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Penley v. NPC International, Inc.

United States District Court, W.D. Tennessee, Eastern Division

December 13, 2016

TIFFNEY PENLEY, individually and on behalf of others similarly situated, and ASHLEY LEWIS, individually and on behalf of others similarly situated, Plaintiffs,



         On January 29, 2013, Plaintiffs, Tiffney Penley and Ashley Lewis, filed a complaint on behalf of themselves and others similarly situated against Defendant, NPC International, Inc. (“NPC”), alleging that NPC violated the Fair Labor Standards Act (“FLSA”) by failing to compensate her and others similarly situated as required by statute. (Docket Entry (“D.E.”) 1.) Before the Court is Plaintiffs' second motion for conditional certification.[1] (D.E. 138.) Defendant filed a response, (D.E. 173-1), to which Penley and Lewis filed a reply (D.E. 178).

         This motion was previously referred to the magistrate judge, (D.E. 141), but that referral is WITHDRAWN.

         I. BACKGROUND

         The procedural and factual background of this case, one of five related FLSA cases, [2] is substantial and has been thoroughly discussed by the Sixth Circuit Court of Appeals. See Gunn v. NPC Int'l, Inc., 625 F.App'x 261, 263 (6th Cir. 2016). Briefly, NPC owns and operates 1, 260 Pizza Hut restaurants in twenty-eight states. (D.E. 173-1 at PageID 2892.) Penley and Lewis were employed by NPC as shift managers at its restaurant in Henderson, Tennessee. (D.E. 140-1 at PageID 2075.) Plaintiffs allege that Defendant violated the FLSA by requiring them and other shift managers to perform work, undergo training sessions, and attend meetings off the clock without compensation. (Id.)

         Plaintiffs submit that decisions regarding compensation practices and other terms of employment were made by centralized management at NPC's headquarters in Overland Park, Kansas. (D.E. 1.) They contend that NPC has “a uniform policy and practice of incentivizing” general managers of its individual restaurants, as well as area managers, “to encourage, permit and/or require” employees to perform off the clock work. (Id.) Since it was filed, more than fifty opt-in plaintiffs have filed consents to join the lawsuit.

         In support of the motion, Penley and Lewis have provided declarations from thirty-eight current and former shift managers from various Pizza Hut locations. (See D.E. 138-6.) They are representative of restaurants located in twelve states. (Id.) The statements provided echo the allegations set forth by Plaintiffs in the complaint. Generally, these declarants allege that they were required to work off the clock and attend mandatory training sessions and meetings off the clock without compensation. Declarants aver that management directed them to perform this off-the-clock work as a means to lower Defendant's labor costs to acceptable corporate levels. (Id.)

         In the instant motion, Plaintiffs seek certification of a collective action and request that NPC produce the names of and send notice to all current and former shift managers who were subjected to Defendant's alleged illegal policies at any time during the previous three years.[3](D.E. 138-1.) NPC strenuously objects to conditional certification. Defendant avers that Plaintiffs have not demonstrated that a similarly situated class of shift managers exists and maintains that restaurant general managers are responsible for the violations asserted because NPC's company-wide policies comply with the FLSA. (D.E. 173-1 at PageID 2891.)


         Penley and Lewis seek to pursue this FLSA suit as a collective action. Section 216(b) of the FLSA provides in pertinent part:

An action [under § 206] may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). Collective actions under the FLSA require putative class members to opt in to the class. O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 583 (6th Cir. 2009). Also, in contrast to Federal Rule of Civil Procedure 23 class actions, an FLSA collective action is not subject to the traditional numerosity, commonality, typicality, and representativeness requirements. Whalen v. United States, 85 Fed.Cl. 380, 383 (Fed. Cl. 2009).

         In Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989), the United States Supreme Court “made it clear that the collective action provisions of the FLSA authorize[] a trial court to issue court-supervised notice to potential class members.” Belcher v. Shoney's, Inc., 927 F.Supp. 249, 250-51 (M.D. Tenn. 1996) (internal citation omitted). Court-supervised notice is appropriate where lead plaintiffs demonstrate that they are “similarly situated” to employees in the class they seek to certify. 29 U.S.C. § 216(b); O'Brien, 575 F.3d at 583. Courts typically engage in a two-phase inquiry to determine whether the lead plaintiff has satisfied that showing. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). “The first takes place at the beginning of discovery. The second occurs after all of the opt-in forms have been received and discovery has concluded.” Id. (internal quotation omitted). The present case is at the first phase of the collective action where the Court must determine whether to “conditionally” certify the proposed class. See id.

         Although the FLSA does not define the meaning of “similarly situated, ” the Sixth Circuit's O'Brien decision offered clarification of that term. Despite declining “to create comprehensive criteria for informing the similarly-situated analysis, ” the O'Brien court did state “that plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” 575 F.3d at 585. “Showing a ‘unified policy' of violations is not required, though.” Id. at 584 (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir. 1996)). Plaintiffs may also be similarly situated where “their claims [are] unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct.” Id. at 585. Under the circumstances of O'Brien, “[t]he claims were unified so, because plaintiffs articulated two common means by which they were allegedly cheated: forcing employees to work off the clock and improperly editing time-sheets.” Id.

         The parties disagree as to which standard this Court should apply to evaluate whether members of the putative class are similarly situated to Penley and Lewis. Plaintiffs contend that the traditional “modest” standard is appropriate, while Defendant urges the Court to apply a more stringent “modest plus” standard.

         Under the traditional standard, a plaintiff's burden at this stage is “fairly lenient, ” and the lead plaintiff must make only a “modest factual showing” that she is similarly situated to members of the prospective class she seeks to certify and send court-supervised notice. Comer, 454 F.3d at 547 (quoting Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 497 (D.N.J. 2000), and Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 596 (S.D. Ohio 2002)). Because of the lenient standard, district courts typically grant conditional certification of collective actions. Id. Thus,

[s]everal courts have recognized that the named plaintiff's burden at this stage is not a heavy one. White v. MPW Indus. Servs., 236 F.R.D. 363, 367 (E.D. Tenn. 2006); Swallows v. City of Brentwood, Tenn., 2007 U.S. Dist. LEXIS 61130, 2007 WL 2402735, at *2 (M.D. Tenn. Aug. 20, 2007). “[T]he burden of proof is relatively slight at this stage of the case because the Court is not making a substantive determination on the basis of all the evidence but simply adopting a procedure which permits notice to be given to other potential class members.” McDonald v. Madison Township Bd. of Township Trustees, 2007 U.S. Dist. LEXIS 76450, at *6 (S.D. Ohio Oct. 5, 2007). At the notice stage, the plaintiff must show that “his position is similar, not identical, to the positions held by the putative class members.” Comer, 454 F.3d at 546-47 (quoting Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002)).

Frye v. Baptist Mem'l Hosp., Inc., No. 07-2708, 2008 WL 6653632, at *4 (W.D. Tenn. Sept. 16, 2008) (footnote omitted).

         In contrast to this lenient standard, some courts apply a slightly elevated “modest plus” standard where discovery has been conducted during the ...

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