United States District Court, W.D. Tennessee, Eastern Division
TIFFNEY PENLEY, individually and on behalf of others similarly situated, and ASHLEY LEWIS, individually and on behalf of others similarly situated, Plaintiffs,
NPC INTERNATIONAL, INC., Defendant.
ORDER WITHDRAWING REFERRAL (D.E. 141) & GRANTING
PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION (D.E.
DANIEL BREEN, CHIEF UNITED STATES DISTRICT JUDGE
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. (D.E. 138.) Defendant filed a response,
(D.E. 173-1), to which Penley and Lewis filed a reply (D.E.
motion was previously referred to the magistrate judge, (D.E.
141), but that referral is WITHDRAWN.
procedural and factual background of this case, one of five
related FLSA cases,  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.)
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
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.)
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.(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.)
and Lewis seek to pursue this FLSA suit as a collective
action. Section 216(b) of the FLSA provides in pertinent
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.
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.
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.
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.
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.
Frye v. Baptist Mem'l Hosp., Inc., No. 07-2708,
2008 WL 6653632, at *4 (W.D. Tenn. Sept. 16, 2008) (footnote
contrast to this lenient standard, some courts apply a
slightly elevated “modest plus” standard where
discovery has been conducted during the ...