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Brown v. Barnes and Noble, Inc.

United States District Court, S.D. New York

May 2, 2017

KELLY BROWN and TIFFANY STEWART, individually and on behalf of all others similarly situated, as Class/Collective representative, Plaintiffs,


          KATHARINE H. PARKER United States Magistrate Judge.

         Plaintiffs, individually and on behalf of all others similarly situated, assert that Defendant Barnes & Noble, Inc. violated the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., by failing to compensate its Café Managers (“CMs”) for hours worked in excess of forty hours per week. Plaintiffs now move for conditional certification of their FLSA claims as a collective action and for leave to disseminate notice to the putative FLSA collective, pursuant to 29 U.S.C. § 216(b). For the reasons stated below, Plaintiffs' motion is denied without prejudice.


         Defendant owns and operates 634 bookstores in all 50 states. Defendant operates a Barnes & Noble Café, where customers may purchase coffee and other drinks, food, and baked goods, in 583 of its stores. Defendant employs a CM in each café. Excluding California, Defendant has employed approximately 1, 100 individuals as CMs in the past three years.[1] Defendant also employs hourly café employees, called “Café Servers, ” at all of its locations, as well as one or two “Café Leads” in many stores.[2] Café Servers and Café Leads report to the CM.

         According to Defendant, CMs are management employees whose primary function is to manage the day-to-day operations of the cafés.[3] The CM job description summarizes the CM position as follows:

As a Café Manager, you are responsible for the daily operations of the Café, ensuring consistency with our bookselling culture, world-class customer service focus, digital initiatives, and merchandising standards. You lead by example and foster an employee-centric environment and focus Café servers on maximizing sales and productivity through the delivery of our four core service principles in the Café. You select, hire and develop café servers, ensuring a talent bench which reflects the communities we serve.

(Doc. No. 27-8.) The CM job description also lists 14 “Essential Functions, ” including, inter alia:

• Manage and execute the daily operations of the Cafe; execute e-Planner to standard; customize, communicate, delegate, perform, and follow up on all tasks as the business demands.
• Drive sales by coaching and counseling Cafe servers to deliver the four core service principles in the Cafe: provide timely and friendly café[] service, upsell, maintain product presentation standards, and maintain Cafe cleanliness.
• Coach and communicate with the Cafe servers about all our products and services, enthusiastically model selling behavior, share technical knowledge, and provide recommendations about ways to connect our customers with the right products.
• Ensure that product quality and Cafe standards are executed and maintained; manage inventory levels, receiving, purchasing, waste control, and equipment maintenance and repair.
• Select, interview, and recommend the hiring of new Cafe servers; oversee and monitor the new hire orientation and training process, ensuring a smooth acclimation to the store and our bookselling culture in partnership with the store manager.
• Prepare and deliver performance reviews to Cafe servers; coach and counsel them on performance issues and take appropriate corrective action in partnership with the store manager.
• Maintain facility's conditions and take immediate action to correct any maintenance issues.

(Doc. No. 27-8.)

         Prior to September 2016, Defendant classified CMs as exempt from the overtime provisions of the FLSA. CMs received an annual salary and were eligible for performance bonuses based on their café's performance. In September 2016, Defendant reclassified the CM position as non-exempt under the FLSA.

         That same month, on September 20, 2016, Plaintiffs commenced this action alleging that they had been improperly classified as exempt employees. Plaintiffs claim that they regularly worked more than 40 hours per week and were improperly denied overtime compensation under the FLSA. Plaintiffs also bring claims under the Illinois and New York wage and hour laws.

         Named Plaintiff Kelly Brown was employed as a CM in two of Defendant's Illinois stores from September 2012 to February 2015.[4] Eight additional Plaintiffs subsequently filed forms consenting to become a party in this FLSA action. These eight Plaintiffs were employed as CMs in various stores located in Illinois, Connecticut, Arizona, Rhode Island, South Carolina and North Carolina at varying times between 2005 and April 2016.[5] Based on the evidence presented to the Court, none of the Plaintiffs are currently employed by Defendant. Plaintiff Christopher Corrado was the last Plaintiff to terminate his employment with Defendant in April 2016; thus, none of the Plaintiffs were employed between April 2016 and September 2016, a portion of the class period that Plaintiffs seek to certify.

         On November 22, 2016, Plaintiffs moved to conditionally certify a FLSA collective action consisting of all individuals employed as CMs nationwide since November 22, 2013. In support of the motion, six Plaintiffs submitted declarations with nearly identical, cursory descriptions of their work for Defendant. Plaintiffs uniformly assert that their “primary duties” involved the performance of non-exempt tasks, such as “making coffee and other beverages, preparing food, serving customers, working on the cash register, and cleaning the café.” (Doc. No. 27-2, ¶ 9; see also Doc. No. 27-3, ¶ 9; Doc. No. 27-4, ¶ 11; Doc. No. 27-5, ¶ 9; Doc. No. 27-6, ¶ 8; Doc. No. 27-7, ¶ 9.) Plaintiffs claim that they spent the “majority of [their] time performing these duties.” (Id.) They also allege that the primary duties of the CM position “did not involve management of any other employees of [Barnes & Noble], ” and that their “primary duties” did not include hiring, firing, promoting or setting the rates of pay for other employees. (Doc. No. 27-2, ¶ 11; see also Doc. No. 27-3, ¶ 11; Doc. No. 27-4, ¶ 13; Doc. No. 27-5, ¶ 11; Doc. No. 27-6, ¶ 10; Doc. No. 27-7, ¶ 11.) Plaintiffs further allege that they are aware of other CMs at different locations who also performed the same or similar “primary duties.”

         Plaintiffs also contend that Defendant maintained detailed policies, procedures, and rules that controlled how CMs performed their duties and established uniform operating standards for the stores and cafés. As examples, Plaintiffs allege there are policies governing how to perform customer service, the pricing of café products, how to prepare the food and beverages sold in the café, how to process register transactions, what types of food and drinks are sold in the café, and the hours of operation at the café, among other things. Plaintiffs did not, however, submit copies of any of these policies as part of their motion.

         In opposition to Plaintiffs' motion, Defendant submitted performance reviews for several of the Plaintiffs and the “Café Manager Competency Model, ” which sets forth the skills CMs are expected to possess and against which their performance is assessed. Defendant also annexed emails from Plaintiff Brown which show that she planned the ...

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