United States District Court, W.D. Tennessee, Eastern Division
CANDACE JOWERS, individually and on behalf of others similarly situated, Plaintiff,
NPC INTERNATIONAL, INC., Defendant.
ORDER WITHDRAWING REFERRAL (D.E. 196) & GRANTING
PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION (D.E.
DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE
January 30, 2013, Plaintiff, Candace Jowers, filed a
complaint on behalf of herself 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 Jowers's second motion for conditional
certification. (D.E. 193.) Defendant filed a response,
(D.E. 235-1), to which Jowers filed a reply (D.E. 244). This
motion was previously referred to the magistrate judge, (D.E.
196), but that referral is WITHDRAWN.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. 2015). Briefly, NPC owns and operates 1, 260 Pizza Hut
restaurants in twenty-eight states. (D.E. 235-1 at PageID
3200.) Jowers was employed by NPC as a delivery driver at its
restaurant in Lexington, Tennessee. (D.E. 193-1 at PageID
2107.) Plaintiff alleges that Defendant violated the FLSA by
requiring her and other drivers to perform work, undergo
training, and attend meetings without being clocked in.
submits 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.)
She contends 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,
approximately 125 opt-in plaintiffs have filed consents to
join the lawsuit.
support of the motion, Jowers has provided declarations from
eighty-three current and former drivers from various Pizza
Hut locations. (See D.E. 193-5.) They are
representative of restaurants located in fourteen states.
(Id.) The statements provided echo the allegations
set forth by Plaintiff in the complaint. Generally, these
declarants allege that they were required to work, attend
meetings, and undergo training without clocking in at the
direction of management as a means of reducing labor costs to
acceptable corporate levels.
instant motion, Jowers seeks certification of a collective
action and requests that NPC produce the names of and send
notice to all current and former delivery drivers who were
subjected to Defendant's alleged illegal policies at any
time during the previous three years.(D.E. 193-1.) NPC strenuously
objects to conditional certification. Defendant avers that
Plaintiff has not demonstrated that a similarly situated
class of drivers 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.
235-1 at PageID 3199.)
seeks 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.
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 Jowers. Plaintiff contends 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 pre-certification
stage. In conducting an analysis under this standard,
th[e] Court will compare Plaintiffs' allegations set
forth in their Complaint with the factual record assembled
through discovery . . . to determine whether Plaintiffs have
made [a] sufficient showing beyond their original allegations
that would tend to make it more likely that a class of
similarly situated employees exist. In other words, the Court
will review whether Plaintiffs have advanced the ball down
the field-showing that it is ...