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Ratcliffe v. Food Lion, LLC

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

August 16, 2019

FOOD LION, LLC, Defendant.



         Pending 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. No. 49).


         Plaintiff 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.


         The 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[1] than those seeking to certify a class under Rule 23. Watson v. Advanced Distribution Servs., 298 F.R.D. 558, 561 (M.D. Tenn. 2014).

         Generally, 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[2] takes place at the beginning of discovery, [3] 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. Id.

         Although 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.

         A court 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. Id.


         The 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).


         Plaintiff claims that Defendant's policies, practices and procedures are the same in all Food Lion stores.[4] 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 Lion stores.

         In 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 ...

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