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Crosby v. Stage Stores Inc.

United States District Court, M.D. Tennessee, Nashville Division

May 3, 2019

MAYA CROSBY and DENEEN PATTON, on behalf of themselves and all those similarly situated, Plaintiffs,
v.
STAGE STORES, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiffs' Motion for Corrective Notice. (Doc. No. 89.) Stage Stores, Inc. (“Stage”) has responded in opposition, to which Plaintiffs have replied. (Doc. Nos. 105, 115.) For the reasons set out below, Plaintiffs' Motion for Corrective Notice will be denied.

         I. Factual Background

         Plaintiffs initially sought certification of a collective class, pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), consisting of all past and present employees of Stage who held various associate-level positions at Stage stores. (See Doc. No. 30.) On December 5, 2018, the Court granted Plaintiffs' Motion for Court-Authorized Notice Pursuant to Section 216(b) of the FLSA (Doc. No. 30) and ordered Stage to: (1) provide Plaintiffs' counsel with a list of the contact information (names, addresses, and email addresses) for putative class members; and (2) confer with Plaintiffs' counsel to arrive at an agreeable proposed Notice and Consent form. (Doc. No. 51.) The parties filed a proposed Notice and Consent form, which informed putative class members, among other things, that: (1) federal law prohibited an employer (i.e., Stage) from firing or in any way retaliating against them because of their participation in the lawsuit; and (2) any questions or additional information should be directed to Plaintiffs' counsel. (Doc. No. 56-1 at 4.) The Court approved the proposed Notice and Consent form and it was disseminated among the putative class members. (Doc. No. 58.)

         Subsequently, Plaintiffs filed the instant motion seeking: (1) authorization to provide corrective notice to the putative collective class; (2) prohibition of further discussion between Stage and putative collective members regarding the lawsuit; (3) a requirement that Stage issue a corrective communication to its managers; and (4) extension of the opt-in period by thirty (30) days from the issuance of the corrective notice. (Doc. No. 89.) In support, Plaintiffs' counsel filed three declarations: (1) her own declaration; (2) a declaration from Susan Gilson; and (3) a declaration from Taylor Washington.

         A. Counsel's Declaration

         In her own declaration, counsel explains that: (1) putative opt-in plaintiffs in at least four stores across three states have complained that they fear retaliation for joining the lawsuit; and (2) certain Stage Store Managers or District Managers have made misleading statements discouraging potential, eligible employees from joining the collective class. (See Doc. No. 91.) Plaintiffs' counsel states that a Stage employee in Georgia contacted counsel and reported that her Store Manager told her that the instant case did not “apply to her” and it would be “fraud” for her to join the lawsuit. (Id. at 1-2.) Plaintiffs' counsel contacted Stage's counsel to alert them, Stage's counsel requested the pertinent information (i.e., the specific store, Store Manager, etc.), but Plaintiffs' counsel did not provide that information. (Id. at 2.) Instead, Plaintiffs' counsel requested that Stage issue a communication across all of its stores notifying store employees that any kind of retaliation against potential class members for asking questions, discussing, or otherwise joining the lawsuit was prohibited. (Id.)

         Stage's counsel forwarded to Plaintiffs' counsel a communication sent to all the District Managers, informing them that any kind of retaliation against employees for asking about or joining the lawsuit was strictly prohibited. (Id. at 2-3.) Upon receiving the communication, Plaintiffs' counsel requested that Stage issue a second communication reiterating that, to the extent potential class members had questions, they should contact the notice administrator or Plaintiffs' counsel. (Id. at 3.) Shortly after Plaintiffs' counsel sent this request, the notice administrator contacted Plaintiffs' counsel and informed her that a potential collective member working in Texas reported a fear of retaliation for joining the lawsuit. (Id. at 3.) Plaintiffs' counsel again contacted Stage's counsel regarding this second complaint and requested that Stage issue the proposed follow-up notice. (Id.)

         Stage's counsel responded that: (1) its initial communication was adequate; (2) it had sent an additional communication to upper-level employees regarding the lawsuit, but this second communication was privileged and could not be shared; and (3) it needed more information from Plaintiffs' counsel about the specifics of the new Texas-based complaint in order to initiate an investigation. (Id. at 3-4.) Following this exchange, a Stage employee working in a store in Round Rock, Texas, reported to Plaintiffs' counsel that multiple employees at her store feared retaliation for joining the lawsuit due to the District Manager. (Id. at 4.) In this instance Plaintiffs' counsel provided the relevant information, including the specific store and employee, to Stage and again requested that Stage issue the previously-suggested follow-up notice. (Id.) Stage declined to issue any further communications to its employees. (Id.)

         Shortly after the Round Rock, Texas complaint (the third complaint), Plaintiffs' counsel received reports that Stage's Human Resources employees had begun calling employees who worked at the Round Rock store and inquiring as to whether these employees had joined the lawsuit. (Id.) Additionally, a fourth complaint was reported from Stage's New York store, stating that a District Manager was discouraging employees from opting into the lawsuit by suggesting that the lawsuit did not apply to certain employees. (Id.) Plaintiffs' counsel reported these issues to Stage, but Stage declined to issue any corrective notice or otherwise intervene. (Id. at 4-5.) Plaintiffs' counsel arranged a meet and confer call to address these issues with Stage, which was held on March 7, 2019. (Id. at 5.) The parties remained at an impasse following the call, necessitating the instant motion. (Id.)

         B. Susan Gilson Declaration

         In her declaration, Susan Gilson explains that she was employed by Stage in the Round Rock, Texas store from approximately November 2016 to March 2019. (Doc. No. 116.) She asserts that, shortly after receiving the § 216(b) notice, she became aware that “some of my coworkers who had also received the notice feared retaliation for joining the lawsuit.” (Id. at 1.) Gilson “heard” that her District Manager had made threatening comments in the past, which suggested that the District Manager “would retaliate.” (Id. at 1-2.) She also notes that, on or around March 6, 2019, Eddie Miller, a member of Stage Stores' Human Resources department, called her and asked her: (1) how she found out about the lawsuit; and (2) whether she had elected to join. (Id. at 2.) Miller also asked whether she had spoken with anyone about the lawsuit and whether anyone had “intimidated her.” (Id.) Gilson states that she “did not believe it was Mr. Miller's business to ask whether [she] had joined the lawsuit and who [she] had spoken with regarding the lawsuit.” (Id.)

         On this same day, she also “heard” from several of her coworkers that representatives from Store's HR department had also contacted them, and these coworkers felt “uncomfortable and intimidated as a result.” (Id.) Gilson also recounts that she “heard” from Dana Roberts, the Store Manager, that Miller had requested to speak with an employee that was not present, and, when Roberts informed him that he could not speak with that particular employee, Miller accused Roberts of having a “bad attitude” and reported her to the District Manager. (Id.) Gilson states that this interaction was merely “more evidence that Stage's HR department was intimidating, not helpful, to employees.” (Id.) Ultimately, Gilson opted in to the lawsuit on or around March 11, 2019. (Id.)

         C. Washingt ...


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