.S.C. § 216(b)). Plaintiffs can meet this burden by making "a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Id. (citing cases). At this preliminary stage, the focus of the inquiry "is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are 'similarly situated' under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated." Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (citation omitted). Once plaintiffs have opted in and after discovery is complete, "courts conduct a more stringent 'second tier' analysis upon a full record to decide whether the additional plaintiffs are similarly situated to the original plaintiffs." Indergit v. Rite Aid Corp., 2010 WL 2465488, at *4 (S.D.N.Y. June 16, 2010); accord Pefanis v. Westway Diner, Inc., 2010 WL 3564426, at *4 (S.D.N.Y. Sept. 7, 2010).
Guillen's latest motion adds virtually no evidence suggesting that Guillen is similarly situated to ASMs in Marshalls stores nationwide with respect to the main contention in this case: that he was required to perform tasks that rendered him non-exempt from the FLSA's overtime requirements. Guillen provides evidence from one additional ASM, Tanya Mack; but Mack, like the ASMs who submitted affidavits in Guillen I, was employed in New York City stores. See Deposition of Tanya Mack, dated May 25, 2011 (annexed as Ex. 9 to Marino Decl.) at 65-68. Essentially, Guillen simply reiterates the argument he made previously: that Marshalls has a uniform expectation of the ASMs' duties and responsibilities that applies to all stores nationwide, see Pl. Mem. of Law at 2, and that he and five other ASMs routinely performed non-exempt duties, see id. at 5. Guillen concludes that this is sufficient to show that he is similarly situated to ASMs in Marshalls stores nationwide. See Pl. Mem. of Law at 5, 19; Reply at 1.
Guillen provides no evidence, however, that could plausibly lead to the inference that ASMs nationwide are performing non-exempt tasks. There is nothing, for example, in Marshalls' job description that calls for the performance of these non-exempt duties. Nor is there anything in the record suggesting that Marshalls expects ASMs nationwide to perform non-exempt work or is aware that they do so. Thus, this case is distinguishable from many of the cases Guillen cites in support of his motion. See, e.g., Lee v. ABC Carpet & Home, 236 F.R.D. 193, 198 (S.D.N.Y. 2006) (all potential plaintiffs were illegally misclassified as independent contractors); Sbarro, 982 F. Supp. at 261 (company admitted that it had a uniform policy that plaintiffs alleged was illegal); Young, 229 F.R.D. at 55 (employer did not dispute that the duties plaintiff alleged that he was required to perform were the same duties performed by all other persons in his job title). Other cases cited by Guillen had evidence from which it could be concluded that all persons in a particular region sharing plaintiff's job title were similarly situated. See, e.g., Greene v. C.B. Holding Corp., 2010 WL 3516566, at * 5 (E.D.N.Y. Aug. 12, 2010) (evidence submitted that illegal practices occurred in each state where defendant operated its locations).
Guillen's argument boils down to the proposition that any employee classified as exempt by a company that does business nationwide is entitled to approval of a collective action for all employees of that business -- who may number in the thousands and be spread across 50 states -- simply based on the employee's testimony that he was required to perform non-exempt tasks. We reject this argument because it ignores the requirement that plaintiff show he is similarly situated to the employees he proposes to include in the collective action with respect to his claim that he performed non-exempt duties. Guillen has simply not made the "modest showing" required by case law that would allow the conclusion that ASMs across the country have been performing the non-exempt duties. As one recent case in this district held, a "geographically concentrated cluster of [store managers] whom [plaintiff] claims were assigned duties inconsistent with their exempt classification . . . is too thin a reed on which to rest a nationwide certification." Vasquez v. Vitamin Shoppe Indus. Inc., 2011 WL 2693712, at * 3 (S.D.N.Y. July 11, 2011); see generally Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 927 (D. Ariz. 2010) (the "mere classification of a group of employees as exempt does not automatically dictate . . . whether collective action notification is appropriate") (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009)).
The language in Young noting that collective action approval focuses on "whether the proposed plaintiffs are 'similarly situated' . . . with respect to their allegations that the law has been violated," 229 F.R.D. at 54, was not intended to suggest that mere "allegations" that the proposed class is similarly situated to plaintiff is sufficient to obtain certification. Rather, the plaintiff must provide "actual evidence of a factual nexus between his situation and [the persons] he claims are similarly situated." Prizmic v. Armour, Inc., 2006 WL 1662614, at * 2 (E.D.N.Y. June 12, 2006). Here, Guillen has failed to provide any proof that he is similarly situated to ASMs across the nation. Obviously, his pointing to a common policy at Marshalls regarding the job duties of ASMs provides no proof that other ASMs are performing non-exempt duties, particularly given that all policies and writings from Marshalls dictate just the opposite. See, e.g, Uniform Guide at TJX 249-53. Thus, as we previously stated, "there is virtually no basis on which to conclude that ASMs nationwide are similarly situated to Guillen with respect to his allegation that he spent the majority of his time performing non-managerial tasks." Guillen I, 750 F. Supp. 2d at 479. Guillen's papers do not persuasively distinguish the cases cited in Guillen I that support the elemental notion that a collective action is inappropriate as to all employees of a common ...