United States District Court, M.D. Tennessee, Nashville Division
RICHARDSON UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion for Conditional
Certification and Court-Authorized Notice Pursuant to 29
U.S.C. § 216(b) (Doc. No. 29). Defendant has filed a
Response (Doc. No. 48), and Plaintiff has filed a Reply (Doc.
alleges that she and other Assistant Store Managers
(“ASMs”) who have worked for Defendant in Food
Lion stores have been misclassified as “exempt”
workers under the Fair Labor Standards Act
(“FLSA”) and have been denied overtime
compensation for overtime hours regularly worked. Plaintiff
contends that ASMs should not have been classified as
“exempt” under the FLSA because they spend the
majority of their time performing the same duties that hourly
employees perform. She asserts that Defendant's
company-wide policies, patterns and practices violate the
FLSA. Plaintiff asks the Court to conditionally certify
“a proposed collective of Assistant Store Managers who
worked at any Food Lion location in the United States between
March 17, 2015 and the present and whom Food Lion classified
as exempt.” Doc. No. 29.
FLSA provides that a collective action to recover
compensation may be maintained against any employer by any
one or more employees for and on behalf of themselves and
other employees similarly situated. 29 U.S.C. § 216(b).
Unlike class actions under Fed.R.Civ.P. 23, FLSA collective
actions require similarly situated employees to “opt
in” as party plaintiffs. Also, because the FLSA
requires only that the employees be “similarly
situated, ” plaintiffs seeking to certify a collective
action under the FLSA face a lower burden than those
seeking to certify a class under Rule 23. Watson v.
Advanced Distribution Servs., 298 F.R.D. 558, 561 (M.D.
courts recognize a two-step process to determine whether
plaintiffs are similarly situated. Bradford v.
Logan's Roadhouse, Inc., 137 F.Supp.3d 1064, 1071
(M. D. Tenn. 2015). The first step takes place at the beginning
of discovery,  where the plaintiff bears the burden of
showing that employees in the purported class are similarly
situated. Id. The plaintiff must show only that her
position is similar, not that it is identical, to the
positions held by the putative class members. Id.
(citing Comer v. Wal-Mart Stores, Inc., 454 F.3d
544, 546 (6th Cir. 2006)). At this first stage, courts use a
“fairly lenient standard” that typically results
in conditional certification of a representative class.
the required factual showing is “modest, ” it
cannot be satisfied simply by unsupported assertions.
Medley v. Southern Health Partners, Inc., No.
1:17-cv-00003, at * 5 (M.D. Tenn. Aug. 15, 2017). The named
plaintiff must present some factual support for the existence
of a class-wide policy or practice that violates the FLSA.
Id. A plaintiff must submit evidence establishing at
least a colorable basis for her claim that a class of
similarly situated plaintiffs exists, and the fact that a
defendant submits competing declarations will not as a
general rule preclude conditional certification. Id.
At the first stage, a plaintiff must present substantial
allegations supported by declarations; if the plaintiff meets
that burden, a court, in its discretion, may conditionally
certify the case as a collective action. Id.
may consider the factual record developed to date when
determining whether the plaintiff has met her evidentiary
burden, but the court does not resolve factual disputes,
decide substantive issues going to the merits, or make
credibility determinations at this first stage.
Bradford, 137 F.Supp.3d at 1072. If a court
determines that conditional certification is warranted, it
may authorize the notification of similarly situated
employees to allow them to opt into the lawsuit. Id.
Such certification is conditional and by no means final.
FLSA does not define the term “similarly situated,
” but courts have held 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
plaintiffs. Bradford, 137 F.Supp.3d at 1071;
Watson, 298 F.R.D. at 561. Employees may be
similarly situated if their claims are unified by common
theories of the defendant's statutory violations, even if
the proofs of these theories are individualized and distinct.
Id. In the FLSA context, courts have consistently
required the plaintiffs to show that the class members were
together the victims of a “single decision, policy, or
plan” before they will certify a collective action.
Pacheco v. Boar's Head Provisions Co., 671
F.Supp.2d 957, 961 (W.D. Mich. 2009).
claims that Defendant's policies, practices and
procedures are the same in all Food Lion
stores. She alleges that Defendant uniformly
assigns the same job description and duties across all
grocery store locations. Plaintiff contends that she and
other ASMs regularly worked more than 40 hours per week and
were paid no overtime compensation. She alleges that the
primary duties of ASMs are, contrary to the uniform job
description, non-managerial, manual duties similar to those
performed by hourly employees. She asserts that she and other
ASMs performed substantially these same duties in all Food
support of her claim, Plaintiff has filed the job description
for ASMs (Doc. No. 31-3). The job description, however, is
not evidence of Defendant requiring ASMs to engage in
primarily non-managerial duties. In fact, the job duties