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Mohammed M. Ahmed v. T.J. Maxx Corp. and

November 14, 2012

MOHAMMED M. AHMED, PLAINTIFF,
v.
T.J. MAXX CORP. AND TJX COMPANIES, INC., DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court is the plaintiffs' motion to conditionally authorize a collective action, pursuant to Section 216 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. Plaintiffs also request authorization to circulate a Notice of Lawsuit and Consent to Join Lawsuit form to similarly situated individuals. Defendants oppose plaintiffs' motion on the grounds that plaintiff Ahmed never "commenced" a collective action within the meaning of 29 U.S.C. § 256, and furthermore has failed to make the requisite factual showing to support certification of a nationwide class. For the following reasons, plaintiffs' motion is granted, subject to the limitations discussed below.

FACTS

Plaintiff Mohammed Ahmed ("Ahmed") and would-be opt-in plaintiff Andrea Casale ("Casale")*fn1 (collectively, "plaintiffs") are former employees of defendants T.J. Maxx Corp. and TJX Companies, Inc. (collectively "TJ Maxx" or "defendants"). (Complaint at ¶ 31; Affidavit of Andrea Casale, Exhibit 5 to Affirmation of Robert J. Valli Jr. in Support of Plaintiff's Motion for Conditional Certification (hereinafter "Casale Affidavit") at ¶¶ 2-7.) Plaintiffs were employed by defendants as Assistant Managers ("ASMs") in several of defendants' stores. (Id.) Ahmed worked for defendants as an ASM from in or around October 17, 2008 through July 1, 2010, and Casale worked for defendants as an ASM from in or around July of 2007 until October 31, 2008. (Complaint at ¶ 31; Casale Affidavit at ¶¶ 7, 24.)

Plaintiffs allege that, although they were classified as exempt managers for payroll purposes, they spent the majority of their time engaged in work that was traditionally required of and performed by non-exempt hourly employees and was unrelated to the management of the store. (Complaint at ¶ 34; Casale Affidavit at ¶¶ 13, 23.) Plaintiffs allege that defendants failed to pay overtime for work performed in excess of 40 hours per week, in spite of the fact that they were engaged in non-exempt work. (Complaint at ¶¶ 35-37, 42; Casale Affidavit at ¶¶ 11, 24.) Plaintiffs further allege that this denial of overtime was part of an ongoing effort by defendants to limit labor budgets for hourly workers by requiring ASMs to fulfill these workers' duties, rather than hiring additional hourly workers or paying existing hourly workers overtime. (Complaint at ¶¶ 44, 47.) Plaintiffs maintain that other similarly situated employees not only in Long Island, but in other states, have been erroneously classified and unlawfully denied overtimecompensation as well. (Id.)

Plaintiffs bring this action pursuant to the FLSA, alleging that defendants' failure to pay them for their overtime hours violates Section 207 of that Act. Plaintiffs now seek conditional authorization to proceed as a collective action, pursuant to FLSA § 216, as well as permission to circulate the proposed Notice of FLSA Lawsuit and Consent to Join Collective Action form (together, the "Notice") to former and current employees nationwide who worked for defendants as Assistant Managers from August 2007 to the present so that such similarly situated employees may be apprised of the within action and opt to join the litigation, if they so choose.

DISCUSSION

I. Commencing a Collective Action

Defendants maintain, as an initial matter, that Ahmed's case cannot proceed as a collective action because Ahmed himself has not filed a consent form as required by section 216(b) of the FLSA. (Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Conditional Certification, hereinafter "Def. Mem. of Law in Opp'n", at 19.) It is defendant's position that the FLSA requires a plaintiff - even a named plaintiff - to opt-in to his or her own action in order to proceed as a collective action. (Id.)

Although the cases upon which defendants rely provide that all plaintiffs must affirmatively opt in to a suit in order to proceed as part of a collective action, see, e.g. Gonzalez v. El Acajutla Restaurant, Inc., No. 04 Civ. 1513, 2007 U.S. Dist. LEXIS 19690, at *14-15 (E.D.N.Y. Mar. 20, 2007), courts in this Circuit have held that the FLSA itself does not require such written consent in order for a plaintiff to file a motion for conditional certification, see, e.g.

Aros v. United Rentals, Inc., 269 F.R.D. 176, 181 (D. Conn. 2010) ("The court concludes that denying the Motion for Conditional Certification...would undermine the FLSA's broad remedial purpose"). Moreover, "[t]he purpose of this consent requirement... is to put the Defendants on notice, which many courts have noted is somewhat redundant with regard to named plaintiffs," particularly when the named plaintiff has submitted sworn affidavits to the court, participated in depositions, and otherwise taken necessary action to pursue his claims and demonstrate that he "intends to participate in the lawsuit." D'Antuono v. C&G of Groton, Inc., No. 11 Civ. 33, 2012 U.S. Dist. LEXIS 49788, at *6-7, 10-11 (D.Conn. Apr. 9, 2012).

Given that defendants expressly acknowledged, in their answer, that Ahmed purports to bring this action "pursuant to FLSA, 20 U.S.C.s. 216(b), on behalf of 'Assistant Mangers' employed in T.J. Maxx stores" (see Answer at ¶ 8), it cannot be said that defendants lacked notice of Ahmed's consent, nor can it be said that defendants were unaware of Ahmed's intent to pursue his claims as part of a collective action, particularly as Ahmed has already participated in a deposition and has submitted an affidavit in support of the instant motion. Consequently, while the form of Ahmed's consent may not have strictly adhered to the preferred standard in FLSA collective actions, the substance of Ahmed's complaint and his conduct throughout the discovery process was sufficient to satisfy the purpose of the written consent requirement. Furthermore, since defendants first raised this issue, Ahmed has filed a formal written consent with the Court. At this point, Ahmed is in compliance with not only the spirit, but also the letter of the written consent requirement. Thus, this Court finds that defendants had sufficient notice of Ahmed's intent to proceed with a collective action, and this Court will therefore consider Ahmed's request for conditional certification as a collective action on its merits.

II. Conditional Certification

Pursuant to section 216(b) of the FLSA, plaintiffs have a private right of action to recover unpaid overtime compensation "against any employer . . . by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. ยง 216(b). However, an employee can only become a party to such action if he or she opts in to the action by providing consent, in writing, and filing such consent in the court where the action is pending. See id.; see also Patton v. Thomson Corp., 364 F. Supp. 2d 263, 266 (E.D.N.Y. 2005) ("[O]ther employees can become plaintiffs, and thereby be bound by the action's determination, only by affirmatively acting to do so."). Courts have discretion to authorize sending ...


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